State Consumer Disputes Redressal Commission
Mrs. Shahin Ahmed vs Herpertpur Christan Hospital & Another on 6 January, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
CONSUMER COMPLAINT NO. 15 / 2017
Smt. Shahin Ahmed aged about 32 years' W/o Sh. Shadab Ahmed
R/o Near Forest Barrier, Village & Post Office Sahaspur
Tehsil Vikasnagar, District Dehradun (Uttarakhand)
...... Complainant
Versus
1. Herbertpur Christian Hospital
Herbertpur, Tehsil Vikasnagar
District Dehradun (Uttarakhand) service through its Manager
2. Dr. Ahujas' Pathology and Imaging Centre
7-B, Astley Hall, Dehradun (Uttarakhand)
Service through its Manager
3. Suri Diagnostic & Imaging Centre
16, New Road, Opposite M.K.P. Inter College
Dehradun (Uttarakhand) service through its Manager
...... Opposite Parties
Sh. Aditya Birla, Learned Counsel for the Complainant
Sh. Vaibhav Jain, Learned Counsel for Opposite Party No. 1
Sh. Parveen Kumar, Learned Counsel for Opposite Party Nos. 2 & 3
Coram: Hon'ble Mr. Justice D.S. Tripathi, President
Mr. Udai Singh Tolia, Member-II
Dated: 06/01/2023
ORDER
(Per: Justice D.S. Tripathi, President):
This consumer complaint under Section 12 read with Section 18 of the Consumer Protection Act, 1986 has been filed by Smt. Shahin Ahmed (hereinafter to be referred to as "complainant") against (1) Herbertpur Christian Hospital, Herbertpur; (2) Dr. Ahujas' Pathology and Imaging Centre, Dehradun and (3) Suri Diagnostic & Imaging Centre, Dehradun - opposite parties, alleging medical negligence on the part of the opposite parties.2
2. According to office report, this consumer complaint has been filed after a delay of 1 year 6 months' and 26 days'. For condonation of delay in filing the consumer complaint, the complainant has moved an application (Paper No. 124) under Section 24A of the Consumer Protection Act, 1986, thereby seeking condonation of delay in filing the consumer complaint, which is supported by complainant's affidavit (Paper Nos. 125 to 128).
3. We have heard arguments advanced by learned counsel for the parties on delay condonation application and perused the record.
4. The case in hand has got a checkered history. The consumer complaint was filed by the complainant before this Commission on 31.05.2017 along with an application seeking condonation of delay in filing the consumer complaint. Vide order dated 10.05.2018 passed by this Commission, the consumer complaint was dismissed for want of prosecution. Aggrieved, the complainant filed First Appeal No. 1073 of 2018; Shahin Ahmed Vs. Herbertpur Christian Hospital and others, before Hon'ble National Commission, which was decided on 13.07.2018, thereby setting aside the order dated 10.05.2018 passed by this Commission and restoring the consumer complaint to its original number, subject to observations made in the order dated 13.07.2018 of Hon'ble National Commission. Accordingly, the consumer complaint stood restored to its original number.
5. Thereafter, vide order dated 24.01.2019 passed by this Commission, the consumer complaint was again dismissed for want of prosecution. Aggrieved, the complainant preferred First Appeal No. 366 of 2019; Shahin Ahmed Vs. Herbertpur Christian Hospital and others, before Hon'ble National Commission. Hon'ble National 3 Commission through its order dated 12.06.2019 set aside the order dated 24.01.2019 passed by this Commission and restored the consumer complaint to its original number. In pursuance of Hon'ble National Commission's order, consumer complaint was restored to its original number.
6. In the affidavit filed by the complainant in support of delay condonation application, it has been averred that the complainant is a layman, not acquainted with the legal system and procedure of the court. In April, 2015, the complainant engaged Sh. Gaurav Singh, Advocate, who had advised the complainant to file a Writ Petition before Hon'ble High Court of Uttarakhand at Nainital against opposite party Nos. 1 and 3 for their professional misconduct, committing medical negligence. The complainant handed over complete set of documents in original and signed blank papers to the counsel and paid Rs. 5,000/- as filing expenses. Sh. Gaurav Singh, Advocate assured the complainant that being the civil matter, there is no need of personal presence of the complainant at the time of admission and further assured that he will prepare and file the Writ Petition. The complainant relied upon the said Advocate and whenever the complainant made inquiry about the fate of her Writ Petition, the counsel always assured that as & when the said Writ Petition would be accepted, he would intimate the complainant, but when the counsel could not provide satisfactory reply, the complainant went to Nainital in the month of June, 2016, where she was told by the counsel that on account of some technical reasons, the Writ Petition could not be filed and the counsel had returned the documents to the complainant.
7. It is further averred that in the month of July, 2016, the complainant's husband met with an accident and on account of the 4 injuries, his movement was restricted and he is still under treatment. In the month of March, 2017, the complainant managed to consult a new counsel, who suggested the complainant that she should file a consumer complaint against opposite party Nos. 1 and 3. The complainant through her counsel Sh. Amit Sharma, Advocate issued a legal notice dated 06.04.2017 to the opposite parties, which was duly served upon the opposite parties and the opposite party through Sh. Atul Virmani, Advocate has issued the reply dated 19.04.2017. The technicality should not come in the way of imparting justice to the parties to the case and the matter should be decided on its merit. There exists sufficient and valid grounds for condonation of delay in filing the consumer complaint. The delay was bonafide due to unavoidable reasons and circumstances beyond her control. It has been prayed that the delay in filing the consumer complaint be condoned and the consumer complaint be admitted and heard on merit.
8. Objections (Paper No. 165) along with counter affidavits (Paper Nos. 166 to 169 and 170 to 173) have been filed by opposite party Nos. 2 and 3 against the delay condonation application. The contents of both the counter affidavits are verbatim. Dr. (Smt.) Shalini Suri has filed affidavit being the owner / proprietor of opposite party No. 3, whereas Dr. Alok Ahuja has filed affidavit being the owner / proprietor of opposite party No. 2. In the affidavits, it has been stated that taking plea of being layman in delay condonation application, is not permissible under law. The complete name and address of Sh. Gaurav Singh, Advocate has not been given by the complainant, nor it has been stated as to where he is practicing. The complainant has not disclosed any date as to when she had handed over the documents to her alleged counsel. The complainant has also not stated as to what prevented her from inquiring from her counsel about the proceedings 5 of the case from April, 2015 till June, 2016. The complainant has also not disclosed what prevented her from consulting another lawyer from the date of discharge of her husband from the hospital, i.e., 27.07.2016 till March, 2017. The complainant herself admits that the opposite party No. 2 has been wrongly impleaded as party to the consumer complaint. The legal notice dated 06.04.2017 was duly replied through reply dated 19.04.2017. No grounds have been given or explained by the complainant in the affidavit, which fall under the category of "sufficient grounds". The consumer complaint is highly belated and barred by time. The delay condonation application filed by the complainant is liable to be dismissed with special cost.
9. The opposite party No. 1 filed objections (Paper Nos. 206 to
208) against the delay condonation application, wherein it was stated that the present consumer complaint has been filed by the complainant after exorbitant delay. The complainant is not entitled to any benefit of her own wrong. As per the consumer complaint, the alleged cause of action arose in the year 2013, whereas the consumer complaint was filed in the year 2017, after a period of more than four years'. The complainant has failed to explain day-to-day delay. It has been held by superior Courts that negligence of a counsel is not a ground to condone the delay. The complainant has not given any explanation for the period between April, 2015 to June, 2016 as well as from July. 2016 to March, 2017. The complainant has been deliberately delaying the matter throughout and has been negligent. The application for condonation of delay is an abuse of the process of law and is liable to be dismissed.
10. Section 24A of the Consumer Protection Act, 1986 provides limitation period for filing the consumer complaint. The said Section is reproduced below:
6"24A. Limitation period - (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen."
11. A perusal of the consumer complaint shows that last cause of action arose in favour of the complainant on 05.11.2013, when she gave birth to a male child, who was unfortunately born as a permanent handicapped (paragraph No. 7 of the consumer complaint). Merely by issuing legal notice, the limitation period does not get extended. Even otherwise, as per the complainant herself, the consumer complaint has been filed beyond the limitation period provided under the Act, hence she has to satisfactorily explain the delay right from the date of accrual of cause of action.
12. The first ground taken by the complainant for condonation of delay in filing the consumer complaint is negligence of alleged Sh. Gaurav Singh, Advocate, who advised the complainant to file a Writ Petition before Hon'ble High Court of Uttarakhand at Nainital against opposite party Nos. 1 and 3. As per the complainant, the above advice was given to her in April, 2015 and till June, 2016, i.e., for a period of more than a year, she remained assured upon her said counsel and did not even try to know about the fate of her Writ Petition, which was proposed to be filed by the said counsel before Hon'ble High Court of Uttarakhand at Nainital. It is important to mention here that in para 6 of the affidavit, the complainant has stated that she handed over complete set of documents in original and blank papers to her above counsel. In the same para, it has been averred that when the counsel could not provide satisfactory reply in the matter, the complainant went to Nainital in June, 2016, where she was told by the counsel that 7 her Writ Petition could not be filed on account of some technical reasons and returned all the documents to the complainant. It has not been brought on record as to what were those documents and the so-called signed blank papers have also not been brought on record, in order to prove the allegations.
13. Irrespective of above, it is now well settled that on account of negligence of the counsel, the party can not get any benefit and any laches on the part of the counsel in prosecuting the matter, is to be treated as negligence / laches on the part of the concerned party itself. In the case of Swiss International Air Lines Ltd. Vs. Jitender Mohan Bhasin and others reported in III (2012) CPJ 583 (NC), there was delay of 244 days' in filing the revision petition. It was held by Hon'ble National Commission that the petitioner has failed to offer convincing rationale of reasons in support of his application. It was also held that the name of earlier counsel was not mentioned in the application and it was the duty cast on the petitioner itself to find out what has happened to his case and whether appeal has been filed or not. It was observed that there was gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner and the delay was not condoned. In the present case, as rightly submitted on behalf of the opposite parties, it has not been stated as to where alleged Sh. Gaurav Singh, Advocate practices the law. In the case of Vinod Kumar Patel Vs. Sambit Kumar Das reported in III (2012) CPJ 703 (NC), it has been held by Hon'ble National Commission that it is well settled that qui facit per alium facit per se. Negligence of a litigant's agent is negligence of the litigant himself and is not sufficient cause for condoning delay.
14. The next ground taken by the complainant is that of accident of her husband. It has been stated that in July, 2016, complainant's 8 husband met with an accident and as a result of the injuries, his movement was restricted and he is still under treatment and only in the month of March, 2017, the complainant managed to consult a new counsel, who suggested her to file a consumer complaint against opposite party Nos. 1 and 3. Thereafter legal notice dated 06.04.2017 was issued by Sh. Amit Sharma, Advocate and consumer complaint came to be filed on 31.05.2017. The copy of the FIR as well as the copy of the medical prescriptions of the complainant's husband filed on record, do not justify / satisfactorily explain delay for the period between July, 2016 to March, 2017. The reason being that none of the medical prescriptions show that the complainant's husband was so badly injured that he was required to be bed ridden during the above period. The incident is said to be dated 19.07.2016 (July, 2016). In the discharge summary dated 27.07.2016 issued by Synergy Institute of Medical Sciences, Ballupur-Canal Road, Dehradun (Paper Nos. 192 to 193), the clinical history of the patient has been mentioned as "34 year old male admitted here with alleged history of physical assault at around 8:30 p.m. on dated 19/07/16 at Mehuwala Khalsa, Vikasnagar, Dehradun. Sustained injury to right forearm. On examination, tenderness and swelling at right forearm and sutured (outside) lacerated wound over head. Initially patient was treated elsewhere then patient came to our hospital for further management". In the said discharge summary, the condition at discharge has been mentioned as "Patient is conscious, afebrile with stable vitals. Locally would healthy". Thus, there were no such injuries sustained by complainant's husband that he was not able to move or was bed ridden and the complainant remained totally busy in his care and could not consult a new counsel till March, 2017. As per the own allegation of the complainant, the injuries so sustained by her husband, had only restricted his movement, hence he was not totally dependent upon the complainant. The other medical papers filed on 9 record also do not justify the delay between the above-mentioned period. It would not be out of place to mention here that the complainant has not even cared to file the original medical papers, which also creates doubt about the genuineness of the same, as rightly argued on behalf of the opposite parties. It is worth mentioning here that there is no documentary evidence on record, nor there is any pleading to the effect, that during the period from 19.07.2016 to March, 2017, the husband of the complainant remained on medical leave from his place of work and did not attend his office during the aforesaid period. When the complainant's husband was able to attend his office, there was no occasion for the complainant to have waited till March, 2017 for consulting a new counsel and then file the instant consumer complaint. Hence, the above ground set up by the complainant for condonation of delay in filing the present consumer complaint, is also not tenable.
15. Hon'ble National Commission in the case of Jain International Sansthan Vs. Krish City, Bhiwadi and another reported in III (2016) CPJ 2 (NC), has declined to condone the delay of 168 days' in filing the revision petition and has held that no lucid excuse is forthcoming from the petitioner to justify the delay in filing the revision petition. It was held that the case is barred by time. In the said decision, reliance was placed upon the decision of Hon'ble Apex Court given in Special Leave to Appeal (Civil) No. 37183 of 2013; Sanjay Sidgonda Patil Vs. Branch Manager, National Insurance Company Limited and another, decided on 17.12.2013 reported in 2013 (SLT Soft) 6, wherein Hon'ble Apex Court has confirmed the order of Hon'ble National Commission and refused to condone the delay of 13 days'.
1016. Hon'ble National Commission in the case of HUDA Vs. Sunil Gupta reported in IV (2012) CPJ 360 (NC), has declined to condone the delay in filing the revision petition. In the said case, the delay of 36 days' in filing the revision petition was not condoned and it was held that the procedural delay is not the sufficient cause for condoning the delay. Hon'ble National Commission in the case of Rajasthan Housing Board Vs. Vishnu Chand Sharma reported in IV (2012) CPJ 676 (NC), has held that the only explanation that file was moved from table to table to get permission to file petition is not sufficient and the delay of 169 days' in filing the revision petition was not condoned.
17. Learned counsel for the complainant cited judgment of Hon'ble Apex Court in the case of State of Haryana Vs. Chandra Mani and others reported in 1996 AIR 1623 = 1996 SCC (3) 132. In the said case, there was delay of 109 days' in filing the Letters Patent Appeal, which was refused to be condoned by Hon'ble High Court. It was held by Hon'ble Apex Court that the delay of 109 days' has been explained and it is a fit case for condonation of delay. In the case before us, there is much more delay in filing the consumer complaint, which has not at all been satisfactorily explained by the complainant. Learned counsel also cited judgment of Hon'ble Gauhati High Court in the case of State of Manipur and others Vs. A.K. Cycle and Allied Centre and others reported in 2008 (1) GLT 953. In the said case, there was delay of 2141 days' in preferring the review petition. The applicants / State had blamed the concerned Government Advocate / Advocates, who had been entrusted to appear on behalf of the State in WA No. 90 / 2000, for not conducting the appeal with due diligence. The delay was condoned by Hon'ble High Court. The said judgment does not provide any help to the complainant, for the reason that now it is well settled law, as is stated above, that no benefit can 11 be given to the client on account of negligence / inaction of his / her own counsel.
18. Learned counsel for the complainant further cited another judgment of Hon'ble Apex Court in the case of Smt. Lachi Tewari and others Vs. Director of Land Records and others reported in AIR 1984 Supreme Court 41. In the said case, while placing reliance upon the decision rendered in the case of Rafiq and another Vs. Munshilal and another reported in AIR 1981 Supreme Court 140, delay was condoned. In the said case, the petitioner had engaged three lawyers and it was held that the petitioner had taken extra care to engage three lawyers and nothing more could be expected of him. In the instant case, there is nothing on record to show that the complainant has even engaged the alleged counsel for filing the so- called Writ Petition before Hon'ble High Court.
19. Learned counsel further cited judgment and order dated 26.10.2021 passed by Hon'ble High Court of Judicature at Allahabad in Special Appeal Defective No. 417 of 2021; Shiv Kumar Pandey Vs. State of U.P. through Secretary, Agriculture and others. In the said case, while placing reliance upon several judgments including those of Rafiq and another (supra) and Smt. Lachi Tewari and others (supra), delay was condoned. As is stated above, the said decisions do not provide any help to the cause of the complainant. The other decisions cited on behalf of the complainant are also of no consequence, being against the law now well settled.
20. For the reasons aforesaid, we are of the considered opinion that the complainant has not been able to satisfactorily explain an inordinate delay in filing the consumer complaint and there is no plausible explanation put forward by the complainant for making a 12 case in her favour, so as to allow the delay condonation application and condone the delay in filing the consumer complaint. Consequently, the application for condonation of delay warrants dismissal.
21. Application for condonation of delay is dismissed. As a consequence thereof, the consumer complaint is dismissed as not maintainable, being barred by limitation. No order as to costs.
22. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.
(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)
Member-II President
K