National Consumer Disputes Redressal
Director, Health & Family Welfare ... vs Vibha Aggarwal on 22 April, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 368 OF 2016 (Against the Order dated 25/02/2014 in Appeal No. 472/2013 of the State Commission Chandigarh) 1. DIRECTOR, HEALTH & FAMILY WELFARE SERVICES GENERAL HOSPITAL SECTOR-16, CHANDIGARH 2. DIRECTOR, HEALTH & FAMILY WELFARE SERVICES THROUGH ITS CMO/SMO, GOVT. BLOCK CIVIL HOSPITAL SECTOR -22, CHANDIGARH ...........Petitioner(s) Versus 1. VIBHA AGGARWAL W/O SH. RASHIT AGGARWAL R/O HOUSE NO. 2038, SECTOR 21-C, CHANDIGARH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT
For the Petitioner : Mr. Chandra Prakash, Advocate For the Respondent :
Dated : 22 Apr 2016 ORDER
1. This Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), has been filed by the Director, Health & Family Welfare Services, General Hospital, Chandigarh and Govt. Block Civil Hospital, Chandigarh, Opposite Parties No.1 and 2 respectively in the Complaint, against the order, dated 25.02.2014, passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh (for short "the State Commission") in First Appeal No. 472 of 2013. By the impugned order, the State Commission has dismissed the said Appeal. Relying on the authoritative pronouncements by the Hon'ble Supreme Court in Kusum Sharma & Ors. V. Batra Hospital & Medical Research Centre & Ors., (2010) 3 SCC 480; Jacob Mathew v. State of Punjab & Anr., (2005) 6 SCC 1; and Laxman Balakrishnan Joshi v. Trimbak Bapu Godbole And Anr., AIR 1969 SC 128, wherein broad principles for judging the conduct of the Treating Doctors have been laid down and for evaluating as to what ought to have been done, was actually done or not, have been laid down, the State Commission has affirmed the findings recorded by the District Forum to the effect that there was negligence on the part of the treating doctors of the Petitioners. It has been found that the treating doctors of the Petitioners did not conduct any ultrasound on the Complainant; did not prescribe any rest and nutritious diet for the pregnant lady (Complainant) for the foetal growth; never ascertained the position of foetal growth through ultrasound and on foetal growth restriction was detected through any diagnostic test on 08.06.2012, when PoG was at 31st weeks. Taking all these factors into consideration, the State Commission has held that the order, dated 06.09.2013, passed by the District Consumer Disputes Redressal Forum-I, UT Chandigarh (for short "the District Forum") in Consumer Complaint No. 411 of 2012, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity. It may be noted at this juncture itself that the District Forum has held that the doctors on duty had omitted to exercise due care and did not get the ultrasound examination of the Complainant conducted, despite her complaints of growth restriction of the baby and stomach pain, which ultimately resulted in the Intra-Uterine Death of the baby. The District Forum had thus directed the Petitioners to jointly and severally pay to the Complainant (i) ₹2,00,000/- as compensation on account of physical and mental agony; (ii) ₹29,900/- being the medical expenses expended by her at Jindal IVF and Sant Memorial Nursing Home, as per Bill No. 6238 on record; and (iii) ₹11,000/- as litigation expenses, within a period of one month, with a default stipulation of payment of interest @ 9% per annum from the date of filing of the Complaint till realization.
2. As noted above, the Petitioners unsuccessfully carried the matter in Appeal to the State Commission. Hence, the present Revision Petition.
3. It is pointed out by the office that the Revision Petition is barred by limitation, inasmuch as there is delay of 619 days in filing the same. An application, praying for condonation of the said delay, has been filed alongwith the Revision Petition. In paragraphs no. 3 to 4 of the said application, the Petitioners have furnished the following explanation:
"[3]. That after the passage of the impugned order, the petitioner got procured the copy of the impugned order and asked his counsel to hand over the case files and then after some time the said counsel returned the files but the revisionist found that certain important documents were missing from the files and in the meanwhile the advocate on the panel had gone outside and thus after some time the missing files were returned and in the process it took time.
[4]. Thereafter the impugned order was analyzed at various tables of the administration and then in the process it took some time and then finally it was decided to prefer the revision before the commission but the revisionist got to know that the respondent has filed the execution petition being execution case no. 24/2014 filed in the matter and thus immediately first it was decided to contest the same and after due deliberation with the legal department and the counsels the execution petition was ordered to be dismissed as fully satisfied vide order dated 15.9.2014 ... ... ... thus in the process it took some time but despite making payments the department again decided that the technical matters in this case has not been appreciated by the courts below in correct perspective and thus again it was decided to prefer the revision and for this request for approval was sent and after getting the same the panel advocate was engaged and after several deliberations since the matter being purely technical needing intense medical analysis the instant revision petition was prepared and sent for approval but in the mean time the counsels father all of sudden got unwell severely in his home town and in this urgency the counsel had to visit his home town from where the counsels father had to be airlifted for urgent medical care and was hospitalized in ICU for a month thereafter since the counsels father got suffered from paralysis the counsel again took some time for making appropriate arrangements and thus after making appropriate arrangements then revision was finally prepared and thus got ready for the filing in the registry of the national commission. But in the sequence of events the petitioner realized that already delay has taken place."
4. In the first instance, I have heard learned counsel for the Petitioners on the question of delay.
5. It is trite that discretion to condone delay has to be exercised judiciously, based on facts and circumstances of each case. It is equally well settled that when a Statute provides for a particular period of limitation, it has to be applied with all its rigors. An unlimited limitation leads to a sense of uncertainty and, therefore, limitation prevents deprivation of what one may have acquired. In P. Ramachandra Rao Vs. State of Karnataka, (2002) 4 SCC 578, the Hon'ble Supreme Court has observed that judicially engrafted principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay and Ors. Vs. R.S. Nayak and Anr., (1992) 1 SCC 225. Bearing in mind these broad principles, I am of the opinion that the explanation furnished by the Petitioners is absolutely unsatisfactory.
6. Though the Appeal, wherein the Petitioners were duly represented by their Counsel, had been dismissed by the State Commission on 25.02.2014, yet, ignoring the limited period of 90 days, provided for filing the Revision Petition, under Regulation-14 of the Consumer Protection Regulations, 2005, the present Revision Petition has been filed by the Petitioners on 04.02.2016, i.e. with an inordinate delay of 619 days. The said delay has been sought to be explained, inter alia, on the specious pleas that after the impugned order was rendered on 25.02.2014, the Petitioners procured the copy of the same; asked their Counsel to hand over the case files, which took some time; certain important papers were missing from the files; the Advocate on panel had gone outside and took some time in returning the missing files; and the impugned order was analyzed at various tables of the administration, which took some time, and then finally it was decided to prefer the Revision Petition. Apparently, the explanation is vague to the core, particularly in the absence of any date-wise details relating to processing of the matter at the Petitioners' end. Evidently, the Petitioners are trying to explain the inordinate delay of 619 days in a mechanical manner, which is self-serving and does not inspire any confidence. It is true that Execution Application, No.24 of 2014, filed by the Complainant, had been dismissed by the District Forum on 15.09.2014 as fully satisfied but if the Petitioners were really interested in challenging the impugned order, it is beyond one's comprehension as to what prevented them from doing so for more than 600 days. If the Petitioners, who are assisted by a battery of Government lawyers, were convinced that the issue involved in the matter was not appreciated by the Fora below in its correct perspective, instead of pursuing the matter at snail pace and waiting for return of the Counsel from holidays, they ought to have been on their toes to ensure that the Revision Petition was filed within time, but it is not the case here. The plea of ailment of Counsel's father is also not supported by any documentary evidence. Besides, as noted above, being Government Hospitals, a battery of lawyers are available to them for advice and guidance. From a perusal of the above, it can safely be inferred that the Petitioners were not at all interested in challenging the orders passed by the Fora below, whereby certain liability had been imposed upon them. They have not shown any sense of urgency and seriousness in processing the matter at their end. In my view, the explanation furnished by the Petitioners is nothing but an example of indifferent attitude and lethargy of government instrumentalities.
7. Recently, in Postmaster General and Ors. V. Living Media India Ltd. & Anr., (2012) 3 SCC 563, the Hon'ble Supreme Court has been pleased to observe as under :
"28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. In our view, it is right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
8. For all these reasons, I have no hesitation in holding that the Petitioners have failed to make out a 'sufficient cause' for condonation of an inordinate delay of 619 days in filing the present Revision Petition and, therefore, I am not inclined to condone the same. In my opinion, condonation of such delay would result in further harassment and hurt the feelings of a mother, who, had given birth to a still born child.
9. Consequently, the Revision Petition is dismissed in limine on the ground of limitation.
......................J D.K. JAIN PRESIDENT