National Consumer Disputes Redressal
Dr. Phani Bhusan Mondal vs Dr. Tripti Das & Anr. on 28 July, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 372 OF 2017 (Against the Order dated 24/01/2017 in Complaint No. 28/2013 of the State Commission West Bengal) 1. DR. PHANI BHUSAN MONDAL R/O. FLAT NO 103 SAYANTAN CO-OPERATIVE HOUSING SOCIETY LTD NEW TOWN KOLKATA - 700 156 ...........Appellant(s) Versus 1. DR. TRIPTI DAS & ANR. D/O. LATE MAHENDRA CHANDRA DAS, R/O. 280, MAJHER RASTA BURO SHIBTALA CHUCHURA HOOGHLY 712105 WEST BENGAL 2. DR. GAIRIK GHOSH S/O. DR. TRIPTI DAS R/O/ 280 MAJHER RASTA BURO SHIBTALA CHUCHURA HOOGHLY 712105 WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Appellant : For the Respondent :
Dated : 28 Jul 2017 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Appellant
:
Mr. Avijit Bhattacharjee, Advocate
For the Respondent
:
In person
PRONOUNCED ON : 28.07.2017
O R D E R
PER DR. B.C. GUPTA, MEMBER This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 24.01.2017, passed by the West Bengal State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in Miscellaneous Application No. MA/1151/2016 in Consumer Complaint No. 28/2013, vide which, the said application was ordered to be dismissed.
2. The facts in brief, are that the complainants/respondents filed the consumer complaint in question alleging medical negligence on the part of the appellant Doctor in the treatment of the patient Dr. Surjit Kumar Das (since deceased on 20.04.2011). The complainant Dr. Tripti Das is the sister of the deceased and the complainant Dr. Gairik Ghosh is the son of Dr. Tripti Das and the nephew of the deceased. During hearing before the State Commission, notice was issued to the appellant/OP in response to which they are stated to have appeared before the State Commission on 27.05.2013. However, they did not file the notarised written version to the complaint within time as stipulated under section 13 of the Consumer Protection Act, 1986. A maximum period of 30 days is allowed under the section to file written statement which is extendable by 15 days. A miscellaneous application, MA No. MA/1151/2016 was filed before the State Commission requesting that notarised written version be taken on record. However, vide impugned order dated 24.01.2017, the State Commission observed that the written version filed after the expiry of 45 days from the date of receipt of notice could not be accepted in view of the orders passed by the Hon'ble Supreme Court in "New India Assurance Co. Ltd. Vs. Hilli Multi Purpose Cold Storage Pvt. Ltd." [Civil Appeal No.10941-10942 decided on 4.12.15]. Being aggrieved against the said order, the OP is before this Commission by way of the present first appeal.
3. It is contended by the learned counsel for the appellant/OP that the appellant/OP-1 filed its written version on 21.02.2014 as indicated by an order recorded by the State Commission. The lack of notarisation of the written version was cured subsequently and the notarised version was sought to be placed on record by the appellant with the permission of the learned Commission. The action of the State Commission in not accepting the notarised written version as per impugned order was not in accordance with law.
4. The respondents/complainants who appeared in person stated, however, that in view of the orders passed by the Hon'ble Supreme Court from time to time, a period beyond 45 days could not be allowed to the appellant to file the written version. The order passed by the State Commission was, therefore, in accordance with law and should be upheld.
5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
6. The issue, in question, has been examined by the Hon'ble Supreme Court from time to time in their recent judgments. In the order passed by the Hon'ble Court in "New India Assurance Co. Ltd. Vs. Hilli Multi Purpose Cold Storage Pvt. Ltd." (supra), it was stated that the time beyond that permissible u/s 13 of the Act could not be granted to the OP/respondent. Subsequently, in another case of "M/s. Bhasin Infotech and Infrastructure Pvt. Ltd. vs M/s. Venezia Buyers Association (Regd.) [Civil Appeal No. 1083-84 of 2016]", the matter was referred to a larger Bench of the Supreme Court. However, vide order passed on 10.02.2017 in "Reliance General Insurance Co. Ltd. & Anr. vs. M/s Mampee Timbers & Hardwares Pvt. ltd. & Anr. [Civil Appeal D. No. 2365 of 2017 decided 10.02.2017]", it has been stated as follows:-
"We consider it appropriate to direct that pending decision of the larger bench, it will be open to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with the matter."
7. A bare perusal of the facts of the case and the impugned order reveals that the appellant/OP entered appearance in proceedings in the consumer complaint, in question, before the State Commission on 27.05.2013. it is clearly implied from this fact that they must have received the notice of the same complaint before 27.05.2013. The appellant/OP is stated to have filed their written version for the first time on 21.02.2014, which was much beyond the time permissible under section 13 of the Act. Moreover, the said written version has not been notarised. Vide impugned order, the State Commission has refused to take the notarised written version on record. However, in view of the orders passed by the Hon'ble Supreme Court in "Reliance General Insurance Co. Ltd. & Anr. vs. M/s Mampee Timbers & Hardwares Pvt. ltd. & Anr." (supra), it is felt that it shall be in the interest of justice if the appellant/OP is permitted to file his notarised written statement before the State Commission subject to payment of cost of ₹20,000/- to the complainants. This first appeal is, therefore, allowed and the appellant/OP is allowed to file their notarised written statement before the State Commission within a period of four weeks from today subject to the condition that the sum of ₹20,000/- shall be payable to the complainants within two weeks from today. The order passed by the State Commission stands modified accordingly. There shall be no order as to costs. Both the parties have been directed to appear before the State Commission on 31.08.2017 for further proceedings.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER