Delhi District Court
Smt. Rita Devi vs The Govt. Of N.C.T. Delhi on 3 August, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE13: CENTRAL DISTRICT:
DELHI
CS No. 128/2007
SMT. RITA DEVI
W/O SHYAM DHARI
R/O W/P - 29ABLOCK
JHUGGI, SHAHBAD DAIRY,
NORTH WEST DELHI, DELHI 42.
..........PLAINTIFF
VERSUS
1. THE GOVT. OF N.C.T. DELHI
THROUGH IT S COMMISSONER
MUNICIPAL CORPORTATION OF DELHI,
TOWN HALL, CHANDANI CHOWK, DELHI.
2. DR.(Smt.) INDIRA YADAV
HEAD OF UNITII (GYANE)
HINDU RAO HOSPITAL,
DELHI110006.
..........DEFENDANT
Date of Institution : 14.11.2007
Arguments heard on : 7.7.2009
Date of Decision : 3.8.2009
1
: J U D G M E N T :
This suit for recovery of Rs.10,00,000/ has
been filed by the plaintiff Smt. Rita Devi against the
defendants. Briefly the facts relevant to the disposal of the
same are as under:
BRIEF FACTS:
Plaintiff's Case:
The plaintiff has submitted that she is poor woman below poverty line having four children permanently residing in Shahbad Jhuggi and her husband is working as a Tailor on footpath at Shahabad Jhuggi, Delhi. It is pleaded that the plaintiff was admitted in Hindu Rao Hospital on 29.8.1996at 8.30 pm vide RC no 34272 with labour pains with hand prolapse in Emergency Ward in unit II (Gaynee), under the care of Dr. Indira Yadav when she was lying on bed and she was crying due to the labour pains from 29.08.1996 at 8.30 pm to on 30/08/1996 2 at about 7.00 am. The husband of the plaintiff had requested the doctor Smt. Indira Yadav for immediate treatment, but the doctor did not respond to his requests. On 30.08.1996, at 7.00 am. the defendant told to her husband that the baby child has died in the stomach of the patient and urgently need a surgical operation for which the defendant took the signatures of her husband and brother in law in the new admission Register and risk cover slip on 30.08.1996 and issued new Hospital MRD. No. 22959. The defendant no. 2 brought the plaintiff into the operation theater where the defendant no.2 performed the operation at about 7.35AM. on 30.08.1996, and a dead male child was handed over to her husband after which the defendant issued an out gate pass along with dead child on 30.08.1996. It is stated that the defendant destroyed the old admission Register vide R.C. No. 34272, dated. 29.08.1996 deliberately and intentionally to cheat and misguide the plaintiff which shows the medical negligence 3 which could not be compensated in terms of the money.
It is pleaded that due to utter negligence, carelessness of duty by the doctor the child had died in the womb more earlier and infected the whole body of the plaintiff, and due to which negligence and careless of the doctor the plaintiff had to take costly medicines beyond her means and resources and also remained for 41 days in the aforesaid hospital and she had continuously purchased very costly medicines by taking loans from her near and dears and also lost the precious life of her male child.
It is further pleaded that on 13.10.1996 the plaintiff was discharged from the aforesaid hospital and on the same day she had served a legal demand notice upon the defendants through the advocates but the defendant did not respond the same. It is stated that thereafter she had made a complaint to the National Human Rights Commission which complain had been decided with the observations that no further action is called for and liberty 4 was granted to the plaintiff to approach the competent forum for redressal of her grievance.
Defendant's Case :
The defendant has raised a preliminary objection that the suit filed by the plaintiff is barred by time as the actual cause of action arose on 29.08.1996 which suit should have been filed within three years of cause of action due to which reason the suit is liable to be dismissed. The defendant has pleaded that the suit is also barred under the provisions of Section 477 and 478 of DMC Act and is not maintainable having been filed against Govt. of NCT of Delhi through Commissioner of MCD which cannot be done. It is further pleaded that the plaint is based on totally false and frivolous grounds. The defendant further has denied all the allegations against them regarding medical negligence and further specifically denied that defendant has deliberately destroyed the records or has tried to cheat and misguide the plaintiff. 5 ISSUES FRAMED:
On the basis of the pleadings of the parties this court has framed the following issues:
1. Whether the present suit is barred by limitation having been filed after twelve years of the incident?
(OP Parties)
2. Whether the suit is barred by the provisions of Section 477 & 478 of DMC Act?
(OPD)
3. Whether the plaintiff is entitled to the relief of recovery and the interest as asked for in the plaint?
(OPP)
4. Relief.
EVIDENCE:
In order to prove her case the plaintiff has examined herself as the sole witness as PW1 and in her examination in chief by way of affidavit she has corroborated what has been earlier stated in the main plaint. She has deposed that on 22.10.2003 her Jhuggi caught fire and the original documents pertaining to 6 present suit were destroyed. She has also placed before his court the copy of complaint in this regard which is Ex.PW1/1; copy of the below to poverty ration card which is Ex.PW1/2; copy of the admission card dated 29.8.1996 in Hindu Rao Hospital which is Ex.PW1/3; copy of the gate passed issued on 30.8.1996 which is Ex.PW1/4; copy of the legal notices and registered slips which are Ex.PW1/5, PW1/5A, PW1/5B; copy of the compliant made to the National Human Rights Commission which is Ex. PW1/6, copy of the order of National Human Rights Commission which is Ex. PW1/7; copy notice issued by the National Human Rights Commission which is Ex. PW1/8; and Ex.PW1/8A; copy of the reply filed by the MCD before National Human Rights Commission which is Ex. PW1/9; and copy of the reply filed by the respondent no. 2 before National Human Rights Commission which is Ex. PW1/10.
7
In rebuttal the defendant no. 2 has examined Dr. Indira Yadav HOD, (Gyne) Hindu Rao Hospital as DW1, who has in her examination in chief by way of affidavit has relied upon her office order / circular which is Ex.DW1/1 and has corroborated what has been earlier stated in the written statement.
FINDINGS:
I have heard the arguments advanced before me by the counsels for both the parties and have gone through the records of the case. My findings on the various issues are as under:
Issue No. 1: Whether the present suit is barred by limitation having been filed after twelve years of the incident? (OP Parties) Onus of proving this issue was upon both the parties. A preliminary objection has been raised by the defendant that the present suit is beyond the period of limitation having been filed after 12 years. It is stated that 8 the cause of action arose on 29/30.8.1996 and therefore as per the provisions of Limitation Act, 1963, the suit for recovery of damages should have been filed within a period of three years of the cause of action, but the present suit having been filed after 12 years is clearly beyond the limitation period and is liable to be dismissed.
The arguments of the plaintiff is that present suit is not time barred since the plaintiff had filed present case before the National Human Rights Commission (NHRC) on 9.11.2000 vide diary no. 15158 and the Hon'ble NHRC on 18.1.2007 was pleased to order that no further action the commission is called for and the applicant is at liberty to move to competent forum for redressal of her grievances and only after which she has come before this court for adjudication.
I have considered the rival contentions of the parties. It is not disputed that the cause of action arose on 29/30.8.1996 when she was operated and due to the alleged 9 negligence of the doctors the dead male child was handed over to her. It is also the case of the plaintiff that on 13.3.1997 she has served regular notice upon the respondent and later had filed the case before the NHRC on 9.11.2000.
Firstly, it may be noted that the case filed before the NHRC on 9.11.2000 vide diary no. 15158 was also clearly beyond the period of three years from the date of the alleged cause of action which is of 29/30.8.1996 when according to the plaintiff her dead male child has handed over to her by the defendant no. 2 and also on 13.3.1997 when she served a legal notice upon the defendant. In this regard the provisions of Section 3 of Limitation Act are very clear and every suit instituted after the prescribed period is required to be dismissed although limitation has not been set up as a defence. Secondly, the benefit of Section 14 of Limitation Act 10 cannot be given to the present plaintiff. Since the provisions of Sec. 14 of Limitation Act contemplate inclusion of time of the proceedings when the plaintiff was bonafidely pursuing her case with due diligence in a court without jurisdiction. The benefit of Section 14 of Limitation Act can only be granted to a party who failed in the earlier proceedings not on merits but only on account of the defect on the jurisdiction and other causes of the like nature. Where a party has been bonafidely prosecuting a wrong remedy before a court without jurisdiction then such a party would be entitled to the benefit of Sec. 14 of Limitation Act. In the present case the plaintiff was admittedly pursuing the proceedings before the National Human Rights Commission which is not a court but only a commission created under the statute and therefore it cannot be said that the plaintiff had been prosecuting another civil proceedings with due diligence in a court 11 without jurisdiction. Lastly, the complaint to the NHRC itself being beyond the period of three years as provided under the Limitation Act, I hold that the present suit of the plaintiff is barred having been filed on 14.11.2007 which is after 12 years of the alleged cause of action. The issue is decided in favour of the defendant and against the plaintiff. Issue No. 2: Whether the suit is barred by the provisions of Section 477 & 478 of DMC Act? (OPD) The onus of proving this issue is upon the defendant. The case of the MCD is that no prior notice u/s 478 of DMC Act has been given to them and therefore the suit filed by the plaintiff is barred by time not only for prior notice but also having filed beyond the period of six months of the arising of the cause of action. The plaintiff before this court has denied the aforesaid and has stated that a notice to the MCD has already been given on 13.3.1997 and therefore it is not a case where the the 12 provision of Sec. 478 of DMC Act would apply.
I have considered the rival contentions. Before proceeding to decide the objections raised by the defendant, it is necessary to discuss the law.
The provisions of Section 478 of DMC Act are very clear. As per the provisions of Clause (1) of Section 478 of DMC Act:
" No suit shall be instituted against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this act or any rule, regulation or byelaw made thereunder until the expiration of two months after notice in writing 13 has been left at the municipal office and in the case of such officer, employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of intending plaintiff and unless the plaint contains a statement that such notice has been so left or delivered. Further clause 2 of Section 478 of DMC Act provides that:
No suit, such as is described in sub section (1) shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which 14 the cause of action arises.
As per Clause 3 of Section 478 DMC Act: Nothing in subsection (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.
The object of giving a notice contemplated under Section 478 of the DMC Act is to give to the authority an opportunity to reconsider the legal position. The legislative intent behind Section 478 of DMC Act is that public money and time should not be wasted on unnecessary litigations and the government and public officers should be given a reasonable opportunity to examine the claims made against them least they be drawn 15 into avoidable litigation.
The Delhi High Court has in the case of Municipal Corporation of Delhi Vs. Kundan Lal Sharma reported in ILR (1969) Delhi 715 under similar circumstances where the plaintiff had filed the suit for injunction for removal of construction on land, observed that:
"....... It is not a suit either for the recovery of immovable property or for a declaration of title thereto. In these circumstances subsection (2) of Section 478 of the Act will apply in full force and the suit have have had to be filed within 6 months from the date on which the cause of action arose. As stated above, according to the findings of the learned Subordinate Judge, the cause of action arose either in August 1959 or in December, 16 1959. Whatever be the date the suit has undoubtedly been filed after the expiry of six months from the accrual of the cause of action and therefore, it was instated after the time prescribed by Section 478 (2)........."
Similarly in the case of G.C. Sharma Vs. MCD reported in 1979 MCC 234 it was observed that:
"............ The power to grant and revoke a licence is vested in the Municipal Corporation by the Delhi DMC Act and it is by virtue of Section 430 of the Act and even if the Corporation exceeds this power, it cannot be said that the Corporation had no power to cancel the licence. The aggrieved party wants to challenge this action of the Corporation by way of a suit, it must first give two 17 months' notice to the Corporation and must file the suit within 6 months from the date of cancellation of licence otherwise it is bound to fail being time barred....."
The requirement of the provisions of Section 478 of DMC Act are two fold. Firstly the provisions of clause 1 require a prior notice in writing to be delivered at their office mentioning the cause of action, the nature of the relief sought and the amount of compensation claimed. Secondly clause 2 of Section 478 DMC Act provides for limitation of 6 months on which the cause of action arises for filing the suit unless it is a suit for recovery of immovable property or for declaration of title thereto.
Applying the aforesaid settled principles of law in the present case it is evident that the suit filed by the plaintiff is for recovery on account of damages which is 18 not covered within the expression provided in the Clause 3 of Sec. 478 DMC Act. Therefore, the requirement of giving a prior notice u/s 478 Clause (1) of DMC Act is mandatory and no suit can be instituted against the Municipal Corporation till expiry of two months and a notice in writing notice being left in the office of municipal corporation. In case of recovery the period of limitation provided under clause (2) of Section 478 of the DMC Act for filing said suit is six months from the date on which cause of action arises. In the present suit for recovery of damages, the limitation provided is six months from the date the cause of action arises. Neither the notice as contemplated has been given nor the suit has been field within the limitation as provided under Section 478 of DMC Act. The issue is therefore decided in favour of the defendant and against the plaintiff.
19 Issue No. 3: Whether the plaintiff is entitled to the relief of recovery and the interest as asked for in the plaint? (OPP) In view of my detailed findings on the issue no. 1 and 2, since the suit has been filed by the plaintiff after nine years, the same is clearly beyond the period of limitation and also is filed without giving prior notice as contemplated under Clause (1) of Section 478 of the DMC Act, and I hereby hold that under these circumstances, the plaintiff would not be entitled to any relief of damages as asked for in the plaint.
Relief:
In view of my findings on the various issues above, the suit of plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 3.8.2009 Addl. District Judge: Delhi
20
Rita Devi Vs. Govt. of NCT of Delhi
CS No. 128/2007
3.8.2009
Present: None.
Vide my separate detailed order dictated and announced in the open court but not yet typed, the suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
ADJ: DELHI 3.8.2009 21