State Consumer Disputes Redressal Commission
V. Saroja, Madurai. vs The Chairman Aravind Eye ... on 5 August, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER
R.P.No.11/2019
(Against the order in C.M.P.No.215/2017, dated 18.01.2019 in Unnumbered C.C. the file of the
District Forum, Madurai.)
FRIDAY, THE 05th DAY OF AUGUST 2022
V.Saroja,
W/o Vairavapillai,
Door No.2/115, Kamarajar Street,
Chinthamani, Revision Petitioner/Petitioner/
Madurai - 625 009. Petitioner/Complainant
-Vs-
The Chairman,
Aravind Eye Hospital,
No.1, Anna Nagar, Respondent/Respondent/
Madurai - 625 020. Respondent/Opposite Party
Counsel for Revision Petitioner/Petitioner/ : Mr.T.Santhakumar, Advocate.
Petitioner/Complainant
Counsel for Respondent/Respondent/ : Mr.A.R.M.Ramesh, Advocate.
Respondent/Opposite Party
This revision petition coming before me for final hearing on 22.07.2022 and
on perusing the material records, this Commission made the following:-
ORDER
THIRU.S.KARUPPIAH,JUDICIAL MEMBER.
1. This revision is preferred against the dismissal of delay condonation application filed by the complainant in C.M.P.No.215/2017 dated 18.01.2019 by the District Forum Madurai.
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2. The brief facts are as follows.
One Tmt. Saroja aged about 70 underwent cataract operation on her right eye on 19.12.2013 in the opposite party hospital. Since she experienced some problems she was again admitted in the same hospital and after diagnosis she underwent further surgery and the affected inner parts of the right eye were removed on 24.12.2013. She again underwent cataract surgery for her left eye in the month of April 2014 in the above hospital. Thereafter, alleging improper cataract surgery on the right eye which is, leading to subsequent removal of her right eye and loss of eye sight , she approached the Legal Aid Centre. At her request a legal aid counsel was also appointed to represent her grievance but he failed to act and failed to file a case. After knowing this belatedly, she engaged another lawyer and preferred this claim with a delay of 297 days and requested to condone the delay by filing petition.
3. The opposite party hospital strongly contesting by filing counter and saying that the actual delay is 729 and no valid reason assigned to condone the delay. The mere allegation about the inaction of the legal aid counsel will not absolve her duty to be vigilant and careful. Her attitude is lethargic and prayed to dismiss the petition.
4. The District forum after considering the statements passed a detailed order thereby dismissing the petition on 18.01.2019.
5. Against which this revision is filed by the complainant stating the order of the district forum is erroneous in nature and the district forum failed to exercise its discretionary jurisdiction.
6. We heard both sides.
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7. The learned counsel for the opposite party/hospital impressively argued that the delay was not explained, she underwent surgery free of cost, she after the loss of sight in the right eye again believing the expertise of the doctor submitted herself for left eye cataract surgery. He further strongly canvassed the point that it is the duty of the complainant to look after her case and she alone must be vigilant in contacting, persuading her legal aid advocate to file her case in time and request the commission to dismiss this revision.
8. Though his argument made us to revisit and reconsider all the facts stated above we are very firm in our view to reflect the object of enacting this consumer protection act and establishing Consumer Fora.
9. After all it is a benevolent legislation keeping the consumer's grievance and redressal in its mind. Before us a lady of 70 years who lost her one eye after treatment and thereby also lost her livelihood job with a grievance seeking redressal. Treatment given to her is admitted and loss of her eye sight in one eye is also admitted. What to be decided is there any medical negligence on the part of opposite party along with its corollary issues.
10. The delay whether it is 297 after deducting the period spent in legal aid or 729 days as counted by the opposite party are not of much important. The power to condone the delay is inbuilt in this Act itself. The time in preferring complaint is not equated with the time in filing the written version. While the legislatures give discretionary power to receive delayed complaints there is no such discretion available to receive written version beyond the period so fixed. This is one of the classic example to show that this act is consumer oriented. 4
11. The Hon'ble Supreme Court has held in the catena of judgments and also in "R.B.Ramlingam .Vs. R.B.Bhavaneshwari I (2009) CLT 188 SC" that each and every case has to be examined on its own merit while dealing with application seeking condonation of delay. It has held that in such case true guide is whether the petitioner has acted with reasonable diligence in prosecuting his appeal/petition. The Hon'ble Supreme Court has held as under:
"5. We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition."
The Hon'ble Supreme Court has itself held in the case of "Anshul Aggarwal .Vs. New Okha Industrial Development Authority (2011) 14 SCC 578" that while dealing with an application for condonation of delay, the special period of limitation prescribed under the Consumer Protection Act for filing appeals and revisions in consumer matters and its object of expeditious adjudication of consumer disputes shall be kept in mind and the object of Consumer Protection Act should not be allowed to be defeated by entertaining belated petitions. The Hon'ble Supreme Court has held as under:
"5. It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer Fora." We wish to emphasize here that.5
the Hon ble Apex court clearly spelt condontion of delay not to defeat the aim of the Act. we interpret it In other words that "condonation of delay should be to uphold the aim and purpose of the act."
The Hon'ble Supreme Court in the cases of N.Balakrishnan Vs. M.Krishnamurthy (1998) 7 SCC 123 (para 13), M.K.Prasad Vs. P.Arumugam (2001) 6 SCC 176 (para 10) and Bhivchandra Shankar More Vs. Balu Gangaram More and Ors. (2019) 6 SCC 387 (para 17 &
18) held that the delay was not intentional but bonafide and, therefore, delay be condoned.and in those cases the delay of about 554 days and 883 days were condoned by the Supreme Court. On analysing the above law on the subject the following points are emerged
i) Cause of substantial justice deserves to be preferred over the technicalities when substantial justice and technical consideration are pitted against each other.
ii) The expression sufficient cause as envisaged under section 24A (2) of Consumer Protection Act 1986 should be considered with pragmatism in justice oriented approach rather than technical detection of sufficient cause.
iii) For condonation of delay, the consideration should be the sufficiency of the cause and not the length of the delay.
iv) The delay in filing the complaint was neither deliberate nor intentional on the part of the complainant
12. In this case we see the state of mind of the complainant, after she lost her employment and after the loss of her eye sight. Inspite of that She within the time,approached Legal Aid Centre, a wing of judicial administration. It shows her bonafide and the delay caused by the legal aid counsel is beyond her control. Moreover it is always available to the oiiosite parties to prove that there is no negligence on their part except to undergo an ordeal of trial. 6
13. For the above said reasons we inclined to condone the delay and to allow the revision by setting aside the order of the District Forum.
14. We further direct the District Forum to take this case on file and we direct both parties to appear before the concerned District Forum on 06.09.2022. No cost.
15. In the result
1. The revision is allowed
2. The delay in filing complaint is condoned.
3. The order passed by the District forum Madurai in C.M.P.No.215/2017 dated 18.01.2019 is set aside.
4. The District forum is to take this case on file and we direct both parties to appear before the concerned District Forum on 06.09.2022.
5. No cost.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 05th day of August 2022.
Sd/-xxxxxxxxxx Sd/-xxxxxxxxxxx
S.KARUPPIAH, N. RAJASEKAR,
JUDICIAL MEMBER. PRESIDING JUDICIAL MEMBER.
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Corrected