National Consumer Disputes Redressal
Amita Sharma vs M/S. B.H.E.L. on 1 March, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3188
OF 2010
(From the order dated 09.08.2010 in Petition No.
55/2008
of Uttarakhand State Consumer Disputes Redressal
Commission, Dheradun)
Amita
Sharma
W/o
Lt. Col. (Retd.) H.S. Sharma,
R/o
E-50, Industrial Area,
Bahadrabad,
Haridwar . Petitioner
Versus
1. M/s. B.H.E.L.,
B.H.E.L
House,
Sri
Fort,
New
Delhi
Through
its Chairman
Sh.
A.K. Puri
2. Dr. B.C. Raut,
Chief
Medical officer,
B.H.E.L.
Hridwar
3. Sh. A.K. Puri
Chairman
M/s.
B.H.E.L.
B.H.E.L.
House,
Sri
Fort,
New
Delhi.
4. Sh. S.K. Jain,
Director
(H.R.),
M/s.
B.H.E.L.
B.H.E.L.
House,
Sri
Fort,
New
Delhi.
5. Sh. R.N. Mishra
G.G.M.,
M/s.
B.H.E.L.
Truchi
6. Sh. Anil Sachdeva,
G.G.M.,
M/s.
B.H.E.L.
Haridwar,
Now
Director HR
M/s.
B.H.E.L.
B.H.E.L.
House,
Sri
Fort,
New
Delhi
7. M/s. B.H.E.L.
Through
Shiv Vimal Kumar
G.M.
(H.R.)
B.H.E.L.
Haridwar . Respondents
BEFORE HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. JUSTICE K.S. CHAUDHARI, MEMBER For the Petitioner(s) Lt. Co. (Retd.) H.S. Sharma, Advocate For the Respondent(s) Mr. Anand Jain, Advocate PRONOUNCED ON : 1st March, 2013 O R D E R PER JUSTICE V.B. GUPTA, PRESIDING MEMBER In this revision petition there is challenge to order dated 9.8.2010, passed by State Consumer Disputes Redressal Commission, Uttrakhand, Dehradun(for short, State Commission).
2. Brief facts are that petitioner/complainant filed a complaint before District Consumer Disputes Redressal Forum, Haridwar (for short, District Forum) stating that her husband Lt. Col.(Retd.) Hari Shankar Sharma is employed as Manager-Legal in BHEL, Haridwar and she has the complete knowledge about him. Her husband retired from Indian Army in January, 2001 and was medically examined at the time of retirement. At that time he was totally free from any disease of Liver and special care for his treatment was to be taken. At the time of appointment in the BHEL he was again medically examined by BHEL medical department and that time also he did not have any disease of Liver. In the year 2004, for the first time her husband complained of backache to the doctors of BHEL. He was examined by them but they could not detect anything and was advised to carry out CT scan for which Rs.3,200/- were spent by her husband. BHEL refunded Rs.900/- only. That time they spent Rs.20,000/-in the process of investigation. Thereafter, her husband was admitted on 3.6.2004 in BHEL Main Hospital for the treatment. At that time, Dr. P. C. Sharaf, CMO and B. C. Raut, Head of Medicine, without any proper investigation started administering 02 grams of Fortran and Voveran injections every 06 hours. These medicines-the antibiotic and pain killers, were administered to her husband had fatal and very severe effect on his Liver. The BHEL Doctor knowingly administered these medicines at the behest senior management officers of the BHEL, since her husband was transparent and honest worker and due to this senior management officers of the BHEL Company apprehended danger to their deeds. When petitioner objected to the wrong treatment given by the BHEL doctors, her husband was referred under protest to Sir Gangaram Hospital, New Delhi. At the time of discharge, BHEL Doctor refused to give information regarding treatment given to her husband and to handover the record of the treatment by the BHEL Doctors during the period of admission. Because of this denial of the medical history and the treatment details, treatment at Sir Gangaram Hospital was delayed. Her husband remained admitted in Sir Gangaram Hospital for 20 days, where he was informed that he has developed disease of Liver Cirrhosis, whereas BHEL doctors did not give any treatment in this regard. Later when her husband consulted other doctors, they informed that this disease has been developed due to administration of very strong antibiotic and pain killers. Thus, petitioner has prayed for compensation of Rs.10 Lakhs.
3. Respondent no.1 and 3 to 6 did not file any written statement but their Parokar verbally intimated, that written statement filed by respondents no. 2 and 7 may be treated as reply by all the respondents.
4. Respondents No. 2 and 7 in their written statement have stated that Lt. Col. (Retd.) Hari Shanker Sharma was employed as Manager (Legal) in BHEL, but has been transferred to BHEL Truchi. It is further stated that emergency treatment to him was never denied. Respondents admit that petitioners husband was medically examined and proper investigations were done. Thereafter, medicines were administered to him. Respondents unequivocally denied that excessive administration of pain killers has affected the liver of the husband of the petitioner. Further, respondents have admitted that petitioners husband had backache in the year 2004. However, it denied the claim of the complainant that doctors could not reach any conclusion with respect to the reasons for the backache. Husband of petitioner was then admitted to BHEL Hospital and all the facilities as per rules were made available to him. It has been admitted that petitioners husband was admitted with the complaint of fever and chest pain on 3.6.2004. Dr. B.S. Kushwaha, Physician had prescribed Fortran 2 gm BD and Tab. Nemodol. Thereafter, other doctors were consulted. Since, fever alongwith chest and back pain was continuing, hence liver function test was advised on 6.6.2004. On 7.6.2004, petitioners husband was referred to Sir Ganga Ram Hospital.
None of the Doctors of BHEL delayed the referral. Respondents denied the claim of the complainant that the dose of heavy antibiotic and pain killers had adverse effect on the liver of petitioners husband. It is further stated that petitioners husband had filed the instant complaint to escape the transfer. Petitioners husband remained admitted in Sir Ganga Ram Hospital from 8.06.2004 to 19.06.2004 and was found suffering from Herpatic rest with Neurelgia with Hepatitis with Generative Change of Spine. BHEL Doctors have given him better treatment. Sir Ganga Ram Hospital also did not find him suffering from Liver Cirrhosis. In the circumstances whatever treatment was given that was after due consultation with the Doctors. Therefore, complaint is liable to be dismissed.
5. District Forum, vide order dated 13.2.2008 allowed the complaint holding that there has been medical negligence in the treatment of the husband of the complainant. Therefore, compensation of Rs.8 lakh from the employer for the future treatment of the husband of petitioner being just and fair alongwith cost of Rs.2,000/- as legal expenses was awarded.
6. Being dissatisfied with the order passed by the District Forum, both parties filed respective appeals before the State Commission. Petitioner filed appeal for enhancement of the compensation amount from Rs.8 lakh to Rs.20 lakh. On the other hand, respondents filed appeal for dismissal of the complaint.
7. State Commission, vide impugned order dismissed the appeal of the petitioner and allowed the appeal of the respondents. Consequently, it quashed the order of the District Forum and dismissed the complaint.
8. Hence, the present petition.
9. Lt. Col.
(Retd.) Sh. H. S. Sharma has argued the case on behalf of the petitioner-complainant. Sh. Anand Jain, Advocate has argued on behalf of the respondents. We have perused the record.
10. At the outset, it may be pointed that complaint before the District Forum was filed on 12.4.2007, by Ms. Amita Sharma, wife of Lt. Col.(Retd.)H.S. Sharma stating that her husband is employed as Manager (Legal) BHEL, Haridwar and she is fully aware of the facts and competent to file the present complaint.
11. There is nothing on record to show that Lt. Col. (Retd.) Sh. H.S.Sharma ever authorized his wife-Ms. Amita Sharma to file any complaint on his behalf, before the District Forum.
12. Complainant has been defined in Section 2 (1) (b) of the Consumer Protection Act, 1986 (for short, Act) and it states ;
(b) complainant means---
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act,1956 (1 of 1956) or under any other law for the time being in force; or
(iii) then Central Government or any State Government; or
(iv) one of or more consumers, where there are numerous consumer having the same interest;]
(v) in case of death of a consumer, his legal heir or representative;]who or which makes a complaint;
13. Section 2 (1) (c) of the Act, defines complaint as under ;
(c) complaint means any allegation in writing made by a complainant that----
[(i) an unfair trade practice or a restrictive trade practice has been adopted by (any trader or service Provider]; ]
(ii) [the goods bought by him or agreed to be bought by him] suffer from one or more defects;
(iii) [the services hired or availed of or agreed to be hired or availed by him] suffer from deficiency in any respect;
(iv) a trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price
(a) fixed by or under any law for the time being in force;
(b) displayed on the goods or any package containing such goods;
(c) displayed on the price list exhibited by him by or under any law for the time being in force;
(d) agreed between the parties;]
14. As per above definition of the Complainant, Ms. Amita Sharma, the complainant does not fall in the category of the complainant. Therefore, her complaint also does not fall within the meaning of Section 2(1) (c) of the Act.
15. There is nothing on record to show that petitioners husband had been incapacitated in any manner or was prevented in any manner whatsoever, from filing the complaint. Moreover, in the complaint it is nowhere pleaded that petitioner had been authorized by her husband to file complaint on his behalf. Thus, Ms. Amita Sharma is not a consumer as per provisions of the Act. Hence, complaint filed by her before the District Forum is not maintainable and present revision is liable to be dismissed on this short ground alone.
16. State Commission in impugned order observed;
After considering the case of Lt. Col. (retd.) H. S. Sharma, we have reached a conclusion that administration of medicines like Fortran or Vovran, Nemudol for 4 to 5 days can cause full blown Liver Cirrhosis. This could have presumably been caused due to the medicines administrated to Lt. Col. H. S. Sharma in the Military Hospital during the treatment for the alleged disabilities for which he might have been treated in the Military Hospital. The complainant has not produced any record of the treatment for the period. It is possible that the Liver of the husband of petitioner might have been treated in the Military Hospital. The complainant has not produced any record of the treatment for the period. It is possible that the Liver of the husband of petitioner might have been affected from that time only. Whatever may be the condition but Lt. Col. H. S. Sharma and his wife have failed to certify that the medicines which were administered to Lt. Col. H.S. Sharma by the doctors of BHEL Main Hospital should not have been given to him and thus it was a case for medical negligence in treatment of husband of the complainant. The District Forum has totally disregarded these facts and has admitted the complaint and given a wrong decision in the matter.
The respondents no. 6 and 7 (petitioners of First Petition No. 55/2008) had raised an objection that the treatment of Lt. Col. H. S. Sharma was done in BHEL Main Hospital in June, 2004. Therefore, the cause of action also arose in the June, 1004. But the complaint was filed in the year 2007 which is time barred. The District Forum has not given any clear decision on this point/issue. We are unable to accept the plea of the complainant that the cause of action are arose when the BHEL Haridwar Hospital stopped the treatment of the husband of the petitioner and the period of limitation will commence from then. The plea of the complainant is self contradictory. In the consumer complaint the complainant has made serious and criminal allegations against the BHEL Management and the high officials. That, Ltd. Col.(Retd.) H.S. Sharma was given such treatment under a conspiracy due to which he heads for slow death. If that be so then why did Lt. Col. (Retd.) H.S. Sharma got himself treated upto year 2006 in BHEL Main Hospital. There is no proof of the averments made in the Consumer complaint. Hence, the complaint appears to be away from the truth. Hence, not only the bases of merits but also on account of being time barred the consumer complaint which was admitted by the District Consumer Forum vide its order dated 13.2.2008 is liable to be quashed.
17. As far as merits of the present case are concerned, in the entire complaint petitioner has nowhere stated at all as to on which date cause of action arose. As per averments made in the complaint, for the first time petitioners husband was admitted in the BHEL main hospital, on 3.6.2004. After getting treatment for certain period he got discharged under protest and was referred to Sir Ganga Ram Hospital, Delhi and remained there for about 20 days. Thereafter, as he was not feeling well he reported to the doctor at Dispensary, BHEL on 12.11.2006 and was advised certain tests to be conducted on 15.11.2006. Thereafter, he was transferred from Haridwar to Truchi. Petitioner had filed the complaint in the year 2007.
18. It is an admitted case that petitioners husband had been getting treatment from different hospitals, that is, BHEL Hospital, Haridwar and Sir Ganga Ram Hospital, Delhi. For the first time, petitioners husband was admitted in the BHEL hospital at Haridwar in the year 2004. Whereas, complaint was filed before the District Forum in year 2007. Thus, the complaint filed by the petitioner is barred by limitation.
19. Section 24-A of the Act, deals with such situation and it state;
24-A. 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.
(2) Notwithstanding anything contained in sub-section (1) a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
20. The above provision is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of cause of action.
21. Honble Apex Court in case of Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:-
12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held:
8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, shall not admit a complaint occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
In para No.13, it has been held by the Honble Supreme Court The term cause of action is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as bundle of facts., which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, cause of action means the cause of action for which the suit is brought. Cause of action is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.
22. On the point of recurring cause of action reference may be made to the observation made by the Honble Supreme Court in Raja Ram Maize Products etc. Vs. Industrial Court of M.P. and Other, AIR 2001 SUPREME COURT 1676, wherein it has been held ;
10. The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 S.C. 798 it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason.
23. As complaint of the petitioner was barred by limitation, State Commission rightly dismissed the same. We do not find any illegality or infirmity in the impugned order. Therefore, the present petition filed by the petitioner is not maintainable on the ground of limitation as well as on merits and the same stand dismissed.
24. No order as to cost.
....J (V. B. GUPTA ) PRESIDING MEMBER ...J (K. S. CHAUDHARI ) MEMBER RS/SSB