Shri. E.N. Vasu, (Died) and Others Vs. Dr. Charles Kujar and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1108666
CourtKerala State Consumer Disputes Redressal Commission SCDRC Thiruvananthapuram
Decided OnDec-19-2011
Case NumberFirst Appeal No. 274 of 2006 (Arisen out of Order Dated null in Case No. 66/2005 of District Kottayam)
JudgeTHE HONOURABLE MR. M.V. VISWANATHAN JUDICIAL MEMBER
AppellantShri. E.N. Vasu, (Died) and Others
RespondentDr. Charles Kujar and Others
Excerpt:
shri.m.v.viswanathan,judicial member the above appeal is preferred from the order dated 10th june 2005 passed by cdrf, kottayam in op.no.66/05. the complaint therein was filed alleging medical negligence and deficiency in service on the part of the opposite parties 1 to 3 in treating the complainants son at the second and third opposite party hospitals. the opposite parties 1 to 3 were served with notice in op.no.66/05. the third opposite party remained absent and he was declared ex-parte. the opposite parties 1 and 2 filed preliminary written version raising the contention that the complaint is bared by limitation and so the complaint in op.66/05 is not maintainable. thereafter, the power of attorney holder of the complainant filed an affidavit dated 16th may 2005 requesting for condonation of delay in preferring the complaint in op.66/05. it was alleged that the complainant is 88 year old person suffering from various old age problems; that the complainants wife is unable to move out of their dilapidated home without support and that his un-married daughter aged 57 is mentally unsound. so, the complainant executed a power of attorney in favour of the deponent c.s.rajan to file the complaint; that the power of attorney holder is employed at pune and he is a permanent resident of pune with his family; that the power of attorney holder was engaged in his family affairs and so there occurred the aforesaid delay in preferring the complaint in op.66/05. thus, the power of attorney holder of the complainant requested for condonation of the delay in preferring the complaint in op.66/05. 2. the forum below was pleased to hear the preliminary issue regarding maintainability of the complaint in op.66/05. after hearing both parties, the impugned order dated 10th june 2005 was passed dismissing the complaint as the complaint is barred by limitation. it is against the said order, the present appeal is filed by the complainant through his power of attorney holder sri.c.s.rajan. 3. during the pendency of the present appeal, the original appellant (complainant) died and his legal representatives are impleaded as additional appellants 2 to 8. they were impleaded as per the order dated 20.5.10 in ia.191/10. the additional second appellant is the son of deceased original appellant. additional third appellant is the widow of the deceased original appellant e.v.vasu. the additional appellants 4 to 8 are the children of the original appellant e.n.vasu. the additional appellants have engaged counsel of their choice. notice was served on respondents 1 to 3 (opposite parties 1 to 3). but, the third respondent/third opposite party remained absent. respondents 1 and 2 entered appearance through counsel of their choice. 4. this commission was pleased to hear the learned counsel for the additional appellants 2 to 8 and respondents 1 and 2. there was no representation for third respondent. the counsel for additional appellants 2 to 8 submitted his arguments based on the grounds urged in the appeal memorandum which was filed by the original appellant/complainant, e.n.vasu. he much relied on the decision rendered by the hon.supreme court in collector, land acquisition, ananth nag and submitted that there was sufficient reason for the forum below to condone the delay in preferring the complaint in op.66/05. thus, the additional appellants 2 to 8 prayed for setting aside the impugned order dated 10th june 2005 passed by cdrf, kottayam and requested for remanding the matter to the forum below for fresh disposal of the complaint on merits. on the other hand, the counsel for respondents 1 and 2 supported the impugned order passed by the forum below. he argued for the position that there was no sufficient reason or ground to condone the delay of more than 2 years in preferring the complaint in op.66/05. it is submitted that the inconvenience of the power of attorney holder cannot be taken as sufficient ground for condonation of delay. it is further submitted that the original complainant sri.e.n.vasu had other grown up children to look after his affairs and the said children could have preferred the complaint in op.66/05 within the stipulated time. it is also submitted that in effect, the additional appellants who are the legal heirs of the original complainant are seeking relief of getting compensation by the complaint which was filed with a long delay of more than 2 years. thus, respondents 1 and 2 prayed for dismissal of the present appeal. 5. the present appeal was filed by the original complainant e.n.vasu. the complaint in op.66/05 was filed on 18.3.05. the original complainants son k.v.sadasivan expired on 23.2.2001. if the date of death of complainants son k.v.sadasivan is taken as the cause of action for the complaint, then the complaint ought to have been filed within 2 years from the date on which the cause of action has arisen. it is to be noted that the original complainants son k.v.sadasivan was discharged from the second opposite party hospital on 10.12.2000. as far as the respondents 1 and 2 are concerned, the cause of action for the complaint filed against them would have arisen on 10.12.2000. in such a situation, the complaint in op.66/05 ought to have been filed on or before 9.12.2000. if that be so, the complaint is having the long delay of more than 2 years. in all respects, the complaint in op.66/05 was barred by limitation. it is further to be noted that in the original complaint, there was no prayer for condonation of the said long delay of more than 2 years. the power of attorney holder of the original complainant filed the affidavit subsequently on 16.5.05 requesting for condonation of the aforesaid long delay of 2 years. 6. the original complaint in op.66/05 was filed through the complainants power of attorney holder mr.c.s.rajan. the original appeal in fa.274/06 was also filed by the power of attorney holder mr.c.s.rajan. the averments in the appeal memorandum would make it clear that the power of attorney holder is well versed with the procedure to be followed under the provisions of the consumer protection act, 1986. the power of attorney holder mr.c.s.rajan cannot be treated as a layman in this field. he is more than a legal professional. he is very much aware of the object of the enactment of consumer protection act, 1986 and the procedure to be followed by a court of law while considering the issue regarding condonation of delay. such a person caused a long delay of more than 2 years in preferring the complaint in op.66/05. 7. the reason or ground averred in the affidavit to get the long delay of more than 2 years condoned is that the power of attorney holder was busy with his own family matters and thereby caused the said delay of more than 2 years in preferring the complaint in op.66/05. there is only a vague averment to get the long delay of 2 years condoned. the forum below has rightly held that the reason or ground stated in the affidavit filed to get the delay condoned cannot be considered as sufficient reason or ground. this commission have no hesitation to endorse the aforesaid finding and conclusion of the forum below. 8. the power of attorney holder has also averred that the original complainant sri.e.n.vasu was aged 88 years at the time of filing the complaint in op.66/05 and his wife is also aged and his daughter is a mentally ill person. but there is no whisper in the affidavit filed in support of the petition for condonation of delay regarding the availability of other grown up children of the original complainant e.n.vasu. in fact, the deponent namely the power of attorney holder deliberately suppressed the fact that the original complainant e.n.vasu is having other grown up children to look after his affairs and to prosecute the complaint in op.66/05. the aforesaid suppression of material fact would speak volumes about lack of bonafides on the part of the deponent in filing the affidavit to get the long delay of more than 2 years condoned. 9. the fact that the original complainant e.n.vasu is having other grown up children came into day light only after his death during the pendency of the present appeal. it is to be noted that the wife and grown up children of the original complainant/original appellant are impleaded as additional appellants 2 to 8. it is only in such a situation the real fact regarding the availability of other grown up children of the original complainant was divulged or revealed. no reason or ground is stated for the failure of the grown up sons of the original complainant moving the lower forum in preferring the complaint in op.66/05 within the time prescribed under section 24-a (i) of the consumer protection act. there is no whisper in the complaint or in the affidavit about the existence of abled and grown up children of the original complainant for looking after the affairs of their father e.n.vasu and to prosecute the complaint in op.66/05 by preferring the same within the stipulated time prescribed under law. in fact, there was no necessity for the original complainant to execute a power of attorney in favour of the deponent c.s.rajan. this circumstance would make it clear that the deponent c.s.rajan came to the picture, in order to get the long delay of 2 years condoned. more over, by the death of the original appellant/original complainant the benefits if any, would go to additional appellants 2 to 8 including the grown up children of the original complainant. they were negligent in prosecuting the complaint on behalf of the original complainant e.n.vasu. thus, in all respects, the long delay of 2 years cannot be condoned. 10. the learned counsel for the additional appellants 2 to 8 vehemently argued for the position regarding dispensation of substantial justice to the parties. he has rightly relied on the decision rendered by the hon. supreme court in the case of collector land acquisition, ananth nag reported in air 1987 supreme court 1353. there could not be any quarrel about the proposition laid down by the hon. supreme court in the aforesaid reported case. but the litigants like the additional appellants 2 to 8 cannot be treated as deserving litigants to get the unreasonable and long delay of more than 2 years condoned. it is to be noted that the consumer protection act, 1986 prescribes 2 years time from the date of cause of action, for preferring a consumer complaint. it is true that the provisions of section 24-a (2) stipulates condonation of delay provided sufficient cause for the delay is shown. it is pertinent to note that the agencies constituted under the consumer protection act are bound to record reasons for condoning such delay. the available circumstances of the case would show that there was no sufficient cause for condoning the delay of more than 2 years. the mere fact that there is provision for condonation of delay cannot be taken as a ground to hold that un-reasonable and unjustifiable reasons are to be considered as sufficient reason or cause. in the present case on hand, no sufficient reason is available to condone the said delay of more than 2 years in filing the complaint in op.66/05. 11. the forum below was also bound to consider the inconvenience and hardship that will be caused to the opposite parties by condoning the unreasonable and un-explained long delay of more than 2 years. no doubt that substantial injustice will be caused to the opposite parties by allowing the prayer for condonation of the long delay of 2 years that too without sufficient reason or cause. the forum below can be justified in dismissing the complaint in op.66/05 as not maintainable because of the fact that the complaint is hopelessly barred by limitation under section 24-a (i) of the consumer protection act, 1986. 12. the forgoing discussions and the findings thereon would make it clear that the present appeal deserves nothing, but dismissal. no purpose will be served by restoring the complaint in op.66/05 which is barred by limitation. so, this commission is pleased to dismiss the present appeal. in the result, the appeal is dismissed. the impugned order dated 10.6.05 passed by cdrf, kottayam in op.66/05 is confirmed. as far as the present appeal is concerned, the parties are directed to suffer their respective costs.
Judgment:

SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER

The above appeal is preferred from the order dated 10th June 2005 passed by CDRF, Kottayam in OP.No.66/05. The complaint therein was filed alleging medical negligence and deficiency in service on the part of the opposite parties 1 to 3 in treating the complainants son at the second and third opposite party hospitals. The opposite parties 1 to 3 were served with notice in OP.No.66/05. The third opposite party remained absent and he was declared ex-parte. The opposite parties 1 and 2 filed preliminary written version raising the contention that the complaint is bared by limitation and so the complaint in OP.66/05 is not maintainable. Thereafter, the power of attorney holder of the complainant filed an affidavit dated 16th May 2005 requesting for condonation of delay in preferring the complaint in OP.66/05. It was alleged that the complainant is 88 year old person suffering from various old age problems; that the complainants wife is unable to move out of their dilapidated home without support and that his un-married daughter aged 57 is mentally unsound. So, the complainant executed a power of attorney in favour of the deponent C.S.Rajan to file the complaint; that the power of attorney holder is employed at Pune and he is a permanent resident of Pune with his family; that the power of attorney holder was engaged in his family affairs and so there occurred the aforesaid delay in preferring the complaint in OP.66/05. Thus, the power of attorney holder of the complainant requested for condonation of the delay in preferring the complaint in OP.66/05.

2. The Forum below was pleased to hear the preliminary issue regarding maintainability of the complaint in OP.66/05. After hearing both parties, the impugned order dated 10th June 2005 was passed dismissing the complaint as the complaint is barred by limitation. It is against the said order, the present appeal is filed by the complainant through his power of attorney holder Sri.C.S.Rajan.

3. During the pendency of the present appeal, the original appellant (complainant) died and his legal representatives are impleaded as additional appellants 2 to 8. They were impleaded as per the order dated 20.5.10 in IA.191/10. The additional second appellant is the son of deceased original appellant. Additional third appellant is the widow of the deceased original appellant E.V.Vasu. The additional appellants 4 to 8 are the children of the original appellant E.N.Vasu. The additional appellants have engaged counsel of their choice. Notice was served on respondents 1 to 3 (opposite parties 1 to 3). But, the third respondent/third opposite party remained absent. Respondents 1 and 2 entered appearance through counsel of their choice.

4. This Commission was pleased to hear the learned counsel for the additional appellants 2 to 8 and respondents 1 and 2. There was no representation for third respondent. The counsel for additional appellants 2 to 8 submitted his arguments based on the grounds urged in the appeal memorandum which was filed by the original appellant/complainant, E.N.Vasu. He much relied on the decision rendered by the Hon.Supreme Court in Collector, Land Acquisition, Ananth Nag and submitted that there was sufficient reason for the Forum below to condone the delay in preferring the complaint in OP.66/05. Thus, the additional appellants 2 to 8 prayed for setting aside the impugned order dated 10th June 2005 passed by CDRF, Kottayam and requested for remanding the matter to the Forum below for fresh disposal of the complaint on merits. On the other hand, the counsel for respondents 1 and 2 supported the impugned order passed by the Forum below. He argued for the position that there was no sufficient reason or ground to condone the delay of more than 2 years in preferring the complaint in OP.66/05. It is submitted that the inconvenience of the power of attorney holder cannot be taken as sufficient ground for condonation of delay. It is further submitted that the original complainant Sri.E.N.Vasu had other grown up children to look after his affairs and the said children could have preferred the complaint in OP.66/05 within the stipulated time. It is also submitted that in effect, the additional appellants who are the legal heirs of the original complainant are seeking relief of getting compensation by the complaint which was filed with a long delay of more than 2 years. Thus, respondents 1 and 2 prayed for dismissal of the present appeal.

5. The present appeal was filed by the original complainant E.N.Vasu. The complaint in OP.66/05 was filed on 18.3.05. The original complainants son K.V.Sadasivan expired on 23.2.2001. If the date of death of complainants son K.V.Sadasivan is taken as the cause of action for the complaint, then the complaint ought to have been filed within 2 years from the date on which the cause of action has arisen. It is to be noted that the original complainants son K.V.Sadasivan was discharged from the second opposite party hospital on 10.12.2000. As far as the respondents 1 and 2 are concerned, the cause of action for the complaint filed against them would have arisen on 10.12.2000. In such a situation, the complaint in OP.66/05 ought to have been filed on or before 9.12.2000. If that be so, the complaint is having the long delay of more than 2 years. In all respects, the complaint in OP.66/05 was barred by limitation. It is further to be noted that in the original complaint, there was no prayer for condonation of the said long delay of more than 2 years. The power of attorney holder of the original complainant filed the affidavit subsequently on 16.5.05 requesting for condonation of the aforesaid long delay of 2 years.

6. The original complaint in OP.66/05 was filed through the complainants power of attorney holder Mr.C.S.Rajan. The original appeal in FA.274/06 was also filed by the power of attorney holder Mr.C.S.Rajan. The averments in the appeal memorandum would make it clear that the power of attorney holder is well versed with the procedure to be followed under the provisions of the Consumer Protection Act, 1986. The power of attorney holder Mr.C.S.Rajan cannot be treated as a layman in this field. He is more than a legal professional. He is very much aware of the object of the enactment of Consumer Protection Act, 1986 and the procedure to be followed by a Court of law while considering the issue regarding condonation of delay. Such a person caused a long delay of more than 2 years in preferring the complaint in OP.66/05.

7. The reason or ground averred in the affidavit to get the long delay of more than 2 years condoned is that the power of attorney holder was busy with his own family matters and thereby caused the said delay of more than 2 years in preferring the complaint in OP.66/05. There is only a vague averment to get the long delay of 2 years condoned. The Forum below has rightly held that the reason or ground stated in the affidavit filed to get the delay condoned cannot be considered as sufficient reason or ground. This commission have no hesitation to endorse the aforesaid finding and conclusion of the Forum below.

8. The power of attorney holder has also averred that the original complainant Sri.E.N.Vasu was aged 88 years at the time of filing the complaint in OP.66/05 and his wife is also aged and his daughter is a mentally ill person. But there is no whisper in the affidavit filed in support of the petition for condonation of delay regarding the availability of other grown up children of the original complainant E.N.Vasu. In fact, the deponent namely the power of attorney holder deliberately suppressed the fact that the original complainant E.N.Vasu is having other grown up children to look after his affairs and to prosecute the complaint in OP.66/05. The aforesaid suppression of material fact would speak volumes about lack of bonafides on the part of the deponent in filing the affidavit to get the long delay of more than 2 years condoned.

9. The fact that the original complainant E.N.Vasu is having other grown up children came into day light only after his death during the pendency of the present appeal. It is to be noted that the wife and grown up children of the original complainant/original appellant are impleaded as additional appellants 2 to 8. It is only in such a situation the real fact regarding the availability of other grown up children of the original complainant was divulged or revealed. No reason or ground is stated for the failure of the grown up sons of the original complainant moving the Lower Forum in preferring the complaint in OP.66/05 within the time prescribed under Section 24-A (i) of the Consumer Protection Act. There is no whisper in the complaint or in the affidavit about the existence of abled and grown up children of the original complainant for looking after the affairs of their father E.N.Vasu and to prosecute the complaint in OP.66/05 by preferring the same within the stipulated time prescribed under law. In fact, there was no necessity for the original complainant to execute a power of attorney in favour of the deponent C.S.Rajan. This circumstance would make it clear that the deponent C.S.Rajan came to the picture, in order to get the long delay of 2 years condoned. More over, by the death of the original appellant/original complainant the benefits if any, would go to additional appellants 2 to 8 including the grown up children of the original complainant. They were negligent in prosecuting the complaint on behalf of the original complainant E.N.Vasu. Thus, in all respects, the long delay of 2 years cannot be condoned.

10. The learned counsel for the additional appellants 2 to 8 vehemently argued for the position regarding dispensation of substantial justice to the parties. He has rightly relied on the decision rendered by the Hon. Supreme Court in the case of Collector Land Acquisition, Ananth Nag reported in AIR 1987 Supreme Court 1353. There could not be any quarrel about the proposition laid down by the Hon. Supreme Court in the aforesaid reported case. But the litigants like the additional appellants 2 to 8 cannot be treated as deserving litigants to get the unreasonable and long delay of more than 2 years condoned. It is to be noted that the Consumer Protection Act, 1986 prescribes 2 years time from the date of cause of action, for preferring a consumer complaint. It is true that the provisions of Section 24-A (2) stipulates condonation of delay provided sufficient cause for the delay is shown. It is pertinent to note that the agencies constituted under the Consumer Protection Act are bound to record reasons for condoning such delay. The available circumstances of the case would show that there was no sufficient cause for condoning the delay of more than 2 years. The mere fact that there is provision for condonation of delay cannot be taken as a ground to hold that un-reasonable and unjustifiable reasons are to be considered as sufficient reason or cause. In the present case on hand, no sufficient reason is available to condone the said delay of more than 2 years in filing the complaint in OP.66/05.

11. The Forum below was also bound to consider the inconvenience and hardship that will be caused to the opposite parties by condoning the unreasonable and un-explained long delay of more than 2 years. No doubt that substantial injustice will be caused to the opposite parties by allowing the prayer for condonation of the long delay of 2 years that too without sufficient reason or cause. The Forum below can be justified in dismissing the complaint in OP.66/05 as not maintainable because of the fact that the complaint is hopelessly barred by limitation under Section 24-A (i) of the Consumer protection Act, 1986.

12. The forgoing discussions and the findings thereon would make it clear that the present appeal deserves nothing, but dismissal. No purpose will be served by restoring the complaint in OP.66/05 which is barred by limitation. So, this Commission is pleased to dismiss the present appeal.

In the result, the appeal is dismissed. The impugned order dated 10.6.05 passed by CDRF, Kottayam in OP.66/05 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.