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Dharmbir v/s Dr. Akhil Saxena M.S. General & Lap Surgeon Rai Hospital & Others


Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

Company & Directors' Information:- D.R. HOSPITAL PVT LTD [Strike Off] CIN = U85110HR1994PTC032215

    Revision Petition No. 2692 of 2014

    Decided On, 16 September 2014

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Petitioner: Neeraj Dutt Gaur, Advocate. For the Respondents: R1, Sandeep Kapoor, R2, Rajesh Mahna, Advocates, R3, Nemo.



Judgment Text

V.K. Jain, Presiding Member (Oral)

1. This revision petition is directed against the order of the State Commission, Haryana at Panchkula dated 11-02-2014 whereby the said Commission dismissed the appeal filed by the complainant/petitioner against the order of the District Forum dated 31-07-2013, dismissing his application under Section 24A (2) of the Consumer Protection Act, 1986 for condonation of delay in filing the complaint and accordingly dismissed the complaint as barred by limitation.

2. The case of the complainant is that his wife, Anita, was taken to Rai Hospital at SonIpat on 24-10-2000 with complaint of stomachache and referred to respondent No.1, Dr. Akhil Saxena who referred her to Sunder Lal Jain Hospital at Delhi. Initially she was taken to Jaipur Golden Hospital where the petitioner was asked to deposit Rs.10,000/- , but, since he did not have sufficient funds with him he took his wife to Sunder Lal Jain Hospital where she breathed her last. Alleging negligence in her treatment, complaint came to be filed on 24-11-2004, after more than four years of the death of the complainant’s wife.

3. Initially, the complaint was allowed by the District Forum vide its order dated 15-11-2006 by directing the respondent No.2 in the complaint to pay compensation of Rs.2,00,000/- to the complainant, along with Rs.10,000/- towards compensation for mental agony and Rs.5,000/- as cost of litigation. 4. Being aggrieved from the aforesaid order of the District Forum, respondent No.2 preferred an appeal before the State Commission. Having noticed that the cause of action had arisen on 24-10-2010 and the complaint been filed on 24-11-2004, the State Commission set aside the order of the District Forum and remanded the matter back to it, for deciding the application which the complainant had filed under Section 24A(2) of the Act.

5. Pursuant to the above referred order of the State Commission, the District Forum decided the application of the complainant under Section 24A (2) of the Act and dismissed the said application vide its order dated 31-07-2013.

5. Being aggrieved from the order of the District Forum the complainant/petitioner approached the State Commission by way of an appeal. The said appeal having been dismissed, he is before us by way of this revision petition.

6. The application seeking condonation of delay in filing the complaint, to the extent it is relevant, reads as under:

'That after the final refusal of the respondents to pay any compensation on account of the death of Smt. Anita which was caused due to their sheer negligence, the applicant handed over the entire documents to one Shri Krishan Kumar Malik, Adv. Sonepat for filing of the complaint who assured to file the same and further asked the applicant enquire about the same after 2/3 months and after 2/3 months when the complainant came to Sonepat to enquire about the complaint, he was told that Shri Krishan Kumar Malik, Adv. has left the practice and left Dist. Courts Sonepat and on constant efforts, the complainant could contact Shri Malik on this Diwali who told that he could not file the complaint as he was selected as President of Consumer Forum and left Sonepat and then the complainant engaged another counsel.'

7. The affidavit of Shri Krishan Kumar Malik, Advocate filed before the District Forum, to the extent it is relevant reads as under:

'1. That I was practicing as an advocate in the year 2002 and one Dharambir came to me in the last month of June, 2002 for filing the complaint under the Consumer’s Protection Act in regard to death of her wife.

2. That I saw the whole documents and asked to lodge complaint against the respondents. I assured the complainant that the complaint will be filed. After some days, I was selected as President District Consumers Disputes Forum, Narnaul. So, I could not file the complaint of complainant due to I had left the practice and I asked by Clerk to handover the case file to Sh. Anil Dahiya, Advocate and some other Advocates according to nature of cases.'

8. If I go by the affidavit of Shri Krishan Kumar Malik it means that the complainant had contacted him after a few months of handing over the brief to him in June 2002. Though Mr. Krishan Kumar Malik did not state in his affidavit as to after how many months the complainant had contacted him, considering the expression ‘some months’ used by him, it can be safely said that the complainant would have contacted him, in or before May, 2003 i.e. within 11 months of the brief for filing the complaint having been handed over to him. There is no explanation in the application under Section 24A (2) as to why the complainant did not contact the clerk of Shri Krishan Kumar Malik, Advocate, to find out the advocate to whom his filed had been handed over by the said clerk. This is not the case of the complainant in the application that the name of the clerk was not disclosed to him by Shri Krishan Kumar Malik, Advocate or that when he contacted the clerk, the name of the advocate to whom the file had been handed over was not disclosed to him. In any case, once the complainant had come to know from Shri Krishan Kumar Malik that no complaint had been filed by him, nothing prevented him from contacting another advocate to file the complaint on his behalf.

9. As would be seen from the application seeking condonation of delay, the case of the complainant, disclosed in para 2 of the application is that he approached Shri Krishan Kumar Malik, Advocate after 2-3 months of handing over the brief to him and at that time he was told that Shri Krishan Kumar Malik had left the practice and also left the District Sonepat and, thereafter, the complainant could contact Shri Krishan Kumar Malik only on Diwali that year i.e. Diwali of 2004. Unfortunately, the application does not disclose as to who had told the complainant that Shri Krishan Kumar Malik had left not only the practice but also the city of Sonepat. In fact, the averments made in the application of the complainant run counter to the averments made in the affidavit of Shri Krishan Kumar Malik, since, the petitioner does not claim to have met Shri Krishan Kumar Malik, whereas the case of Shri Krishan Kumar Malik in his affidavit is that the complainant had met him after a few months of handing over the brief to him and at that time he had told the complainant that he had handed over the brief to his clerk for distributing it to other advocate. The application does not disclose as to what efforts were made by the complainant to ascertain the whereabouts of Shri Krishan Kumar Malik. The complainant could easily have contacted him on his telephone. Since

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the above referred advocate had been appointed as the President of the Consumer Forum it would not have been difficult for the complainant to find out his whereabouts and then contact him at the place where he was posted as the President of the Consumer Forum. The application does not disclose how the complainant came to know the whereabouts of Shri Krishan Kumar Malik around Diwali of 2004. 11. For the reasons stated hereinabove, I am of the considered view that the delay in filing the complaint did not stand satisfactorily explained. Consequently there is no ground to interfere with the concurrent finding of fact recorded by the District Forum and the State Commission in this regard. The revision petition is accordingly dismissed.
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