05/04/2017
TIME LIMIT FOR COMPLAINT IN --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.
http://164.100.72.12/…/judge…/00120312161348711FA4472010.htm
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO.447 OF 2010
(Against the order dated 18.11.2010 in C.C. No.35/2008
of the State Commission, Madhya Pradesh)
O.K. Gaur
S/o Late Shri B.R. Gaur
Age approx.. 57 years
4/21, Chhatrasal Nagar, Phase-2,
Bhopal – 462 021
(Madhya Pradesh) ….…Appellant
Vs.
Choithram Hospital and Research Centre
P.O. Box No. 131, Maanik Bag Road
Indore – 452 014
(Madhya Pradesh) ….Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR MEMBER
For the Appellant: Mr. Jayant Pawar, Advocate (Amicus Curiae)
with appellant in person
Pronounced on: 9th March, 2012
ORDER
PER MR. JUSTICE V..B. GUPTA, PRESIDING MEMBER
Aggrieved by order dated 18.11.2010, passed by State Consumer Disputes Redressal Commission, Bhopal (for short as ‘State Commission’) dismissing its complaint, appellant has filed this appeal.
2. Appellant’s case is that he suffered from polycystic kidney disease. In June 2003, he had to undergo dialysis since both of his kidneys stopped functioning. Both his elder brothers also suffered from the same disease and his sister was 67 years old, therefore they could not donate him a kidney. His wife suffers from scleroderma for the last 20 years and is 40% handicapped. His son was diagnosed as hydrocephalous and died on 8.4.08. His daughter is a minor. Since, he had no related donor, his dialysis continued for 2 years. One of his kidneys was removed, and as the second one also started deteriorating, he was advised kidney transplant. Appellant also got published an advertisement in the newspaper for a donor. Meanwhile, learning of his plight, his friend Raju Kushwaha, offered to donate his kidney.
3. After considering appellant‘s poor financial condition, Hon’ble Prime Minister sent Rs.50,000/- for his treatment to respondent’s hospital from P.M. Relief Fund, Respondent’s Hospital is the only hospital in the state authorized to conduct kidney transplant surgeries. Alongwith donor, appellant was admitted to respondent‘s hospital for 6 days. Various tests were conducted and large amount of money was extorted from him for these tests. A letter for kidney transplant was then sent to the referral committee. After a lot of effort by the appellant’s friends, respondent hospital was given permission to conduct the transplant.
4. According to the appellant, when he wanted to go to respondent’s hospital for transplant, they informed him that their permission to conduct such surgeries has expired. Appellant had to again incur expenses for dialysis. It is further stated that after great efforts, appellant got renewal permission for the hospital. When appellant was admitted in August 2005 for transplant, the tests were again repeated and the transplant was purposely delayed to obtain more money from him. Appellant was required to undergo dialysis during this period, which further stretched his finances. Even though Chief Nephrologist of the hospital wrote that HLA test is not necessary, the test was done twice just to extract money from him. Appellant was finally operated on 25.8.05, after which he was kept in the hospital for 2 months.
5. It is also alleged that at the time of discharge, the discharge card was purposely not given. As such appellant could not take treatment elsewhere, and had to repeatedly go from Bhopal to Indore for follow-ups. Thus, there is gross negligence on the part of the respondent. Though appellant had sent legal notice on 9.2.08, asking respondent to refund the cost but nothing was done. For negligence on the part of the respondent, appellant has sought Rs.30 lakhs as compensation. Further, it is prayed that respondent be directed to pay a further sum of Rs.15 lakhs to the consumer welfare fund.
6. Respondent has raised preliminary objection stating that the complaint is time barred. The kidney transplant took place on 25.8.05, whereas the complaint was filed after about 3 years. It has been admitted by the respondent that appellant was a patient of polycystic kidney since birth. The right kidney was removed in June, 2003 and he was on haemodialysis in October, 2004. According to the Transplantation of Human Organ Act, 1994, no organ can be transplanted without the authority of law. Respondent is authorised to conduct transplantation after other permissions are forwarded to it. When appellant approached respondent, a probable estimate of the amount likely to be incurred was given to him. Appellant had approached M.P. State Government for permission for transplantation of kidney from unrelated donor, after proper tissue matching. The permission was given by Dean MGM Medical College, Indore on 15.7.05. Appellant came to the hospital on 8.8.05. Transplantation is not a routine surgery and cannot be performed in haste. Before surgery, frequent investigation are necessary to ascertain the stable condition of the patient and donor. Dr. Achal Sepaha, the Consultant nephrologist, admitted the donor and the recipient for preliminary investigations. When he was satisfied and after submission of consent from the appellant, he performed the surgery on 23.08.05. The patient stood the procedure well and was discharged on 13.09.05. Appellant did not come for follow-up.
7. The allegations of delay in transplantation, charging heavy expenses with oblique motive, and performing unnecessary tests to extract money etc. have been denied by the respondent. All the investigations performed were absolutely necessary. Further, the treatment papers and documents including the discharge ticket were supplied to appellant at the time of discharge, alongwith names of medicines. There was no negligence on the part of respondent. The transplantation was successfully done and appellant is in good health.
8. It is contended by learned counsel for the appellant that as referral committee has granted the permission for kidney transplantation and sent the same to respondent’s hospital on 15.07.2005, however respondent did not perform the transplantation for further 10 days with the intention to extract illegal money from the appellant. In the meanwhile, appellant’s permission for transplantation expired. It is further contended that respondent’s hospital in spite of having revised consent, did not perform the transplantation for one month and did the same only on 25.08.05. Respondent’s hospital also very well knew that appellant’s condition was very serious and deteriorated, in spite thereof it did not act on time. Thus, respondent hospital has acted in negligence and extracted money from the appellant by showing unfair trade practices. Accordingly, judgement passed by the State Commission is liable to be set aside.
9. State Commission while dismissing the complaint, in its impugned order observed;
“The main allegation of the complainant is that the HLA test was done twice whereas Dr. Sepaha himself wrote “HLA typing report done but not essential in live unrelated.” First, other than the bald statement, there is no evidence on record to show that the HLA test was done twice. Secondly, the hospital had a policy of not performing unrelated donor transplants and the complainant had already been refused by Dr. Sepaha, as is evident from the letters Exhibit -8 and Exhibit-14. However, at the insistence of the Dean MGM Medical College, they agreed to do the transplant – after proper Tissue matching (Exhibit-17).”
It further observed;
“Considering the differences in view in the medical fraternity regarding the HLA typing, even though Dr. Sepaha did not feel it was very necessary, if the hospital, to be on the safer side and to decrease the risk of transplant rejection, considered it necessary to be done, we see nothing wrong in the stand taken by them.
The second allegation of the complainant is that he was not given a discharge certificate. In the absence of this necessary document he could not consult any other doctor and had to repeatedly go to Indore. We find the allegation far-fetched. First, there is not a single letter to the hospital asking for the discharge certificate. Secondly, there was no reason for the hospital not to give it. The operation had been successful and they had no reason to suppress any document. The complainant could have also asked for a case summary of his case, in case he needed to consult some other doctor. He was quite adept in writing letters, whenever required. Therefore, if he had not received any document from the hospital, we do not think he would have kept quiet for 2-3 years. Even otherwise, there is no evidence that he went back to Choithram Hospital, Indore or to Dr. Sepaha after July, 2006. The last date entered on the prescription of Dr. Sepaha, filed by the complainant, is 13.7.06.
The third allegation is that there is error in the dates mentioned in the reply on record. The complainant avers that the operation was not done on the 23.08.05, but on 25.08.05 Choithram Hospital also state he did not come for follow-ups whereas he continued to consult them till 2006. We fail to see how these allegations, which are basically minor errors in typing and checking of the records, are relevant to the treatment given or denote any kind of negligence on the part of the opposite party.
Finally, the complainant has alleged that there was a delay in performing the transplant. The delay he alleges was deliberate and done with the sole intention of extracting money. The records show that the complainant applied for transplant permission on 28.10.04 to Dean, MGM Medical College, Indore. On 24.2.05, Choithram wrote to the Dean stating it was their policy to discourage unrelated renal transplant in their institution because of inherent hazards. On 28.3.05, at the Dean’s request, they agreed to reconsider the case after proper tissue matching. In June 2005, both the complainant and the donor were admitted and investigations, including HLA typing, were done. Once the recipient and the donor were found to be compatible, the complainant wrote to the Dean, MGM College, on 16.06.05 requesting permission to allow the transplant. The letter giving permission to Choithram to perform the transplant was sent by the Dean on 15.7.05. Within a month the transplant was done. If there were some procedural delays, they cannot be said to denote negligence on the part of the opposite party.
The operation for kidney transplant, was carried out successfully by Dr. Sepaha at Chothram Hospital. There is no evidence on record that an excessive amount was charged and unnecessary tests done. There is also no evidence that the hospital withheld any documents from the complainant. We find the allegations totally unfounded and without substance, besides being time-barred by 2 months.
For reasons aforesaid, we are of the view that the complainant has failed to establish the charge of negligence of deficiency in service against the opposite party.”
10. First question which arises for consideration is as to whether complaint filed by the appellant before the State Commission was within time or the same is time barred.
11. As per appellant’s own case, he was operated for kidney transplant on 25.8.2005, whereas complaint before the State Commission was filed on 30.7.2008.
12. Learned counsel for appellant has tried to take shelter in the legal notice, purportedly to have been sent on behalf of appellant to the respondent, contending that limitation will start run only from the date of issue of the legal notice, that is, w.e.f. 9.2.2008. Hence, the complaint is within time.
13. Section 24-A of the Consumer Protection Act, 1986, deals with this situation which is reproduced as under ;
“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.”
14. 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.
15. Hon’ble 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 vs. 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 Hon’ble Supreme Court that;
“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.”
16. Now coming to the plea of learned counsel for the appellant that cause action will arise from the date of service of the legal notice dated 6.2.2008. This plea is of no help to the appellant. It is well settled that by serving the legal notice or by making representation, the period of limitation cannot be extended by the appellant. In this context, reference can be made to Kandimalla Raghavaiah & Co. (supra), in which it has been held;
“By no stretch of imagination, it can be said that Insurance Company’s reply dated 21st March, 1996 to the legal notice dated 4th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground.”
17. Thus, on the face of it, complaint filed before the State Commission was barred by limitation and no application for condonation of delay was filed on behalf of the appellant. The present appeal is liable to be dismissed on this ground alone.
18. Even on merits, appellant has no case as main allegation of appellant is that HLA test was done twice. However, there is no evidence to this effect on record. Even assuming for the sake of arguments that this test was done twice, it was in the interest of the appellant and if the Hospital to be on the safer side and to decrease the risk of transplant failure, has done the test twice, no harm can be said to have been caused to the appellant.
19. The second plea of appellant is that, no discharge certificate was given to him. This plea was raised by the appellant for the first time in its legal notice dated 6.2.2008.
20. Had discharge summary not given at the time of discharge, appellant would not have kept silent for about 3 years, that is, till the date of legal notice dated 6.2.2008.
21. Lastly, there is no force in the plea that there is delay in performing the kidney transplant. As per material available on record, letter given for permission to the respondent hospital was sent on 5.7.2005 and transplant was to be done within one month. If there had been some procedural delay, it cannot be said that delay amounted to any negligence on the part of the respondent. Admittedly, operation for kidney transplant was carried out successfully and there is no evidence that any excessive amount was charged or unnecessary tests were done.
22. We find no reason to disagree with the findings of the State Commission.
23. Present appeal is not maintainable, as the complaint was barred by limitation and even on merits appellant has no case.
24. Accordingly, we dismiss the appeal, with no order as to costs.
…………………..……….J
(V.B. GUPTA)
PRESIDING MEMBER
…………………..……….
(VINAY KUMAR)
MEMBER
Sg.
http://164.100.72.12/ncdrcrep/judgement/00120312161348711FA4472010.htm
(Madhya Pradesh) ….…Appellant
TIME LIMIT FOR COMPLAINT IN --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.
http://164.100.72.12/…/judge…/00120312161348711FA4472010.htm
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO.447 OF 2010
(Against the order dated 18.11.2010 in C.C. No.35/2008
of the State Commission, Madhya Pradesh)
O.K. Gaur
S/o Late Shri B.R. Gaur
Age approx.. 57 years
4/21, Chhatrasal Nagar, Phase-2,
Bhopal – 462 021
(Madhya Pradesh) ….…Appellant
Vs.
Choithram Hospital and Research Centre
P.O. Box No. 131, Maanik Bag Road
Indore – 452 014
(Madhya Pradesh) ….Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR MEMBER
For the Appellant: Mr. Jayant Pawar, Advocate (Amicus Curiae)
with appellant in person
Pronounced on: 9th March, 2012
ORDER
PER MR. JUSTICE V..B. GUPTA, PRESIDING MEMBER
Aggrieved by order dated 18.11.2010, passed by State Consumer Disputes Redressal Commission, Bhopal (for short as ‘State Commission’) dismissing its complaint, appellant has filed this appeal.
2. Appellant’s case is that he suffered from polycystic kidney disease. In June 2003, he had to undergo dialysis since both of his kidneys stopped functioning. Both his elder brothers also suffered from the same disease and his sister was 67 years old, therefore they could not donate him a kidney. His wife suffers from scleroderma for the last 20 years and is 40% handicapped. His son was diagnosed as hydrocephalous and died on 8.4.08. His daughter is a minor. Since, he had no related donor, his dialysis continued for 2 years. One of his kidneys was removed, and as the second one also started deteriorating, he was advised kidney transplant. Appellant also got published an advertisement in the newspaper for a donor. Meanwhile, learning of his plight, his friend Raju Kushwaha, offered to donate his kidney.
3. After considering appellant‘s poor financial condition, Hon’ble Prime Minister sent Rs.50,000/- for his treatment to respondent’s hospital from P.M. Relief Fund, Respondent’s Hospital is the only hospital in the state authorized to conduct kidney transplant surgeries. Alongwith donor, appellant was admitted to respondent‘s hospital for 6 days. Various tests were conducted and large amount of money was extorted from him for these tests. A letter for kidney transplant was then sent to the referral committee. After a lot of effort by the appellant’s friends, respondent hospital was given permission to conduct the transplant.
4. According to the appellant, when he wanted to go to respondent’s hospital for transplant, they informed him that their permission to conduct such surgeries has expired. Appellant had to again incur expenses for dialysis. It is further stated that after great efforts, appellant got renewal permission for the hospital. When appellant was admitted in August 2005 for transplant, the tests were again repeated and the transplant was purposely delayed to obtain more money from him. Appellant was required to undergo dialysis during this period, which further stretched his finances. Even though Chief Nephrologist of the hospital wrote that HLA test is not necessary, the test was done twice just to extract money from him. Appellant was finally operated on 25.8.05, after which he was kept in the hospital for 2 months.
5. It is also alleged that at the time of discharge, the discharge card was purposely not given. As such appellant could not take treatment elsewhere, and had to repeatedly go from Bhopal to Indore for follow-ups. Thus, there is gross negligence on the part of the respondent. Though appellant had sent legal notice on 9.2.08, asking respondent to refund the cost but nothing was done. For negligence on the part of the respondent, appellant has sought Rs.30 lakhs as compensation. Further, it is prayed that respondent be directed to pay a further sum of Rs.15 lakhs to the consumer welfare fund.
6. Respondent has raised preliminary objection stating that the complaint is time barred. The kidney transplant took place on 25.8.05, whereas the complaint was filed after about 3 years. It has been admitted by the respondent that appellant was a patient of polycystic kidney since birth. The right kidney was removed in June, 2003 and he was on haemodialysis in October, 2004. According to the Transplantation of Human Organ Act, 1994, no organ can be transplanted without the authority of law. Respondent is authorised to conduct transplantation after other permissions are forwarded to it. When appellant approached respondent, a probable estimate of the amount likely to be incurred was given to him. Appellant had approached M.P. State Government for permission for transplantation of kidney from unrelated donor, after proper tissue matching. The permission was given by Dean MGM Medical College, Indore on 15.7.05. Appellant came to the hospital on 8.8.05. Transplantation is not a routine surgery and cannot be performed in haste. Before surgery, frequent investigation are necessary to ascertain the stable condition of the patient and donor. Dr. Achal Sepaha, the Consultant nephrologist, admitted the donor and the recipient for preliminary investigations. When he was satisfied and after submission of consent from the appellant, he performed the surgery on 23.08.05. The patient stood the procedure well and was discharged on 13.09.05. Appellant did not come for follow-up.
7. The allegations of delay in transplantation, charging heavy expenses with oblique motive, and performing unnecessary tests to extract money etc. have been denied by the respondent. All the investigations performed were absolutely necessary. Further, the treatment papers and documents including the discharge ticket were supplied to appellant at the time of discharge, alongwith names of medicines. There was no negligence on the part of respondent. The transplantation was successfully done and appellant is in good health.
8. It is contended by learned counsel for the appellant that as referral committee has granted the permission for kidney transplantation and sent the same to respondent’s hospital on 15.07.2005, however respondent did not perform the transplantation for further 10 days with the intention to extract illegal money from the appellant. In the meanwhile, appellant’s permission for transplantation expired. It is further contended that respondent’s hospital in spite of having revised consent, did not perform the transplantation for one month and did the same only on 25.08.05. Respondent’s hospital also very well knew that appellant’s condition was very serious and deteriorated, in spite thereof it did not act on time. Thus, respondent hospital has acted in negligence and extracted money from the appellant by showing unfair trade practices. Accordingly, judgement passed by the State Commission is liable to be set aside.
9. State Commission while dismissing the complaint, in its impugned order observed;
“The main allegation of the complainant is that the HLA test was done twice whereas Dr. Sepaha himself wrote “HLA typing report done but not essential in live unrelated.” First, other than the bald statement, there is no evidence on record to show that the HLA test was done twice. Secondly, the hospital had a policy of not performing unrelated donor transplants and the complainant had already been refused by Dr. Sepaha, as is evident from the letters Exhibit -8 and Exhibit-14. However, at the insistence of the Dean MGM Medical College, they agreed to do the transplant – after proper Tissue matching (Exhibit-17).”
It further observed;
“Considering the differences in view in the medical fraternity regarding the HLA typing, even though Dr. Sepaha did not feel it was very necessary, if the hospital, to be on the safer side and to decrease the risk of transplant rejection, considered it necessary to be done, we see nothing wrong in the stand taken by them.
The second allegation of the complainant is that he was not given a discharge certificate. In the absence of this necessary document he could not consult any other doctor and had to repeatedly go to Indore. We find the allegation far-fetched. First, there is not a single letter to the hospital asking for the discharge certificate. Secondly, there was no reason for the hospital not to give it. The operation had been successful and they had no reason to suppress any document. The complainant could have also asked for a case summary of his case, in case he needed to consult some other doctor. He was quite adept in writing letters, whenever required. Therefore, if he had not received any document from the hospital, we do not think he would have kept quiet for 2-3 years. Even otherwise, there is no evidence that he went back to Choithram Hospital, Indore or to Dr. Sepaha after July, 2006. The last date entered on the prescription of Dr. Sepaha, filed by the complainant, is 13.7.06.
The third allegation is that there is error in the dates mentioned in the reply on record. The complainant avers that the operation was not done on the 23.08.05, but on 25.08.05 Choithram Hospital also state he did not come for follow-ups whereas he continued to consult them till 2006. We fail to see how these allegations, which are basically minor errors in typing and checking of the records, are relevant to the treatment given or denote any kind of negligence on the part of the opposite party.
Finally, the complainant has alleged that there was a delay in performing the transplant. The delay he alleges was deliberate and done with the sole intention of extracting money. The records show that the complainant applied for transplant permission on 28.10.04 to Dean, MGM Medical College, Indore. On 24.2.05, Choithram wrote to the Dean stating it was their policy to discourage unrelated renal transplant in their institution because of inherent hazards. On 28.3.05, at the Dean’s request, they agreed to reconsider the case after proper tissue matching. In June 2005, both the complainant and the donor were admitted and investigations, including HLA typing, were done. Once the recipient and the donor were found to be compatible, the complainant wrote to the Dean, MGM College, on 16.06.05 requesting permission to allow the transplant. The letter giving permission to Choithram to perform the transplant was sent by the Dean on 15.7.05. Within a month the transplant was done. If there were some procedural delays, they cannot be said to denote negligence on the part of the opposite party.
The operation for kidney transplant, was carried out successfully by Dr. Sepaha at Chothram Hospital. There is no evidence on record that an excessive amount was charged and unnecessary tests done. There is also no evidence that the hospital withheld any documents from the complainant. We find the allegations totally unfounded and without substance, besides being time-barred by 2 months.
For reasons aforesaid, we are of the view that the complainant has failed to establish the charge of negligence of deficiency in service against the opposite party.”
10. First question which arises for consideration is as to whether complaint filed by the appellant before the State Commission was within time or the same is time barred.
11. As per appellant’s own case, he was operated for kidney transplant on 25.8.2005, whereas complaint before the State Commission was filed on 30.7.2008.
12. Learned counsel for appellant has tried to take shelter in the legal notice, purportedly to have been sent on behalf of appellant to the respondent, contending that limitation will start run only from the date of issue of the legal notice, that is, w.e.f. 9.2.2008. Hence, the complaint is within time.
13. Section 24-A of the Consumer Protection Act, 1986, deals with this situation which is reproduced as under ;
“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.”
14. 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.
15. Hon’ble 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 vs. 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 Hon’ble Supreme Court that;
“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.”
16. Now coming to the plea of learned counsel for the appellant that cause action will arise from the date of service of the legal notice dated 6.2.2008. This plea is of no help to the appellant. It is well settled that by serving the legal notice or by making representation, the period of limitation cannot be extended by the appellant. In this context, reference can be made to Kandimalla Raghavaiah & Co. (supra), in which it has been held;
“By no stretch of imagination, it can be said that Insurance Company’s reply dated 21st March, 1996 to the legal notice dated 4th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground.”
17. Thus, on the face of it, complaint filed before the State Commission was barred by limitation and no application for condonation of delay was filed on behalf of the appellant. The present appeal is liable to be dismissed on this ground alone.
18. Even on merits, appellant has no case as main allegation of appellant is that HLA test was done twice. However, there is no evidence to this effect on record. Even assuming for the sake of arguments that this test was done twice, it was in the interest of the appellant and if the Hospital to be on the safer side and to decrease the risk of transplant failure, has done the test twice, no harm can be said to have been caused to the appellant.
19. The second plea of appellant is that, no discharge certificate was given to him. This plea was raised by the appellant for the first time in its legal notice dated 6.2.2008.
20. Had discharge summary not given at the time of discharge, appellant would not have kept silent for about 3 years, that is, till the date of legal notice dated 6.2.2008.
21. Lastly, there is no force in the plea that there is delay in performing the kidney transplant. As per material available on record, letter given for permission to the respondent hospital was sent on 5.7.2005 and transplant was to be done within one month. If there had been some procedural delay, it cannot be said that delay amounted to any negligence on the part of the respondent. Admittedly, operation for kidney transplant was carried out successfully and there is no evidence that any excessive amount was charged or unnecessary tests were done.
22. We find no reason to disagree with the findings of the State Commission.
23. Present appeal is not maintainable, as the complaint was barred by limitation and even on merits appellant has no case.
24. Accordingly, we dismiss the appeal, with no order as to costs.
…………………..……….J
(V.B. GUPTA)
PRESIDING MEMBER
…………………..……….
(VINAY KUMAR)
MEMBER
Sg.
http://164.100.72.12/ncdrcrep/judgement/00120312161348711FA4472010.htm
(Madhya Pradesh) ….…Appellant
164.100.72.12
