R.P.NO.73/2008
(Against order in CMP.NO.218/2008 in unnumbered CC on the file of the DCDRF, Madurai)

DATED THIS THE 2nd DAY OF NOVEMBER 2009

Dr. Ravindranath Babu

MahalakshmiClinic

No.26, Seeni Asari Lane

Manjanakkara Street

Madurai – 1 Petitioner / Respondent/ Opposite party

Vs.

T.R. Indira

No.8, Prasanna Colony

7th Street, Avaniapuram

Madurai – 625 012 Respondent/ Petitioner/ Complainant

The appellant as complainant filed a complaint before the District Forum against the Respondent / opposite party. The District Forum has allowed the petition which is filed to condone the delay in filing the complaint. Against the said impugned order, this appeal is preferred praying to set aside the order of the District Forum dt.10.07.2008.

This petition coming before us for hearing finally on 02.11.2009. Upon hearing the arguments of the counsels on either parties, this commission pronounced the following order in the open court.

Counsel for Petitioner/ Opposite party : M/s. N. Maninarayanan, Advocate

Counsel for Respondent/ Complainant: M/s. R. Dhanalakshmi, Advocate

Hon’ble M. THANIKACHALAM J, PRESIDENT. (Open court)

1. Heard. The respondent herein as complainant, filed a petition against the Revision Petitioner, claiming a sum of Rs.3 lakhs as compensation, alleging medical negligence. Originally, the last date of treatment given to the petitioner’s son is 26.10.1997. Unfortunately, the son of the complainant died on 25.2.1998. As mandated under the Act, the complainant has not filed the case within two years, from the date of cause of action, whether the cause of action is to be taken is the as last date of treatment or the date of death of the son of the complainant, as the case may be.



2. Originally, the complainant informed the court, that there was a delay of 104 days, filed a petition before the District Forum in IA.No.218/2000, which was allowed by the District Forum, probably without ordering notice to the otherside. Aggrieved by the said order, the opposite party in the complaint, preferred a Revision Petition, before this commission in R.P.No.4/2001, wherein this commission set aside the order, condoning the delay of 104 days, then issued direction to the District Forum, that notice should b ordered before condoning the delay. Pursuant to the direction given by this Commission, once again another CMP.No.62/2008 before the District Forum, complaining as if there is a delay of 977 days, which was opposed by the opposite party.



3. The District Forum, considering the rival contentions of the parties, and going into the facts in detail, felt the calculation of the delay as if 997 days had stated is incorrect, whereas it is the observation of the District Forum, that if the date of cause of action is to be taken as the last date of treatment, the delay must be if at all, should be 228 days. It is the further observation, that if the date of death of the complainant’s son has to be taken as the date of cause of action, the delay should be 104 days. Thus, taking both view, accepting the averments, that there are sufficient reasons, to condone the delay, the petition was allowed, the delay was condoned, as per the order dt.10.7.2008, which is under challenge before us, in this Revision petition.



4. The learned counsel appearing for the Revision petitioner, submits that in both the affidavits, to condone the delay, whether it is 104 days or 997 days, the averments are one and the same, and by going through the affidavit also, there are no sufficient acceptable reason, and this being the fact, condoning the delay by the District Forum, is erroneous.



5. Per contra, it is the submission of the learned counsel for the complainant/ Respondent, that the complainant being an illiterate women, aggrieved by the death of her son, unable to move elsewhere, the delay caused due to the ignorance, and therefore, the same should be condoned.



6. Sec.24(A) of the Consumer Protection Act, says that if the complainant satisfies the District Forum or the State Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint, within the period viz. two years, the same can be condoned. The Act does not say, that each and every day of delay should be explained, as available under Sec.5 of the Limitation Act. The only question is, the District Forum or State Commission should be satisfied about the averments, and the averments should make out the case, that she was prevented, for the sufficient reasons, in preferring the claim. The petitioner, in her affidavit, filed in support of CMP.NO.218/2000, has stated that “My son died on 25.2.1998. I fell under deep grief, and sick on knowing about the death of my son and after recovering from my mental sickness, I made enquiries and I was made to understand that the respondent was sole responsible for the death of my son. Hence right from December 1998 I had been writing letter to the respondent who received the same but kept quite. Later I issued legal notice through my advocate on 29.6.1999.” From the above averments, as well as in the averments available in the complaint, it is seen (vide para 2 of the complaint) that the petitioner being a women, lost her eldest son, who is married, having the legal heir also. On the above facts, it is also urged on behalf of the Revision Petitioner, that the petition itself is not maintainable for non-joinder of necessary parties, which has to be decided, if at all only at the time of disposal of the main application, and liberty is given to the opposite party, to raise this point, while filing the written version. Though the first son is married, the petitioner being the illiterate lady, seems unable to understand the consequences, and only after the advise rendered by the advocate, she appears to have understood that her son died due to medical negligence, and therefore she has claimed the compensation at later stage. In order to decide the case on merit, since the above extracted averments available in the affidavit are to our satisfaction, we are inclined to condone the delay. Whatever the defense taken now, and available for the Revision Petitioners/ Opposite parties, they entitled to raise the same, before the District Forum, including the claim is, barred by limitation. The District Forum, analyzing the facts properly, taking both the dates i.e., last date of treatment given by the opposite parties, as well as the date of death, taking that may be the negligence causing death, calculated the period and satisfying itself, condoned the delay, in which we are unable to interfere. Hence the petition is dismissed.



7. The learned counsel for the Revision Petitioner, urged that as per the decision of the recent judgment of the Supreme Court, the matter should be referred to the Board, before the taking the case on file. Hence the District Forum is directed to go through the judgment of the Hon’ble Supreme Court reported in 2009 II LW 681 or 2009 III SCC 1 or 2009 V MLJ 510, if necessary should refer the matter to the Board, before taking the case on file.