COMPLAINT NO. 14 OF 2009 (R)

1. Sri. B. Nagaraju,

Aged About 37 years,

S/o. Bommalingaiah,

R/at: Lakkenahalli, Sasalu Post & Hobli,

Doddaballapur Taluk,

Bangalore Rural District.



2. Kumari Tanuja,

D/o. B. Nagaraj,

Aged About 2 years (Minor),

(Since minor represented by her

Father & Natural Guardian/1st complainant),

R/at: Lakkenahalli, Sasalu Post & Hobli,

Doddaballapur Taluk,

Bangalore Rural District. …. Complainants.



-V/s-

1. Snehalaya Hospital,

Solur Post, Magadi Taluk,

Bangalore Rural District,

Represented by its Administrator/

Proprietor of 2nd Respondent.



2. Dr. S.R. Gladyes Menezer,

Christian Major,

Snehalaya Hospital,

Solur Post, Magadi Taluk,

Bangalore Rural District.



3. Harsha Hospital,

No.193/4, Sondekoppa Circle,

National Highway 4, Nelamangala Post,

Bangalore Rural District,

Represented by its Administrator/4th Respondent



4. Dr. Harish Kumar,

Hindu Major,

Harsha Hospital,

No.193/4, Sondekoppa Circle,

Nelamangala Post,

Bangalore Rural District.

5. Sri. R. Nagaraj,

S/o. Late Rangappa,

No.361/1, 10th Main Road,

Akkiyappa Garden,

Mohan Kumar Nagar,

BANGALORE-560 022. …. Opposite Parties.

ORDER REGARDING MAINTAINABILITY

This complaint is filed on 30.06.2009 claiming compensation of Rs.20,00,000/- for the death of the wife of complainant No.1 and mother of complainant No.2 on 27.09.2006. It is alleged that due to medical negligence on the part of opposite party Nos. 1 to 4 in giving treatment to Nagarathnamma the wife of complainant No.1 and mother of complainant No.2 she died on 27.09.2006.



2. After entering appearance, in the version opposite party Nos. 1 to 4 have contended that, the complaint is barred by limitation. Opposite party Nos. 1 and 2 had also filed an application on 10.09.1999 to consider the preliminary objection regarding limitation and the absence of the expert opinion. That application was allowed on 09.10.2009 and the case was posted to 15.10.2009 to hear on the primary objections. On 15.10.2009, the learned counsel for the complainant prayed for time till 22.10.2009. Accordingly the case was adjourned to 22.10.2009 for hearing on preliminary objections raised by the opposite parties. But on 22.10.2009 the complainant and his counsel remained absent.



3. We have heard the arguments of the learned counsel for opposite party Nos. 1 and 2 regarding the preliminary objections.



4. The point for consideration is:-

Whether the complaint filed on 30.06.2009 is in time?



5. Our finding on the above point is in the Negative for the following:-

REASONS

6. Before adverting to the contentions of the parties, we find it appropriate to refer to the observations of the Honorable Supreme Court in the decision in the case of State Bank of India –Vs- B.S. Agriculture Industries reported in (2009) 5 Supreme Court Cases, Page-121, on which the learned counsel for opposite party Nos. 1 & 2 relied upon. In Para-11 & 12 of the judgment the Honorable Supreme Court has held as under:-

“Section 24-A of the ACT is peremptory in nature and requires the 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 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the 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. It is the duty of the consumer forum to take notice of Section 24-A 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.”



Admittedly Smt. Nagarathnamma the wife of complainant No.1 and the mother of complainant No.2 died on 27.09.2006. Therefore the cause of action to file the complaint accrued to the complainants on 27.09.2006 and as such the complaint was required to be filed within two years from 27.09.2006 namely on or before 27.09.2008. As such, the complaint filed on 30.06.2009 is beyond the period of limitation. The complainants have not even filed an application seeking condonation of delay in filing the complaint as required Under Section 24(A) of the Consumer Protection Act. With regard to the cause of action to file the complaint and the reason for not filing the complaint earlier to 30.06.2009 as disclosed in Para- 10 and 11 of the complaint is as under:-

“The complainant submits that, the complainant was totally depressed in view of the death of his wife leaving the minor child orphan. Hence could not attend to his work. This mental depression resulted in loosing the job. The complainant was planning to institute complaint before the Forum but before he could do so his brother-in-law, brother of the deceased wife/5th opposite party herein filed a complaint in very casual manner and the said complaint registered as complaint No.2530/2007.



The complainant submits that, the 5th opposite party had no right to file the complaint and when the present complainant came to know about the matter filed Miscellaneous Petition in No.26/2009 on the file of Honorable State Commission. The Honorable State Commission allowed the Miscellaneous Petition vide Order dated: 20.03.2009. Copy of the petition and order is herewith produced as DOCUMENT NO. ‘B’ & ‘C’. It is submitted that, it is this cause of action including negligence on the part of the opposite party the present complaint is filed. Several documents that came to be in possession of the 5th opposite party are produced in Complaint No.2530/2007 and the Certified Copies of the record are herewith produced as DOCUMENT NO. ‘D’.”

Thus from the statements in Para-10 and 11 of the complaint it is seen that, the complainant have not disclosed the period during which complainant No.1 was under depression and when he came to know about the complaint filed by opposite party No.5 in complaint No.2530/2007. The assertion of the complainants that Miscellaneous Petition No.26/2009 filed before the Honorable State Commission has been allowed as per the order dated: 20.03.2009 is incorrect. The complainants have produced the copy of the petition in Miscellaneous Petition No.26/2009 so also the copy of the order dated: 20.03.2009 passed by the Honorable State Commission in the said Miscellaneous Petition. From the copy of the petition in miscellaneous No.26/2009 it is seen that, the complainants requested Honorable State Commission to permit them to take the original documents filed in complaint No.2530/2007 filed by the opposite party No.5, to permit them to institute a fresh petition before the appropriate Court and to declare that they alone can be the right persons in respect of medical negligence caused by respondent Nos. 1 to 4 leading to untimely death of Smt. Nagarathnamma. The Honorable State Commission disposed of the Miscellaneous Petition observing that if the complainants are not parties to the earlier proceedings, any order passed in the said proceedings is not binding on them and it is open for the petitioner to file a fresh complaint in their own name, if they are so advised. The Honorable State Commission also observed that if any documents are produced in the earlier complaint it is open for the petitioners to obtain certified copy of the said documents and therefore there is no reason to entertain the Miscellaneous Petition. Therefore the Honorable State Commission did not allow the Miscellaneous Petition filed by the petitioners (complainants herein) to file the fresh complaint in their own name by excluding the period spent for the disposal of the earlier complaint filed by opposite party No.5. The observation in the order that it is open for the petitioners to file a fresh complaint in their own name if they are so advised, does not entitle the complainants to file the complaint beyond the period of limitation. The fact that opposite party No.5 the brother of the deceased Nagarathnamma had filed the complaint No.2530/2007 is no ground for the complainants to file the present complaint beyond the period of limitation. If opposite party No.5 was not the right person to file the complaint with regard to the death of Nagarathnamma nothing prevented the complainant No.1 to file the complaint within two years from 27.09.2006 the date of death of his wife. In Para-3 of the version opposite party Nos. 1 and 2 have contended that, the complaint is barred by limitation as the same is filed beyond prescribed period of two years from the date of cause of action. The patient died on 27.09.2006 and the complaint should have been filed within 27.09.2008. The order in Miscellaneous Petition No.26/2009 does not give rise to any cause of action to file the above complaint and the said Petition is not allowed by the Honorable State Commission as the prayer of the complainant has not been granted. Therefore the complainants cannot maintain the complaint despite the inordinate delay without any application for condonation of the delay. It is also contended by opposite party Nos. 1 and 2 that, the depression is a mental illness requiring treatment. The complainant has failed to produce any documents to show that, he was suffering from mental depression which prevented him from filing the complaint. Even assuming that complainant No.1 was suffering from depression there is no document to show that, he has recovered from the depression and is competent to file the complaint and to represent the minor child. The filing of the complaint by brother-in-law did not in any way preclude the complainant from filing the complaint and therefore the complaint is barred by limitation and is liable to be dismissed. As rightly contended by opposite party Nos. 1 and 2 in Para-1 and 3 of the version no document is produced to show that, complainant No.1 was under treatment for depression for any period and that he has recovered from the said ailment and as such he is competent to file the complaint. The complainants have not even disclosed the date on which they came to know about the complaint filed by opposite party No.5. The fact that the complainant No.1 had filed complaint with regard to the same cause will not deprive or prevent the complainants from filing the complaint in their own name. In these circumstances the reasons set out in Para-10 and 11 of the complaint do not make out that the complaint filed on 30.06.2009 is well within time from the date of death of Nagarathnamma on 27.09.2006. Thus the complaint is clearly barred by time and as such, it is liable to be dismissed. In the result, we pass the following:-


ORDER

7. The complaint is Dismissed as barred by limitation.

8. Send a copy of this order to both parties free of costs immediately.
9. Pronounced in the Open Forum on this 3rd DAY OF NOVEMBER 2009.