RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
COMPLAINT NO. 128 OF 2016
Arvind Kumar Tripathi
S/o Bhashkaranand Tripathi
R/o Village Neevi Kala
Post Sikandarpur, Tehsil Chakiya
District Chandauli
Present R/o House No.151
Patel Nagar, Mugalsarai
Pargana Mavai
Tehsil and District Chandauli
...Complainant
Vs.
- Chakarvarti Clinic
Through Dr. Radhika Chakravarty
House No. B-21/49-A, Kamaccha
City Varanasi
- Dr. Radhika Chakravarty
Chakarvarti Clinic
House No. B-21/49-A, Kamaccha
City Varanasi
- New India Assurance Company Limited
Shanti Market, Lahuraveer
Varanasi
Through Branch Manager
...Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE AKHTER HUSAIN KHAN, PRESIDENT
For the Complainant : Sri Sanjay Kumar Verma, Advocate.
For the O.P. Nos.01 & 02 : Sri Rajesh Chadha, Advocate.
For the O.P. No.03 : Sri A K Rai, Advocate.
Dated : 20-06-2019
ORDER
PER MR. JUSTICE A. H. KHAN, PRESIDENT
Complainant Arvind Kumar Tripathi has filed this complaint under Section 17 of the Consumer Protection Act against opposite parties Chakarvarty Clinic through Dr. Radhika Chakarvarty, Dr. Radhika Chakarvary and New India Assurance Company Limited.
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Opposite parties No. 01 and 02 have filed objection wherein plea of limitation has been raised and it has been stated that the complaint is barred by limitation prescribed under Section 24A of the Consumer Protection Act.
Learned Counsel Sri Sanjay Kumar Verma appeared for complainant.
Learned Counsel Sri Rajesh Chadha appeared for opposite parties No. 01 and 02.
Learned Counsel Sri A K Rai appeared for opposite party No.03.
I have heard learned Counsel for the parties on the point of limitation.
Present complaint has been filed by complainant against opposite parties for the deficiency allegedly committed by opposite parties No.01 and 02 in the course of treatment of his eyes during period extending from 03-03-2013 to 30-04-2013. The averment made in paragraph 6 of the complaint shows that the complainant was informed on 15-06-2013 by Dr. S. K. Shah about the deficiency allegedly committed by opposite parties No.01 and 02 and became aware of it on said date. Thus the cause of action for the complaint has arisen on 15-06-2013 the date on which the complainant came to know about deficiency allegedly committed by opposite parties No.01 and 02 but the complaint has been filed on 16-05-2016 after expiry of limitation of two years prescribed by Section 24A of the Consumer Protection Act.
It is contended by learned Counsel for the complainant that the opposite parties No. 01 and 02 were giving assurance to complainant to compensate him but ultimately refused to compensate on 21-07-2015. Thereafter complaint has been filed within limitation prescribed by Section 24A of the Consumer Protection Act. Cause of action for complaint has arisen on 21-07-2015.
It is contended by learned Counsel for the opposite parties that the cause of action for filing complaint arised on the date when the deficiency allegedly committed by opposite parties No.01 and 02 came into notice of complainant. As such the complaint is time barred.
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I have considered the submissions made by learned Counsel for the parties.
In view of averments made in complaint as mentioned above cause of action for the complaint has arisen on 15-06-2013 when Dr. S K Shah of Shah Maternity and Eye Hospital Private Limited informed complainant about the deficiency allegedly committed by opposite parties No. 01 and 02 in his treatment. Thus, in view of Section 24A of the Consumer Protection Act the complaint is time barred but the complainant has not moved application for condoning delay of complaint.
In view of provision of Section 24A of the Consumer Protection Act the complaint shall not be admitted if it is filed after expiry of two years from the date on which the cause of action has arisen. Sub-section 2 of Section 24A of the Consumer Protection Act provides that a complaint filed after expiry of limitation may be entertained if the District Forum, the State Commission or the National Commission, as the case may be, is satisfied by complainant that there is sufficient cause for not filing the complaint within such period. In proviso of Sub-section 2 of Section 24A of the Consumer Protection Act it has been provided that no 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 delay.
The present complaint has been filed without delay condonation application and cause of delay has not been considered by the Commission for condoning delay. Considering the provision of Section 24A of the Consumer Protection Act I am of the view that the cognizance taken by Commission on the complaint is against provision of Section 24A of the Consumer Protection Act. Therefore, I am of the view that the complaint should not be proceeded further. It should be returned to complainant with liberty to move fresh complaint with explanation of delay and delay condonation application.
In view of above complaint is returned to complainant with liberty to file a fresh complaint with explanation of delay and delay condonation application. Court fee paid by complainant shall be adjusted in fresh
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complaint if fresh complaint is filed within 30 days from today. Fresh complaint if filed within 30 days, it shall be listed for hearing on admission on 27-07-2019.
Notice is given to opposite parties for appearance on 27-07-2019.
Let copy of this order be made available to the parties positively within 15 days as per rules.
( JUSTICE A H KHAN )
PRESIDENT
Pnt.
