BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 22^ND DAY OF SEPTEMBER 2022

             ORDER

SRI.K.S.BILAGI, PRESIDENT

1.         This joint complaint has been filed by the daughter and wife of late Chandrashekar K Borkar, against the OPs under section 12 of C.P.Act 1986 (herein after referred as “Act”) against the OPs for the following reliefs.

1. The complainant respectfully pray that this Hon’ble court be pleased to direct the respondent to pay the compensation amount of Rs.19,90,000/- in the interest of justice and equity.
2. To pass any other orders.

2. The case of the complaint in brief is as follows:

Late.Chandrashekar K.Borkar father of the complainant No.1 and husband of complainant No.2 was working as a Manager, Karnataka Soaps and Detergent Limited, drawing salary of Rs.39,000/- per month had chest pain at 1 am on 29.08.2011.  Accordingly Late.Chandrashekar K.Borkar was rushed to hospital of OP1.  Late.Chandrashekar K.Borkar

Was admitted in the hospital of OP on the basis of registration card.

3. It is further case of the complainants that after check up, doctor prescribed few medicines stating that chest pain was due to gastric problem.  As per the advise of the doctor, Chandrashekar was kept in observation till 5.15 am, but Chandrashekar expressed his unhealthiness of chest pain.  Accordingly he admitted in Fortis Hospital, wherein doctor diagnosed the patient was sufferance acute anterior AWMI and he had a massive heart attack and patient was brought 8 to 10 hours delay in admitting the patient.  Despite treatment, Chandrashekar last his breath at 9.45 AM on 01.09.2011.  OPs are responsible for the death of Chandrashekar.
4. Complainants had filed the complaint No.1570/2013 on 28.08.2013 on the file of 4^th Additional District Consumer Forum and they got withdrawn the complaint as per the direction on 10.09.2013. Thereafter on 09.03.2018 the complainant got issued legal notice to the OP.  In response to the legal notice Ops have issued untenable reply denying the negligence on their part.  Hence this complaint.
5.  In response to the notice Ops appeared and filed version.  Complainants have approached this forum by suppressing the true facts.  Complaint is not maintainable before this forum as there is no cause of action and complaint is barred by limitation.
6. The OPs denied that Late.Chandrashekar K.Borkar last his breath due to the negligence on the part of the OPs. They denied allegations made against them. They contended that this forum has no jurisdiction to entertain the complaint.  They request to dismiss the complaint.
7. The complainants have filed affidavit evidence of complainant No.1 and relies on 37 documents.  They have also filed affidavit evidence of Aparna Bogadi Anantha Subbaraya, in support of their case, has produced 11 documents.
8. Even though version is received OPs failed to file affidavit evidence. Heard the arguments of advocate for complainant only.  No argument is advanced on behalf of OPs.
9. The points that would arise for our consideration are as under:-

1. Whether complaint is barred by limitation?
2. Whether the complainant proves deficiency of service on the part of the OPs?
3. Whether the complainant is entitled to reliefs mentioned in the complaint?
4. What  order?

10. Our answer to the above points are as under:

  Point No.1 :- Affirmative

 Point No.2 & 3:- Do not survive for consideration

      Point No.4:- As per the final order.                     

                                REASONS

11. Point No.1: Even though the complainants have reiterated the facts pleaded in the complaint, got examined witness and relies on 37 documents. Even though OPs have not lead evidence, but they have filed version stating that the complaint is barred by limitation.  The complainants have specifically stated in para 14 of their complaint and para 14 of the affidavit evidence of complainant No.1 that they had filed similar complaint No.1570/2013 on the file of the 4^th Additional District Consumer Disputes Redressal Forum on 28.08.2013 and got withdrawn the same on 10.09.2013.  The complainant shave produced the copy of the order sheet of CC No.1570/2013 which indicates that these complainants filed similar complaint against the present OPs on 28.08.2013 and got withdrawn the same on 10.09.2013. On the same day through their advocate received the documents also.  The complainants have obtained certified copy of this order on 14.12.2016.
12. The present complaint came to be filed on 03.07.2018.  Even though earlier complaint in CC No.1570/2013 was filed within two years from the date of death i.e., 01.09.2011, but the complainants have not filed this complaint within two years at least from 10.09.2013 for the reasons best known to them.

13. It I relevant to refer sec 24A of C.P. Act 1986 which reads thus;

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.

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. U/s 24-A(2) of the C.P. Act 1986 the complainants could have filed application to condone the delay.  The present complaint came to be filed after long gap of 4 ½ years without filing an application to condone the delay.  Even though complainants got issued legal notice on 09.03.2018 his issuance of legal notice is also after more than 4 ½ years from the date of order in CC No.1570/2013 dated 10.09.2013.

15. It is settled preposition of law that when period of limitation starts to run, it will not stop anywhere.  Mere issuance of legal notice on 09.03.2018 does not stop running of limitation.  The complainants have not assigned any reason about delay between 10.09.2013 to 09.03.2018.  Therefore, the OPs are right in saying that the complaint is barred by limitation.

16. POINT NO.2 AND 3: These two points do touch the merits of the case.  It is settled preposition of law that when the complaint is barred by limitation and complaint is going to be dismissed on the point of limitation. This Commission cannot decide the case on merits.  Under such circumstances, these two points do not survive for consideration.

17. POINT NO.3: In view of the discussion on Point No.1, the complaint requires to be dismissed on the point of limitation. We proceed to pass the following;

O R D E R

1. Complaint is Dismissed as barred by limitation. No cost.
2. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 22^ND day of September, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :

NIL

HAV*