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Judgment
RP no. 3292 of 2012 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the final judgment and order dated 15.02.2012 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad ( ''the State Commission '') in First Appeal no. 225 of 2010. The brief facts of the case as per the respondent no. 1/complainant are that the respondent/complainant is a resident of Rajahmundry and she approached respondent no. 2/ opposite party no. 1 who is running a nursing home under the name and style of "Sreeram Nursing Home ''. On 20.01.1998, as an outpatient for treatment of back pain and bleeding at the time of monthly periods due to uterus trouble.
THE respondent no. 2/ OP no. 1 after verification of the annexure B and C reports, advised the respondent to undergo Hysterectomy operation. Respondent no. 2/ OP 1 conducted the operation on 07.02.1998 and discharged the respondent on 14.02.1998. In spite of the medicines, used as prescribed by the respondent no. 2, the respondent no. 1 has been suffering with over sweating, folding of the skin, getting frequent fever and the entire body suffering with soothing pains. The respondent informed the respondent no. 2 on 22.03.1998 about the troubles suffered by her subsequent to the operation and after discharge from the hospital, such as over sweating, folding of skin (Wrinkles), shooting pains in the entire body and frequent fever etc. Thereupon the respondent no. 2 informed the respondent that these side effects may be caused due to the removal of ovaries as the respondent no. 2 removed the ovaries of the respondent at the time of operation, and the problems will be cured, if medicines are used for a period of six months.
THE respondent then lost confidence on the treatment administered by the respondent no.2 and approached another Gynaecologist on 26.03.1999. The said Gynaecologist informed the respondent no. 1 that side effects may occur due to the removal of ovaries and in the case of the respondent, there was reason for removal of ovaries of the respondent as per the scanning report.
THE respondent no. 1 is a house wife with two children aged about 15 and 13 years to look after. Her husband is working as an employee (i.e., LDC) in the State Government and the entire family is dependent upon the monthly salary of her husband. Soon after the discharge from the respondent no.2 ''s hospital, the she became handicapped and disabled person due to over sweating, frequent fever, shooting body pains, folding of skin and other problems. She has become dependant on her husband and her children for every day to day needs. Respondent no. 1 has claimed Rs.3.00 lakh as compensation, general damages for the loss or injury and continuous suffering due to the negligence of respondent no. 2 and further an award of Rs.10,000/- as cost.
In their written reply, the petitioner/ opposite party no. 2 and respondent no. 2/ OP 1 have stated that it is an admitted fact the respondent consulted the respondent no. 2 on 20.01.1998 as an outpatient. During that visit, the respondent no. 1 stated that she was suffering from pain in abdomen, backache, excessive menstrual bleeding and bysmenorrhoca, since a year prior to the consultation. The respondent no. 1 stated that she is the mother of two children. Respondent no. 2 conducted clinical examination and found the general condition good, except that the respondent was nervous and apprehensive. Respondent no. 2 after systematic clinical examination found tenderness in the lower abdomen. The internal examination revealed enlargement of uterus, which was found to be firm and tender and both the ovaries were tender. After such clinical and internal examination, the respondent no. 2 put the respondent on differential diagnosis of chronic pelvic inflammatory disease or adenomyosis of uterus or endometriosis of pelvic organ. The respondent no. 2 advised the respondent to undergo ultrasonic test, blood and urine examinations. After prescribing antibiotics, the respondent no. 1 was advised to come for check-up after fifteen days. Thus, after systematic clinical and internal examination only the respondent no. 2 prescribed medicines. Respondent no. 2 took into consideration the fact that the respondent no. 1 is the mother of two children that she was suffering from bleeding and pain, that there was no relief in spite of medical treatment and advised the surgical treatment of removal of uterus and exploration of pelvic organs. Respondent no. 2 explained these facts to the respondent and her husband in detail. She also explained to them the merits and demerits of the surgical intervention. A study of Exhibit A 3 (trans-vaginal and transabdominal of pelvis) established presence of fibroid, indicating tumour on the uterus. Respondent no. 2 on the surgical table, did exploration of the uterus, tubes, ovaries, bowels and intestines of the respondent. After such exploration, the respondent no. 2 found that the uterus was enlarged and fixed because of adhesions and both the ovaries were adherent very much posterior to uterus. This was due to endometriosis. The respondent found that the ovaries were very much inflamed and haemorrhagic, i.e., blood stained. The respondent no. 2 on observing this condition of the respondent no. 1 after exploration of the organs on the surgical table diagnosed that the respondent no. 1 is suffering from adeaomyosis of uterus and pelvic endometriosis with adhesions.
THE respondent no. 2 thus found that the ovaries were very much adherent and in an inflamed condition and therefore found it essential to remove the ovaries. The respondent no. 2 after such diagnosis informed the respondent no. 1 about the condition of the ovaries and the necessity of removing them while removing the uterus. The respondent no. 2 also informed PW2 who was present at the time of the surgery about the necessity of removing the ovaries. The respondent no. 1 who was conscious on the surgical table informed the respondent no.2 that she got full confidence in her and gave consent for removal of the ovaries. PW2 who was also informed of the necessity to remove the ovaries also gave his consent. The respondent no. 2 thus in the interest of the respondent and in order to provide her relief, removed her ovaries. During the course of surgery, the respondent no.2 also removed the appendix of the respondent. All the removed organs were shown to PW2 and the respondent no. 2 explained about the observations found by her on the organs of the respondent and the necessity of removing the ovaries and appendix to PW2.
THE District Consumer Disputes Redressal Forum II, Rajahmundry EG District ( ''the District Forum '') "allowed the complaint and directed the petitioner/ OP 2 to pay a sum of Rs.3.00 lakh as compensation and general damages to the respondent/ Complainant. A further amount of Rs.10,000/- to be paid as costs ". Aggrieved by the order of the District Forum, the petitioner filed a First Appeal no. 225 of 2010 before the State Commission and respondent no. 2 filed a first appeal no. 229 of 2010 before the State Commission. The State Commission vide its order dated 15.02.2012 dismissed both the appeals. Hence, this present revision petition.
We have heard the learned counsels for the parties and have also gone through the records of the case. Along with the present revision petition, the petitioner has filed an application for condonation of delay of 89 days. The reasons given in the application for condonation of delay are as follows:
THE impugned order dated 15.02.2012 was dispatched on 06.03.2012 and then the certified copy was made available to the petitioner by the counsel in the last week of March.
THE matter was taken up at the divisional office of the insurance company at Rajahmundry and deliberated upon till 1st week of May. Thereafter the matter was sent to the counsel Syed Moinuddin, Advocate and Notary, Vishakapatnam who gave his opinion to file the revision petition on 4th June 2012. Thereafter a letter was forwarded by the Vishakhapatnam Branch Manager of the petitioner to Delhi Branch Manager of the petitioner by last week of June 2012. Further, Delhi office of the petitioner sought for the second opinion and thereby forwarded the file to Advocate M J Paul and Co. on 1st week of July 2012.
IT is submitted that the petitioner got an opinion from Advocate M J Paul and Co. as to whether a revision petition is to be filed in National Commission against the order dated 15.02.2012 passed by the State Commission in FA nos. 225 and 229 of 2010. Advocate M J Paul and Co. vide letter dated 23.07.2012 opined that the petitioner should file the revision petition stating the merits of the case. Thereafter, it was considered appropriate to file a revision petition before the Hon ''ble National Commission and accordingly the files were entrusted to the present counsel for preparing the petition. All these efforts took some time before a decision was taken at the highest level of the insurance company. The matter was yet again sent back to Advocate M J Paul and Co., in the first week of August to file the revision petition.
THE counsel for the insurance company prepared the draft petition and sent it over to the insurance company for settlement and signature in the second week of August. There were certain changes recommended by the insurance company and the draft was returned back to the counsel for incorporating certain changes in the petition in the third week of August. Therefore, the final draft was sent after necessary modifications for signatures of the competent authority of the insurance company. The petition was thereafter returned back to the counsel for filing a revision petition before the National Commission only in the last week of August. The petitioner is supposed to explain the day-to-day delay, but the needful has not been done. The petitioner has failed to provide ''sufficient case '' for the delay of 89 days. This view is further supported by the following authorities.
IN AnshulAggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that "It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras ".
IN R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that "We hold that in each and every case the Court has to examine whether delay in filing the Special Appeal Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition ". In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that "It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by Section 5. If ''sufficient cause '' is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If ''sufficient cause '' is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. " Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi and Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that; "There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence. "
INSOW Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that "the expression ''sufficient cause '' cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such ''sufficient cause '' stated in the application and no such interference in the impugned order is called for ".
IN BalwantSingh Vs. Jagdish Singh and Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held: "The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005] ".
The present case is fully covered under the case laws cited above Supra.
ACCORDINGLY , we find that there is no ''sufficient cause '' to condone the delay of 89 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.5,000/-. (Rupees five thousand only).
PETITIONER is directed to deposit the cost by way of demand draft in the name of ''Consumer Legal Aid Account of this Commission '' within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation. List on 25th October 2013 for compliance.