SMT. KAKALI CHOWDHURY vs DR. BHASKAR CHATTERJEE & 2 ORS.

This revision petition has been filed against order dated 02.07.2013 of the State Consumer Disputes Redressal Commission, West Bengal, (in short ''the State Commission'').

Brief facts of the case are that on 14.04.2010 the complainant KakaliChowdhury, received a fractured injury on her right forearm and upon receiving a fractured injury she went to the opposite party''s nursing home for treatment. She was admitted in the opposite party No.3, nursing home and underwent operation on 14.04.2010 under supervision of the Dr. Bhaskar Chatterjee, opposite party no.1. On 17.04.2010, the complainant Kakali Chowdhury was discharged from opposite party''s nursing home. On 26.04.2010 & 30.04.2010, the complainant as per advice of the O.P. No.1 went to his chamber on 26.04.2010 where some of the stitches were removed and again she went to the nursing home on 30.04.2010 for removal of other stitches. On 04.05.2010, the complainant feeling severe pain on the operated area again visited the same doctor on 04.05.2010 who assured that the healing was in progress. The complainant feeling further aggravation of pain again visited him on 18.05.2010. Opposite Party No.1 treated her and advised her to revisit after four weeks but the patient started feeling unbearable pain. On 27.7.2010, the complainant consulted Dr. H.A. Saha, an orthopedic Surgeon, who opined that the operation was faulty and the infection already started in the operated area. During 25.08.2010 to 30.08.2010, the complainant was admitted in Christian Medical College, Vallore. The doctor examined the complainant and diagnosed that there has been "Infective Nonunion Both Bone right Forearm with Implant Insitu." On 13.07.2011, the petitioner filed a complaint against the respondents before the District Consumer Disputes Redressal Forum, Howrah, West Bengal (in short ''the District Forum'') for harassment, pain and mental agony and damagecaused to her during medical treatment. The District Forum vide its order dated 10.07.2012 allowed the complaint as under:- "That the C.C. Case No.53 of 2011 (HDF 53 of 2011) be allowed on contest with costs against all the O.Ps.

The complainant is entitled to compensation of Rs.5 lacs towards damage and Rs.1,50,000/- for prolonged mental harassment, pain and agony and for Rs.3 lacs for medical treatment.

The complainant is further entitled to litigation costs of Rs.20,000/-.

The O.P. Nos.1 and 2&3 be directed to pay jointly and severally the total amount aggregating Rs.9,70,000/- within one month from the date of this order failing the amount shall carry interest @ 12% per annum.

The O.P. No.1 be further directed to deposit a sum of Rs.50,000/- in favour of Consumer Welfare Fund.

The complainant is at liberty to put the decree into execution after expiry of the appeal period.

Supply the copies of the order to the parties, as per rule."

Aggrieved with the order dated 10.07.2012 of the District Forum, OP No.1/ respondent No.1 and OP No.2/respondent No.2 preferred the appeals no. 474/2012 and 473/2012 respectively before the State Commission. The State Commission vide its order dated 02.07.2013 accepted both the appeals and set aside the order dated 10.07.2012 of the District Forum.

Hence the present revision petition.

Heard the learned counsel for the petitioner.

The learned counsel informed that aggrieved with the order dated 02.07.2013 of the State Commission passed in appeal no.473 0f 2012, the petitioner had earlier filed a revision petition No.3156 of 2013, Kakali Chowdhury Vs. Dr. Bhaskar Chatterjee &Ors., which was dismissed in default on 20.01.2016. It was suggested to the petitioner that revision petition will have to be filed against both the appeals separately and hence this second revision petition against the order dated 2.7.2013 passed in appeal no. 474 of 2012 has been now filed. The present revision petition has been filed on 25.02.2016 and hence there is a delay of 738 days in filing the present revision petition. Learned counsel stated that District Forum had allowed the complaint after critically examining the facts and circumstances of the case, but, the State Commission has erroneously accepted the appeals of the Ops and has set aside the order of the District Forum. There is lot of merit in the case of the petitioner and merit should not be sacrificed on account of the technical reason of delay. The delay in filing the present revision petition has occurred inadvertently on account of the fact that the first revision petition against the same impugned order of the State Commission was filed mentioning only one appeal no. 473 of 2012 whereas the impugned order was a common order passed by the State Commission in both the appeals nos. 473 0f 2012 and 474 of 2012. Hence the present revision petition has been filed mentioning the appeal no. 474 of 2012.

I have perused the application for condonation of delay in this revision petition. The main reason for delay has been mentioned in paragraph no.3 of the application, which reads as follows:- "3. The Hon''ble State Commission reversed the order passed by the District Forum on an erroneous consideration. Therefore the petitioner had preferred RP/473/2012 against the reversal order passed by the Hon''ble State Commission. Inadvertently, the petitioner had mentioned one order in the petition and instead of two appeal numbers. The common order was passed by the State Commission. The petitioner is not very much familiar with the technicality. As it was a common order, the petitioner under the impression that Revision Petition filed would be against both appeals. The separate appeals are filed by the opposite parties against the complaint filed by the petitioner. Therefore, the opposite parties have raised the technical objection, therefore, the petitioner has preferred this petition. The delay was caused inadvertently and there is no ill-intention and a bonafide one. Therefore, the delay may kindly be condoned in the interest of justice and equity."

From the above, the reason given for condonation of delay does not seem convincing. The earlier revision petition No.3156 of 2013 filed by the petitioner, Kakali Chowdhury was already dismissed in default and same cannot be revived through this revision petition being filed against the same impugned order in another appeal. While considering the question of condoning the delay, Hon''ble Supreme Court of India in "Anshul Aggarwal Vs. New Okhla Industrial Development, (2011) 14 SCC 579 has held that:- "5. 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 revision 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."

Similarly, the Hon,ble Apex Court in the case of Basawaraj and Anr. Vs. Special Land Acquisition Officer, (2013) 14 SCC 81 has held that:- "9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose.

It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lexsedlex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute."

Based on the above discussion and relying on the two rulings cited above, I find that the grounds for condoning the delay in filing the present revision petition are not acceptable. Accordingly, I do not find any merit in the application for condonation of delay in filing the present revision petition and the same is dismissed. Consequently, the Revision Petition also stands dismissed in limine on the ground of limitation.