SONO LOGIST SHIVAM ULTRASOUND DIAGNOSTIC CENTREN vs SUNIL KUMAR

-THE opposite party in the District Consumer Forum has challenged its order dated 21. 9. 2006 passed in Consumer Complaint No. 2 of 2005, before us on the ground, inter alia, that the impugned order was passed on the basis of forged document.

THE appeal is time-barred. Period of limitation for filing appeal expired on 21. 10. 2006, whereas Memorandum of Appeal has been filed on 18. 3. 2008. A petition under Rule 8 (4) of the State Rules has been filed wherein it is stated that the appellant was transferred from Deoghar to Bishanpur in Gumla District and for this reason he could not pursue the case personally. And, the impugned order was passed on 21. 9. 2006, on the basis of evidence adduced by the complainant-respondent, of which he could get the knowledge from the Newspaper, ''prabhat Khabar'' dated 27. 9. 2006 when he came to Deoghar during Durga Pooja. Then he obtained the certified copy of the order and filed Misc. Case No. 3 of 2006 under Order 9 Rule 13 read with Order 17 Rule 2 of the Civil Procedure code, on 17. 10. 2006. The said Misc. case was dismissed on 21. 1. 2008. Thereafter, on the advice of the Counsel, having taken certified copy of the order dated 21. 9. 2006, the present appeal could be filed on 18. 3. 2008. It is further stated in the petition for condonation of delay that the delay was not occasioned due to deliberate laches on the part of the appellant, rather it occurred on account of circumstances as stated above. Rejoinder to the petition for condonation of delay has been filed in which facts stated in the condonation petition have not been controverted. Rather, in the rejoinder it is stated that in fact there has been unavoidable delay in filing the appeal. Paragraph 6 of the rejoinder is reproduced below: ''''that in fact there is unavoidable delay in filing the appeal which cannot be condone merely on the ground that appellant has no knowledge about passing the impugned order dated 21. 9. 2006. ''''

According to the appellant himself there has been delay of 1 year 180 days in filing the appeal. However, there is the explanation that the appellant was transferred to Bishanpur in Gumla District and that after getting knowledge of the impugned order, he filed a Misc. petition for setting aside the same in which much time was consumed. It is obvious that he filed the Misc. petition on 17. 10. 2006 and the same was disposed of by dismissal on 21. 1. 2008. It is true that he wrongly prosecuted the case in the District Consumer Forum by filing Misc. petition under the provisions of the Civil Procedure Code which took 1 year 97 days in disposal. Prosecuting the matter in wrong forum cannot be solid ground for condonation of delay. However, in the facts and circumstances of the case, as the wrong Forum took long time, i. e. 1 year 97 days in disposing of the Miscellaneous Case, we are of the view that the said long period may be exempted in counting the period of delay. There appears satisfactory explanation also for the rest period, which is unrebutted. Therefore, delay in filing the appeal is condoned.

THE complainant-respondent had filed the complaint alleging that the opposite party-appellant had given false report regarding foetal status of the pregnancy of his wife Kiran Devi, who was examined at the appellant''s Ultrasound Centre on 14. 7. 2004. In the report it was stated that foetal movement, cardiac pulsation and cardiac activity were found absent. Dr. Manju Banker who had referred the wife of the complainant to the appellant''s Centre for ultrasound examination was not satisfied with the report. Then the respondent consulted another doctor namely Dr. Reeta Thakur and showed the report. But the report was said to be wrong in view of the condition of Kiran Devi the respondent''s wife, by her also. And, on 10. 8. 2004 Kiran Devi gave birth to a male child. On 11. 8. 2004, the respondent went to the appellant and complained that false report was given, but he was annoyed and gave filthy abuses to the respondent. Then after giving legal notice to the appellant, the respondent filed complaint claiming Rs. 50,000 as compensation. The opposite party-appellant appeared and filed written statement. According to the case of the appellant, admittedly ultrasound was done on Kiran Devi, wife of the complainant on 14. 7. 2004 at his Centre who was referred by Dr. Manju Banker. It is said that on that very date, in the evening the respondent came to the centre and picked up the report of another Kiran Devi who was examined on 11. 6. 2004, from the table of the compounder, in his absence, where several reports of ultrasound done on the wife of the respondent and other ladies were kept ready for delivery. The respondent did not take consent of the appellant or any staff of the Ultrasound Centre before taking the report. Thus he wrongly took away the ultrasound report of another Kiran Devi on whom ultrasound was done on 11. 6. 2004 and who was also referred by Dr. Manju Banker. On the next date, the respondent came to the chamber of the appellant and became violent and threw photostat copy of the said report and the film (plate) which he had taken away, but retained the original copy of the same with him. However, he realised his mistake and apologized and assured to return the original copy of the report and film of ultrasound of another Kiran Devi, dated 11. 6. 2004. And, on that date (15. 7. 2004) he took the genuine report of his wife. But he never returned the original report of another Kiran Devi and filed the complaint to blackmail the appellant.

ON conclusion of the trial, the District Consumer Forum ordered the appellant to pay Rs. 10,000 as compensation to the complainant-respondent within two months, holding the opposite party-appellant deficient in service. On notice, the appellant appeared and filed written statement before the District Consumer Forum, but afterwards he could not take steps as he was transferred to Bishanpur in Gumla District from Deoghar and could not adduce evidence. However, in the written statement it was admitted that ultrasound examination on Kiran Devi, wife of the respondent was done on 14. 7. 2004 whereas he (respondent) had based his allegation on the report of another Kiran Devi on whom ultrasound was done on 11. 6. 2004, which he had wrongly taken away. But strangely, the District Consumer Forum did not take into consideration such case of the appellant, rather on the basis of the ultrasound report dated 11. 6. 2004 submitted by the respondent gave finding. It is not understandable as to how the anomalous position regarding date of examination of Kiran Devi was not taken notice of. The case of respondent was that his wife was examined on 14. 7. 2004 which was admitted by the appellant in his written statement, but the impugned order has been passed on the basis of the report dated 11. 6. 2004. It was expected and necessary for the respondent to file the report dated 14. 7. 2004, but instead of said report, the report of Kiran Devi dated 11. 6. 2004 was filed by him which was said to be the report of another Kiran Devi. This goes to suggest that there may be truth in the case of the appellant. The appellant has reiterated the same case in his written statement, reply dated 17. 9. 2004 to the legal notice dated 11. 9. 2004 given by the respondent, memorandum of appeal and brief of written arguments filed before us. But the respondent nowhere appears to have clarified the anomaly pointed out by the appellant. The report of 14. 7. 2004 intentionally appears to have been withheld by the complainant-respondent. In absence of the ultrasound report of Kiran Devi, wife of the respondent, dated 14. 7. 2004, we have no option, but to hold that the complaint had no leg to stand and that it was not fit to be allowed.

THEREFORE, in the facts and circumstances of the case, we are of the opinion that the appeal succeeds. It is allowed, accordingly. The complaint stands dismissed. No order as to cost. Appeal allowed.