ALOK KUMAR MUKHERJEE Vs. TAPAS ROY CHOUDHURY

JUDGEMENT

(1.) IN this appeal, challenge is to the order dated 23.8.2005 of Consumer Disputes Redressal Commission, West Bengal, Calcutta, whereby complaint filed by the appellants was dismissed as being time barred.

(2.) SHORT submission advanced by Mr. Avik Datta for appellants is that for the purpose of filing of complaint the limitation will start running from 18.7.2003 on which date Priyanko Mukherjee, son of appellants had died and the complaint filed on 13.7.2005 was, thus, within limitation. Reliance was placed on the decision in MD. Suleman Ansari (DMS) v. Shankar Bhandari, III (2005) CPJ 1 (SC)=V (2005) SLT 183. In order to appreciate the submission, few facts need be noticed. Deceased child was diagnosed on suffering from congenital heart disease on 26.10.1985, when he was barely six months old. Since then the child was under the treatment of Dr. S.C. Kundu who referred him to the respondent. After examining the child the respondent advised for operation abroad after he grows a little taller and achieves a target weight of 20/25 kgs. Appellants waited for the proper time to come. On 28.5.1997 the respondent referred the child to Dr. Debashish Biswas, cardiologist who advised certain investigation After investigations, the appellants were told by the doctors that the surgery at that belated stage will be extremely risky as the child was in a terminal stage. It was alleged that the respondent under whose treatment the child was for about 8 years, had misguided the appellants by giving the advice referred to above As may be seen from the order of the State Commission it was of the view that appellants had come to know of the wrong advice by the respondent in 1997 itself and the complaint filed about 7/8 years thereafter was, therefore, barred by limitation. State Commission did not agree with the contention advanced on behalf of appellants that cause of action was continuing one. On i given facts, I am not inclined to Fake a view different from that taken by the State Commission in the matter. Under Section 24(A) of Consumer Protection Act, 1986 a complaint has to be filed within two years from date of accrual of cause of action. Complaint filed on 13.7 2005 was, thus, barred by time as rightly held by the State Commission. Decision in MD. Suleman Ansari s case is distinguishable and has no applicability to the facts of present case. Accordingly, appeal is dismissed being without any merit.