MANABESH PRAMANIK Vs. ANIL KUMAR SARKAR

JUDGEMENT

(1.) In this revision filed against the order dated 21.9.2006 of Consumer Disputes Redressal Commission, West Bengal, Kolkata the submission advanced by Mr. Parthasil for petitioner-opposite party is that although revision petition was filed by the petitioner against the order dated 9.11.2004 of a District Forum but the State Commission passed the said order against another order of the District Forum dated 2.7.2004 and present revision, therefore, deserves to be allowed and matter remanded to the State Commission for deciding the revision petition against the said order dated 9.11.2004. In support of the submission, our attention has been invited to the revision petition filed before the State Commission (copy at pages 77-91). Petition would show that the order challenged by the petitioner in revision before the State Commission was dated 9.11.2004 instead of 2.7.2004. Be that as it may, instead of remanding the matter we are proceeding to examine the validity of the order dated 9.11.2004 itself under revisional jurisdiction under Section 21(b) of C. P. Act, 1986 (for short the Act). ;

(2.) Order dated 9.11.2004 was passed by the District Forum on the application filed by the petitioner on 24.9.2004 seeking dismissal of complaint on grounds of limitation and jurisdiction. An application purported to be under Section 5 of Limitation Act r/w Section 24A of the Act seeking condonation of delay, if any, in filing Complaint Case No. 57/04 was also filed by the respondent-complainant which was contested by filing reply by the petitioner. In terms of said order the complaint was held to have been filed within limitation period and District Forum held to have jurisdiction to entertain the complaint. It was observed that cause of action for filing complaint was continuing one. It may be stated that the respondent initially had filed complaint which was registered as Case No. 33/04 on 21.4.2004 seeking compensation, etc. of Rs. 4,00,000 against the petitioner. Breakup of that amount was given in para No. 11 of the complaint. It was alleged that respondent is entitled to the said amount due to reckless Laparoscopic operation performed by the petitioner. As may be seen from aforesaid order dated 2.7.2004, plea of complaint being barred by limitation as having been filed beyond two years of 10.4.2002 on which date the respondent lastly visited the petitioner in connection with treatment, was raised by the petitioner. A Complaint Case No. 33/04 was not found to be containing the date from which limitation started running for the purpose of filing complaint. In this backdrop, prayer was made by the respondent for withdrawal of complaint with liberty reserved to file another complaint on same cause of action. By the said order dated 2.7.2004 withdrawal of said complaint was allowed with permission to file fresh complaint on same cause of action against the petitioner. Thereafter, Complaint Case No. 57/04 was filed by the respondent wherein the order dated 9.11.2004 came to be passed.

(3.) Main thrust of argument advanced on behalf of petitioner is that the limitation for purposes of filing complaint started running on 10.4.2002 on which date the respondent lastly visited the petitioner for treatment and complaint filed on 21.4.2004 was barred by limitation. Even if the date of 10.4.2002 is taken as starting point of limitation there was delay of only about 11 days in filing Complaint Case No. 33/04. In our view, cause of action for the claimed amount had arisen after the respondent was compelled to incur huge expenditure on further treatment from the doctors/hospital named in the complaint after 10.4.2002 and, thus, the complaint initially filed was well within limitation. Moreover, there was/is sufficient cause to condone about 11 days delay in filing the complaint for which respondent had even filed application purported to be under Section 5 of Limitation Act r/w Section 24A of the Act. Further, Consumer Fora are fully competent to entertain complaint(s) for compensation on ground of medical negligence and/or deficiency in service on part of doctor(s). There is, therefore, no illegality or jurisdictional error in aforesaid order dated 9.11.2004 warranting interference in revisional jurisdiction under Section 21(b) of the Act. Accordingly, revision petition is dismissed. Revision Petition dismissed.