ORDER DATED: 22.07.2021
(Against the Order in I.A. 102(A)/2018 in C.C. 97/2018 of CDRC, Thiruvananthapuram)
PRESENT:
HON'BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SRI.T.S.P. MOOSATH : JUDICIAL MEMBER
SRI.RANJIT. R : MEMBER
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SMT. BEENA KUMARY. A : MEMBER
SRI. K.R. RADHAKRISHNAN : MEMBER
REVISION PETITIONER:
Dr. Maria Subison, Senior Consultant, Neurosurgeon, Cosmopolitan Hospital Pvt. Ltd., Murinjapalam, Pattom P.O, Thiruvananthapuram at present Dr. S. Maria Subison, Mch, Neuro Surgeon, Thiraviam Orthopaedic Hospital, Therekalputhur, Nagercoil, Kanyakumari District.
(By Adv. Gladis Fernandez P.)
Vs.
RESPONDENTS:
1. Jothikumar, Madavilakath Veedu, Alappuram, Thirumala P.O., Thiruvananthapuram.
2. Cosmopolitan Hospital Pvt. Ltd., Murinjapalam, Pattom P.O, Thiruvananthapuram represented by its Managing Director.
ORDER
SRI.T.S.P.MOOSATH : JUDICIAL MEMBER
The 2ndopposite party in C.C. No. 97/2018 of the Consumer Disputes Redressal Commission, Thiruvananthapuram, in short the District Commission has filed the revision petition against the order passed by the District Commission in I.A. No. 102(A)/2018 by which the petition filed by the complainant to condone the delay of 145 days in filing the complaint was allowed.
2. The parties are referred according to their status in the complaint.
3. The complainant has filed the complaint against the opposite parties alleging medical negligence. The complainant filed I.A 102(A)/2018 to condone the delay of 145 days in filing the complaint. Opposite parties filed objection. Both sides produced documents. The District Commission, after considering the affidavit of the complainant, objection raised by the opposite parties, the documents produced by both parties and hearing both sides, found that there was sufficient cause for the complainant in not filing the complaint within time and the petition to condone the delay was allowed. Aggrieved by the order passed by the District Commission the
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2ndopposite party has filed the revision petition.
4. Heard the counsel for the revision petitioner. Perused the order passed by the District Commission. It is stated by the revision petitioner/2ndopposite party that the allegation of medical negligence raised by the complainant against the opposite parties is not at all real and it is a fabricated one and the complainant had filed the complaint with the bad intention to avoid the payment of the second bill towards the second surgery as claimed by the 1stopposite party. Those matters have to be considered after taking evidence. It is submitted by the revision petitioner/2ndopposite party that the District Commission ought to have found that the complainant failed to explain the cause for the delay of 145 days in filing the complaint and dismiss the petition.
5. The case of the complainant is that due to his bad health condition and bad financial background he could not file the complaint within time. It is an admitted fact that the complainant had undergone surgery twice. The District Commission found that Exts. A1 & A2 show a clear picture of the health condition of the complainant and Ext. B2 shows that he has approached the District Legal Service Authority for getting the service of an advocate which shows that he was not financially sound at the time of filing of Ext. B2. Considering all these facts the District Commission found that the complainant could not file the complaint within the stipulated time due to his bad health condition and bad financial condition and there was sufficient cause in not filing the complaint within time by the complainant before the District Commission. In arriving at that conclusion the District Commission has also considered the dicta laid down by the Hon'ble Supreme Court in various decisions, regarding condonation of delay, that the doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay. There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of malafides. The substantive rights of the appellant should not be allowed to be defeated on technical grounds by taking hyper technical view. On a perusal of the order of the District Commission it can be seen that the District Commission has passed the order allowing the prayer of the complainant to condone the delay of 145 days in filing the complaint, after considering the affidavit of the complainant, objection raised by the opposite parties, documents produced by both sides and the facts and circumstances of the case. In the order, the District Commission had made elaborate discussion of all those matters. The District Commission observed that there is no order as to costs considering the fact that the complainant was represented before the Civil Court as well as the District Commission by a lawyer appointed by the District Legal Service Authority. We consider that there is no illegality, material irregularity or jurisdictional error in the order passed by the District Commission which warrants interference by this Commission in exercise of revisional jurisdiction. The revision petition is without merit and is liable to be dismissed.
In the result, the revision petition is dismissed.
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JUSTICE K. SURENDRA MOHAN : PRESIDENT
T.S.P. MOOSATH : JUDICIAL
MEMBER
RANJIT. R :
MEMBER
BEENA KUMARY. A :
MEMBER
jb K.R. RADHAKRISHNAN :
MEMBER
[HON'BLE MR. JUSTICE SRI.K.SURENDRA MOHAN]
PRESIDENT
[HON'BLE MR. SRI.T.S.P.MOOSATH]
JUDICIAL MEMBER
[ SRI.RANJIT.R]
MEMBER
[ SMT.BEENAKUMARI.A]
MEMBER
[ SRI.RADHAKRISHNAN.K.R]
MEMBER
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