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REVISION PETITION NO. 2410 OF 2014



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REVISION PETITION NO. 2410 OF 2014

(From the order dated 06.03.2014 in First Appeal No. 840/2013 of the State Consumer Disputes Redressal  Commission, Haryana, Panchkula)

WITH IA/3781/2014 (STAY)

 

National Insurance Co. Ltd. A company incorporated under the Companies Act, 1956



Having its registered office at: 3, Middleton Street, Kolkata-700071 And its Regional Office at: Level –IV, Tower-II, 124, Connaught Circus, New Delhi-110001

                                                                … Petitioner

  Versus

 Ashwani Kumar  S/o Shri Mukhtiar Singh, R/o H.No. 2954, Urban Estate, Jind, District Jind, Haryana

… Respondent

 BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER

HON’BLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner         :  Mr. Animesh Sinha, Advocate


Pronounced on :  14th July, 2014 

 ORDER

 JUSTICE J. M. MALIK, PRESIDING MEMBER 

1.      Ashwini Kumar, the complainant purchased   a Bolero SLX from M/s Supreme Automobiles Mahindra & Mahindra Limited, Hisar on 10.06.2011.  The said vehicle was stolen on 21.07.2011 when it was parked in front of his house.  F.I.R. was lodged with the police on the next day on 22.07.2011.  The surveyor appointed by the Opposite Party-National Insurance Company also investigated the matter.  The National Insurance Company repudiated the claim vide letter dated 25.05.2012 on the ground that only temporary registration was issued to the petitioner in June 2011.  The complainant filed a complaint before the District Forum.  The District Forum allowed the claim. 

 

2.      Aggrieved by that order, the OP filed the First Appeal.  The State Commission also dismissed the appeal.  Consequently, both the fora have given the concurrent findings. 


 

3.      We have heard the counsel for the petitioner at length, at the time of admission of this case.  He contended that the complainant has violated Section 39 of the Motor Vehicle Act.  Consequently, the repudiation made by the petitioner, is valid. 

 

4.      It must be borne in mind that Section 43 Clause 2 of the Motor Vehicle Act provides for the extension of time granted for temporary registration.  Again, Section 39 of the M.V. Act restricts the person to drive the vehicle unless the same is registered in accordance with Chapter IV of the M.V. Act.  There is no iota of evidence that the vehicle was being driven at the time of theft.  This question is no more Res integra.  The National Commission has taken its view in the cases reported in IFFCO Tokio General Insurance Co.Ltd. Vs. Pratima Jha, RP No.171 of 2012, decided on 27.04.2012  and in M/s Aroma Paints Ltd. and Mr. Rajiv Sethi Versus The New India Assurance Co. Ltd. III(2013)CPJ 635(NC) in Revision Petition No. 626 of 2013 decided on 07.08.2013. 



 

5.      Learned counsel for the petitioner conceded that SLPs were filed against the judgments, which were dismissed.

 

6.      Consequently, the petitioner/OP has got no bone to pluck with the complainant.  The Revision Petition is, therefore, dismissed.



 

.…..…………………………

(J. M. MALIK, J)

PRESIDING MEMBER


.…..…………………………

(DR.S. M. KANTIKAR)

MEMBER

Jr/9


 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI


REVISION PETITION NO.2445 OF 2014

(From the order dated 17.2.2014 in Appeal No.535/2013 of the Orissa State Consumer Disputes Redressal Commission, Cuttack)

 

M/s Abhisekh Road Ways 9-A, Saraswati Vihar, Near Toll Gate N.H.No.6, Bhatili Road Square, Baragarh Po-/PS/Dist-Baragar Rep. by Shri Ashis Kumar Agarwal S/o Sri Hanuman Prasad Agarwal



… Petitioner

                                                 Versus

 1. National Insurance Co. Ltd. A subsidiary of General Insurance Corporation of India

At-3, Middle Street, Kolkatta-700071 Rep. by its Chairman-cum-Managing Director 

2. Regional Manager National Insurance Co. Ltd., Regional Office 6th Floor, IDCO Tower, Janpath Bhubnaeswar-751022 Dist.-Khurda 

3. Divisional Manager National Insurance Co. Ltd., Sambalpur Division, Nuabazar, Nayapada Po/PS/Dist-Sambalpur 

4. Branch Manager, National Insurance Co. Ltd. Canal Avenue, Baragarh, PO/PS/Dist-Baragarh

...  Respondents

 BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner                  : Ms. Priyanka Ghorawat, Advocate 

                                                  

PRONOUNCED ON :   14th  JULY, 2014

 ORDER


JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

1.         This revision is directed against the order of the State Commission dated 17.02.2014 whereby the application of the petitioner complainant for condonation of delay in filing of the appeal was dismissed and consequently the appeal preferred by the petitioner was also dismissed as barred by limitation.

2.         Briefly stated facts relevant for the disposal of this revision petition are that in August 2012, the petitioner complainant filed consumer complaint alleging deficiency in service on the part of the respondent insurance company in respect of the insurance claim pertaining to the loss of motor spirit being carried in the tanker, in an accident which occurred on the night of 22.04.1997.

3.         The respondent opposite party resisted the claim.  In the written statement, the respondent admitted the insurance cover extended to the complainant.  However, loss of motor spirit in an accident was denied. Besides the aforesaid pleas on merit, certain legal objections were also taken.

4.         The District Forum on consideration of the pleadings of the parties and the evidence came to the conclusion that repudiation of claim of the petitioner by the opposite party amounted to deficiency in service.  Accordingly, the complaint was allowed and the following order was passed:

The Opposite Parties are directed jointly and severally to pay Rs.2,66,562/-(Rupees two lakh six thousand five hundred sixty two only)  to the complainant for the loss of Motor Spirit due to accident of the insured vehicle with simple interest @ 9% (nine percent) per annum from the date of filing of this complaint case i.e. 28.08.2012 along with compensation of Rs.10,000/- (Rupees ten thousand only) towards harassment and mental agony and litigation expenses within thirty days from the date of Order failing which the total awarded amount shall carry 18% (eighteen percent interest) per annum till the date of actual payment.

          The case is allowed and disposed off accordingly”.

5.         The petitioner being aggrieved about the quantum of compensation awarded, preferred an appeal seeking enhancement of compensation.  The appeal, however, was filed after the expiry of period of limitation with the delay of 107 days.  The petitioner, therefore, moved an application for condonation of delay in filing of appeal.  Only explanation given for the delay was that the petitioner appellant at the relevant time was suffering from diabetes and he was under the treatment of a Kabiraj (Ayurvedic practitioner) during the period w.e.f. 26.09.2013 to 24.10.2013.  It was claimed in the application that on 25.10.2013, the petitioner proceeded to Cuttack where he contacted his counsel and on instructions, memorandum of appeal was prepared and it was filed on 28.10.2013.

6.         Learned State Commission not being satisfied with the explanation, dismissed the application for condonation of delay as also the appeal on the ground of limitation.  Relevant portion of the order is reproduced thus:

Learned counsel for the petitioner/appellant submits that the impugned order was passed on 12.06.2013 and the petitioner/appellant suffered from diabetic and related disease from 26.09.2013 to 24.10.2013 and was treated under a Kabiraj.  On 25.10.2013 he proceeded to Cuttack from Bargarh and reached at Cuttack on 26.10.2013 and contacted his advocate.  Thereafter, learned counsel for the petitioner/appellant prepared the appeal memo and filed it on 28.10.2013 as 27.10.2013 was a holiday.  Learned counsel for the petitioner further submits that the delay was caused as the petitioner was suffering from illness and there was no intention to file the appeal in a belated stage.  So the delay may be condoned.

          By the time, the petitioner/appellant said to have suffered from diabetes, delay of 77 days had already been caused.  The learned counsel for the petitioner/appellant filed a copy of the medical certificate issued by Kabiraj, who certified that the petitioner/appellant was suffering from Madhumeha and allied diseases.

          A doctor/Kabiraj is not expected to advise a patient to take rest for about one month.  Unless a diabetic patient does not do any physical work his sugar level would increase. Of course in case of gangrene and other serious disease out of diabetes, such a patient is required to take rest, but it appears that the appellant was not suffering from such a case.  So, the grounds taken by the petitioner/appellant to condone the delay are not accepted.

7.         Learned counsel for the petitioner  has contended that the impugned order of the State Commission is not sustainable for the reason that the State Commission has ignored that the petitioner was prevented from filing the appeal within the period of limitation because of his ailment.  It is submitted that even the medical certificate produced by the petitioner was not accepted.

8.         We have considered the submissions made by the petitioner and perused the record.  There is no merit in the contention for the reason that perusal of the medical certificate placed on record would show that it has been issued by one Ayurvedic petitioner Dr. Nityanand Mahapatre,  Medical certificate certifies that one Ashish Kumar Aggarwal s/o Hanuman Prasad was under his treatment for Madhumeh from 26.09.2013 to 24.10.2013.  Apart from this certificate, no document  such as prescription slips have been furnished.  No pathological report has been filed to show that the petitioner was actually suffering from diabetes during the relevant period.  Even the concerned doctor has not been examined to establish that the ailment of the petitioner was such that he could not have taken steps to contact his lawyer and given instructions for filing the appeal.  Under these circumstances, we do not find illegality / irregularity in the order of the State Commission declining to accept the explanation for delay.  Counsel for the petitioner has failed to point out any jurisdictional error in the impugned order of the State Commission.  Therefore, we find no reason to interfere with the impugned order in exercise of the revisional jurisdiction conferred under section 21 (b) of the Consumer Protection Act, 1986.

9.         Even on merits, the petitioner does not have any case.  His complaint has been allowed by the District Forum and he has been awarded compensation.  The petitioner is seeking interest on higher rate and from the earlier date.  It may be noted that consumer complaint was filed in the year 2012 although the alleged loss took place in the  year 1997.  District Forum was justified in granting interest from the later date particularly when there is inordinate delay on the part of the petitioner to file the consumer complaint.  Thus, we do not find any justification in the request for granting interest on the compensation awarded from the date of claim.  The interest awarded by the District Forum appears to be reasonable.

10.       In view of the discussion above, the revision petition is dismissed.

…………………..……Sd/-…………


(AJIT BHARIHOKE, J.) (PRESIDING MEMBER)

……………….……Sd/-…………….



(REKHA GUPTA) MEMBER

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI



REVISION PETITION NO. 4547 OF 2013

(Against order dated 19.09.2013 in First Appeal No. 207/2008 of the State Consumer Disputes Redressal Commission, Uttarakhand, Dehradun)



IN IA/7450/2013 (Stay)

                       

Dr. Manpreet Kaur Preet Maternity Home & ENT Centre Peer Ke Samne Waali Gali, Arya Nagar, Jwalapur, Haridwar, Uttarakhand

…Petitioner

  Versus

 Smt. Laxmi Devi alias Gudiya W/o Sh. Dulichand R/o Sashtri Nagar Jwalapur, Haridwar Uttarakhand

….Respondent

 

BEFORE



HON’BLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER 

HON’BLE DR. S.M. KANTIKAR, MEMBER           

For the Petitioner                 :   Mr. Gurinder Singh, Advocate

For the Respondent             :   Mr. Ajay Chand Sharma, Advocate 

PRONOUNCED ON 15th JULY  2014

ORDER

PER DR. S.M. KANTIKAR, MEMBER 

1)                        Brief facts of the case: Smt. Laxmi Devi alias Gudiya, during her pregnancy, slipped and suffered miscarriage on 28.07.2006. Dr. Sudhir Kumar who runs, “JACHCHA BACHCHA KENDRA” checked her and prescribed some medicines for 3 days and referred her to Harmilap Hospital for further treatment but she did not get any relief. On 31.07.2006 the Complainant visited the City Hospital and consulted Dr. N. K. Agarwal who advised Ultrasound and other tests and administered some injections. The husband of the Complainant thereafter took her to Ramakrishna Mission Sevashrama, Kankhal, (in short RMS) as he was not in a condition to afford the costly treatment at the City Hospital. Dr. Madhu Shah attended the Complainant at RMS and after investigation started the treatment. Dr. Madhu Shah, advised the Complainant to consult a lady surgeon. Hence, on 14.08.2006, the patient’s husband took her to Dr. (Smt.) Manjeet Kaur-the OP where, she remained under treatment under 19.08.2006. The Complainant’s allegation was the OP kept her for first 3 days only on medication which resulted in pus formation in the abdomen. On 16.08.2006 the OP operated her and charged her Rs.10,000/- without issuing any receipt. During the course of stay in the hospital on 18.08.2006, the OP instead of providing bed pan, directed the nurse to take the Complainant to toilet, when, while getting up from the bed with the help of a nurse’s support the stiches from the operation got opened and the intestine bulged out. Thereafter, the pus went on increasing and also there was a faecal matter. Thereafter, the OP discharged the Complainant from the nursing home on 19.08.2008; then she was taken to Combined Medical Institute (CMI), Dehradun and was treated by Dr. Mukesh Kumar Gupta and his team by performing 2 operations and discharged her on 28.09.2006. She incurred a cost of about Rs.70,000/- for the treatment. Hence, alleging negligence in the operation and that the wound was not stitched properly, the Complainant filed consumer complaint before the District Forum in Haridwar and prayed for compensation, of Rs.4,70,000/- with interest @ 12% p.a., and Rs.10,000 towards litigation.

2)                The District Forum, allowed the Complainant and directed the OP to pay a sum of Rs.1,52,000/- against the medical expenses, fees, physical & mental agony and cost of litigation. Aggrieved by the order of the District Forum the OP filed an Appeal before the State Commission.

3)                 The State Commission partly allowed the appeal and modified the order passed by the District Forum by reducing the amount of medical expenses and compensation from Rs.1,52,000/- to Rs.62,000/-.

4)                 Aggrieved by the order of Sate Commission the OP preferred this revision. We have heard the counsel for the parties. The counsel for the complainant vehemently argued that the OP was negligent in treating the patient, after operation the stitches were not properly placed, therefore the patient suffered for a long period. The OP has not taken reasonable care of the patient. The counsel for OP/petitioner contended that on 16.08.2006, during operation Dr. N. K. Agarwal also assisted the OP Dr. Manjeet Kaur. However, on 18.08.2006, the stitches of operation got broken and patient’s condition deteriorated. After ultrasound test, the OP has referred the patient to a higher medical centre. In CMI Dehradun, the patient was treated by Dr. Mukesh Kumar Gupta.

5)                 On perusal of records we are convinced that, Dr. Sudhir Kumar, the so called Gynecologist and a B.E.M.S. degree holder, and Smt. Munni Devi, a midwife, were working in Dr. Sudhir Kumar’s “Jachcha-Bachcha Kendra”. Complications developed during the treatment and the said Dr. Sudhir Kumar, appears to be a quack and not qualified to treat such patients. Then she took treatment from Dr. Madhu Shah, a doctor in Ramakrishna Mission Sevashrama wherein she has prescribed Injection Voveron. We find no mention of the medical qualification of Dr. Madhu Shah on record. Though Dr. Madhu Shah had kept the patient under her treatment for 14 days, but no medical records are availing pertaining to the treatment given by her. On 14.08.2006, when Dr. Madhu Shah observed the ultrasound she reported of some complications in lower abdomen, hence she discontinued the treatment of the Complainant. She also had advised the complainant to consult a surgeon.

6)                 Thereafter, the complainant was under the treatment of Dr. (Smt.) Manpreet Kaur from 14.08.2006 to 19.08.2006, who was qualified, as MBBS, MS (Gynecology and Obstetric). It is very pertinent to note that, the complainant approached the OP after 17 days of the incident of miscarriage and during this period, she had remained under the treatment of Dr. Sudhir Kumar, a midwife Smt. Munni Devi and Dr. Madhu Shah. The patient developed the complications of peritonitis and progressed to formation of pus in lower abdomen. The Patient was a case of pyo-peritoneum due to some gynecological procedure, most of the time it is due to post MTP/Post delivery for which she was operated by Dr. Manpreet Kaur. Abdominal exploration was a right decision and did proper lavage in the presence of senior surgeon Dr. N. K. Aggarwal. Obviously, the surgical margins the tissue show necrotic changes and takes much time to heal. On post-operative period she developed wound dehiscence. Wound dehiscence usually occurs in the presence of severe infection (Pus) in the abdomen and poor General condition of the patient. It is not related to ambulation of the patient. The patient was referred at right time on the day when she developed a wound dehiscence.

7)                 Therefore, we do not find any element of negligent treatment rendered by the OP. Her approach was reasonable and as per standard of medical practice. We put reliance upon various judgments of Hon’ble Supreme Court and of this Commission on the subject of medical negligence. The OP succeeds the Bolam’s Test.  Hence, both the fora below erred to appreciate the treatment given by OP to the complainant. The earlier doctors, Dr. Sudhir Kumar and Dr. Madhu Gupta who appear to be negligent from beginning of treatment, had ventured in unnecessary and improper treatment of the complainant. But, it is unfortunate that those doctors have not been arrayed as parties, to the complaint, hence we are helpless to fix liability upon them.

8)                  Therefore, on the basis of foregoing discussion, we set aside the orders passed by the fora below and allow this revision petition. Accordingly, the complaint is dismissed. No order as to costs.

..…………………………

(J. M. MALIK, J.)

PRESIDING MEMBER

 

..…………………………



(DR. S. M. KANTIKAR)

MEMBER

Mss/16




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