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Judgment
The dispute relates to 2013, we are in 2018.
Heard learned counsel for the revisionist- insurance co. Perused the material on record.
This revision has been filed against concurrent findings of the District Forum and the State Commission with self - admitted delay of 112 days.
The District Forum vide its Order dated 08.07.2016 had determined medical negligence on the part of the hospital and the doctor concerned:
"9. The Forum is of the opinion that opposite parties no. 2 & 3 have failed to discharge their professional duties satisfactorily on two counts:
First, there was negligence/lack of due care on the operating table, and second, there is no satisfactory record available whether the consent of the patient was taken and the attendant post operative hazards were clearly explained to the patient/attendant. It is well settled law that the consent of the patient for post operative complications are a must. The signature of the 'brother' on the consent form raises doubts as the complainant has clearly denied any relationship with the signatory. This could be a case of afterthought.
This, perse, amounts to negligence on the part of opposite parties no. 2 & 3. 7. Opposite parties no. 4 & 5 who are indemnifiers of opposite parties no. 2 and 3 are directed to pay jointly or severally to the complainant:
(a) Rs.3,50,000/- as a comprehensive sum of medical costs involved with @9% interest from the date of filing of the complaint till its realization.
(b) Rs.4,00,000/- as compensation for mental agony and harassment.
(c) Rs. 2100/- as litigation expenses.
The total payable amount will be shared equally by opposite parties no. 4 & 5 and will be paid within 30 days from the date of receipt of the copy of this order. Copy of this order be given to the parties free of costs and file be consigned to the record room."
The insurance co. had appealed in the State Commission. The State Commission vide its Order dated 30.01.2018 had modified the Order of the District Forum and dismissed the appeal(s):
"11. Similar view was also expressed by Hon'ble National Commission in Joginder Singh & Ors. Vs. Dr. Rajeev Kumar Majumdar and Ors. 2009 (4) CPJ 9 and Dhanwanti Kaur vs. S. K. Jhunjhunwala (Dr.) and another 2010 (4) CLT 487. When O.P. No. 1 conducted operation without consent of complainant they were liable to pay compensation. Learned District Forum has taken into consideration each and every aspect from every angle, so the same cannot be set aside as far as quantum of compensation is concerned, but, is modified to the extent that all the respondents - O.P.s are liable to pay compensation jointly and severally. With this modification appeals are dismissed."
The insurance company has filed this revision before this Commission against the said Order dated 30.01.2018 of the State Commission.
The revision has been filed with admitted delay of 112 days. The stated reasons for delay in filing the revision, as mentioned in para 3 of the application for condonation of delay, are as below:
"The impugned final judgment and order was pronounced on 30.01.2018 and certified copy was despatched on 13.03.2018 to the petitioner and received on 16.03.2018. The same was forwarded for opinion of a panel lawyer on 19.03.2018 and his opinion was received on 26.03.2018. Thereafter the entire file was forwarded to the Regional Office on 29.03.2018 and received there on 03.04.2018. It was forwarded to a penal lawyer for opinion by the Regional Office on 09.04.2018 and his opinion was received on 16.04.2018. After receipt of the said opinion the entire case file was forwarded to Head Office in Chennai on 23.04.2018 and received there on 26.04.2018. The Head Office then forwarded the file for opinion of a lawyer on his panel on 03.05.2018 and opinion was received on May 10, 2018. Thereafter the filed was forwarded to the Regional Office -1 in New Delhi on May 17, 2018 with recommendation for filing the Revision Petition and the same was received there on May 22, 2018. It was thereafter handed over to the counsel on May 28, 2018 for doing the needful. In this process the copy of Consent Form and Consumer Complaint got misplaced and the same was requested from the Divisional Office and was received on October 1, 2018 and the Revision Petition is being filed immediately thereafter i.e. on October 5, 2018.
It is respectfully submitted that it is therefore in the interest of justice that the aforesaid delay of 112 days be condoned".
The Act 1986 is to provide speedy and simple redressal to consumer disputes (Statement of Objects and Reasons).
The period of limitation to file revision petition is 90 days ( Regulation 14(1)(i) of the Regulations 2005).
This revision petition has been filed with admitted delay of (further) 112 days.
The stated reasons for delay "- - - The impugned final judgment and order was pronounced on 30.0.2018 and certified copy was despatched on 13.03.2018 to the petitioner and received on 16.03.2018. The same was forwarded for opinion of a panel lawyer on 19.03.2018 and his opinion was received on 26.03.2018. Thereafter the entire file was forwarded to the Regional Office on 29.03.2018 and received there on 03.04.2018. It was forwarded to a penal lawyer for opinion by the Regional Office on 09.04.2018 and his opinion was received on 16.04.2018. After receipt of the said opinion the entire case file was forwarded to Head Office in Chennai on 23.04.2018 and received there on 26.04.2018. The Head Office then forwarded the file for opinion of a lawyer on his panel on 03.05.2018 and opinion was received on May 10, 2018. Thereafter the filed case forwarded to the Regional Office -1 in New Delhi on May 17, 2018 with recommendation for filing the Revision Petition and the same was received there on May 22, 2018. It was thereafter handed over to the counsel on May 28, 2018 for doing the needful. In this process the copy of Consent Form and Consumer Complaint got misplaced and the same was requested from the Divisional Office and was received on October 1, 2018 and the Revision Petition is being filed immediately thereafter i.e. on October 5, 2018" point towards managerial inefficiency and perfunctory and casual approach to the law of limitation, and are illogical and absurd in explaining convincingly and cogently the day-to-day delay in filing the revision petition.
No just or sufficient cause to explain the delay is visible.
This bench however wants to also satisfy itself that there would be no miscarriage of justice if the delay is not condoned. The revision has been filed against concurrent findings of the two fora below. Per se the medical negligence has been determined against the hospital and the doctor concerned, and not against the insurance co. The professional indemnity policies provided by the insurance co. to the hospital and doctor are distinctively separate contracts, governed by their own respective terms and conditions, which were not under test in the two fora below. The issue under test in the two fora was medical negligence on the part of the hospital and doctor alone. The insurance co. is contesting the findings of medical negligence, the hospital and the doctor are not. Without attempting to examine or adjudicate on the Order of the State Commission or the District Forum on merit, this bench but does not find any reason visible to convince it that there would be any miscarriage of justice if the delay is not condoned.
The application for condonation of delay being unconvincing and devoid of merit is dismissed. Resultantly the revision is dismissed on limitation.
Needless to add that the District Forum shall proceed with execution as per the law.
A copy each of this Order be sent to the State Commission, the District Forum and the respondent no. 1 - complainant by the Registry within ten days.