Dismissed

Devarapalli Poojyasri v. M/s Visakha Children Hospital

Telangana HC16 Mar 2012WP/7094/2012

Case brief

AI extract

What is this about?

This Court dismissed a writ petition challenging the State Consumer Commission's decision to reverse the District Forum's order allowing condonation of delay. The Court held that the Consumer Protection Act, 1986, specifically Section 24-A, mandates a strict two-year limitation period for complaints, overriding the Limitation Act, 1963.

What did the court decide?

Writ Petition and WPMP dismissed without order as to costs.

Devarapalli Poojyasri Vs M/s Visakha Children Hospital — Consumer Protection | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE V.V.S.RAO AND

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THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

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WRIT PETITION NO.7094 OF 2012

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ORDER: (Per the Hon’ble Sri Justice V.V.S.Rao)

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The petitioner’s minor daughter, Devarapalli Poojyasri, met with an accident on 19.02.2004 at 4.30 am involving an auto rickshaw bearing No.AP 31 V 4836. The petitioner took her to M/s. Visakha Children Hospital (VCH). She was treated by Dr. I.Satish Raj. She was hospitalised from 19.02.2004 to 26.02.2004 and was discharged. A month after her discharge, she was again taken to VCH when she complained pain. The X-rays revealed that she had dislocation of left hip and according to the petitioner, the doctors, who treated her, accepted the mistake. As per their advice, the girl was taken to Dr. C.Charma Rao and Dr.M.Eswar Babu, who expressed their helplessness in view of the time lapse. According to the petitioner, they informed him that the dislocation of left hip cannot be reversed as it was not diagnosed at the earliest point of time. After coming to know about this – almost about two years, the petitioner got issued a legal notice dated 14.02.2006 complaining deficiency in service and demanded compensation of Rs.10,00,000/-. VCH and Dr. I Satish Raj sent reply denying the liability. Thereafter, the petitioner took his daughter to two more orthopaedic surgeons namely Dr. T.V.Ramana Murthy of Visakhapatnam and Dr. R.H.Govardhan of Chennai. Another surgery was performed on her on 15.06.2008 costing about Rs.70,000/-. Even thereafter, the petitioner’s daughter could not recover fully and was undergoing treatment of physiotherapy. With these allegations on 30.04.2010, the petitioner filed Consumer Case (CC) being SR.1911-A/10 along with I.A.No.367 of 2010 before the District Forum, Visakhapatnam,

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to condone the delay of 1530 days. Respondents 1 and 2 herein, who are opposite parties in the CC, filed counter affidavit, inter alia, denying the liability and also opposed the application for condonation of delay duly giving the details of the delay, which remained unexplained.

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By an order dated 12.01.2011, the District Forum, allowed the application observing that delay is properly explained by the petitioner. But respondents 1 and 2 filed revision before the A.P. State Consumer Disputes Redressal Commission, Hyderabad (State Commission), being R.P.No.13 of 2011. The same having been allowed on 04.01.2012 in favour of respondents 1 and 2, the petitioner filed the instant Writ Petition.

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The counsel for the petitioner would submit that in view of Section 6 of the Limitation Act, 1963 (the Act of 1963), a minor is entitled to sue within three years after the disability ceases and can also approach the Forum three years after becoming major. He would also contend that the District Forum and the State Commission have to be construed as the Courts for the purpose of Act, 1963.

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At the outset, we may indicate that both the submissions raised before us are not raised before the State Commission. Be that as it is, a perusal of Sections 12, 14 and 17 read with Section 24-A of the Consumer Protection Act, 1986 (the Act, 1986), would show that the District Forum and the State Commission are barred from entertaining any complaint, which is not filed within two years from the date of cause of action. In view of Sections 3 and 29(2) of the Act of 1963, the provisions of the Act of 1963, apply only insofar as to the extent to which they are not excluded by Special law. Section 24-A of the Act, 1986, in our opinion, excludes the applicability of limitation. Even if the provisions of the Act of 1963

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are applicable, they have no application to the original proceedings and the power of the civil Court under Section 5 of the Limitation Act, is limited to condone the delay in filing an appeal or application and no civil Court has power to extend the period of limitation for filing a original proceeding.

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The petitioner alleged before the District Forum that when his daughter complained pain, he approached the VCH and the X- rays revealed that there was dislocation of left hip joint. This led the petitioner to take his daughter to Dr. C.Dharma Rao and Dr. M.Eswar Babu, who expressed their inability to set right things. This happened on 29.01.2004 and even by that date, the petitioner knew that respondents 1 and 2 allegedly gave deficient service. Further, admittedly, Dr. R.H.Govardhan performed surgery on 15.06.2008 but the CC was filed on 13.04.2010 and there was no proper explanation for the delay. The Parliament specifically barred the District Forum/State Commission from taking cognizance of consumer disputes, which are not filed within two years. The same has to be strictly interpreted and in our considered opinion, the State Commission was right in reversing the order of the District Forum. Hence, we do not find any reason to entertain the Writ Petition.

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The Writ Petition is, therefore, dismissed without any order as to costs. WPMP.No.8976 of 2012 shall stand dismissed.

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(V.V.S.RAO, J)

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(G.KRISHNA MOHAN REDDY, J)

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16^th March 2012 RRB

Devarapalli Poojyasri v. M/s Visakha Children Hospital

Case brief

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Devarapalli Poojyasri v. M/s Visakha Children Hospital

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