NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

BEFORE:

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

HON’BLE MR. VINAY KUMAR, MEMBER

REVISION PETITION NO. 3702 OF 2012

Pronounced on : 15th October, 2012

(Against the order dated 13.04.2012 in First Appeal No. 346 of 2012 of the

Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

Sr. Superintendent of Post Offices

Department of Post, Alwar

Rajasthan ... Petitioner

Versus

Pushpendra Singh

S/o Sh. Girvar Singh

R/o D-14, Malviya Nagar, Alwar ... Respondent

Head Note:-

Indian Post Office Act, 1898 - Section 6 - The postal department should under all the probabilities, whether it is in its control or beyond its control, must see to it that the letters reach the destination in time.

For the Petitioner : Mr. Amit Chadha, Advocate with

Mr. Ashok Kr. Sharma, Advocate

ORDER

JUSTICE J. M. MALIK, PRESIDING MEMBER

1. Rajasthan Public Service Commission, Ajmer invited applications for the posts of sub-inspectors in Rajasthan Police. Pushpinder Singh Rajput sent his application for the said post on 28.12.2010 through speed post. He had to incur Rs. 25/- for sending the application through speed post. The application could not reach the destination till 31.12.2010, the last day. It was tendered to the Rajasthan Public Service Commission on 4.1.2011 after four days of the last date i.e. 31.12.2010. The complainant received back the envelope on 12.1.2011 with the remarks ‘time barred’.

2. Aggrieved by that order, the complainant filed a complaint before the District Forum against Sr. Superintendent of Post and Telegraph Department, Alwar. The complaint was allowed and a sum of Rs.20,000/- was paid to him as compensation.

3. Aggrieved by that order, an appeal was preferred before the State Commission which vide its cryptic order dated 13.4.2012 dismissed the appeal. Thereafter this revision petition has been filed.

4. We have heard the learned counsel for the petitioner and the said revision petition is liable to be dismissed on two counts. The filing of the revision petition was delayed by 71 days. Learned counsel for the petitioner has filed an application for condonation of delay. The delay is explained in para 2 of the said application which is reproduced as follows:-

“2.That the Hon’ble State Consumer Disputes Redressal Commission, Jaipur Rajasthan had passed an order dated 13-4-12 in the First Appeal No. and the same is under challenge under this Hon’ble Commission. It is submitted that the copy of the order was received by Senior Superintendent of Post Offices,Alwar on 19-4-2012. There after it was sent for legal opinion from its panel counsel and the same was received by this office through Government CounselShri Mukesh Agarwal, Sr. Advocate with his opinion on 28-4-2012 for further course of action. The copy of judgment was sent to RO on 03-5-12 vide this office letter No. Alw/CR/DCPF 622/11 dated 03-5-12. The Chief Post Master General, Rajasthan Circle vide their letter No. BDC/SP/53-33/10 dated 11-5-12 has conveyed his approval to take up the case for Revision Petition in the Hon’ble National Commission and to depute suitable officer to the Ministry of Law & Justice, Department of Legal Affair with regard to the filing Revision Petition. After the permission of the Chief Post Master General Rajasthan Circle, Jaipur all the documents pertaining to the case was forwarded to the Directorate, New Delhi for their perusal. It is further submitted that the nomination of the counsel was received from the Directorate, New Delhi to this office and there after the Department appointed Shri Ashok Kumar Sharma Office AssistantAlwar Division and handed over the complete documents of the present case with a direction to meet the nominated counsel at Delhi.”

5. We are not satisfied with the explanation given by the petitioner.

6. In the authority reported in Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. 2012 STPL(Web) 132 (SC),Hon’ble Supreme Court was pleased to hold:

“13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

Accordingly, the appeals are liable to be dismissed on the ground of delay.”

7. Consequently, departmental delay is not a ground to condone the delay. Therefore, the case is barred by time.

8. Let us come to the merits of this case. Learned counsel for the petitioner vehemently argued that it was beyond the control of the opposite party to serve the letter upon the complainant. It is explained that there was agitation by the gujjars. He has placed news clips in order to support his case. He argued that under the circumstances, no negligence can be attributed to the respondent.

9. This is not a coherent argument. A person has to spend Rs.25/- in the hope that his application would reach the destination in time. Otherwise, the application could be sent through ordinary post, it would cost him Rs.5/- only. It is the duty of the State to see to it that the letter reaches within 24 hours or at the most within 48 hours from the date of its receipt. It is no part of the duty of subject to anticipate that the letter would not reach the destination due to agitation. The postal department should under all the probabilities, whether it is in its control or beyond its control, must see to it that the letters reach the destination in time.

10. The second submission raised by learned counsel for the petitioner was that Section 6 of the Indian Post Office Act, 1898 comes to the rescue of the respondent. He commented that there lies a rub for the consumer fora not to speak their mind in this context as they are not armed with this power.

11. This argument, too, deserves no consideration. The Post Office is not supposed to play with the carrier of the citizens of the country. The letters sent through speed post are always urgent and emergent. If there is delay due to some agitation, it is the duty of the State to find out some other method to prevent the delay in such like matters. The District Forum was pleased to observe:

“Section 6 not providing a windscreen to the postal authorities to justify all acts of negligence, remissness, inaction etc. on their part in discharge of their official duties-Not delivering the speed post article to its addressee clearly constituted a willful act of deficiency in service on their party.”

12. We are in full agreement with the abovesaid observation. The willful default on the part of the petitioner stands proved to the hilt. The petitioner’s assumptions are all wet.

13. The revision petition is without force and therefore dismissed.

……………Sd/-………….

(J. M. MALIK, J.)

PRESIDING MEMBER

………Sd/-………………

(VINAY KUMAR)

MEMBER

Naresh/reserved 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

BEFORE:

 HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

 HON’BLE MR. SURESH CHANDRA, MEMBER

REVISION PETITION No. 569 OF 2009

(Against the order dated 13.01.2009 in Appeal No. 3037 of 2006 of the

Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow)

1. Smt. Nihal Devi W/o Late Amar Singh

2. Ajay Kumar

3. Jaswant Singh

4. Dharam Singh

5. Chet Ram

 All Sons of Late Amar Singh

6. Kumari Yashoda ….. Petitioner

7. Kumari Sone Devi

8. Kumari Srimati

All daughters of Late Amar Singh Minors are represented through their Natural Guardian and mother, Smt. Nihal Devi. All are residing at Village Kota, Tehsil and Distirct – Mathura, Uttar Pradesh

Versus

1. Ravi Hospital

 Delhi Gate, Agra, Uttar Pradesh

 ….. Respondents

2. Dr. Ravi Pachauri

 Ravi Hospital, Delhi Gate

 Agra, Uttar Pradesh

Head Note:-

Consumer Protection Act, 1986 - Section 2(1)(d) -  definition of ‘consumer’ - by-stander of a patient - the hospital is liable for payment of compensation on account of the negligence on their part in not maintaining the water cooler properly, which caused flowing of the current in the water cooler thereby causing the death of the  by-stander of a patient.

For the Petitioners : Mr. Sheo Kumar Gupta, Advocate with

 Mr. Ajay Singh, Advocate

For the Respondents : Mr. Nikhil Jain, Advocate

Pronounced on : 10^th January 2012

ORDER

PER SURESH CHANDRA, MEMBER

Challenge in this revision petition is to the order dated 13.1.2009 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (in short, ‘the State Commission’) in appeal No. 3037 of 2006.

2. Briefly stated, the complainant No. 3, namely, Jaswant Singh, had been admitted at the opposite party/hospital on 30.06.2000 for the operation of bone of his leg. On 7.7.2000, he was operated for which, his father, Amar Singh paid Rs.10,000/- as fee to the opposite party-hospital. As Jaswant Singh/complainant was in the hospital, his father, Amar Singh was putting up in the opposite party-Hospital as attendant to look after his son. The opposite party-hospital has provided facility of water cooler for the patients/attendants etc. According to the complainant, the father of the patient, who was with his son in the hospital at the relevant time, went to bring some drinking water from the water cooler. When he was taking water, there was electric shock from the cooler as a result of which, Amar Singh, father of the patient died on 9.7.2000. The deceased person was sent to the Medical College, Agra by the opposite party where he was declared dead by the doctors. A written report was given to the concerned police station upon which, the police made panchnama of the dead body and thereafter the dead body was handed over to the complainants. Eight complainants including complainant No. 1, who is the widow of deceased, Amar Singh and complainant No. 3, son of the deceased, who was taking treatment in the opposite party-hospital, are legal heirs of the deceased person. Alleging deficiency in service on the part of opposite party-hospital, they filed a consumer complaint with the District Forum claiming a compensation of Rs.4,90,000/- from opposite party No. 2-Dr. Ravi Pachauri, who is reportedly the owner of the hospital.

3. Upon being noticed, the opposite parties resisted the complaint and in the reply filed, it was denied that there was any electric current passing through the water cooler. It was also submitted that the deceased, Amar Singh had neither remained under treatment in the opposite party-hospital nor he was a consumer and hence the complaint was not maintainable and liable for dismissal.

4. On appraisal of the evidence and after hearing the parties, the District Forum allowed the complaint holding that the opposite parties were liable for deficiency in service in as much as the death of the father of the patient was due to electrocution on account of leakage of electricity in the water cooler of the hospital. Vide its order dated 19.09.2006, the District Forum awarded a compensation of Rs.3 lakh to the complainants who are all legal heirs of the deceased consumer, within 45 days and also to pay interest @6% per annum from the date of filing of the complaint on the amount of compensation. On an appeal by the opposite party-hospital, the State Commission vide its impugned order dated 13.1.2009 reversed the order of the District Forum and dismissed the complaint. It is against this order of the State Commission that the present revision petition has been filed by the complainants before this Commission.

5. We have heard Mr. Shiv Kumar Gupta, Advocate for the petitioners and Mr. Nikhil Jain, Advocate for the respondents. We have also perused the documents placed on the paper book. We find that the District Forum, after going through the facts of the case and the reports available to it, came to the conclusion that Amar Singh, who was in the hospital alongwith his ailing son had died because of the electric current flowing in the water cooler. It also held the deceased person as a consumer on the basis of the judgment of the Apex Court in the case of M/s Spring Meadows Hospital and another vs. Harjit Ahluwalia (AIR 1998 SC 1809). The State Commission vide its impugned order has, however, reversed the finding of the District Forum by holding that it was the son of the deceased-Amar Singh, who was undergoing treatment in the opposite party-hospital and admittedly, there was no allegation of medical negligence or deficiency in service committed by the opposite party-hospital in regard to his treatment. In such a situation, when the deceased-father of the patient was neither doing a job in the opposite party-hospital nor was himself a patient under any doctor’s guidance, no deficiency of service or unfair trade practice under the Consumer Protection Act, 1986 could be attributed to the opposite party-hospital with reference to his death. In its impugned order, the State Commission has made following observations in support of its view:-

“Allegation in regard accident commenced due to electric shock because electric current is running in any cooler which kept in Hospital, burden of proof of above allegation was goes on complainants, and this case could not disposed by the Ld. Forum in summary proceeding. For the above judicial scrutiny should be necessary of the detail evidence, which was possible in civil court. Not only this, report of First Information, Post mortem report or death certificate issued by any doctor would not supplied/produced to the appellant and without given opportunity to him for cross examination there is no propriety for admitting the complaint. Not only that in this case when first information report has drafted and lodged then investigating officer has conclude the investigation and hence on the basis of this investigation any conclusion could not drawn that such accident had committed in the hospital area or not and from such conclusion if complainant’s were not agree or aggrieved then it has to be require by him that they should avail and follow the criminal procedure code for getting justice, but above procedure did not adopted.

……………

Ld. Forum has passed the order in regard to awarding of compensation amount with any basis and against the provisions of consumer protection act, which is liable to be set aside after the judicial observation and consideration of above facts. Therefore, Appeal is liable to be admitted..”

6. It is the contention of learned counsel for the petitioners that the deceased father of the patient who was with the patient is covered by the definition of ‘consumer’ in the light of the ratio laid down by the Apex Court in the M/s Spring Meadow Hospital case (supra). The District Forum had, therefore, rightly held the opposite parties liable for payment of compensation on account of the negligence on their part in not maintaining the water cooler properly, which caused flowing of the current in the water cooler thereby causing the death of the father of the patient. So far the cause of death of Amar Singh is concerned, learned counsel submitted that when the death took place in the opposite party-hospital, it was for the opposite party-hospital to declare as to what was the cause of his death. The plea taken by the opposite parties-hospital that the post mortem was not carried out at the request of the heirs of the deceased, cannot be accepted because the hospital is owned by opposite party No. 2 and the signature of the complainants were fraudulently taken on the statement by opposite party-respondent No. 2. The statement of the witness and the report submitted by the police to the National Human Rights Commission, which closed the case because the matter was already pending before the consumer forum, should not leave any doubt in anybody’s mind that the father of the patient died in the hospital while taking water from the water cooler and simply because there is no formal post mortem carried on the deceased person, it should not create doubt in this regard. In any case, he argued that the responsibility in this regard was much more on the opposite party-hospital to provide and declare the cause of the death of the person within its premises. On the other hand, learned counsel for the respondent has reiterated that there is no evidence that the father of the complainant died of electrocution. He further submits that the post mortem was not carried out on the request of the complainants.

7. So far as the question of deceased-Amar Singh being covered by the definition of ‘consumer’ under the Consumer Protection Act, 1986 is concerned, we find that the ratio laid down by the Apex court in M/s Spring Meadows Hospital case is squarely applicable to the present case and hence we agree with the view taken by the District Forum in this regard. The State Commission gravely erred in ignoring the same while reversing the order of the District Forum vide its impugned order. As regards the cause of death, taking into consideration the totality of the facts and circumstances of the case, we agree with the finding of the District Forum and absence of formal post mortem report cannot create any doubt in this regard in the present case. We, therefore, allow the revision petition and set aside the impugned order. The order dated 19.9.2006 of the District Forum is upheld and confirmed. The parties shall bear their own costs.

………………Sd/-………………

(V.B. GUPTA, J)

PRESIDING MEMBER

 

……………Sd/-…………………

(SURESH CHANDRA)

MEMBER

Naresh/