1. As ordered on 03-05-12, proceedings regarding preliminary arguments and reconciliation were conducted. The parties have failed to enter into a compromise. Therefore, preliminary arguments were heard.
2. The learned counsel for the defendant emphasized on the sole point that the claim was barred by time and the claimant could not furnish any sufficient cause for filing it with delay. On the contrary, the learned counsel for the claimant argued that the claim was within time and that it being mixed question of fact and law, should be decided after recording evidence.
3. Ghulam Mustafa, the claimant submitted that his were Mrs. Shahida Shaheen was taken to the defendant with complaint of labor pain. Before that, she remained under treatment of Dr. Uniqa who had advised that one and half month was still required for delivery. However, the defendant advised for immediate major operation while refusing to agree with the opinion of Dr. Uniqa. The claimant paid the charges for operation. Mrs. Shahida Shaheen had to undergo a major operation resulting in the birth of live child who later died. The condition of health of the were of the claimant also remained serious but she survived. Allegedly, all the said incident happened due to poor and faulty services provided by the defendant. The claimant moved an application before EDO (Health), Sahiwal who constituted a committee for inquiry comprising three members. The said committee found the defendant at fault after deep probe. The claimant prayed that he was entitled to recover Rs. 5, 00,000/- as compensation and damages.
4. The defendant, in his written statement, denied the allegations leveled by the claimant. In her preliminary objections, she took the plea that the claim was barred by time.
5. Needless to mention that whenever any mixed question of fact and law is involved in any case, that can be settled after recording evidence. However, where the question of limitation can be decided from visible and admitted facts apparent from the pleadings of the parties, then it can be decided after hearing the parties and taking into account the contents of the pleadings.
6. As mentioned in Para No. 05 of the claim, the cause of action arose in favour of the claimant on 23- 11-11 and lastly, it occurred about 6-7 days before. The requirement of law regarding issuance of legal notice u/s 28 (i) read with sub section 3, was not fulfilled. However, copy of the legal notice alongwith postal receipt and receipt A.D were found to have been annexed with the claim. It appears from the perusal of these documents that the legal requirement of issuance of notice as required u/s 28 (1) of the Punjab Consumer Protection Act 2005 was fulfilled. The notice was issued on 04 01-12 and the same was received by the defendant on 09-01-12. If the date i.e 23-11-11, when as per claimant's assertion, cause of action arose is ignored, even then it can be said that claim was time barred. The date 04 01-12 when the legal notice was issued would be treated as ultimate and final date when the claimant felt to have suffered at the hands of the defendant. As laid down in sub section (2) of Section 28 of the Punjab Consumer Protection Act 2005, defendant was supposed to reply the notice within 15 days. It therefore can be said that the claimant could refrain from filing the claim till 19-01-12. On the said date i.e 19-01-12 the period had commenced to file the claim which would come to end on 19-02 12. The claimant filed the claim on 14-04-12. By that time, the date to file the claim had expired. It may be added here that previously, the claimant had filed the similar claim which were dismissed as withdrawn on 04-01-12. Obviously this dismissal of claim having been withdrawn was subject to fulfillment of legal requirements. The limitation, if expired in filing fresh claim, would not be treated to have been condoned. It was another fact to be taken into account that neither the claimant provided any reasonable cause in filing the claim with delay in the claim nor any separate application for condonation of delay was annexed therewith nor the learned counsel for the claimant could satisfy the court during arguments regarding any cause preventing him to approach this court well within time. Therefore, there is no justification to exercise discretion of the court as laid down in proviso clause of Section 28 of the Punjab Consumer Protection Act 2005 in favour of the claimant. The result of the whole discussion is that the claim is held to be time barred. Therefore it cannot be entertained as envisaged in Section 28 (3) of the Act ibid. Hence claim is dismissed.
7. File be consigned after its due completion.