A friend of mine is a doctor. A complaint of medical negligence has been filed by the legal heirs of a patient who died after a complex surgery. This complaint has been pending before the State Consumer Commission for more than three years without any progress and is getting adjourned on every date. Is it possible for him as an opposite party to ask the commission to refer the matter for mediation with a view to bring this matter to an end. Without admitting his guilt, he is ready to pay some compensation to the complainant.
Mohan Kulkarni, Chembur
From your question, it appears that the complaint is for claiming compensation for the patient’s death. As per Rule 4 of Consumer Protection (Mediation) Rules, 2020, matters relating to proceedings in respect of medical negligence resulting in grievous injury or death shall not be referred for mediation.
However, the Mediation Act, 2023, which has partly come into effect from September 15, has deleted the Mediation Rules framed under Consumer Protection Act, 2019, including Rule 4. (You may refer to the Tenth Schedule of the Mediation Act for this purpose). Mediation in all consumer commissions will be governed by the provisions of the Mediation Act once this Act becomes fully operational. The First Schedule of the Mediation Act gives the list of the matters which are not fit for mediation. It is noteworthy that the matters relating to medical negligence resulting in grievous injury or death are not in this list in the First Schedule. This means that the complaint of medical negligence resulting in grievous injury or death can be referred to mediation. However, your doctor friend will have to wait till the Mediation Act becomes fully operational. Once this Act is fully operational, he can make an application to the State Consumer Commission under the revised Section 37 of the Consumer Protection Act, 2019 and seek mediation in his matter.
I have filed a complaint in MahaRERA against a builder in March 2021 seeking refund of my amount with interest and compensation in view of his failure to give me possession of the flast. Unfortunately nothing is moving in MahaRERA. Can I withdraw this complaint and file it in Consumer Court?
Minakshi Gharpure, Mulund
The RERA Act, 2016 allows for the withdrawal of a complaint pending in Consumer Courts and filing it before RERA Authority under certain circumstances. However, RERA Act does not provide for the withdrawal of a pending complaint from MahaRERA and filing it before any Consumer Commission. Even the Consumer Protection Act, 2019 does not have such a provision.
In the absence of such provision, even though MahaRERA may allow you to withdraw your complaint, your filing the complaint in the consumer commission and its admission there will encounter an issue of limitation. Under the Consumer Protection Act, the complaint is required to be filed within two years from the date on which the cause of action arises. Since your complaint itself was pending for more than two years before MahaRERA, your complaint will be time-barred under the Consumer Protection Act. However, the consumer commission is vested with a discretionary power to condone any delay in filing if it is satisfied about the reason which prevented filing the complaint within two years.
Adv. Shirish V. Deshpande, Chairman – Mumbai Grahak Panchayat
Email: shirish50@yahoo.com
