State Consumer Disputes Redressal Commission
Nitin Nursing Home vs Surinder Singh Chadha & Ors. on 29 August, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SCO NO.3009-12, SECTOR 22-D, CHANDIGARH.
Misc. Appl. No.164 of 2011
In/and
First Appeal No.101 of 2011.
Date of Institution: 20.01.2011.
Date of Decision: 29.08.2011.
1. Nitin Nursing Home, 171, Ajit Nagar, Patiala, through its
Proprietor/MD.
2. Dr. Neena Gupta W/o Dr. S.P. Gupta, R/o 171, Ajit Nagar, Patiala.
3. United India Insurance Company Limited, 54, Janpath Connaught
Place, New Delhi-110001.
.....Applicants/Appellants.
Versus
1. Surinder Singh Chadha S/o Sh. Sarup Singh Chadha,
2. Amandeep Singh S/o Sh. Surinder Singh Chadha,
3. Ramandeep Kaur, D/o Sh. Surinder Singh Chadha,
All Residents of House No.426/2, Jourian Bhatian, Patiala.
4. Fortis Hospital, Sector-62, Phase-VIII, Mohali-160062, through its
Director/MD.
...Respondents.
Misc. Application for Condonation of Delay of
70 days in filing the appeal
In/And
F.A. No.101 of 2011 against the order dated
24.09.2010 of the District Consumer Disputes
Redressal Forum, Patiala.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the applicants/appellants: Sh. D.K. Singal, Advocate. For respondents no.1-3 : Sh. Hardip Singh, Advocate. For respondent no.4 : Sh. Munish Kapila, Advocate. INDERJIT KAUSHIK, PRESIDING MEMBER:-
Applicant/appellant-Nitin Nursing Home and others (hereinafter called as "the applicants") have filed this application for condonation of delay of 70 days in filing the present appeal. Misc. Appl. No.164 of 2011 2
In/and First Appeal No.101 of 2011
2. It was submitted the impugned order was passed by the District Forum on 24.09.2010 and the copy of the order was issued on 12.10.2010 by the District Forum and the appeal was to be filed within 30 days of the receipt of copy of the order. However, the appeal could not be filed within the stipulated period, as the counsel for the applicants was not well for about two weeks and he was suffering from viral fever and he was not able to prepare the appeal in time and the delay of 70 days occurred for that reason.
3. It was further submitted that the delay in filing the appeal is neither intentional nor deliberate, but because of the illness of the counsel at Delhi, who prepared the appeal. The applicants have a good case and in case, the delay is not condoned, the applicants will suffer an irreparable loss, and prayed that the delay of 70 days in filing the appeal may be condoned.
4. In the reply filed on behalf of respondents no.1 & 3, preliminary objections were taken that no reasons have been given for condoning the delay and the affidavit of respondent no.2 is not sufficient to condone the delay. Appellant no.2 in the affidavit stated that the grounds of appeal were drafted on her instructions, which itself proves that the grounds taken in the application are wrong and false. On merits, passing of the order and filing of the appeal after a delay of 70 days was admitted. Similar pleas were repeated and it was prayed that the application may be dismissed.
5. In the reply filed on behalf of respondent no.4, it was submitted that as per the provisions of Section-15 of the Consumer Protection Act, the appeal can be preferred within 30 days from the date of receipt of copy of the order and in the present case, the appeal has been preferred after 70 days and it was imperative upon the applicants to explain the delay, but no explanation has come forward. It has been vaguely stated that the delay was due to the reason that the counsel was unwell for two weeks, but this reason does not explain the delay of 70 days in filing the appeal. The application for condonation of delay is also not accompanied by the affidavit of the counsel Misc. Appl. No.164 of 2011 3 In/and First Appeal No.101 of 2011 on whose part, the delay occurred. The affidavit of applicant no.2 is on file, who was in no way responsible for contributing towards the delay. The answering respondent is neither a necessary party nor proper party and the relief has been granted only against respondents no.1 to 3 and the appeal is not maintainable against the answering respondent, and prayed that the application may be dismissed.
6. We have heard the learned counsel for the parties and have gone through the record.
7. The reason given by the applicants for causing the delay of 70 days in filing the present appeal is that their counsel was suffering from viral fever for two weeks. Neither the dates when the counsel was suffering and when he recovered are given, nor it is specifically mentioned as to when the appeal was prepared? The affidavit of the counsel at whose instance, the delay was caused, is not on file. No medical record of the counsel to prove the assertions is on record. Applicant no.2 has filed her own affidavit and she has tried to explain the delay, by stating that the reason given in the application was correct and on her instructions, the application for condonation of delay was drafted. The plea taken by the applicants is self - contradictory. In fact, at the instance of applicant no.2, the application and the appeal were drafted and applicant no.2 should have given the reasons for the delay, but that is missing. The counsel has not filed his affidavit and the application has been filed by the applicants in most casual manner, taking it for granted that the delay will be condoned.
8. The Hon'ble Supreme Court in case "Kamlesh Babu and Ors. Vs Lajpat Rai Sharma and Others", 2008(3) The Punjab Law Reporter- 455, while interpreting and explaining the scope of Section 3(1) of the Limitation Act, observed as follows:-
"It is well settled that Section 3(1) of the Limitation Act casts a duty upon the court to dismiss a suit or an appeal or an Misc. Appl. No.164 of 2011 4 In/and First Appeal No.101 of 2011 application, if made after the prescribed period, although, limitation is not set up as a defence".
9. In case "State Bank of India Vs B.S. Agriculture Industries (I)", (2009) CTJ-481 (Supreme Court) (CP), the Hon'ble Supreme Court took the view that the provision of Section 24-A of the Act is of peremptory nature and observed in Para-8 as follows:-
"8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside".
10. The Hon'ble Supreme Court in case "Lanka Venkateswarlu (D) By Lrs. Vs State of A.P. & Others", 2011 (2) RCR Civil-880 (SC), after considering the entire case law on the point of delay, in Para-26(relevant portion) observed as under:-
Misc. Appl. No.164 of 2011 5
In/and First Appeal No.101 of 2011 "Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly".
11. In case "Jagmal Vs Land Acquisition Collector & Ors.", 2009(2) RCR (Civil)-349(P&H), the Hob'ble Punjab & Haryana High Court observed as under:-
"Proof of sufficient cause is condition precedent for exercise of discretion by the Court in condoning the delay and mere pendency of another appeal, cannot be held to be sufficient cause for condoning the delay in filing the appeal".
12. In view of above discussion and the law laid down, the applicants have failed to show sufficient cause for condoning the delay. In the present case, no explanation, no sufficient cause is shown to condone the delay.
13. In view of above discussion, the application filed by the applicants for condonation of delay in filing the present appeal, being without any merit, is dismissed.
Main Case
14. As the application for condonation of delay has been dismissed, therefore, the appeal also stands dismissed. No order as to costs.
15. The applicants/appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount be remitted by the registry to the respondents no.1 to 3/complainants Misc. Appl. No.164 of 2011 6 In/and First Appeal No.101 of 2011 in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the applicants.
16. Remaining amount, as per the order of the District Forum, shall be paid by the applicants/appellants to the respondents no.1 to 3/complainants within two months from the receipt of copy of the order.
17. The arguments in this application were heard on 19.08.2011 and the order was reserved. Now the parties be communicated about the same.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member August 29, 2011.
(Gurmeet S)