National Consumer Disputes Redressal
St. Joseph Hospital vs Jimmy P. K. on 5 October, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2838 OF 2012 Along with (I. A. No. 1 & 2 of 2012) ( Stay and Condonation of delay) (From order dated 21.7.2011 in Appeal No 807 of 2006 of Kerala State Consumer Disputes Redresdsal Commission, Thiruvananthapuram) 1. St. Josephs Hospital P.O. Karuvanchal, Kannur 670571, Kerala State. 2. St. Josephs Hospital P. O. Larivanchal, Kannur, 670571 Rep. By its Director Fr. Mathew Pothanmala, Kerala State. 3. Fr. Joseph Karivath, present Director St. Josephs Hospital, Karuvanchal P.O. Kannur 670571, Kerala State. ..Petitioners Vs. 1. Jimmy P. K. S/o P/Kurian, Perukil House Vayattuparamba P. O. Karuvanchal-670571, Kerala State. 2. Jeeshma, daughter of Jimmy P. K. Perukil House Vayattuparamba P. O. Karuvanchal-670571, Kerala State. 3. Geona, dauther of Jimmy P.K. Perukil House Vayattuparamba P. O. Karuvanchal-670571, Kerala State. 4. K. A. Joseph, S/o Augustian Kannamkulangara P. O. Manakadavu, Cheekkad, Alakode Via, Kannur 670571 5. Molly Joseph, W/o K. Joseph Kannamkulangara P.O. Manakadavu, Cheekkad, Alakode Via, Kannur 670571, Kerala State. .Respondents. BEFORE: HONBLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER For the Petitioner : Mr. M. T. George, Advocate. Pronounced on: 5th October, 2012 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER In this revision petition there is challenge to order dated 21.7.2011, passed by Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (for short, State Commission). Alongwith it an application seeking condonation of delay of 207 days has been filed.
2. Respondents/Complainants filed a complaint under section 12 of the Consumer Protection Act, 1986(for short, Act) before District Consumer Disputes Redressal Forum, Kannur(for short, District Forum) against the Petitioners/O.Ps on the ground of medical negligence. The complaint was contested by the Petitioners.
3. District Forum, vide its order dated 28.6.2006, dismissed the complaint on the ground that there is no carelessness and negligence on the part of the petitioners.
4. Aggrieved by the order of District Forum, respondents filed an appeal before the State Commission which vide impugned order, partly allowed their appeal; holding that there is negligence and deficiency in service on the part of the petitioners and accordingly it directed them to pay a sum of Rs.1,00,000/- as compensation to the respondents alongwith Rs.5,000/- as cost of proceedings.
5. Hence, this revision.
6. It is contended by learned counsel for the petitioners that earlier counsel did not take any steps to file revision petition and it was only when petitioners got the notice in the execution application, they came to know about the passing of the impugned order. Thereafter, they filed this revision petition. Hence, there was no intention on the part of the petitioners to delay and there are sufficient grounds for condoning the delay.
7. As per application for condonation of delay, reasons for delay have been mentioned in para 3 of the application which read as under ;
It is respectfully submitted that there is a delay of 207 days in preferring this Revision Petition. The above said delay had happened in the following circumstances. The impugned Judgment was passed on 21.07.2011. The copy of the said Judgment was issued on 7.10.211, which was received on 11.10.2011. Immediately on receipt of the copy of the Judgment the petitioner had entrusted the Counsel who conducted the case before the State Commission to take steps for filing Revision Petition before this Honble Commission. However, he did not take any steps to file the Revision Petition. In the meanwhile the petitioner received notice from the Consumer Disputes Redressal Forum Kannur on 16.6.2012 to appear on 12.7.2012 in the Execution application No. 35/2012 filed by the Respondents. That on receipt of the notice the petitioner contacted the lawyer at Thiruvananthapuram and then only the petitioner came to know that he has not taken any steps to file the Revision Petition before this Honble Commission. Thereafter the petitioner collected the address of the present lawyer and entrusted the case records to him. He immediately prepared the Revision Petition and filed it before the Commission on 01.08.2012. Thus occurred the delay of 207 days in preferring this Revision Petition. It was not due to any latches or negligence from the side of the petitioner. It was due to reasons stated herein above. It is just and proper to condone the delay in the interest of justice, otherwise, the petitioner will be put to irreparable loss and injury.
8. As per petitioners case they had received the copy of impugned order on 11.10.2011. There is nothing on record to show that after entrusting the papers to their counsel, petitioners ever enquired from that counsel as to what steps he is taking for filing the revision petition. It appears that petitioners went into deep slumber and woke up only when they received the notice of execution application on 16.6.2012. It is surprising to note that the application does not mention the name of the earlier counsel. There is nothing on record to show that any complaint before the Bar Council or any legal notice was served upon earlier counsel for his negligent act. Such like stories putting blame on previous counsel can be created at any time.
In such like cases, false allegations are often made against the counsel so that the delay should be condoned.
It is the duty cast on the petitioners themselves to find out what has happened to their case and whether revision has been filed or not. Petitioners cannot put all the blame upon their counsel. The facts of this case rather reveal negligence, inaction and passivity on the part of the petitioners themselves. The facts of this case speak for itself. This view is further emboldened by the following authorities ;
(i) In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
(ii) It is well settled that Qui facit per alium facit per se. Negligence of a litigants agent is negligence of the litigant himself and is not sufficient cause for condoning delay. See M/s. Chawala & Co. Vs. Felicity Rodrigues, 1971 ACJ 92 ;
(iii) In Victor Albuquerque Vs. Saraswat Co-operation Bank Ltd., AIR 1988-Bom 346, it was held that where the facts showing clear negligence of party during entire period of limitation and no sufficient cause sustained for delay in filing appeal, the delay cannot be condoned ;
(iv) In Banshi Vs. Lakshmi Narain 1993 (1) R.L.R. 68, it was held that reason for delay was sought to be explained on the ground that the counsel did not inform the appellant in time, was not accepted since it was primarily the duty of the party himself to have gone to lawyers office and enquired about the case, especially when the case was regarding deposit of arrears of rent. The statute also prescribes a time bound programme regarding the deposit to be made;
(v) In Delhi Development Authority Vs. Ramesh Kumar 61 (1996) DLT 99 (DB)=1996 (2) CCC 150 (Del), it was observed that when appellant found grossly negligent and administrative delays have not been properly explained, application for condonation liable to be dismissed ;
(vi) In Bhandari Dass Vs. Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer that he did not inform the client about the progress of the case nor has he did sent any letter, was disbelieved while rejecting an application to condone delay ;
(vii) In Jaswant Singh Vs. Assistant Registrar, Co-operative Societies, 2000 (3) Punj. L.R. 83, it was laid down that cause of delay was that the counsel of the appellant in the lower Court had told them that there was no need of their coming to Court and they would be informed of the result, as and when the decision comes, was held to be a story which cannot be believed ;
(viii) In Sow Kamalabai, w/o Narasaiyya Shrimal and Narsaiyya, s/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that the expression sufficient cause cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such sufficient cause stated in the application and no such interference in the impugned order is called for ;
(ix) In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) SLT 701= I (2009) CLT 188( SC), it has been observed that We hold that in each and every case the Court has to examine whether delay in filing the Special Appeal Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition and
(x) Lastly, In Anshul Aggarwal v.
New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras.
9. In the present case, there is nothing on record to show that petitioners ever made any attempt to contact their Advocate to know about the fate of the revision to be filed before this Commission. Moreover, petitioners is an institution, that is, a Hospital which is functioning through its Directors and is having other staff. Thus, gross negligence, deliberate inaction and lack of bonafides is imputable to the petitioners. Accordingly, no sufficient grounds are made out for condoning the long delay of 207 days in filing the present revision petition. The application for condonation of delay under these circumstances is not maintainable and the present revision petition being barred by limitation is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only).
11. Petitioners are directed to deposit the cost of Rs.10,000/- (Rupees Ten Thousand Only) by way of demand draft in the name of Consumer Legal Aid Account within four weeks from today.
12. In case, petitioners fail to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
13. List on 23.11.2012 for compliance.
J. (V.B. GUPTA) PRESIDING MEMBER SSB/