State Consumer Disputes Redressal Commission
Dr Praveen Saxena vs Sushma Devi on 6 May, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2011/2013 ( Date of Filing : 20 Oct 2011 ) (Arisen out of Order Dated in Case No. of District State Commission) 1. Dr Praveen Saxena a ...........Appellant(s) Versus 1. Sushma Devi a ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 06 May 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal No. 2013 of 2011 1- Dr. Praveen Saxena, (MBBS, MD), Sri R.C. Saxena, R/o Saransh Hospital, Teri Puliya, Haldwani, Nanital. 2- Dr. Neeru Saxena, (MBBS, Gyn. & Obs.), W/o Dr. R.C. Saxena, R/o Saransh Hospital, Teri Puliya, Haldwani, Nanital. ...Appellants. 1- Smt. Sushma Devi w/o Sri Harvilas, R/o Heerapur, Post, Madkarpur, P.S. Bevas, Tehsil, Bogaon, District, Mainpuri. 2- National Insurance Co. Ltd. 3rd Floor, Vardhman Plaza, Ghar Road, Meerut through its Branch Manager. ...Respondents. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri Vikas Agarwal, Advocate for appellants. Sri Sushil Kumar Sharma, Advocate for respondent no.1. Sri Neeraj Paliwal, Advocate for respondent no.2. Date 23.05.2022 JUDGMENT
Per Mr. Rajendra Singh, Member: This appeal has been filed by the appellant under section 15 of the Consumer Protection Act, 1986 against the judgment and order dated 25.05.2011 passed by Ld. District Forum, Mainpuri in Complaint Case no.95 of 2008, Smt. Sushma Devi & Anr. Vs. Dr. Praveen Saxena & Anr.
The appeal has been filed after the prescribed limitation, therefore the appellant filed an application for condonation of delay accompanying with an affidavit.
We have heard the ld. counsel for the appellant Mr. Vikas Agarwal, ld. Counsel for the respondent no.1 Sri (2) Sushil Kumar Sharma and ld. Counsel for the respondent no.2 Sri Neeraj Paliwal. We have perused the pleadings evidence and application for condonation of delay.
In this case the judgment of the learned District Forum has been pronounced on 25.05.2011. The certified copy was issued on 01.07.2011. The present appeal has been filed on 20.10.2011. We have seen the judgment. The opposite parties were present before the Learned District Forum. They have submitted their written statement therefore it is clear that the appellants were present before the learned District Forum. It was the duty to get the copy of the judgment at the earliest. They have filed an application for issue of certified copy of the judgment on 14.06.11 but received the copy on 01.07.2011. The there is delay of about four months in filing the present appeal.
The appellant, in his affidavit, has stated that they appeared before the learned Forum and filed their written statement. During pendency of the complaint case, the deponent with Appellant no.2 shifted from Mainouri to Haldwani in the month of December 2010 and started the nursing home in the name of Saransh Hospital. The Saransh Hospital of Mainpuri was taken over by one Mr. Saurabh Gupta who started the said nursing home in the name of City Hospital. The local lawyer could not inform him about the status of the complaint case as such the complaint case was decided ex parte on 26.05.2011. That the certified copy of judgment was obtained by the local lawyer at Mainpuri but he did not inform the appellant. In the third week of July 2011, the deponent knew about the (3) said judgment firstly and on 10 August 2011, the deponent came to Lucknow and met with the present counsel who demanded certain relevant documents. Thereafter the appellant came back to Hadwani and contacted to his local advocate at Mainpuri telephonically for altering the relevant papers who collected the relevant papers from the learned District Forum and handed over to the deponent in the last week of September 2011 but due to Navratra and Dussehra festival the deponent could not come immediately and thereafter on 10.10.2011 the deponent again came to Lucknow and handed over all the relevant documents to his advocate. The present counsel took some time for preparing of this appeal and thereafter without any further delay filed the present appeal. So it is most humbly prayed that the delay be condoned.
The respondent's counsel objected on it and said that there is delay and the appellant had full knowledge about the complaint case but he did not pay attention towards the proceeding of the case. The grounds mentioned by the appellant are neither genuine nor satisfactory hence the delay cannot be condoned.
The Consumer Protection Act 1986 was enacted to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of Consumers Councils and other authorities for the settlement of consumers' disputes and for matters connected therewith (Preamble).
The Act Inter alia, seeks to promote and protect the rights of consumers such as-
(4)(1) right to be protected against marketing of goods which are hazardous to life and property;
(2) right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;
(3) right to be assured, wherever possible, access to variety of goods at competitive prices;
(4) right to be heard and to assured that customers' interests will receive due consideration at appropriate forums.
(5) Right to seek redressal against unfair practices or unscrupulous exploitation of consumers; and (6) Right to consumer education.
The objects are sought to be promoted and protected by the Consumer Protection Councils to be established at the Central and State levels.
The Act applies to all goods and services, except if otherwise provided by the Central Government by Notification. To provide speedy and simple redressal of consumer disputes, a quasi judicial machinery is set up at the District, State and Central levels. The three tier system of quasi judicial bodies will observe the principle of natural justice and are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi judicial bodies have also been provided.
Thus the Consumer Protection Act is to serve the interests of the consumers. Consumer education and redressal of consumers' grievances are the two aspects of the Act. It makes good the loss a consumer suffers and (5) increases the feeling of responsibility of the manufacturer, trader, supplier or businessman.
The provisions of the Act have to be construed in favor of the consumer to achieve the purpose of enactment as it is social benefit oriented legislation. The primary duty of the Court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and not contrary to attempted objective of the enactment.
Extent of Consumer Protection:
While other legislations may be either punitive or preventive, the Consumer Protection Act compensates the consumer. The provisions of the Act are in addition to and not in derogation of the provisions of any law at the time being in force (Sec 3). In Maine Container Services South Pvt Ltd v Go Garments 1998 (3) SCC 247 it has been held that the Contract Act applies to all litigants before the Commissioner under the Consumers Protection Act. Passengers traveling in train suffering injuries and loss of Jewelry as a result of assault by unruly crowd are eligible for filing of complaint before State Commission is maintainable notwithstanding the provisions of sections 100 and 103 of Railways Act, 1889. The Consumer Protection Act therefore gives the consumer an additional remedy besides those which may be available under other existing laws. Existence of an arbitration clause in the agreement is no bar to the entertainment of complaint by the Redressal Agency as (6) the remedy under the Act is in addition to the provisions of any other law. However, the Consumer Forums under the Act have not taken over the jurisdiction of civil Courts. If the dispute between the parties is pending in Civil Court no Consumer Forum will adjudicate the dispute. Similarly if evidence be laid by the parties to the dispute is voluminous or complicated the parties will be referred to the appropriate Civil Court.
Consumers Protection Act, thus enshrines the rights of a consumer to be informed about the quality, quantity, potency, price etc., of the goods to be protected against unfair trade practices, to seek inexpensive and expeditious redressal of grievances before the Consumer Forums. Consumer Protection Act is a benevolent piece of legislation to protect a large body of consumers from exploitation.
We have to see the provisions regarding filing of complaint and appeal. Section 24 (A) of the act says ["24-A. Limitation period- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period;(7)
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay] From perusal of the aforesaid section, it transpires that the period of limitation is two years from the date on which the cause of action arose.
Regarding filing of appeal section 15 of the Consumer Protection Act says "15. Appeal- Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed:
Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not finding it within that period.
Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent. of that amount or twenty-five thousand rupees, whichever is less: "
We have also to see the following judicial pronouncement regarding delay.
The Hon'ble Supreme Court of India was pleased to hold in Civil Appeal No.2067 of 2002, State Bank (8) of India vs. M/s B.S. Agricultural (I) dated 20.3.2009 at paras 15 and 16 that:
"On its plain averments, the complaint is barred by time and ought to have been dismissed as such but curiously this aspect was not examined by any of the consumer fora although specific plea to this effect was taken by the Bank. Around number should be zero .Since the complaint is barred by time and liable to be dismissed on that count, it would be unnecessary to examine the other grounds of challenge."
In the instant matter, the delay is much more than the permissible limit, therefore, we have to ascertain where there was sufficient cause for not filing the appeal within the stipulated period of 30 days or not ?
In Mahindra & Mahindra Financial Services Ltd. Vs. Naresh Singh, I(2013) CPJ 407 (NC), where the delay was of 71 days only, it was held by the Hon'ble National Commission that "condonation cannot be a matter of routine and the petitioner is required to explain delay for each and every date after expiry of the period of limitation". In the instant matter, the appellants have not given any explanation of delay for each and every day.
In U.P. Avas Evam Vikas Parishad Vs. Brij Kishore Pandey, IV (2009) CPJ 217 (NC), where the delay was of only 84 days, it was held that "this is enough to demonstrate that there was no reason for this delay, much less a sufficient cause to warrant its condonation." In (9) the instant matter, the cause shown by the appellants has been vehemently denied by the respondent on cogent reasons.
Furthermore, In Anshul Agarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 62 (SC), it was observed by the Hon'ble Apex Court 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 special period of limitation has been prescribed in the Consumer Protection Act for filing appeals and revisions in consumer matter and the objection of expeditious adjudication of consumer disputes will get defeated if this court was to entertain highly belated petition against the orders of Consumer Fora."
In the present case the delay has been caused due to carelessness of the appellant. Ignorance of law is no excuse and it was the duty of the appellant to get in touch with his advocate all the time and it was his duty to enquire about the case from time to time but he failed to do so. The main objects of the Consumer Protection Act is to provide speedy justice to the consumer. No plausible explanation of delay has been given by the appellant. A special period of limitation has been prescribed in the Consumer Protection Act so it cannot be taken lightly because the object of this act to provide speedy justice to the consumers. Day by day explanation of the delay has not been explained by the appellant. The grounds shown by the appellant is not appealing. Being a doctor it should have been known to him that if there is a case against himself, he (10) had a responsibility to get in touch with the court or with his advocate. Before shifting to Haldwani they should have moved an application with their phone numbers to the district forum so that if his counsel did not appear, the court may call him but he did not do it. So in the present circumstances the present appeal is liable to be dismissed as time barred.
ORDER The appeal is dismissed as time barred.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Jafri, PA II Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER