State Consumer Disputes Redressal Commission
Smt. Kailash Kumari vs Dr. Anil Kumar Marwaha on 30 August, 2013
FIRST ADDITONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Misc. Appl. No.78 of 2012
In/and
First Appeal No.47 of 2012.
Date of Institution: 13.01.2012.
Date of Decision: 30.08.2013.
1. Smt. Kailash Kumari widow of late Sh. Pawan Kumar;
2. Vishal Roojam S/o late Sh. Pawan Kumar;
3. Ms Deepti D/o late Sh. Pawan Kumar;
All residents of Nawi Abadi, Punder, G.T. Road, Batala, Punjab.
.....Applicants/Appellants.
Versus
1. Dr. Anil Kumar Marwaha S/o Sh. Piara Lal, R/o Mohalla Simble,
Batala, District Gurdaspur, Punjab.
2. Marwaha Hospital, Vishawkarma Road, Mohalla Simble, Batala,
District Gurdaspur, through its Proprietors Dr. Anil Kumar
Marwaha & Dr. (Mrs.) Manju Marwaha.
...Respondents.
Application for condonation of delay of
155 days
In/And
First Appeal No.47 of 2012 against the
order dated 14.06.2011 of the District
Consumer Disputes Redressal Forum,
Gurdaspur.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Present:- Sh. N.P. Sharma, Advocate, for the applicants/appellants.
Sh. Rahul Sharma, Advocate, counsel for the respondents.
Misc. Appl. No.78 of 2012 2In/and First Appeal No.47 of 2012 INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Smt. Kailash Kumari and others, applicants/appellants (In short, "the applicants") have filed this application for condonation of delay of 155 days in filing the present appeal.
2. It was submitted that the copy of the impugned order dated 14.06.2011 was prepared on 07.07.2011 and was handed over to the counsel for the applicants on 11.07.2011 and the same was received by the applicants on 18.07.2011, but the copy of the order was misplaced by the applicants in their house while the house was being whitewashed and after many efforts, the same was searched out only on 12.11.2011. On 12.11.2011, the copy of the order was sent to a relative at Chandigarh for taking opinion from some lawyer along with the case papers, but no information was received from the lawyer or relative and in the meantime, applicant no.3 suffered paralytic attack and her treatment consumed a long period and she was declared fit by the attending doctor on 10.01.2012. The entire family was undergoing severe economic depravity on account of demise of the sole bread earner of the family namely Sh. Pawan Kumar and the applicant no.1 approached Chandigarh on 11.01.2012 and took the entire brief from her relative and handed over the same to her counsel for filing the appeal. There is no willful or deliberate delay in filing the appeal and the delay has occurred on account of above mentioned reasons. It was prayed that the delay of 155 days in filing the appeal may be condoned in the interest of justice.
3. In the reply filed on behalf of the respondents, preliminary objections were taken that there is delay of 155 days in filing the appeal, whereas as per the Act, the duration for filing the appeal is 30 Misc. Appl. No.78 of 2012 3 In/and First Appeal No.47 of 2012 days. The pleas of the applicants that the file was misplaced due to work of whitewash going on in their house and applicant no.3 suffered paralytic attack, are not tenable in the eyes of law and the same cannot be given any weightage. As per the settled law, delay of each and every day has to be explained.
4. On merits, it was submitted that the copy of the impugned order dated 14.06.2011 was made available to the applicants on 17.07.2011 and the appeal was to be filed within a period of 30 days and the limitation to file the appeal expired on 17.08.2011. It was denied that the copy of the order was misplaced by the applicants and it was searched out only on 12.11.2011. The story has been concocted. Other pleas of the application were also denied and it was prayed that the application may be dismissed.
5. We have heard the learned counsel for the parties and have perused the record.
6. The first ground taken by the applicants for condonation of delay is that the copy of the impugned order was misplaced by the applicants in their house while their house was being whitewashed and after many efforts, the same was searched out only on 12.11.2011. This plea of the applicant is not tenable, because the applicants have not produced any record qua the work of whitewashing going on in their house during which the copy of the order was alleged to have been misplaced. Moreover, it is not disclosed as to from where the copy of the order was found and who found the same. This ground taken by the applicant without the supporting evidence, is a usual ground and cannot be accepted. Even if the copy of the order was misplaced, then also the another copy Misc. Appl. No.78 of 2012 4 In/and First Appeal No.47 of 2012 could be obtained from the District Forum as per rules, but that was not done.
7. The second ground taken by the applicants is that after discovering the copy of the order, the same was sent to a relative at Chandigarh on 12.11.2011 for taking opinion from some lawyer along with the case papers. This plea is also devoid of any merit, as neither the name of the relative of the applicants nor the name of lawyer is mentioned in the application.
8. The other ground taken is that applicant no.3 suffered paralytic attack and her treatment consumed a long period of time. The applicants have produced reports of Gyan's Medical Diagnostic Centre as well as report of Nijjar Scan & Diagnostic Centre and OPD slips etc. qua treatment of applicant no.3, but in view of the huge delay of 155 days in filing the appeal, these documents cannot be said to be the sufficient ground for condonation of the huge delay of 155 days in filing the appeal. Moreover, no date is mentioned as to when applicant no.3 suffered paralytic attack and only the date of her recovery is mentioned as 10.01.2012. The tests reports and other documents qua treatment of applicant no.3 are dated 26.08.2011, 29.08.2011, 06.10.2011, 16.12.2011 etc. As per the stamp of the District Forum affixed on the certified copy of the impugned order, the same was delivered to the applicants by hand on 11.07.2011, but no steps were taken by the applicants to file the appeal immediately after the receipt of the copy of the order on 11.07.2011 till 26.08.2011. As already stated, the ground of misplacing of the file without supporting evidence is not of any help to the applicants. Misc. Appl. No.78 of 2012 5
In/and First Appeal No.47 of 2012
9. As per the settled law the delay of each and every day has to be explained but in this case, the delay has not been properly explained and the applicants have taken the things for granted, with the assumption that the delay will be condoned automatically, forgetting that the rigorous of the law of limitation are applicable to all and things cannot be taken for granted. 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:-
"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".
10. Similarly, the Hon'ble Supreme Court in another case "Oriental Arora Chemical Industries Limited Vs Gujarat Industrial Development Corporation", (2010) 5 SCC-459 observed as follows:-
"We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a Misc. Appl. No.78 of 2012 6 In/and First Appeal No.47 of 2012 period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time".
11. Hon'ble National Commission in a recent judgment in case "M.I. Plywood Industries Vs Canara Bank", I (2013) CPJ-17 (NC) observed in Para-11 as follows:-
"It is well settled that 'sufficient cause' with regard to condonation of delay in each case, is a question of fact."
12. In a recent case "DLF Home Developers Limited & Ors. Vs Pradeep Kumar & Ors.", 2013 (3) CLT-404 (NC), the Hon'ble National Commission relying upon so many authorities, reproduced the judgment of the Hon'ble Apex Court in Para-17 and of the Hon'ble National Commission in Para-18 as follows:-
17. Apex Court in Anshul Aggarwal Vs New Okhla Industrial Development Authority", IV (2011) CPJ-63 (NC) has observed:
"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 the 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."
18. This Commission in Mahindra Holidays & Resorts India Ltd. Vs Vasankumar H. Khandelwal and Anr., Revision Petition ANo.1848 of 2012 decided on 21.05.2012 has held: Misc. Appl. No.78 of 2012 7
In/and First Appeal No.47 of 2012 "that under the Consumer Protection Act, 1986, the District Forum is supposed to decide the complaint within a period of 90 days from the date of filing and in case of some expert evidence is required to be led, then within 150 days. The said Bench dismissed the revision petition on the ground that it was delayed by 104 days."
13. In view of above discussion and the law laid down, the application filed by the applicants for condonation of delay of 155 days 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 i.e. F.A. No.47 of 2012 also stands dismissed. No order as to costs.
15. The arguments in the application were heard on 23.08.2013 and the order was reserved. Now the order be communicated to the parties.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member August 30, 2013.
(Gurmeet S)