State Consumer Disputes Redressal Commission
Dr Surendra Parmar vs Bai Havli W/O Shanu Sunga on 22 October, 2007
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BF.F(')RF, THF. CONS! IMER DISPI ITFS RFDR FSKAI. C(")MMIS'SI(')N
GUJARAT S1TATF,. AHMFDART).
(.?,M.A.No.34f.1.f20f}7
Dr. Surendra Parmar, ...AppeHant
Sa11_iivaI1I Surgical Hospiiai,
Station Road, Dahod.
Verslm
L Bai _HavIi- Widow 0f'Shan1.1 ...ReSp0.ndents
Singa Mavi. Vaciwa. Tai. Eahod,
n:n+ Dnmnlaumnian'
Lllfilu J. (.-I..I.1\JlI.I'LH.l.IJ.£Il..
2, Dr. Harshad P. ._lhavcri,
Jhaveri Nursing Home.
Station Road, Dahod.
3. Dr. P. D. Modi, Dahod.
4. Chairman,
The Hamilton McCl¢:err_y Hospital,
Dahod.
.BEFOR_;_E.: Jtlsticze N. G. Nandi, President
Dr. Jalin P. V aidya, Member
Mrs. Nayanaben Shah, Advcacate for the app!i<:an.t Mr. D. M. Advani, advocalc fur oppu11cn'tNo.3 Fx 0R.A1_- UR_D_E_.R.f (By Justice N. G. Nandi. President) mare: 22-1 0-2007;
Heard Mrs'. Nayanaben Shah learned advocate for the applicant and Shri D. M. Advani learned advocate for opponent No.3. Opponents No.1. .2 and 4 are served, but absent.
By this application delay of 1261 days caused. in filing the appeal under Section 15 of the Consumer Protection Act is sought to be condoned. Vide order dated 27-6-200? notices were issued to the opponents as to why the deiay should not be condoned. It is suggested from the copies of the notices placed on record by the applicant that opponent No.1 Bai Havli -- the original complainant, is served with the notice as there is thump impression overleaf of the copy of the notice. Opponent No.2 Dr. Harshad P. Zhaveri is served as copy of the notice suggested signature of the recipient along with the rubber seal of the opponent No.2. Opponent No.3 -- Dr. P- L). Modi is also served as copy of the notice suggested signature of the recipient on Ii7~7-2007.
\\ Opponent N02 has also given apptieation e:~h--9 stating that he been
-served with the notice of the CMA No.34t_t./07 and requested to issue notice to the New India Insurance Co. Ltd. by joining them party in the proceedings as he is insured with the said Insurance {.1on1pan.y. Opponent No.3 has appeared through a.dvo=eate and filed objections to the continuation ofdela_v.
It is suggested from the application that the present applicant was not served with the summons in the complaint No. 1 M1995 which has been decided. on 3-5-2001; that he learnt about passing of the order on 3-5-200] in complaint No.l'3/20f)5 when he was served -with the notice ofexeontion in the year 2003 and thereafter he immediately contacted his advocate Mr. J. K. Desai and applied for the certified copy of certain record from the learned Forum and after receiving the said record he had entrusted all the papers/records to advocate Mr. J. K. Desai for preferring appeal before the Commission. 1': is stated in the application that the said advocate had obtained signature of the applicant on certain papers and the applicant was also assured that the appeal has been preferred before the State Commission. It is stated by Mrs. N. S. Shah learned advocate for the applicant that meanwhile the said advocate Mr. J. K. Desai died on 31-10-2003 as he was sutfering from Cirrhosis of Lever with I-iepatitis B, It is stated in the application that then the mother of the applicant was suffering from Gangrene of both the legs, Hypertension ]_)_M. and she .expired on 14-12-2003; that thereafter the niece of the applicant was suffering from Peripheral 'l'hrombosis in the year 2004 and the applicant had to go to Hyderabad along with his niece and he was at Hyderabad for about six months approximately for the treatment of his niece and because of all these the applicant could not file the appeal in time.
It is further stated in the application that in the year 2007 he was served with the notice in the execiition. proceedings Ne:.a9r/20117 the learned District Forum, Godhra directing 'him to remain present before the l~'orum on; 6-6-2007. 'l'hereafter he contacted the family members of deceased advocate Shri J. K. Desai to get his file regarding the appeal preferred by Shri J. K. Desai before the State Ccimmission, but he was informed that no file is traceable. Therefore, he could not find out whether any' appeal has been preferred before the State (_3em.missiea or net, lt is suggested from the above that order in complaints No,l.3/'I995 was on 3-5-2.001. Atzcording to the applicant he was not served with the notice of the complaint and therefore he could not remain present before the learned Jistriet l't)I'l.lI't1'., that the applicant was served with the notice in execution proceedings in the year 2tJ03 and thereafter he approached his advocate and applied for certified copy of the order, that the papers were entrusted to Mr. J. K. Desai learned advocate for filing the appeal; that but Mr. Desai died on 31-l0--2.(}f)'3 and; that his mother was siitfc-ring from Garigrene of both the legs, Hypertension D.M. and she died on 14-e-12»-2003 and thereafter his niece was stiffering from Peripheral 'l7hrombosis in the year 2004 and the applicant was required to go to Hyderabad for the treatment of his niece and stay there at about six months and because of all these things he could not file the appeal in time. Again in the year 2007 he was served with the notice of execution proceedings _No.9./200'? and thereafter the present application has seen the light of the day.
it has been stated by Mrs. N2. Shah In an answer to the question learned advocate for the applicant that during the entire period right from 2.003 to Zllffl the applicant was attending to his medical professionfpraetieei First notice of execution was served. in 2003, leaving aside the question whether he was served with the notice in the contplaint proceedings though the learned District Forum in the irnpugned judgement has categorically stated at more the.-- 04$ place that the present applicant was served with the notice in the complaint proceedings and yet he did not remain present, the first notice in execution proceedings was served in the year 2003, Assuming that he had engaged advocate Shri 5, K. Llesai and he died on 3L1-lU--200'3 as stated in the application, the applicant could have enquired from Mr; Desai when he was alive what about the progress of the appeal ie. whether he has filed the appeal or not. The applicant's mother died on 14-12-2003 due to her sickness and his niece was sick in 2004 and the applicant was required to attendfaecompany her to Hyderabad for about six months. Be that as it may. It is not suggested from the application what was the reason for the applicant not to inquire about the appeal, ifany. filed by Mr. Desai or not. Even after January, 2004 the applicant could have ascertained by rnaldng enquiry with the Registry, State Commission whether his appeal is filed against the order of the learned District .l*'orI_tin. Nothing of that sort seems to have been done by the applicant. The applicant in the year 2190? reeeived notice in eszecution proceedings No.9-'2l_H_l7 whereby he was reogtired to remain present before the learned District Fori.tni and thereafter the present application is filed. The period from middle of2tJt)4 to middle of 2t)t.37 has not been explained at all as to whythe appeal has not been filed during the three years nor any enquiry was made from the Registry, State Commission whether appeal has been filed or not. Ordinarily one would wait upto six months or one year, but what happened in the instant case is that the advocate Mr. Desai died on 31---1()--2£J03, thereafter his family problems i.e. death of his mother and sickness of his niece etc. and from middle 2004 to middle 2007 nothing has been done by the applicant and the present application has tiled only on 26-6-2007.
Learned advocate for the applicant has placed reliance on the decision reported in (ZOIJO) 9 Supreme Court Cases 733 in the case of Radha Krishna Rai vs. Allahabad Bank wherein the delay was of 1418 days and sufficient ca.use was found to condone the delay as the applicant was kept in dark by the advocate concerned. It is suggested from the facts in the aforesaid judgement that the petitioner had engaged advocate M. M. Verma to know about the progress of his case, but he did not receive any satisfactory information . So the petitioner engaged another advocate Mrs, lleera Ja_in. On enquiry by Mrs. lieera. Jain advocates it came to her knowledge that no appeal was filed by the advocate for the appellant before the Division Bench and then she filed the appeal before the Division Bench with a petition to condone the delay, in the circumstances mentioned above, 111 the light of these facts the delay has been condoned as the advocate misled the petitioner about filing of the appeal. before the Hon'ble Supreme Court. in our opinion the principle laid down by the .Hon'ble Supreme Court in the aforesaid decision can be of no assistance to the present applicant.
The learned advocate for the applicant has also placed reliance on the decision reported in (2003) 3 Supreme Court Cases 752 in the case of State of Nagalancl vs. Lipok AD and Others wherein the Hon'ble Supreme Qfourt condoning the delay of 57 days has held that when substantial jiistice and technical approach are pitched against each other the fornier has to preferred and Section 5 of the Limitation Act has to receive liberal consideration and without resorting to technicalities the delay can be condoned with a View to do sitbstantial justice between the parties. This proposition cannot be disputed. At *~A-------e« s ,_.__ _ * . e__._.__._,..,_______ the same time sscflicient cause has to be proved by the applicant who wants the delay to be condoned. In the instant case sufiicierrt cause as sob-rnitted by the learned advocate for the applicant is that the applicant was not served with the noticeisumrnons in the complaint proceedings and that in 2003 notice was served first in the execution proceedings and he contacted advocate but the appeal could not be filed in time because of the sickness and demise of the advocate; 'l'l1_erea,fter applicanfs mother died in 200'3 as she had heert sufiering item the diseases as mentioned earlier and then his niece was required to be taken to Hyderabad for treatment as observed earlier. All these would go to show that the period trom the middle of 2't)0-4 to the 1'I11(iCli|'.'i of 2007 'ie. June, 2007 has remained totally itnexplained and not an iota of evidence to say as to why enquiry could not be made about the tiling of appeal? if any, by his advocate .1, K. Desai, and if not filed during this period, he could have preferred the appeal seeking condonation of delay and it is only in June, 2007 when he was served with the -second notice in execution proceeding No.9.f2007 the present application has been filed.
In our opinion the inordinate delay for the aforesaid reasons cannot be said to be satisfactorily explained. it may also be seen from the copy of the lU judgement produced -on record which suggests that besides the present applicant other doctors as opponent No.1 and 2 and opponent No.3 t'.'.h.-airman of the Hamilton Metjleerry llospital all belonging to the same town ie, .l..'iah.od in Panehntahal District 0fGI.1jt11'E!.la!1(l had also been served with the s1I.mm_on.s in the eon1pla.intp.roeeedi_ngs and they had received the notice on 4-5-2001 and 116-2001 respectively, Dahod being a small town and the opponents belonging to the same profession i.e. medical profession it ean be reasonably presumed that when the present applicant is also allegedly involved in the same incident, other opponents normally would talk about the complaint and consequent liability of the present applicant according to the impugned order passed by the learned District Forum.
Thus in our opinion the inordinate delay of 126] days caused in tilting the appeal cannot be said to have been satissfaetorily explained and there no sufiicient cause proved by the present applicant for condoning the said delay.
In the result the present application fails. Order accordingly.
it is submitted by Mrs. Nayanaben S. Shah learned advocate for the applicant that an amount of Rs.I,U.t.l,f)(}t;lf- deposited in the registry of the ._ .. -_ V '_ V: V_'_ __ '__- -_ , .;.. _ __ -.. _--
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