State Consumer Disputes Redressal Commission
Dr. B.S. Johal vs United India Insurance Company Limited on 20 November, 2013
FIRST ADDITONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Misc. Appl. No.1581 of 2011
In/and
First Appeal No.833 of 2011
Date of Institution: 26.05.2011.
Date of Decision: 20.11.2013.
1. Dr. B.S. Johal, Johal Hospital & Maternity Home, Rama Mandi,
Jalandhar.
2. Dr. Vishal Modgil C/o Johal Hospital & Maternity Home, Rama
Mandi, Jalandhar.
.....Applicants/Appellants.
Versus
1. United India Insurance Company Limited, 136, Feroze Gandhi
Market, Ludhiana.
2. Ram Singh S/o Sh. Sodhi Singh, aged about 22 years, R/o
Talwandi Bhillan, Tehsil and District Jalandhar.
3. Apex Insurance Consultant Limited, 54, Vinodhpuri, Lajpat
Nagar-2, New Delhi-110024.
...Respondents.
Application for condonation of delay of
440 (alleged) days
In/And
First Appeal No.833 of 2011 against the
order dated 09.02.1010 of the District
Consumer Disputes Redressal Forum,
Jalandhar.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
- -----------------------------
Present:- Sh. Hitesh Kaplish, Advocate, counsel for the appellants/applicants.
Respondents No.1 & 3 Exparte.
Sh Rajiv Joshi, Advocate, counsel for respondent no.2.
----------------------------------------- Misc. Appl. No.1581 of 2011 2 In/and First Appeal No.833 of 2011 INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Dr. B.S. Johal and another, applicants/appellants (In short, "the applicants") have filed this application for condonation of delay of 440 days (alleged) in filing the present appeal.
2. It was submitted by the applicants that applicant no.1 never received the copy of the order of the District Forum personally and the same was received by the Administration of the Hospital and the same could not be brought to the notice of applicant no.1. As far as applicant no.2 is concerned, the order could not be conveyed to him as on 15.11.2009, he was appointed as an Assistant Professor in the Department of Orthopedic in Punjab Institute of Medical Science and, as such, he was unaware of the decision of the District Forum. It was only on receipt of summons in Appeal No.656 of 2010 that he came to know about the orders passed by the District Forum and he tried to get copies of all the documents, but as the same were attached with Appeal No.656 of 2010, so he could not get the same and thus, a delay of 440 days occurred in filing the appeal. The delay was not intentional, but occurred due to the circumstances explained above. It was prayed that the delay of 440 days in filing the appeal may kindly be condoned in the interest of justice.
3. In the reply filed on behalf of respondent no.2, it was submitted that the applicants were already served in similar appeal filed by the Insurance Company i.e. F.A. No.656 of 2010. Dr. Vishal Modgil was appearing through Sh. Hitesh Kaplish, Advocate and Dr. B.S. Johal was served duly in the above said appeal which is evident from the order dated 23.08.2010 passed in F.A. No.656 of 2010. In the application also, the applicants have admitted that the summons Misc. Appl. No.1581 of 2011 3 In/and First Appeal No.833 of 2011 were served at the hospital of Dr. B.S. Johal. The applicants have also been contesting the application u/s 27 of the Consumer Protection Act before the District Forum and as such, it cannot be said that they were not aware of the order under appeal. It is only after filing of the application for vacation of exparte stay order passed in favour of Dr. B.S. Johal and Dr. Vishal Modgil in F.A. No.656 of 2010 that the present appeal was filed by the applicants as an afterthought. The appeal has been filed just to frustrate the order passed by the District Forum in favour of respondent no.2. There is no explanation for condonation of delay. It was prayed that the application may be dismissed.
4. Respondents no.1 & 3 have not contested the appeal and were proceeded against exparte.
5. We have heard the learned counsel for the applicants and respondent no.2 and have gone through the record.
6. The applicants have mentioned the delay of 440 days in filing the present appeal. As per stamp affixed on the copy of the impugned order dated 09.02.2010 by the District Forum, the copy was sent by post to applicant no.1 on 16.03.2010 and presuming that it took seven days to reach applicant no.1 even by post, the copy of order must have been received by 23.03.2010 by the applicants and the limitation to file the appeal was upto 22.04.2010, whereas the present appeal has been filed on 26.05.2011 i.e. after a delay of 398 days. Thus, there is delay of 398 days in filing the present appeal.
7. The grounds taken by the applicants for condonation are that the copy of the order was received by the Administration of the Hospital and the same could not be brought to the notice of applicant Misc. Appl. No.1581 of 2011 4 In/and First Appeal No.833 of 2011 no.1. The same also could not be conveyed to applicant no.2 as on 15.11.2009, he was appointed as an Assistant Professor in the Department of Orthopedic in Punjab Institute of Medical Science and as such, he was not aware of the decision of the District Forum. On receipt of summons in Appeal No.656 of 2010, applicant no.2 came to know about the order passed by the District Forum and he tried to get copies of all the documents, but as the same were attached with Appeal No.656 of 2010, he could not get the same and thus, the delay occurred in filing the appeal.
8. The above grounds taken by the applicants are devoid of any merit. Applicant no.1 himself admitted that the copy of the impugned order has been received by his office, but the same could not be brought to his notice. When the copy of the order has been received by the office of applicant no.1, then the plea that the order was not brought to his notice, is not available to him. As per averments of the application, applicant no.2 was appointed on 15.11.2009 as an Assistant Professor in the Department of Orthopedic in Punjab Institute of Medical Science, whereas as discussed above, the copy was sent by post to applicant no.1 on 16.03.2010 and the same must have been received by the applicants by 23.03.2010, therefore, this plea is taken just for the sake of taking a casual defence. Moreover, as per zimni order dated 23.08.2010 passed in cross appeal i.e. F.A. No.656 of 2010, applicant no.2-Dr. Vishal Modgil (who is respondent no.3 in F.A. No.656 of 2010) appeared in the said appeal on 23.10.2010 through counsel Sh. Hitesh Kaplish, Advocate who filed power of attorney on his behalf and, as such, the plea taken in the application that applicant no.2 was appointed as Misc. Appl. No.1581 of 2011 5 In/and First Appeal No.833 of 2011 Asstt. Profession on 15.11.2009 and, therefore, he was unaware of the order passed against him, is belied. The applicants were very well knowing about the impugned order on 23.08.2010 when applicant no.2 put in appearance in F.A. No.656 of 2010, but the present appeal has been filed on 26.05.2011 i.e. after more than nine months thereafter and no explanation has been given in this regard.
9. In the application itself, it is mentioned that the applicants received summons in Appeal No.656 of 2010 and then came to know about the orders passed by the District Forum, which shows that the present appeal is counter-blast to F.A. No.656 of 2010 and earlier they had no intention to challenge the impugned order. All this shows casual approach of the applicants in filing the appeal and the applicants wants to file the appeal as per own whims and wishes. 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. 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 application, if made after the prescribed period, although, limitation is not set up as a defence".Misc. Appl. No.1581 of 2011 6
In/and First Appeal No.833 of 2011
10. The Hon'ble Supreme Court in another 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 follows:-
"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 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 observed 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."Misc. Appl. No.1581 of 2011 7
In/and First Appeal No.833 of 2011
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:
"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."
12. Hon'ble Punjab & Haryana High Court in case reported as "Union of India & Ors. Vs Hari Singh ", 2009(4) RCR (Civil)-654, declined to condone the delay for taking the matter in casual manner. In Para-7, it was observed as follows:-
"Even otherwise, no explanation is forthcoming from 15.09.2004 to 18.01.2005 for not filing the appeal. The pleadings in application itself show that the matter was being taken in most casual manner, without bothering for the law of limitation".
13. In view of the above discussion as well as the law laid down, the application filed by the applicant for condonation of delay of 398 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.833 of 2011 also stands dismissed. No order as to costs.
15. The applicants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to Sh. Misc. Appl. No.1581 of 2011 8
In/and First Appeal No.833 of 2011 Ram Singh, respondent no.2/complainant 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 shall be paid by the applicants to respondent no.2/complainant within two months of the receipt of copy of the order.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member November 20, 2013.
(Gurmeet S)