State Consumer Disputes Redressal Commission
Shri Mool Chand Kharaiti Ram Hospital vs Amardeep on 21 March, 2024
A/140/2024 DOD:21.03.2024
SHRI MOOL CHAND KHARAITI RAM HOSPITAL VS. AMARDEEP & ORS.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution:29.02.2024
Date of Hearing :14.03.2024
Date of Decision :21.03.2024
FIRST APPEAL NO. 140/2024
IN THE MATTER OF
SHRI MOOL CHAND KHARAITI RAM HOSPITAL
LAJPAT NAGAR-III,
NEW DELHI-110024
...APPLICANT/APPELLANT
(Through Mr. Ramesh Kumar Mishra, Advocate,
Mob.:9911461665 &
Email: [email protected])
VERSUS
1.MR. AMARDEEP S/O LATE MR. BHULAY RAM R/O GALI NO.5, VILLAGE JAGATPUR, DELHI-110084
2. MR. SHYAM PAL S/O LATE MR. BHULAY RAM, R/O GALI NO.5, VILLAGE JAGATPUR, DELHI-110084
3. MR. VIJAY PAL, S/O LATE MR. BHULAY RAM, R/O GALI NO.5 VILLAGE JAGATPUR, DELHI-110084
4. MR. RAM PAL, S/O LATE MR. BHULAY RAM R/O GALI NO.5, VILLAGE JAGATPUR, DELHI-110084
5. MR. PRAMOD, S/O LATE MR. BHULAY RAM, R/O GALI NO.5, VILLAGE JAGATPUR, DELHI-110084
6. MR. MANOJ S/O LATE MR BHULAY RAM DISMISSED PAGE 1 OF 12 A/140/2024 DOD:21.03.2024 SHRI MOOL CHAND KHARAITI RAM HOSPITAL VS. AMARDEEP & ORS.
R/O GALI NO.5, VILLAGE JAGATPUR, DELHI-110084
7. NATIONAL INSURANCE COMPANY DO-VI, 2E/9, JHANDEWALAN EXTN.
NEW DELHI-110055 ....NON-APPLICANTS/ RESPONDENTS CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) HON'BLE MS. PINKI, MEMBER (JUDICIAL) Present: Mr. Ramesh Kumar Mishra, counsel for the appellant. PER: HON'BLE MS. PINKI, MEMBER (JUDICIAL)
1. The present appeal has been filed on 29.02.2024 challenging the impugned order dated 06.07.2023 vide which Complaint Case No.109/2015 was allowed by the District Consumer Disputes Redressal Commission-II, Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi -110016.
2. This order will dispose off an application bearing IA No.617/2024 seeking condonation of delay of 187 days in filing the appeal, filed alongwith the appeal. Affidavit of Mr. Sulangno Basu S/o Anjan Basu, Senior Manager Corporate Affairs of the appellant has been filed alongwith this application.
3. The record has been carefully and thoroughly perused.
4. The application has been moved under Section 5 of Limitation Act, 1963. However, it is being considered under Section 15 of the Consumer Protection Act, 1986 as it is arising out of Complaint Case No.109/2015.
5. The bare perusal of the application IA-617/2024 reflects that it has been preferred under Section 5 of Limitation Act. However, the entire proceedings of the present case took place according to the Old Act. Hence, before delving into the merits of the present application, it is imperative to ascertain whether the present DISMISSED PAGE 2 OF 12 A/140/2024 DOD:21.03.2024 SHRI MOOL CHAND KHARAITI RAM HOSPITAL VS. AMARDEEP & ORS.
application filed along with the appeal on 29.02.2024 is maintainable under the New Act/Old Act.
6. The repeal of a law shall not affect the previous operation of any enactment i.e. the proceedings under Consumer Protection Act, 1986 shall continue for cases which had been filed prior to the implementation of Consumer Protection Act, 2019 on 20.07.2020. The same can be gauged through the repeal and saving section (Section 107) of the Consumer Protection Act, 2019 which has been reproduced below:
"107. (1) The Consumer Protection Act, 1986 is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act. (3) The mention of particular matters in sub-section (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal."
7. We may also take the assistance of Section 6 (b) of the General Clauses Act, 1897 to further this view. Section 6 (b) of the General Clauses Act, 1897 has been reproduced below:
"6 Effect of repeal. : Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder"
8. Moreover, unless the legislature explicitly provides that the amendment is retrospective in nature, it will be considered prospective. The aforesaid view has been taken by the Apex Court in the case of CIT v. Vatika Township (P) Ltd. reported in (2015) 1 DISMISSED PAGE 3 OF 12 A/140/2024 DOD:21.03.2024 SHRI MOOL CHAND KHARAITI RAM HOSPITAL VS. AMARDEEP & ORS.
SCC 1 wherein the Court discussed the proviso to Section 113 of the Income Tax Act, 1961 and held that it was prospective and not retrospective. While deciding the case, the Constitution Bench laid down certain general principles which have been reproduced as under:
"28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lexprospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1] , a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.
29. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in L'OfficeCherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. [L'OfficeCherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd., (1994) 1 AC 486 : (1994) 2 WLR 39 :
(1994) 1 All ER 20 (HL)] Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former DISMISSED PAGE 4 OF 12 A/140/2024 DOD:21.03.2024 SHRI MOOL CHAND KHARAITI RAM HOSPITAL VS. AMARDEEP & ORS.
legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later." (emphasis in original)
9. Similarly, the Apex Court in Hitendra Vishnu Thakur vs State of Maharashtra reported in 1994 (4) SCC 602, the court has culled out the ambit and scope of an amending Act and its retrospective operation and has held the following:
"26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
DISMISSED PAGE 5 OF 12 A/140/2024 DOD:21.03.2024
SHRI MOOL CHAND KHARAITI RAM HOSPITAL VS. AMARDEEP & ORS.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."
10. Taking into account the aforesaid discussion, we conclude that the Consumer Protection Act, 2019 is prospective in nature. Thus, the cases pending or adjudicated and rights/obligations created before the coming into effect of the Consumer Protection Act, 2019 will continue to be adjudicated under the Old Act i.e. Consumer Protection Act, 1986. Hence, the applicant cannot resort to the provisions as inculcated in the New Act so far as the present case is concerned this case will be governed by the provisions of the Old Act.
11. Application for condonation of delay has been filed on various grounds. Para No.2 to 7 of the application read as under:
"2. That the judgment in the matter was reserved on 19.04.2023. Appellant herein had received no notification regarding the pronouncement of judgement from the Hon'ble District Commission neither the order passed by the District Commission was delivered/ communicated to the Appellant hospital.
3. That the Appellants became aware of the order in the month of October 2023 when the Advocate for the Appellant checked the case status online.
4. Following that, certified copies of the order were requested, along with an application for the missing documents, and a thorough inspection of documents on record was conducted on 23.11.2023.
5. Certified copy of the order and the documents from the record was received on 07.12.2023.
6. That the appellant sought for legal advice for challenging the order passed by the District DISMISSED PAGE 6 OF 12 A/140/2024 DOD:21.03.2024 SHRI MOOL CHAND KHARAITI RAM HOSPITAL VS. AMARDEEP & ORS.
Commission. The Counsel for the appellant took some time in providing the legal advice. Finally, the counsel was instructed to file the appeal in the month of December 2023. But, because of a family emergency, Mr. Rishabh Sharma, the head of the appellant's legal team, was on leave in December and January. During that time, he couldn't handle the important documents needed for filing this matter.
7. That in view of the above mentioned circumstances there has been a delay of 187 days in filing of the accompanying application which is not intentional."
12. To adjudicate this issue, we deem it appropriate to refer to Section 15 of the Consumer Protection Act, 1986 which provides as under:-
"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 filing 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 the amount or twenty- five thousand rupees, whichever is less]"
13. A perusal of the aforesaid statutory position reflects that the appeal against an order should be preferred within a period of thirty days from the date of impugned judgment. On perusal of record before us, it is clear that the impugned order was pronounced on 06.07.2023 and the present appeal was filed on 29.02.2024 i.e. after a delay of 208 days.
14. In order to condone the delay, the Appellant has to satisfy this Commission that there was sufficient cause for preferring the appeal after the stipulated period. The term 'sufficient cause' has DISMISSED PAGE 7 OF 12 A/140/2024 DOD:21.03.2024 SHRI MOOL CHAND KHARAITI RAM HOSPITAL VS. AMARDEEP & ORS.
been explained by the Apex Court in Basawaraj and Ors. vs. The Spl. Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under:-
"9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive".
However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause"
from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose."
15. We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. Reported in IV(2015)CPJ453(NC), wherein the Hon'ble NCDRC held as under:-
"12. .........we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind DISMISSED PAGE 8 OF 12 A/140/2024 DOD:21.03.2024 SHRI MOOL CHAND KHARAITI RAM HOSPITAL VS. AMARDEEP & ORS.
that 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 the appeals and revisions, which are highly belated are entertained."
16. We further deem it appropriate to refer to Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C) Nos.2054-2055/2022 decided on 25.02.2022, wherein the Hon'ble Supreme Court held as under: -
"5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of PopatBahiruGoverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.
17. From the aforesaid dicta of the Hon'ble Apex Court and the Hon'ble National Commission, it is clear that 'sufficient cause' means that the party should not have acted in a negligent manner or there was a want of bona fide on its part and the applicant must satisfy the Court that he was prevented by any "sufficient DISMISSED PAGE 9 OF 12 A/140/2024 DOD:21.03.2024 SHRI MOOL CHAND KHARAITI RAM HOSPITAL VS. AMARDEEP & ORS.
cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.
18. Reverting to the material available before us, we find that the impugned order was passed on 06.07.2023 and the period of limitation starts from the date of order which had expired on 05.08.2023. However, the appellant has failed to file the present appeal within the stipulated period. The reasons for delay stated in the application are that since the matter was reserved on 19.04.2023, no copy of the impugned order from the District Commission was received to the appellant; in the month of October, 2023 impugned order came to the knowledge of the advocate when it was checked the case status online; thereafter, certified copy was applied on 23.11.2023 which was received on 07.12.2023; upon receiving the same, legal advice was sought which took time and in the month of December, 2023, counsel was instructed to file the appeal but due to family emergency, Mr. Rishabh Sharma, head of the appellant's legal team, was on leave in December and January which cause delay of 187 days in filing the appeal.
19. In the present case, the Appellant has explained the delay caused in filing this appeal, in Para No. 2 to 7 of the application for condonation of delay, it has been submitted by the Appellant that from 19.04.2023 when the matter was reserved for order, till October, 2023 when the case status of the case was checked online by the counsel of the appellant, neither copy of impugned order nor any communication was received from the District Commission.
20. However, it is for the appellant to explain as to why the appellant had waited till October, 2023 if the matter was kept for DISMISSED PAGE 10 OF 12 A/140/2024 DOD:21.03.2024 SHRI MOOL CHAND KHARAITI RAM HOSPITAL VS. AMARDEEP & ORS.
orders/judgement on 19.04.2023 when it is the duty of the appellant to follow up diligently or deal with his case pending before the learned District Commission.
21. Nevertheless, if we calculate the period of limitation from October, 2023 when the impugned order came to the knowledge of the appellant, the present appeal was filed on 29.02.2024 with the delay of more than 90 days which has to be explained by the appellant.
22. It is submitted that the certified copy of the impugned order was applied on 23.11.2023 which was received on 07.12.2023 and thereafter, due to family emergency of Mr. Rishabh Sharma, head of the appellants' legal time who was on leave in the month of December and January, the instant appeal was not filed within limitation period.
23. Even, if we calculate the period of limitation from 07.12.2023 when the impugned order was received by the appellant, still there is a delay 54 days in the filing the present appeal which has to be explained by the appellant.
24. However, the appellant has failed to explain the cogent reason, if the impugned order came to the knowledge of the appellant in the month of October as to why it took one month time to apply the certified copy of the impugned order from the District Commission which not shows the bonafide of the appellant in its case.
25. Even, the appellant has failed to file on record the affidavit of Mr. Rishabh Sharma, head of appellant's legal team who was on leave due to family emergency in the month of December and January as averred in Para no. 6 of this application. Moreover, the appellant has failed to show sufficient reason for delay of each day as required under the law.
DISMISSED PAGE 11 OF 12 A/140/2024 DOD:21.03.2024
SHRI MOOL CHAND KHARAITI RAM HOSPITAL VS. AMARDEEP & ORS.
26. Having regard to the statutory position discussed in para supra and the facts of the case, the applicant/appellant has failed to show any sufficient cause for the delay in filing the present appeal. Therefore, the application filed by the appellant seeking condonation of delay cannot be admitted and accordingly, the same is dismissed on the above grounds.
27. Consequently, the present appeal filed beyond the statutory period also stands dismissed. However, in the facts of the case, there shall be no order as to cost.
28. File be consigned to record room.
JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) PINKI MEMBER (JUDICIAL) Pronounced on 21.03.2024 DISMISSED PAGE 12 OF 12