National Consumer Disputes Redressal
Care Hospital Nagpur & Anr. vs Naresh Gopalkrishna Vyas on 26 November, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 2055 OF 2018 (Against the Order dated 26/04/2018 in Complaint No. 22/2012 of the State Commission Maharashtra) 1. CARE HOSPITAL NAGPUR & ANR. THROUGH ITS MANAGING DIRECTOR, R/O. 3, FARMLAND PANCHSHEEL SQUARE NAGPUR MAHARASHTRA 2. SHRI VARUN BHARGAVA MANAGING DIRECTOR OF CARE HOSPITAL NAGAPUR R/O. 3, FARMLAND PANCHSHEEL SQUARE NAGPUR MAHARASHTRA ...........Appellant(s) Versus 1. NARESH GOPALKRISHNA VYAS R/O. D-1, DRDO COMPLEX RANI LOTI CIVIL LINES NAGPUR MAHARASHTRA 2. SMT. SWATI NARESH VYAS R/O. D-1, DRDO COMPLEX RANI KOTI CIVIL LINES NAGPUR MAHARASHTRA 3. DR. SHALINI BAGARIA R/O. 3 FARMALND PANCHSHEEL SQUARE NAGPUR MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER
For the Appellant : Mr. M. Srinivas R. Rao, Advocate For the Respondent :
Dated : 26 Nov 2018 ORDER
IA 21367 of 2018 (condonation of delay)
The present Application has been filed seeking condonation of delay in filing First Appeal No.2055 of 2018 which has been filed against the order of the State Consumer Disputes Redressal Commission, Maharashtra Circuit -2- Bench at Nagpur (for short "the State Commission") dated 26.04.2018 in Complaint No.22 of 2012 filed by Respondents No.1 and 2.
There is a delay of 113 days in filing the present Appeal. Hence, this Application has been filed seeking condonation of the said delay. The grounds for the said delay are given in para 2. For the convenience, the said paragraph is reproduced as under:
"It is most respectfully submitted that the impugned order was passed by the State Commission on 26.04.2018 in Complaint Case being CC/12/22 and the copy was issued to the Appellants herein on 29.06.2018. It is submitted that after receiving the copy of the impugned order the same along with the hospital records were forwarded to the legal department which is at Hyderabad for seeking an opinion whether the Appellants herein can file an appeal against the impugned order. The legal department at Hyderabad has forwarded the necessary papers for the opinion of the lawyer at New Delhi in the month of August, 2018 and the counsel at New Delhi has immediately informed them that it is a fit case for filing an appeal in NCDRC. Immediately after that after due procedure and taking the consent of the management the necessary documents along with the entire record were forwarded to the counsel at New Delhi but unfortunately the post has never been received by the counsel at New Delhi as due to clerical mistake the post was sent to the previous office address of the Advocate at New Delhi. Immediately after enquiring and after coming to know that the post was not received another set of documents were sent to the correct address of the counsel at New Delhi. Immediately after receiving the documents, the counsel at New Delhi has drafted the appeal and has sent to the verification to the hospital at Nagpur and after the doctors at the hospital were satisfied that all the grounds were taken up the vakalat and affidavit were immediately sent in the month of September, 2018 all the necessary documents were once again verified by the hospital and all the documents were stamped as true copies and the same were forwarded to the counsel at New Delhi which were received by the counsel at New Delhi on 12.11.2018 by post. After receiving all the documents the counsel at New Delhi has finalized the appeal and the same is being filed before this Hon'ble Commission on 14.11.2018. That the present application is being made bonafide and in the interest of justice."-3-
From the reading of the grounds given, it is apparent that the entire burden of delay has been put on the shoulders of the clerical staff of the Appellant who deals with posting the letters etc. There is no doubt that the courts, while dealing with the applications for condonation of delay in Appeal and Revision Petition, has to adopt a liberal attitude. The law also requires that the Applicant should also explain the delay of each and every day by giving reasonable explanation for such delay. That the condonation of delay is not a matter of right has been so held by the Hon'ble Supreme Court in "Ram Lal and Ors. vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361". The Hon'ble Supreme Court has held as under:
"It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant."
The test which this Commission has to apply while dealing with the matters relating to condonation of delay is whether the Appellant had acted with reasonable diligence or not. The Hon'ble Court in the case of "R. B. -4- Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC), has so held. The relevant paragraph is reproduced as under:
"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition."
The Hon'ble Supreme Court also wants this Commission to keep in mind the special nature of the Consumer Protection Act, 1986 and the special period of limitation provided under this Act. The Hon'ble Court in the matter of "Anshul Aggarwal vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578," has held as under:
"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 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 Fora."
It is, therefore, clear that the burden lies upon the Appellant to show that he had been acting with due diligence and has reasonable grounds or reasons for such delay. In the present case, the only ground is that the clerical staff had committed a mistake while forwarding the case file to the concerned Advocate whose opinion was to be sought in this matter and sent the record to the old address of the Counsel. The grounds given, when read in totality, seem very vague. No dates are given as to when the file was sent -5- to the lawyer at Delhi. It is only stated that it was sent in the month of August. This fact clearly shows that decision to seek legal opinion for filing the Appeal was sought only after the expiry of period of 30 days given under the Act for filing the Appeals. No explanation has come forward as to why such decisions were not taken earlier. The period of limitation has therefore already expired before the file was sent to Delhi to the lawyer for his opinion. This act of the Appellant does not restart running of the period of limitation. The period of limitation once starts it ends on its expiry and no further act can revive it. Also it is clear that the name of the lawyer to whom the file was sent is not given in the reasons. The address of the Counsel at which at the first instance the file was sent is not mentioned. It is also not mentioned as to why the concerned Lawyer changed his address and what was his new address. All these facts clearly show that the grounds are vague and not reasonable and sufficient and does not extend the delay. I find no reason to condone the delay. The Application is dismissed.
Consequently, the Appeal is dismissed in limine.
......................J DEEPA SHARMA PRESIDING MEMBER