State Consumer Disputes Redressal Commission
Avneet G Singh vs 1. Icici Lombard General Insurance ... on 1 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 43 of 2014 Date of Institution : 05.02.2014 Date of Decision : 01/04/2014 Avneet G Singh w/o Sh. Gurujeet Singh, R/o House No.2118, Sector 38-C, U.T., Chandigarh 160038. Appellant/Complainant V e r s u s 1. ICICI Lombard General Insurance Company Limited, through its Managing Director, TGV Mansion, 6th Floor, Plot No.6-2-1012, Khairatabad, Hyderabad-500004, Andhra Pradesh. ....Respondent No.1/Opposite Party No.1 2. The Managing Director, TGV Mansion, 6th Floor, Plot No.6-2-1012, Khairatabad, Hyderabad-500004, Andhra Pradesh. (Service dispensed with vide order dated 06.02.2014) ....Respondent No.2/Opposite Party No.2 3. ICICI Lombard General Insurance Company Limited, through its Branch Manager, SCO No.24-25, Sector 8-C, 1st Floor, Madhya Marg, Chandigarh. ....Respondent No.3/Opposite Party No.3 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Arun Kumar, Advocate for the appellant.
Sh.
Sandeep Suri, Advocate for respondents No.1 and 3.
Service of respondent No.2 dispensed with vide order dated 06.02.2014 PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 31.10.2013, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief are that, in September, 2010, a representative of Opposite Parties No.1 and 3 (now appellants), approached the complainant, for getting a cashless health Insurance Policy. The complainant and her husband, took ICICI Lombard Health Care-Family Protect 2007- Policy, from Opposite Parties No.1 and 3, valid for the period from 07.09.2010 to 06.09.2011, for the total sum assured, to the tune of Rs.4 lacs, on payment of premium, to the tune of Rs.8,089/-. It was stated that, thereafter, the complainant suffered health problems, in the month of October 2010. She got herself checked from Fortis City Centre, Sector 9-D, Chandigarh, on 14.10.2010, where the Doctor advised her some tests. After medical examination, it was found that the complainant was suffering from dengue fever. The complainant was, accordingly, admitted in Fortis Hospital, Mohali, on 16.10.2010, for the treatment of dengue fever, with thrombocytopenia, and, was, ultimately, discharged on 24.10.2010. At that time, the complainant was in her seventh week of pregnancy. Before getting discharge certificate from Fortis Hospital, the husband of the complainant, approached the Opposite Parties, for payment of the bill amount. However, the cashless facility was not provided to the complainant. Ultimately, the husband of the complainant paid a sum of Rs.1.82 lacs, to the said Hospital, from his own sources.
3. Thereafter, when the husband of the complainant lodged a claim, with Opposite Parties No.1 and 3, for reimbursement of the amount, aforesaid, spent on her (complainant) treatment, the same was repudiated by them, on the ground that the prolonged admission for dengue fever was because of her complicated maternal condition, as she was pregnant. It was further stated that the complainant, at the time of issuance of the Insurance Policy, was not pregnant and she conceived after issuance of the same (Policy). It was further stated that the repudiation of genuine claim of the complainant, was illegal and arbitrary. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay the claim amount of Rs.1,82,000/-, spent on her treatment, alongwith interest @18% P.A., from the date of repudiation of claim, till realization; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-.
4. Opposite Parties No.1 and 3, in their joint written version, admitted that the complainant and her husband, took ICICI Lombard Health Care-Family Protect 2007- Policy from them (Opposite Parties No.1 and 3), valid for the period from 07.09.2010 to 06.09.2011, for the total sum assured, to the tune of Rs.4 lacs, on payment of premium, to the tune of Rs.8,089/-. It was pleaded that the complainant was carrying 14 weeks pregnancy, with fever for the last three days, associated with vomiting and rashes. She was investigated and diagnosed to be suffering from dengue fever, with thrombocytopenia. She was a primigravida and treatment was given to her, for maternity related condition, along with dengue fever. It was stated that cashless facility was denied to the complainant, due to multi-ailment hospitalization, in which maternity was permanently excluded, as per the Insurance Policy. It was further stated that bifurcation for both ailments, could not be done. It was further stated that despite repeated requests, the complainant had not provided the entire medical record, alongwith bills, for processing her claim. It was further stated that there was some dispute, between the complainant and Fortis Hospital, as the treatment taken by her was related to the medical condition, arising out of and related to advanced stage of pregnancy, which was not covered under the terms and conditions of the Insurance Policy, in question. It was further stated that, initially, approval for cashless facility, to the complainant was accorded, but, later on, when it was found that the treatment was taken for pregnancy related condition also, which was not covered under the Insurance Policy, the same was revoked. It was denied that the claim of the complainant was illegally and arbitrarily repudiated. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 3, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.2, was duly served, but, neither he, nor any authorized representative, on his behalf, put in appearance, as a result whereof, he was proceeded exparte, by the District Forum, on 24.05.2012.
6. The complainant and Opposite Parties No.1 and 3, led evidence, in support of their case.
7. After hearing the Counsel for the complainant, Opposite Parties No.1 and 3, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
9. Service of respondent no.2, was dispensed with, vide order dated 06.02.2014, as he was proceeded against exparte, in the District Forum.
10. We have heard the Counsel for the appellant, respondents No.1 and 3, and, have gone through the evidence, and record of the case, carefully.
11. The Counsel for the appellant/complainant, submitted that the complainant was admitted, in Fortis Hospital, on 16.10.2010, as she was running fever, for the last three days, associated with rigors and chills. He further submitted that the complainant was also having history of vomiting and rashes over neck and face, for the last three days. He further submitted that, as per the discharge summary, at page 30 of the District Forum file, on investigations, it was found that the complainant had been suffering from thrombocytopenia, dengue serology-positive. He further submitted that the complainant was primarily treated for dengue fever, with which she was found to be suffering, during the course of her admission, in Fortis Hospital, Mohali, and not for her pregnancy related disease. He further submitted that, under these circumstances, such disease was not at all excluded, as per exclusion Clauses of the Insurance Policy, and, as such, Opposite Parties No.1 and 3, illegally and arbitrarily repudiated the claim of the complainant, on flimsy grounds. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
12. On the other hand, the Counsel for respondents No.1 and 3, submitted that the complainant was also treated for pregnancy related conditions, which fell within the purview of exclusion Clauses of the Insurance Policy. He further submitted that, no doubt, the claim of the complainant, in the first instance, was approved, but, later on, the same was declined. He further submitted that even the complete medical record, with regard to the ailment, was not submitted by the complainant, though the same was asked for, from her, a number of times. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
13. There is, no dispute, with regard to the factum that the complainant and her husband took ICICI Lombard Heath Car-Family Protect 2007- Policy, from Opposite Parties No.1 and 3, valid for the period from 07.09.2010 to 06.09.2011, for the total sum assured, to the tune of Rs.4 lacs, on payment of premium, to the tune of Rs.8,089/-. Undisputedly, the complainant was admitted, in Fortis Hospital, on 16.10.2010, during the currency of the Insurance Policy. The question, that falls for consideration, is, as to whether, the complainant was admitted, in the Hospital for treatment of dengue fever, or for pregnancy related conditions. It is evident from copy of the discharge summary, at page 30 of the District Forum file, relating to the complainant, that she was admitted therein, on 16.10.2010, at 12.46 hours, and was discharged on 24.10.2010. The diagnosis and the course, in the Hospital, mentioned, in the discharge summary, read as under:-
DIAGNOSIS Dengue Fever with Thrombocytopenia (Recovery) Primigravida at 14 Weeks with Rh-Negative Pregnancy with Severe Oligohydramnios with?
Incomplete Cervix PAST HISTORY No significant past medical or surgical history Obstetrical History:
Primigravida Menstrual History LMP-18/7/10 EDD-25/4/11 PRESENT ILLNESS Patient admitted with fever associated with rigors and chills x 3 days.
H/o vomiting and rashes over neck & face x 3 days.
On investigations found to have thrombocytopenia, Dengue serology-Positive.
PHYSICAL EXAMINATION Conscious, well oriented in time, place and person.
No pallor. No icterus.
No cyanosis. No clubbing. No. lymphadenopathy. No pedal edema.
BP-130/80mm Hg.
Temp-98.4f. Pulse rate-86/min, RR-18/min, SPo2 98% on room air.
Chest-B/L equal air entry. No added sounds.
CVS-s1, s2 heard.
CNS-NAD A-7 Weeks Pregnancy.
Small pupuric rash on Right foot present.
COURSE IN THE HOSPITAL Patient admitted with above complaints. Her TLC was 2.2 thou/ul with 69% neutrophils, platelet count 20 thou/ul. OT/PT-142/82 USG whole abdomen revealed GB wall edema, mild splenomegaly, minimal ascites, single live intrauterine pregnancy, uterine fibroid. She was started on i/v fluids and other supportive treatment. She was given platelet apheresis. She had an episode of spotting P/V. Gynaecology consultation was taken under Dr. Seema Wadhwa. Obstetric US revealed funneling of internal Os with dilated cervical canal with low position of fetus, oligohydrominos, small amount of Subchorionic Haemorrhage at anterior aspect, uterine Fibroid.
She was managed conservatively with Duvadilan infusion. Tab Susten. Risk of expelling the fetus and need for D & C if required was explained to the patient and her relatives. There was no further episode of bleeding P/V. She had persistent vomiting. She developed hypokalemia and hypomagnesemia. She was started on TPN supplemented with Inj KCI, Inj. Magnesium sulphate. Her urine analysis showed large number of WBC, few bacteria. She was started on Inj. Oframax Forte. Her hepatitis viral markers (HBsAG, anti HCV, HEV, HAV) were negative. She was transfused 6 units of platelet apheresis and 7 units of PRP during her entire hospital stay. Repeat USG (23/10/10) revealed single live intrauterine fetus with average gestational age of 14 weeks 1 day, funneling of internal os with dilated cervical canal with Low position of fetus with fetal head in the cervical canal with hyperextension of head? cervical incompetence, severe Oligohydramnios, uterine fibroid. She was continued on conservative treatment. Her platelet count improved to 113000/mcl at discharge. She is being discharged in stable condition on following advice MEDICATIONS DUVADILAN RETARD (ISOXSUPRINE HCL) CAP 40 MG Once a day at bed time 10 p.m. SUSTEN (PROGESTERONE) CAP 100 MG Twice a Day (12 hrly) 10 a.m 10 p.m. ALAMINE FORTE CAP Once a Day 10 a.m. SUPRADYN TAB Once a day 10 a.m. FOLVITE (FOLIC ACID) TAB Once a Day 10 a.m. Follow up in Internal Medicine OPD (Dr. Vikas Bhutani) after 5 days with CBC, LFT and Serum Electrolytes, after prior appointment. Follow up in Gynaecology OPD (Dr. Seema Wadhwa) after 7 days after prior appointment.
14. From the aforesaid diagnosis and course, in the hospital, mentioned in the discharge summary, it is evident, that the complainant was primarily treated for dengue fever, as on investigations, she was found to have thrombocytopenia, dengue serology-positive. If, during the course of treatment of the complainant for dengue fever, with which she was found to be primarily suffering, some related treatment, with regard to her pregnancy, which she was carrying, was also given, that did not mean that her main disease (dengue fever), was excluded under the exclusion Clause of the Insurance Policy. The complainant was not admitted, in the Fortis Hospital, for the treatment of infertility or congenital disease(s). Had the complainant been admitted, in Fortis Hospital, for pregnancy related disease, infertility or congenital diseases, the matter would have been different. No doubt, pregnancy, infertility and congenital diseases are excluded, under the major exclusions of the Insurance Policy. Since, the main treatment to the complainant, was given for dengue fever, and she spent a sum of Rs.1,82,000/-, for the same, which was not excluded under the exclusion Clause of the Insurance Policy, her claim could not be repudiated, legally and validly. In our considered opinion, the District Forum was wrong, in coming to the conclusion, that complete medical ailment of the complainant, related to her pregnancy, and, as such, the same fell under the exclusion Clause of the Insurance Policy. On the other hand, the medical ailment of the complainant was dengue fever, with which, she was found to be suffering, on investigations, by the Doctors of Fortis Hospital, and, if, on account of this reason, there was some pregnancy related complication, and she was also treated for that, she could not be denied her genuine claim. It is also settled principle of law, that when two interpretations are possible, from the contents of documents, then the interpretation, which is favourable to the consumer, is required to be taken into consideration. Had, in the discharge summary, the Doctor(s) of Fortis Hospital opined that the complainant was not suffering from dengue fever, (with thrombocytopenia, dengue serology-positive), and was not treated for the same, but, on the other hand, was only treated for pregnancy related complications, the matter would have been different. The District Forum was, thus, wrong, in coming to the conclusion, that the claim of the complainant was legally and validly repudiated, by Opposite Parties No.1 and 3. The findings of the District Forum, in this regard, therefore, being perverse, are reversed.
15. The next question, that falls for consideration, is, as to whether, the complainant provided the relevant medical record, to the Opposite Parties, or not. It may be stated here, that whatever medical record was available, with the complainant, was provided by her, to the Opposite Parties. The Opposite Parties knew that the complainant was admitted, in Fortis Hospital, Mohali, for the period from 16.10.2010 to 24.10.2010. They could collect the record, from the Fortis Hospital, with regard to the admission and treatment of the complainant, which was given to her by the Doctor(s). Even, during the pendency of the complaint, an application was moved by Opposite Parties No.1 and 3, that directions be given to the complainant, to supply them the medical record. Reply to that application was filed, wherein, it was stated by the complainant that the entire record was handed over by her, to the Opposite Parties, alongwith the bills. The District Forum, thus, came to the conclusion that since the documents, sought to be placed on record, were not with the complainant, she could not be forced to produce the same. The application was accordingly dismissed. Under these circumstances, by no stretch of imagination, it could be said that, the complainant, did not supply the entire medical record, to Opposite Parties No.1 and 3. On the other hand, copies of the medical record, discharge summary, and bills were produced by the complainant, during the course of evidence, in the District Forum, which was sufficient to decide the complaint. The submission of the Counsel for respondents No.1 and 3, therefore, being devoid of merit, is rejected.
16. The next question, that falls for consideration, is, as to what amount, the complainant is entitled. According to the complainant, her husband spent a sum of Rs.1,82,000/-, on her treatment. This, fact was also admitted by the Opposite Parties. Even, copies of the bills were produced, on record, showing the amount, spent by the husband of the complainant, on her treatment, during her admission, in Fortis Hospital. It is evident, from the repudiation letter dated 25.10.2010, that, initially approval, in the sum of Rs.1,82,000/- was given, by Opposite Parties No.1 and 3, but, later on, the same was revoked. It means that the bills, to the tune of Rs.1,82,000/-, were submitted by the complainant, to Opposite Parties No.1 and 3, and that was why, they initially approved the claim, for that amount, but later on, on flimsy grounds, revoked the same. The complainant, is, thus, entitled to the reimbursement of amount of Rs.1,82,000/-, spent by her, on her treatment, during her admission in Fortis Hospital, from 16.10.2010 to 24.10.2010, for the treatment of dengue fever, from which, she was found to be suffering. By not making payment of this amount, to the complainant, Opposite Parties No.1 and 3, were deficient, in rendering service.
17. The next question, that falls for consideration, is, as to whether, the appellant/complainant is entitled to compensation for mental agony and physical harassment. The claim of the complainant was illegally and arbitrarily repudiated by Opposite Parties No.1 and 3, vide letter dated 25.10.2010. One can really imagine the condition of a person, like the complainant, who had undergone treatment, for a number of days, in Fortis Hospital, as indoor patient, and spent huge amount of Rs.1,82,000/-, and, ultimately, her claim was denied by the Insurance Company, on flimsy grounds. On the one hand, the complainant suffered a lot of mental agony and physical harassment, due to her ailment and admission, in the Hospital aforesaid, and, on the other hand, Opposite Parties No.1 and 3, added to her miseries, by denying her rightful claim. The attitude of Opposite Parties No.1 and 3, therefore, could not be appreciated. Compensation, in the sum of Rs.30,000/-, for mental agony and physical harassment, as also deficiency, in rendering service, if granted to the appellant/complainant, that would be just and reasonable. The complainant, is, thus, entitled to compensation, for mental agony and physical harassment, to the tune of Rs.30,000/-.
18. No other point, was urged, by the Counsel for the appellant and respondents No.1 and 3.
19. In view of the above discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
20. For the reasons recorded above, the appeal is accepted, with costs. The order of the District Forum is set aside. The complaint is partly accepted, directing respondents No.1 and 3/Opposite Parties No.1 and 3, as under:-
(i). To pay the claim amount of Rs.1,82,000/-, to the appellant/complainant, spent by her, on her admission and treatment, in Fortis Hospital, from 16.10.2010 to 24.10.2010, with interest @9% P.A., from the date of repudiation of her claim.
(ii). To pay to the appellant/complainant, compensation, to the tune of Rs.30,000/-, for causing her mental agony and physical harassment.
(iii). To pay to the appellant/complainant, cost of litigation, to the tune of Rs.20,000/-.
(iv). The amounts mentioned in Clauses (i) and (ii), shall be paid, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned in Clause (i) shall carry interest @12% P.A., from the date of repudiation of claim, till realization, and the amount mentioned in Clause (ii) shall carry interest @12% P.A., from the date of filing the complaint, till realization, besides payment of cost of litigation aforesaid.
21. The appeal, as also the complaint against respondent No.2/Opposite Party No.2, is dismissed, with no order as to costs.
22. Certified copies of this order, be sent to the parties, free of charge.
23. The file be consigned to Record Room, after completion.
Pronounced.
April 1, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg STATE COMMISSION (First Appeal No. 43 of 2014) Argued by: Sh. Arun Kumar, Advocate for the applicant/appellant.
Sh.
Sandeep Suri, Advocate for respondents No.1 and 3.
Service of respondent No.2 dispensed with vide order dated 06.02.2014 Dated the 1st day of April 2014 ORDER Alongwith the appeal, an application for condonation of delay of 55 days, in filing the same (appeal) has been moved, by the applicant/appellant, wherein, it was stated that certified copy of the order impugned dated 31.10.2013, was received, by her, on 12.11.2013. It was further stated that after going through the order impugned, it was decided to challenge the same, in this Commission, for which the case papers were handed over to the Counsel. It was further stated that, however, the said Counsel remained busy, in the treatment of his daughter, who was suffering from stone problem. Thus, the appeal was filed on 05.02.2014. It was further stated that, on account of this reason, there was delay in filing the appeal. It was further stated that, in these circumstances, the delay of 55 days, in filing the appeal occurred. It was further stated that the delay, in filing the appeal, was neither intentional, nor willful. Accordingly, the prayer, referred to above, was made.
2. Notice of this application, was given to the respondents No.1 and 3/Opposite Parties No.1 and 3, but they did not file reply to the same.
3. No doubt, there is delay of 55 days, in filing the appeal. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicant/appellant. Before discussing this question, let us have a look at law, laid down by the Hon`ble Supreme Court, and the Mumbai (Maharashtra) High Court, regarding the condonation of delay. In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011) 4 S.C.C. 190, the Apex Court held as under:-
(i). The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.
(ii). Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
(iii). 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.
(iv). Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law.
4. In N.Balakrishnan v. M.Krishnamurthy (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-
It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice.
The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."
The Court further observed in paragraphs 11, 12 and 13 which run thus:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "
5. In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15,Mumbai (Maharashtra) High Court, while condoning 52 days delay, in filing the appeal, observed as under:-
No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of theApex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353.
6. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. It may be stated here that the delay of 55 days, in filing the appeal, cannot be said to be so huge, as to deny the substantial justice. Even otherwise, it is settled principle of law, that normally every lis should be decided on merits.
When substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. Under these circumstances, it could be held that delay in filing the appeal, was neither intentional nor willful, but, on account of the reasons, explained in the application. There is, thus, sufficient cause, for condoning the delay. The application. thus, deserves to be accepted.
7. For the reasons recorded above, the application for condonation of delay of 55 days, in filing the appeal, is allowed, and the delay is, accordingly, condoned.
8. Admitted.
9. It be registered.
10. Arguments, in the main appeal have already been heard.
11. Vide our detailed order of the even date, recorded separately, the appeal has been accepted, with costs. The order of the District Forum has been set aside. The complaint has been partly accepted, as per the directions given to respondents No.1 and 3/Opposite Parties No.1 and 3, in the main order.
12. Certified copies of this order, alongwith the certified copy of the main order, be sent to the parties, free of cost.
Sd/- Sd/- Sd/-
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Rg