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State Consumer Disputes Redressal Commission

Dr. Sanju Singh vs Religare Health Insurance Company Ltd. ... on 8 August, 2024

FA/497/2024     DR. SANJU SINGH VS. RELIGARE HEALTH INS. CO. LTD. & ANR.   DOD: 08.08.2024


          IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
                             COMMISSION

                                                 Date of Institution:26.07.2024
                                                 Date of hearing : 07.08.2024
                                                 Date of Decision : 08.08.2024

                        FIRST APPEAL NO. 497/2024

   IN THE MATTER OF

          DR. SANJU SINGH
          S/O LATE DR. K. K. SINGH
          R/O HOUSE NO. 3518, SECTOR-23
          OPPOSITE SHOPPING COMPLEX
          MOTHER DAIRY, GURUGRAM
          HARYANA-122017

                                  (Through Mr. A.K.Thakur, Mr. Sujeet Kumar
                              Mr. Rishi Raj & Mr. Ningthem Oinam, Advocates
                                          Email: [email protected]
                                                    Phone No. 011-43541402)
                                                   ...APPLICANT/APPELLANT

                                       VERSUS

      1.

RELIGARE HEALTH INSURANCE CO. LTD.

REGISTERED OFFICE: 5TH FLOOR 19 CHAWLA HOUSE, NEHRU PLACE NEW DELHI-110019

2. FORTIS MEMORIAL RESEARCH INSTITUTE SECTOR-44, OPPOSITE HUDA CENTER METRO STATION GURUGRAM, HARYANA-122002 ....NON-APPLICANTS/ RESPONDENTS CORAM:

HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) HON'BLE MS. PINKI, MEMBER (JUDICIAL) Present: Mr. Rishi Raj, counsel for the appellant (Email:

[email protected] and Mobile No. 9871134756) None for the respondents.

FA/497/2024 DR. SANJU SINGH VS. RELIGARE HEALTH INS. CO. LTD. & ANR. DOD: 08.08.2024 PER: HON'BLE MS. PINKI, MEMBER (JUDICIAL)

1. The present appeal has been filed on 26.07.2024 challenging the impugned order dated 08.03.2024 passed in Complaint Case No.72/2019 by the District Consumer Disputes Redressal Commission-X (South East District), Udyog Sadan, C - 22 & 23 Institutional Area (Behind Qutab Hotel), New Delhi-110016 wherein the complaint was dismissed for non-prosecution.

2. This order will dispose off an application bearing IA No.2089/2024 seeking condonation of delay in filing the appeal, filed along with the appeal. Affidavit of the appellant has been filed along with this application.

3. Record has been carefully and thoroughly perused.

4. The application has been moved under Section 151 of the Code of Civil Procedure, 1908. However, it is being considered under Section 15 of the Consumer Protection Act, 1986 as it is arising out of Complaint Case No. 72/2019.

5. A bare perusal of the application reflects that it has been preferred under Section 151 of the Code of Civil Procedure, 1908.

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 application bearing IA No.2089/2024 filed along with the appeal on 26.07.2024 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:

FA/497/2024 DR. SANJU SINGH VS. RELIGARE HEALTH INS. CO. LTD. & ANR. DOD: 08.08.2024 "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 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 DISMISSED Page 3 of 12 FA/497/2024 DR. SANJU SINGH VS. RELIGARE HEALTH INS. CO. LTD. & ANR. DOD: 08.08.2024 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 lex prospicit 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.

FA/497/2024 DR. SANJU SINGH VS. RELIGARE HEALTH INS. CO. LTD. & ANR. DOD: 08.08.2024 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 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:

FA/497/2024 DR. SANJU SINGH VS. RELIGARE HEALTH INS. CO. LTD. & ANR. DOD: 08.08.2024

(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.

(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. 3 of the application reads as follows:

FA/497/2024 DR. SANJU SINGH VS. RELIGARE HEALTH INS. CO. LTD. & ANR. DOD: 08.08.2024 "3. The impugned order was passed on 08.03.2024.

Even though the office of the Advocate of the Appellant/Complainant was following the matter with the Ld. District Commission, but the matter was not listed during pandemic. The notice by Ld. District Commission was issued only to the Appellant and not to their counsel, and that too when the appellant was admitted in the Hospital. As a result no-body could appear before Ld. District Commission, which resulted as dismissal of complaint by the impugned order. It was only recently while following up the matter, it came with notice of the counsel that the matter was dismissed by the Ld. District Commission and the impugned order was downloaded from the official website of the Ld. District Commission on 18.07.2024. The delay was due to the bonafide reasons stated above and was neither deliberate nor 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 rupees twenty-five thousand, 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 order. On perusal of record before us, it is clear that the impugned order was pronounced on 08.03.2024 and DISMISSED Page 7 of 12 FA/497/2024 DR. SANJU SINGH VS. RELIGARE HEALTH INS. CO. LTD. & ANR. DOD: 08.08.2024 the present appeal was filed on 26.07.2024 i.e. after a delay of 110 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 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 DISMISSED Page 8 of 12 FA/497/2024 DR. SANJU SINGH VS. RELIGARE HEALTH INS. CO. LTD. & ANR. DOD: 08.08.2024 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 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 DISMISSED Page 9 of 12 FA/497/2024 DR. SANJU SINGH VS. RELIGARE HEALTH INS. CO. LTD. & ANR. DOD: 08.08.2024 a want of bona fide on its part and 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.

18. Reverting to the material available before us, we find that the impugned order was passed on 08.03.2024 and the period of limitation starts from the date of order which had expired on 07.04.2024. However, the reasons stated for the delay are that the matter with the District Commission was not listed during Covid-19 Pandemic; notice was issued only to the appellant/complainant not to his counsel, and that too when the appellant was hospitalized, therefore, none could appear on behalf of the appellant/complainant before the District Commission; thereafter it came with notice of counsel that the matter was dismissed by the District Commission and the impugned order was downloaded from the official website on 18.07.2024.

19. It is pertinent to mention that the appellant has submitted in para 3 of the application that the District Commission issued the notice only to him and not to his counsel and that too when he was hospitalized. However, as per Annexure-A2 at page 24 i.e. photocopy of the notice dated 10.11.2023 issued by the District Commission shows that the said notice was issued to the parties address mentioned in the complaint. Even no address of counsel for the appellant/complainant is mentioned in the complaint.

20. A perusal of Annexure-A3 (colly) at page 25 to 30 i.e. photocopy of the Medical Certificate dated 16.03.2024 and Discharge Summary of the appellant issued by Park Hospital reveals that the appellant was suffering from Iron Anemia (IDA i.e. Iron Deficiency Anemia) and was advised rest with effect from 03.03.2024 to 17.03.2024 i.e. 15 days and is fit to resume his duties from 18.03.2024. Now the appellant DISMISSED Page 10 of 12 FA/497/2024 DR. SANJU SINGH VS. RELIGARE HEALTH INS. CO. LTD. & ANR. DOD: 08.08.2024 has failed to explain as to how the Medical Certificate dated 16.03.2024 issued by Park Hospital can declare him fit to resume his duties on 18.03.2024 whereas he was advised rest with effect from 03.03.2024 to 17.03.2024. Even no cash memo for medicine has been brought on record.

21. As per order dated 08.08.2023 passed by the District Commission uploaded on the website of the Confonet (https://confonet.nic.in), notice was issued to both the parties for appearance on 09.10.2023. On the other hand, the appellant has preferred not to say as to why none has appeared on behalf of him before the District Commission on 09.10.2023. Further, a perusal of order dated 09.10.2023 passed by the District Commission uploaded on the website of the Confonet (https://confonet.nic.in), notice was issued to the appellant/complainant and the respondent/opposite party no.2 for final arguments on 08.03.2024 i.e. the date of impugned order.

22. Moreover, the appellant has not mentioned the date as to when he has been served with the notice issued by the District Commission in compliance of order dated 08.08.2023 and 09.10.2023.

23. Furthermore, as per Annexure-A2 at page 24 i.e. copy of the notice dated 10.11.2023 issued by the District Commission, the same was dispatched vide diary no. 898 dated 10.11.2023. Even if we consider that notice dated 10.11.2023 took 30 days to reach the appellant's address and the appellant have been served on 10.12.2023, the appellant has preferred not to mention as to what steps have been taken by him to pursue his case and as to why he has not contacted his advocate before hospitalized.

24. It is the duty of the appellant to be aware of his case(s) pending before any Court/Commission/Tribunal and to be vigilant as well as to keep track of his case(s) and to be aware of statutory period of the appeal.

25. The applicant has abused the process of law and filed this appeal after immense delay without any reasonable ground.

FA/497/2024 DR. SANJU SINGH VS. RELIGARE HEALTH INS. CO. LTD. & ANR. DOD: 08.08.2024

26. As per the averments made in the application as well as the record, we are of the considered view that no cogent reason has been explained by the appellant to show the delay in filing the appeal.

27. 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.

28. 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.

29. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties as well as forwarded to the corresponding E-mail address available on the record.

30. File be consigned to record room.

JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) PINKI MEMBER (JUDICIAL) Pronounced on 08.08.2024.