DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)
GOVT. OF NCT OF DELHI
CONVENIENT SHOPPING CENTRE, FIRST FLOOR,
SAINI ENCLAVE, DELHI – 110 092
Case No :- 221/2022
Date : 05.04.2024
By this order the Commission would dispose of the application of OP3 (wrongly written as application on behalf of complainant in the title) under section 40 of CPA for taking the reply of OP on record which was not taken on record on account of delay in filing beyond statutory period under CPA 2019 vide order dated 08.03.2022 (again wrong date mentioned).
Brief facts as stated by the OP3 in his application seeking review that OP3 has filed an application seeking condonation of delay along with the reply to the complaint which was dismissed vide order dated 16.02.2023 and it is submitted that OP3 was served on 25.08.2022 along with the Paper Book and such notice was received by the Appollo Indraprashtha Hospital i.e. OP1, as that address of the OP3 was given in the Memo of parties by the complainant for all the OPs. However, the complainant did not deliberately mention the address of the clinic/email/whatsapp number of the OP3 and the Commission has not somehow considered the said aspect while dismissing the application seeking condonation of delay and in view of these facts it is stated that as per the service record of this Commission OP3 was served on 25.08.2022 which summons were received by OP1 at the address which was mentioned in the Memo of Parties by the complainant, however OP3 received the summon on 27.08.2022 as it received an email from OP1 explaining the fact that complaint has been filed by complainant against OP3. The OP3 received the hardcopy of the summon on 28.08.2022 and reply was filed on 11.10.2022 along with application seeking condonation of delay as OP3 was not in town due to professional reasons and therefore extension of time for another 15 days was sought along with the reply, which was not granted and aggrieved from the said order dated 16.02.2023, the present application has been filed on various grounds inter alia that order is neither sustainable nor tenable in law, order has been passed without considering material facts on record, order is passed on conjectures and surmises, the Commission has not given proper opportunity to OP3 to place on record relevant judgments, the said order as passed has caused prejudice to the rights of OP3, the perusal of the Order shows that there are certain mistakes apparent on the face of record and there are certain reasons which would have entitled the OP3 to obtain the relief as mentioned in the application, application has been decided wrongly and impugned order otherwise is not sustainable and it is prayed that order dated 16.02.2023 be reviewed. OP3 has filed an affidavit along with the application confirming that he is employed as consultant in Apollo Hospital.
Complainant has not filed any reply and vide order dated 27.03.2024 the OP3 was given time to argue this application. The counsel for OP3 is not available even today.
The Commission has heard the arguments of complainant and has perused the records.
Earlier the OP3 has filed reply to the complaint of the complainant on 11.10.2022 along with an application seeking condonation of delay and in para 3 of this application it was stated as follows:
‘It is submitted that OP3, Dr. Yash Pal Gulati had received the Complaint on 26th August 2022 and thereafter was not in town due to professional reasons, hence beyond the 30 days requests the extension of time by another 15 days to submit the reply.
In this application OP3 he has submitted that OP1 received the copy of complaint on 26.08.2022 and he received the copy of complaint on 28.08.2022. This by itself is contradiction to the facts of earlier application seeking condonation of delay.
Further, the Commission while disposing of this application observed that OP3 was served on 25.08.2022 as per speed post record with complete paper book and while disposing that application, this Commission in its order observed:
“As per record OP3 was served on 25/08/2022 if that day is excluded, the limitation would start from 26/08/2022 and 30 days would expire on 24/09/2022, August being month of 31 days and another 15 days would expire on 09/10/2022, September being month of 30 days. On 9th October it was a Sunday and OP3 was supposed to file written statement on 10th October 2022, but written statement has been filed on 11/10/2022.”
Therefore, there appears to be no mistake apparent on the face of it, while counting days/limitation. Further, in the first Application the OP3 had stated that he received the hard copy of the complaint on 26.08.2022, whereas in the application he submits that he received the copy on 28.08.2022. The contradiction is apparent on the face of it, rather it amounts to giving two separate version on affidavit, which speaks about the malafide on the part of OP3.
The next Contention of counsel for OP3 in the application is that complainant has been served at the address of OP1 and not at his own address therefore he received the copy on 26.08.2022 and thereafter he was out of station. Even in the affidavit in support of this application, the OP3 has mentioned the same address, which is mentioned by complainant in the complaint/Memo of Parties. Therefore, this contention of OP3 is also not well found. Further, once the OP3 has admitted that he has received the copy on 26.08.2022, the non-mentioning of his own address becomes irrelevant. The Commission in its order has specifically excluded the day of service i.e. 25.08.2022 and has counted the limitation period from 26.08.2022 and therefore the contention of OP3 is not well found. Further, it is the own case of OP3 that he was not in town due to professional reasons and hence beyond thirty days, request of extension of time was sought. Being out of station for 45 days together that too for professional purpose, that too without naming the place, where he had gone, does not inspire the reasonableness on the part of OP3. OP3 has written various ground in the application seeking review interalia that impugned order is based on conjectures and surmises but has failed to show as to what fact is based on conjectures and surmises and then another ground that proper opportunity was not given to OP3 to place on record relevant judgments, but even those judgments have not been placed on record upto now, and even while disposing of this application Ld. counsel for OP3 was not present on the last date of hearing and nor is present even today despite having granted an opportunity.
OP3 further submits that impugned order shows that there are mistake apparent on the face of record in the order but without highlighting as to what particular mistake is apparent on the face of record and what are the errors in the order dated 16.02.2023.
The application as drafted is too vague, too casual and too generalized that it does not convey any clear meaning as to what fact of the OP has not been taken care of while disposing of the application of OP3 vide order dated 16.02.2023.
From the order passed by this Commission there appears to be no error on the face of record and therefore the application of the OP3 does not fall within the ambit of the Section 40 of CPA. Application of OP3 is dismissed.
The appeal of OP1 and OP2 as filed by Hon’ble SCDRC has already been dismissed.
Put up for further proceedings on 08.07.2024.
