DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 391/2023

QUORUM:

Order By: Shri S.S. Malhotra (President)

ORDER

By this Order the Commission would dispose off the application of the complainant seeking condonation of delay in filing the complaint. 

Before coming to the facts of the application seeking condonation of delay, the brief facts as stated by the complainant in the complaint are that the Husband of the complainant was having a policy with the OP in which complainant and her Son was also covered for a sum insured of Rs.300000/- Male CODR-4428, ID: 10013783402, Policy No.160100/11229/AX00105877-01 and complainant was fit at the time of purchasing the policy.  But, thereafter in the year 2018 (No date mentioned) the complainant came to know that her husband is suffering from mouth cancer due to which he was under treatment and he visited various hospitals for his treatment (No names of Hospitals and dates mentioned) and paid amount as claimed by the said hospital (No amount mentioned).  It is further stated that complainant thereafter approached the OP and sent various e-mails to the OP on different dates (No dates mentioned, no number of mails mentioned) for raising the claimed amount of the policy (No amount mentioned) but the OP gave false assurances and no payment was released.  On 16.04.2019 the complainant’s husband expired in MAX-Super Speciality Hospital due to Mouth Cancer and this intimation was given to the OP (No date mentioned) but OP did not release the claim of the complainant and again gave a false assurance due to which complainant suffered mentally and physical harassment as well as financial agony.  The complainant again and again request the OP to release the claim of her husband but till date the OP has not released the claim of her husband and this act on the part of OP amounts to deficiency in service and OP is liable to compensate Rs.10,00,000/-.  Legal Notice was issued to the OP on 19.11.2021 which was duly served upon the OP but the same has not complied with.  Therefore, she has filed the present complaint case praying for relief that OP be directed to release the medical bill amount to the complainant with interest @ 18% p.a. and pay compensation amounting to Rs.10,00,000/-. 

Now, coming to the contents of application U/s 5 of limitation Act it is submitted that there is delay in filing the present consumer case and complainant has sent the legal notice to the OP on 19.11.2021 through Speed Post dated 09.12.2021 but the same was returned back with the report that OP is not in existence on this address.  It is submitted that OP did not receive the legal notice deliberately and accordingly the counsel suggested the complainant to file the complaint case against OP but the complainant was suffering from some financial crisis due to which she could not file the complaint case against OP although the complainant was continuously in touch with OP to resolve her claim but OP always passed the time and never made the payment and left with no option she somehow could arrange the money from her relatives, friends and well wishers and then has approached her counsel to draft the complaint and file the case which has been filed and there is certain delay (no period mentioned) in filing the complaint which may be condoned. 

Law w.r.t. to condonation is well settled that liberal approach has to be taken  so that the case of the complainant/ person seeking condonation of delay be not rejected as threshold provided that there is no malafide on the part of the complainant/ person seeking condonation of delay and complainant qualify the test of reasonableness and bonafide. 

In the present case in the entire application it is not mentioned that how much is the delay.  Even in the complaint it is nowhere clarified as to when the policy was taken where her husband took treatment, how much amount was spent by her husband and in which hospital, what was the prescription and description of the hospital, who was the treating doctor, how much bill was raised and who paid the bill, when he was admitted and discharged from Hospital, when various letters were written, when complainant lodged the formal claim with the OP and when the same was rejected.  The complaint as well as the application has been drafted so casually and the complainant thinks that she has to file rather throw  a complaint only and rest of the facts would be discussed, anticipated and appreciated by the Commission.  Further, the ground of delay is mentioned that she was not having sufficient amount to file the present case and she has taken the help of friends, relatives and she has filed the complaint.  This fact is again too vague to be appreciated.  Being a female, she has always an open door for legal assistance from DLSA, without any much enquiry.  Therefore there appears to be no reasonableness or bonafide on the part of complainant who has drafted the complaint in such a casual manner that it no where states that why there is a delay, how much is the delay and how much delay is to be condoned.  Law is well settled. 

1. Apex Court in various judgments has held that law of limitation has to been interpreted to serve the interest of justice and not to defeat the justice. It is further stated that in the matter of “State of West Bangal Vs. Hawra Municipality (1972) SCR 2 (873)” the Hon’ble Apex Court while explaining the ‘sufficient cause’ in Section 5 of Limitation Act, held that it must receive a liberal construction so as to advance substantial justice, and generally delay has to be condoned in the interest of justice unless there is gross negligence or deliberate lack of bonafide, which is not imputable  to the  party seeking condonation. It is further  submits  that the delay has been explained sufficiently and not only this the Hon’ble Supreme Court  even in 2010 in case Singh (dead) Vs. Jagdish Singh, (2010)  8 (SCC) 685 report held in para 25 as under:

“we may state that even if the term “sufficient Cause” had to received liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of “reasonableness” as it is understood in its general connotation.

The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the 10 delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally.” 

2. Future, the contention of the complainant is that cause of action in medical negligence case is of continues nature is also without any basis. The counsel for OP had relied Dr. V.N. Srikhande Vs. Mrs. Anita Sena Furnandis i.e. Civil Appeal 8983 of 2010 deliver by Hon’ble Supreme Court and in para 18 it read as under:

“Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both the important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation.”

In Suranjan Biswas vs Ashoke Kumar Nath & Anr. on 15 November, 2021, the National Consumer Disputes Redressal Commission, New Delhi on 15.11.2021 in first Appeal No.1005/2019 was held that:

“The National Consumer Dispute Redressal Commission bench comprising Mr. C. Vishwanath as the presiding member and Mr. J. Ram Surat Ram Maurya as a member recently observed that the condonation of delay cannot be claimed as a matter of right and should be explained for every day of the delay. The bench observed this while dismissing a revision petition filed under Section 21 of Consumer Protection Act-2019.”

Further, National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 1429 of 2016 of Soudharya Jewllers V/s Paidi Jaganadha Rao was held that:

It is also a settled preposition of law that delay of each and every day has to be explained. The basic test to determine whether the delay is reasonable or whether the party has been acting with due diligence, has been laid down by the Hon’ble Supreme Court in the case of “R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) (2) CLJ (SC) 24”. The Hon’ble Court has held as under:

"5. 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.”

Keeping in view the facts and law discussed, Application of the complainant is liable to be dismissed and the same is dismissed and consequently the complaint of the complainant is rejected. 

File be consigned to Record Room.