Order No.24 Dated : 18.02.2020
The instant order arising out of an application dated 03.05.2017 filed by the complainant praying for condonation of delay in filing the instant consumer complaint.
Heard the Ld. Advocate for the complainant has submitted that Sudhansu Sekhar Hazra, the husband of the complainant died leaving behind the complainant and twine children and his parents. The husband of the complainant died on 10.12.2013 for which the complainant traumatised and shocked. Being a simple housewife, living in a village of Purba Midnapore, she has no idea about where to go to get justice for her husband’s death at Disun Super Speciality Hospital, Kolkata. The Ld. Advocate for the complainant has further submitted that complainant was misguided by her legal practitioner and ultimately she contact with Smt. Debjani Banerjee, Advocate who filed the instant consumer complaint against the Disun Super Speciality Hospital & Heart Institute including its Dr. S. Kumar. There is a delay in filing the consumer complaint and the complainant had no intentional latches on her part. Hence, the prayer for condonation of delay.
Per contra, the Ld. Advocate for the OP-1 has contended that the consumer complaint is filed after lapse of 485 days and the complainant has failed to establish sufficient ground for condonation of delay. He has further submitted that filing of complaint beyond the period of limitation is not a normal rule but a rule of exception which can only be exercised when the Ld. Forum is satisfied about the explained circumstances which debarted the complainant from not filing the complaint within the prescribed period of limitation. According to him, it is settled law that day to day delay should be explained but in the instant case, complainant has failed to explain day to day delay in filing the complaint. Thus, the Ld. Advocate for the OP-1 has prayed for dismissal of the complaint on the ground of limitation.
Findings
We have heard the Ld. Advocate of both sides. Perused the application U/s 24A of C.P. Act, 1986 coupled with its W/O thereto.
It is settled proposition of law that condonation of delay is not a matter of right and the complainants have to set out the case showing sufficient reasons for not being able to come to the Court / Commissions within the stipulated period of limitation. The Hon'ble Supreme Court in the matter of Ram Lal and Ors. Vs. Rewa Coalfields Limited reported in AIR 1962 (Supreme Court) 361 has held as under:
"It is, however, necessary to emphasise 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 condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay 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 burden is put upon the applicant to show sufficient causes for the delay. The expression 'sufficient cause' has been discussed and defined by the Hon'ble Supreme Court in the case of Basawaraj & Anr. Vs. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510, as under:
"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 bonafide 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 he 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 bonafide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd. V. Bhootnath Banerjee &Ors, AIR 1964 SC 1336; LalaMatadin V. A.Narayanan, AIR 1970 SC 1953; Parimal V. Veena alias Bharti AIR 2011 SC 1150 L2011 AIR SEW 1233); and Maniben Devraj Shah V. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629: (2012 AIR SCW 2412).
...............
It is a settled legal proposition that 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. " A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." 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. The legal maxim "dura lexsedlex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
...........
The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the " sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature".
The Hon'ble Supreme Court has clearly held that party who has not acted diligently or remain inactive is not entitled for condonation of delay. The Hon'ble Supreme Court in the case of "R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC)" has also described the test for determining whether the petitioner has acted with due diligence or not. The Hon'ble Supreme Court has held 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."
Also in the case of " Anshul Aggarwal Vs. New Okhla Industrial Development Authority (2011) 14 SCC 578, the Hon'ble Supreme Court has warned the Commissions to keep in mind while dealing with such applications the special nature of the Consumer Protection Act. The Hon'ble Supreme Court 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 Foras."
In the instant case there is delay of 485 days from the date of death of Sadhanusu Sekhar Hazra during his stay at Desun Hospital & Heart Institute. The husband of the complainant died on 10.03.2013 and the instant case was filed on 03.05.2017 after expiry of two years from the date of arising cause of action. The Ld. Advocate for the complainant referred a decision of the Hon’ble Supreme Court passed in Civil Appeal No. 3883 of 2017 (National Insurance Co. Ltd. – Vs- Hindustan Safety Glass Works Ltd.) and submitted that in a dispute concerning a consumer, it is necessary for the courts to take a pragmatic view of right of the consumer principally since it is the consumer who is placed a disadvantage vis -a-vis the supplier of services or goods it is to overcome this advantage that a beneficent legislation in the form of the Consumer Protection Act, 1986 enacted by the Parliament. The provision of limitation in the Act cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of consumer’s claim. That being so, the Hon’ble Apex Court has been pleased to observe that the Hon’ble NCDRC was quite right in rejecting the contention of National Insurance Co. in this regard.
On the contrary, the Ld. Advocate for the OP-1 has cited a decision of the Hon’ble NCDRC reported in 2014 (4) CPR 207 (NC) and contended that condonation of delay is required to explain each and every day’s delay in a convincing manner since condonation thereof would have effect of depriving other party.
Admittedly there is a delay of 485 days in filing the consumer complainant and the complainant has measurably failed to make out sufficient cause so as to persuade to condonation of delay of 485 days. The decision cited by the Ld. Advocate for the complainant is not applicable to the instant case as the facts of the case cited by the Ld. Advocate for the complainant is different from the facts of the instant consumer case. In the cited case, the National Insurance Co. Ltd. appointed a 2nd Surveyor who also took about one year to submit report and eventually gave an addendum to that report thereby crossing one year in completion of its report along with the addendum. In the said case, the National Insurance Co. Ltd. itself took more than two years in surviving or causing a survey of the loss or damage suffered by the insured. Surely, this entire delay is attributable to National Insurance Co. Ltd. and cannot prejudice the claim of the insured more particularly when the insured had lodged a claim well within time. To make matters worse, National Insurance Co. Ltd. actually repudiated the claim of the insured on 22.05.2001 which is well after the complaint was filed with the Hon’ble National Commission. In the instant case the complainant has miserably failed to make out sufficient cause so as to persuade to condone delay of 485 days in filing the consumer complaint.
In view of these facts and view of the discussion, there is no merit in the impugned application. We find no sufficient ground to condone the delay. The application for condonation of delay is accordingly dismissed.
Thus, the MA being No. 241 of 2019 is disposed of.
As a consequence, consumer case being no. 159 of 2017 is dismissed being barred by limitation.
