Per – Hon’ble Mr. P. N. Kashalkar, Presiding Judicial Member
Heard Adv. Ms. Sneha S. Dwivedi on behalf of the Applicant/Appellant (original Complainant), namely – Smt. Asha Hargen Yadav (hereinafter referred to as ‘the Complainant’ for the sake of brevity); Adv. Yogesh C. Naidu on behalf of the Non-Applicant/Respondent No.1 (original Opponent No.1), namely – Dr. Balabhai Nanavati Hospital (hereinafter referred to as ‘the Opponent No.1’ for the sake of brevity); and Adv. Shekhar Prabhavalkar on behalf of the Non-Applicant/Respondent No.2 (original Opponent No.2), namely – Dr. M. G. Pillai (hereinafter referred to as ‘the Opponent No.2’ for the sake of brevity) on the application for condonation of delay.
[2] This is an appeal filed by the original Complainant, whose Consumer Complaint No.248 of 2006, Smt. Asha Hargen Yadav Vs. Dr. Balabhai Nanavati Hospital and Another, was partly allowed by the Additional Mumbai Suburban District Consumer Disputes Redressal Forum (hereinafter referred to as the ‘District Forum’ for the sake of brevity) by a judgment and order dated 29/6/2010. The Complainant, not satisfied with the meager compensation awarded for the medical negligence case has been prompted to file this appeal for enhancement. In filing this appeal bearing No.1274 of 2010 for enhancement, there is a delay of 121 days on the part of the Complainant and to seek condonation of delay in filing appeal, the Complainant has filed a miscellaneous application bearing No.692 of 2010.
[3] Upon hearing the learned counsels representing the parties to this appeal, we are finding that delay of 121 days in filing the appeal has not at all been properly explained with sufficient cause. Complainant received copy of the impugned order on 5/8/2010 in terms of tenor of pleadings in paragraph (03) of the application for condonation of delay. It is apparent that the Complainant herself received certified copy of the impugned order by post on 5/8/2010. In that case, the Complainant ought to have filed an appeal for enhancement on or before 4/9/2010. According to the Complainant, she came from her native place on 1/9/2010. There is no return journey railway ticket produced on the record by the Complainant to prove that she returned to Mumbai from her native place on 1/9/2010. This averment is contrary to the averment made in paragraph (03) of the delay condonation application, wherein the Complainant has specifically stated that she received copy of the impugned order on 5/8/2010. So far as receiving copy of the impugned order on 5/8/2010 by post, we do not know as to whether the Complainant had gone to her native placed after receiving the copy of the impugned order on 5/8/2010 and she had then returned to Mumbai on 1/9/2010. That apart, when the Complainant ought to have filed an appeal on or before 4/9/2010, she had an ample opportunity from 1/9/2010 onwards till 10/9/2010 to file an appeal. However, the Complainant did not bother to approach her advocate. In paragraph (05) of delay condonation of application, it is averred by the Complainant that on 11/9/2010, she met with an accident and the consulting orthopedic surgeon advised her to take a complete bed rest. If this is so, there should have been some cogent documentary evidence adduced on the record by the Complainant about the treatment and advice given to her by the consulting orthopedic surgeon in view of the accident that took place on 11/9/2010. We do no know for how many days bed rest was advised to the Complainant by the consulting orthopedic surgeon. But, after 11/9/2010, for the first time, the Complainant filed this appeal alongwith delay condonation application on 4/12/2010. So, anyway, there is a delay of more than 90 days in filing this appeal. Though the delay is not properly calculated by the Complainant (she claims that there is a delay of 121 days in filing this appeal). Even this delay of 90 days is not properly explained by adducing any proof to that effect. Unless there is cogent proof to support the contentions raised in the delay condonation application, on mere affidavit of the Complainant, we are not inclined to condone the delay.
For the foregoing reasons, we pass the following order:-
ORDER
Miscellaneous Application No.692 of 2010 seeking condonation of delay in filing Appeal No.1274 of 2010 hereby stands rejected. Consequently, the appeal does not survive for consideration.
No order as to costs.
Inform the parties accordingly.
Pronounced and dictated on 24th January, 2012
