KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

I.A. No. 1372/2023 in APPEAL No. 680/2023

ORDER DATED: 15.04.2024

(Against the Order in C.C. 42/2008 of DCDRC, Thiruvananthapuram)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

PETITIONER/APPELLANT:

Sree Uthradom Thirunal Hospital, P.B. No. 1052, Pattom, Thiruvananthapuram-695 004.

(By Adv. Ajith S. Nair)

                                                Vs.

RESPONDENTS:

1. Dr. S. Sunil Kumar, Shanya, Sree Bhavan, KRA No. 102, Kudappanakunnu, Thiruvananthapuram.

(By Adv. S. Reghukumar)

2. Dr. G.R. Bahuleyan Nair, Department of Urology, SUT Hospital, Pattom, Thiruvananthapuram.

ORDER

SRI. RADHAKRISHNAN. K.R: MEMBER

This is a petition for condonation of a delay of 580 days in filing the appeal.  The appellant/petitioner is the 1^st opposite party in C.C. No. 42/2008 before the District Consumer Disputes Redressal Commission, Thiruvananthapuram (District Commission for short).  The District Commission by its order dated 24.11.2021 partly allowed the complaint and directed the first opposite party to pay Rs. 2,00,000/- as compensation towards the permanent anatomical damages and Rs. 5,00,000/-  as compensation for mental agony and Rs. 2,500/- towards costs within one month from the date of receipt of the order, failing which the amount except costs, shall carry interest @ 9 %  from the date of order till realisation.  According to the petitioner they received the order on 15.03.2022 and the appeal ought to have been filed on or before 30.04.2022. The appellant has moved the I.A seeking   condonation of delay of 580 days in filing the present Appeal.

2.  We have heard the learned counsel on both sides and also carefully gone through the averments in the affidavit filed in support of the petition.

3.   The learned counsel for the petitioner submitted that the complainant / first respondent has already filed an appeal for enhancement of the compensation awarded by the District Commission. The petitioner was under the impression that as the appeal preferred by the complainant is pending before this Commission, they also will get an opportunity to file objections against the order of the District Commission.  Subsequently they received a notice in the execution application No. EA 31/2023 filed by the 1^st respondent/complainant.  Thereafter they discussed the matter with their counsel who advised to file a separate appeal by them also.  According to them the delay was occurred only because of the wrong impression that the appellant hospital can raise objections with respect to the order, in the pending appeal filed by the complainant and that there is no need to file a separate appeal by them.  However, after getting advice from the counsel they immediately entrusted the file to their counsel for filing the appeal.  The certified copy of the order was misplaced and it could be traced out only on 4.10.2023. According to the petitioner no prejudice will be caused to the 1^st respondent/complainant as his appeal is already admitted by this Commission.  The delay was not wilful or intentional and hence they prayed for condonation of the delay of 580 days in filing the appeal.

4.  The first respondent filed written objections to the delay condonation petition. The learned counsel for the first respondent vehemently opposed the contentions of the petitioner.  The contention of the petitioner that they were not aware about the proceedings before the State Commission is not correct. According to the learned counsel, notice in the E.A. No. 31/2023 before the District Commission was received by the petitioner/appellant as early as on 12.05.2023 and again the notice in the appeal filed by the complainant was served on the appellant on 11.03.2022.  The appeal was filed only on 16.10.2023 which proves the lack of bonafides on their part.  The existence of an appeal filed by the first respondent instituted within the prescribed time limit for filing the appeal cannot be taken as an excuse to condone the delay.  The contentions for condonation of delay do not constitute sufficient cause and hence the learned counsel prayed for dismissal of this petition. 

5.  We have considered the submissions on both sides and perused the records.  The contention of the learned counsel for the appellant is that the appellant had a wrong impression that they can file objections in the appeal filed by the respondent and so no separate appeal is required to be filed by them. When they got an advice to file the appeal the certified copy of the order was misplaced. The reasons given by the petitioner for the delay are without bonafides and are not justified.  We are not convinced about the contentions put forward by the petitioner in support of the delay in filing the appeal.  There is no justification for such an inordinate delay of 580 days in filing the appeal. 

6. We would like to reiterate that condonation of delay cannot be claimed as a matter of right. Where there is a delay, the burden is upon the person who appears before the Commission seeking condonation of delay to explain it with sufficient reasons. The appellant appears to have not acted diligently and had remained inactive for a long time.  They have not been able to give adequate and sufficient reasons to show that they were prevented from approaching this Commission within the limitation period, due to circumstances beyond their control. We are not satisfied with the reasons submitted by the appellant for condonation of delay in filing the appeal.

7.  In view of the foregoing reasons, we find no grounds to condone the delay of 580 days in filing the appeal. The petition for condonation of delay is accordingly dismissed.  As a consequence, the appeal is also dismissed in limine being barred by limitation.

AJITH KUMAR D. : JUDICIAL MEMBER

jb                                                                     RADHAKRISHNAN K.R.  : MEMBER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 680/2023

JUDGMENT DATED: 15.04.2024

(Against the Order in C.C. 42/2008 of DCDRC, Thiruvananthapuram)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

Sree Uthradom Thirunal Hospital, P.B. No. 1052, Pattom, Thiruvananthapuram-695 004.

                           (By Adv. Ajith S. Nair)

                                                Vs.

RESPONDENTS:

1. Dr. S. Sunil Kumar, Shanya, Sree Bhavan, KRA No. 102, Kudappanakunnu, Thiruvananthapuram.

(By Adv. S. Reghukumar)

2. Dr. G.R. Bahuleyan Nair, Department of Urology, SUT Hospital, Pattom, Thiruvananthapuram.

JUDGMENT

SRI. RADHAKRISHNAN. K.R: MEMBER

Petition for condonation of delay (I.A. No. 1372/2023) is dismissed.  Hence the appeal is also dismissed.

Statutory deposit of Rs. 25,000/- remitted at the time of filing the appeal shall be refunded to the appellant, on proper application.

       AJITH KUMAR D. : JUDICIAL MEMBER

jb                                                                     RADHAKRISHNAN K.R.  : MEMBER