Date of Filing: 22.01.2021 Date of Disposal: 03.08.2021.
Order No. 13 Date:03.08.2022.
Today is fixed for passing order in respect of M.A. case being No. 24/2021.
No hazira has been filed by the parties.
M.A. case being No. 24/2021 is taken up for passing order.
The complainant on 22.01.2021 has filed a complaint u/S 35 of the
Consumer Protection Act, 2019 against the OPs. On the same day, she also filed an application u/S 69(2) of the said Act, supported by an affidavit praying for condonation of delay of 733 days in lodging the instant case on the grounds that the complainant was under great mental pain due immature death of her husband on and from 20.02.2017 and the complainant is fully dependent upon her son and daughter who were also not very much matured. They were also suffering from mental pain due immature death of their father. Thereafter, the complainant was treated at Colombia Asia Hospital and Apollo Hospital for her suffering and also continuously under treatment till date. Due to ill-health and mental condition, it was not possible for the complainant to move any court of law and concerned authorities against the negligence done by the OPs. Though in January, 2020, the complainant was prepared herself mentally to initiate proceedings against the medical negligence done by the OPs in respect of treatment of her husband, but due to out-break of COVID-19 it became stopped. After starting unlock procedure, the complainant moved before the Consumer Affairs Department, Durgapur and Burdwan and lastly filed this present case.
For the above reasons, it was a delay of 733 days which is a bonafide delay and the said bona-fide delay was beyond the control of the complainant. If the delay is not condoned, the complainant will suffer irreparable loss and injury.
The complainant in support of his claim has filed Xerox copies of papers of medical treatment of the complainant at Colombia Asia Hospital and Apollo Hospital and she also filed Xerox copy of Office Order No. 7 of 2022 of the Hon’ble NCDRC, New Delhi.
The OP Nos. 1 & 2 appeared in this case and filed Written Objection against the petition for condonation of delay along with some decisions of the Hon’ble NCDRC, New Delhi.
In the written objection filed by the OP Nos. 1 & 2, it is stated that the cause of action arose on 21.01.2017 and since then the period of limitation has been over as the case was filed on 22.01.2021. They also submitted that the grounds for delay in the petition u/S 69(2) of the C. P. Act, 2019 have not be substantiated by cogent materials and the COVID-19 outbreak since January, 2020. Since, 21.01.2017 the complainant was kept mum to take any steps for lodging the complaint and it is well-settled that “he who sleeps on a complaint, deserves no justice”. The OP Nos. 1 & 2 further submitted that the law aids the diligent and not those who sleep over their rights.
Upon this background, they prayed for dismissal of the petition u/S 69(2) of the C. P. Act, 2019.
On perusal of the case record, it is found that the complaint was lodged on 22.01.2021 though the cause of action arose on 20.01.2017. Since 20.01.2017 to 22.01.2021 is 1460 days but the limitation period is 2 years i.e 730 days. Accordingly, total delay is 730 days but according to the Office Order No. 7 of 2022 of Hon’ble NCDRC, New Delhi, the limitation period would have expired during the period from 15.03.2020 till 28.02.2022. The complainant took the benefit of the Limitation Period from 15.03.2020 to 22.01.2021 but the case would have filed within 2 years from 20.01.2017 i.e on 20.01.2019 and then from 20.01.2019 to 15.03.2020 there is a delay and that delay must be explained in the petition. The complainant has taken the ground for not filing the complaint in time that she was suffering from illness and she was medically treated in Colombia Asia Hospital on and from 08.12.2017 and she was discharged on 14.12. 2017. Again, she was checked-up at the same hospital on 26.02.2018. Again, she was treated in Apollo Hospital on 16.12.2019 and no other medical paper is forthcoming to show that she was regularly treated by those two hospitals up to 20.01.2019. As such there is no explanation of the delay on behalf of the complainant on and from 20.01.2019 to 15.03.2020 except only the medical paper of Apollo Hospital which shows that she was treated on 16.12.2019 long after the date 20.01.2019.
It is well settled in law that delay day by day must be explained. According to the decision in respect of Revision Petition No. 1044 of 2017 of the Hon’ble NCDRC, New Delhi,
“we hold that in each and every case, the Court has to examine whether the delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. True guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”
In the instant case, the husband of the complainant died leaving the complainant, son and daughter, all of them are entitled to lodge the complaint. But mother of the son and daughter i.e. widow of the deceased husband has only lodged the complaint with inordinate delay. But the son or daughter would have lodged the case, if the mother was ill. More so, the delay as explained by the complainant already mentioned above, has not been well explained and there is no sufficient cause for the said delay.
Under the above facts and circumstances, we are of opinion that delay in lodging the complaint has not been well explained by reasonable explanation with sufficient cause and it is an inordinate delay to lodge the complaint.
Hence, it is
ORDERED
That the M. A. Case being No. 24/2021 be and the same is dismissed on contest but without any cost.
M.A. Case being No. 24/2021 is thus disposed of.
Let a copy of this order be supplied to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C , Purba Bardhaman
