Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                         ISBT Building, Kashmere Gate, Delhi.

Complaint Case No.-103/2020

Ashok Kumar, House No. 623, Shiv Colony,

Ward no. 26, Rewari, Haryana                                                   …Complainant

  vs

OP1:  Govind Ballabh Pant Institute (Govt. of NCT of Delhi)

through its Medical Superintendent

1, Jawaharlal Nehru Marg, Delhi-110002

OP2:  Lok Nayak Hospital (Govt. of NCT of Delhi)

through its Medical Superintendent Jawaharlal Nehru Marg,

LNJP Colony Delhi-110002

OP3:  Dr. Sanjay Tyagi, Dr. Girish MP, Dr. Mohit D Gupta

(Concerned Doctors of G.B. Pant Hospital of OP1)                           …Opposite parties

Coram: Shri Inder Jeet Singh, President

              Shri Vyas Muni Rai,    Member

              Ms. Shahina, Member -Female

Inder Jeet Singh

02.05.2023 : Proceedings and Order :

[Order on complainant’s application dated 18.11.2020 seeking leave to condone delay of 578 days in filing the complaint].

Present:  None for complainant

               Sh. Mukesh Kumar, Advocate for OP1, OP2 and OP3

1.1  (Introduction): Complainant filed the complaint on 18.11.2020 against OPs for allegations of deficiency of services and medical negligence. The complainant’s wife was under direct medical supervision of OP1 and OP3 from 28.2.2017 to 22.04.2017. She had died on 22.4.2017.

1.2  What happened that on 20.02.2017 complainant’s wife was suffering from high fever, vomiting etc, she was brought to Civil Hospital, Rewadi, she was treated there for five days. Since she was ill critically, she was admitted to Civil Hospital in emergency ward. Later she was referred to OP1. It was midnight when patient was brought to hospital of OP1, however, it was advised to await till morning despite critical condition of the patient. She expired on 22.04.2017. There are allegations, inter-alia amongst other,  of medical negligence and deficiency of services in the complaint, but it was filed after statutory period provided for.

2.1.  The complainant in his application seeks to condone delay of 578 days  in the filing the complainant. The complainant explains that the delay was neither intentional nor deliberate, since the applicant/complainant belongs to lower middle class family, he is a driver by occupation and he was advised legal remedy wrongly, through this entire time that instead of approaching the Consumer Commission within prescribed time,  he had filed various complaint before Delhi Medical Counsel and NHRC, consequently delay happened in filing the complaint under consumer law. There was also pandemic of Covid-19. The applicant deserves to condone the delay of such period.  This is relevant plea and substance in the application.

2.2.  It was scheduled for arguments on the application under consideration, however, firstly, it was not argued by complainant or on his behalf as file was not available with the Counsel for complainant because of shift of the office and on subsequent date, there was no appearance for complainant, the case was adjourned but in second session of same day of Commission, appearance was caused on behalf of complainant, the attendance was recorded, while apprising the proceedings were scheduled for arguments.

          On the basis of antecedents, it was requested and contended on behalf of OPs to hear and decide the complainant's application pending for long time. Consequently, in the absence of complainant the matter was proceeded further and on the last date of hearing, OPs were heard on the application of complainant. There are no oral submissions on behalf of complainant. However, plea taken by complainant will be considered as submitted in the application.

 2.3.  The OPs filed their reply in detail and opposed the application, followed by oral submissions by Shri Mukesh Kumar, Advocate for OP1, OP2 and OP3. The substance of reply and submission is that on the face of application,  the complaint is barred by time prescribed by the law. Neither there are any circumstances to condone the long delay nor there were justifying grounds even to issue notice to the opposite parties. Section 69 of the Consumer Protection Act 2019 stipulates limitation period of two year from the date of cause of action but the compliant was filed after about 01 year and 07 months of delay, without any cogent reasons or justification for such delay. The OPs also deny and oppose the allegations that delay in filing the complaint was due to wrong legal advises.  The plea taken is contrary to the statutory scheme of the Act 2019, since as per section 3 (sic., correctly it is sec.100) the Consumer Protection Act, 2019, the provision of this special law are in addition to, and not in derogation to other laws in force.  The remedies being availed by the complainant, as stated, either under Delhi Medical Counsel Act or under the Protection of Human Rights Act 1993 are different and distinct, which may be availed together, consequently the complainant's plea of wrong legal advises is not tenable from any quarter.  The reply refers catena of judgment to fortify contentions of OPs that under no circumstances, there could be condonation of delay of a single for want of bona-fide or sufficiency of reasons, the cases are  being introduced briefly with ratio of law laid down, being submission of OPs:-

 (1) Dr Dev Prasad Pandey v. Rang Bihari Sinha & An [IA 8115/2013 in RP 4692/2013 NCDRC dod 3.4.2014, para 17], the Hon'ble National Commission has declined the condonation of delay of 1 year 2 months, wherein the complainant alleged same grievance of misleading legal advice, by holding negligence of a litigant's agent is negligence of the litigant himself and is not sufficient cause for condoning the delay and petition  was held barred by limitation and it was dismissed

(2) Rangi Lal and Others v. Rewa Coalfields Ltd., reported as AIR 1962 Supreme Court 361, it was observed  in para 12 as :-

"12. It is, however, necessary to emphasize 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 discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condonation 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 delaw. 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 inquiry 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."

(3) Anshul Aggarwal Vs. New Okhla Industrial Development Authority I reported as (2011) CPJ 63 (SC), "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 First Appeal No. 742 of 2017 9 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."

(4)  Essel Finance V.K.C. Forex Ltd. v. New India Assurance Co. Ltd. 2017(1) CPR 551 (NC), it was held that as there is no reasonable explanation for condonation of delay of 624 days in filing revision petition, and the application for condonation of delay was liable to be dismissed in light of Judgment passed by the Hon'ble Supreme Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and An., reported as (2010) 5 SCC which the Hon'ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay has held  in para 8 "we have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time."

(5) Ludhana Improvement Trust Us. Ms. Harpreet Kaur, reported as 2013 (4) CPR 848 (NC), observed that "Hon'ble Apex Court in Post Master General & Ors. Vs. Living Media India Ltd. and An. (2012) 3 SCC 563, has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments. Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 62 days. In such circumstances, application for condonation of delay has been dismissed. As application for condonation of delay has been dismissed, revision petition being barred by limitation is also liable to be dismissed".

(6) Ms Hanspal Steel v. National Insurance Co. Ltd. and Ors. 2017(1) CPR 80 (NC) , Hon'ble NCDRC did not condone the delay of 771 days in filing the revision petition. While dismissing the revision petition, the Hon'ble NCDRC while relying upon R.B. Ramlingam v. R.B. Bhavaneshwarl reported as 1 (2009) CLT 188 (SC), observed "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 First Appeal No.742 of 2017 11 petitioner has acted with reasonable diligence the prosecution of his appeal/petition".

(7)   Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal No. 1166 of 2006 | dod 08.07.2010) it was held that:
"the party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]."

(8) J.P. Hospital & Ors. Versus Jatineder Pal Sing & Anr.
Frst Appeal No. 742/2017, the State Consumer Dispute Redressal Commission, Punjab & Haryana observed that-

"Para 19-  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 lex, sed lex" 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.

Para- 20 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 First Appeal No. 742 of 2017 14 application is to be decided only within the parameters laid down by this court in regard to the condonation of delav. 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 legislation.

Para 21 No doubt the words 'sufficient cause' should receive liberal construction so as to advance substantial justice.

However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bona fide are clearly imputable, the Court would not help such a party. After all 'sufficient cause' is an elastic expression for which no hard and fast guidelines can be given and Court has to decide on the facts of each case.

Para 22. In view of the peculiar facts of this case and the law referred to above, we do not find any justification to condone the delay of 258 days in fling the present appeal, as no sufficient reasons have been given explaining each day's delay, which is a necessity. Accordingly, the application for condonation of delay of 258 days in filing the appeal is dismissed.

Para 23. In view of our above discussion, since we have dismissed the application for condonation of delay, we are not going into merits of the appeal. So, this appeal is dismissed as barred by limitation.

(9) Koganti Atchuta Rao and Ors. Us.
Putcha Purnachandra Rao (2013) CPJ 230 (NC), held

Para
"15. In the aforesaid judgment Hon'ble Supreme Court has highlighted that while dealing with an application for condonation of delay the Court must bear in mind the object of expeditious disposal of consumer dispute which would get defeated if the Court was to entertain highly belated petitions.

Para 17. Even if for the sake of argument benefit of Section 14 of Limitation Act is given to the petitioners and the period during which the petitioners were pursuing writ petition before the High Court is excluded, then also the appeal fled was highly belated. Admittedly writ petition was dismissed by the High Court on 12.8.2011 and the appeal was filed before the State Commission on 21.8.2012 i.e. after the expiry of one year from dismissal of the writ petition by the High Court. Only explanation for this delay is that during the intervening period petitioners were negotiating amicable settlement with the father of the complainant which in our view is not acceptable.

Thus even if the benefit of Section 14 of Limitation Act is given to the petitioners the appeal filed before the State Commission was hopelessly time barred and there was no justification for condonation of delay in filing of appeal."

The OPs contend that it is absolutely clear that the present complaint does stand to the test of law  including precedents, apart from  law by the Hon'ble NCDRC and the State Commission.  The application is false and frivolous, there is no major role of corona-virus-19. The delay in filing complaint is gross negligence and intentional with sole purposes of harassing OPs, which is not maintainable in the eyes of law.

3.1 (Findings)– The contentions of the complainant [emerging from the application based on the complaint from the point of view of to condone the delay], as well as the contention of OP1 to OP3 [being in the reply as well as in the oral submissions supplemented with the case law already reproduced hereinabove] are considered and assessed.

3.2. At the outset, as per complainant’s own case there is delay of 578 days in filing the complaint, which the OPs infers as period of 01 year and 07 months. Simply, the cause of action is being computed from the death of complainant’s wife on 22.04.2017, the prescribed period for filing the complaint is 2 years which was up-to 21.04.2019, although there is a proviso to limitation period as well as to condone the delay if there are such circumstances, being governed by Section 69 of the Act 2019.. The complaint was filed on 18.11.2020, therefore, at the face of the complaint, there is delay of 578 days [or 01 year and 07 months] as suggested by the parties.

          In other words, it is an admitted case of complainant that the complaint filed on 18.11.2020 is beyond the prescribed period of two years. However, the complainant seeks permission to condone the delay by virtue of proviso (2) to Section 69 of the Consumer Protection Act, 2019. Thus, the core issue left to be determined is 'whether complainant is entitled to condone the delay in filing the complaint and is there sufficiency of reason to condone the delay'?.

          The complainant has taken three fold grounds while seeking condonation of delay viz. (i) the plea of corona/ Covid-19, (ii) he is an illiterate person and driver by occupation and (iii) he was given legal advice wrongly and for that reason he could not file the complaint in time. They are being taken one by one.

3.3. It is already referred in para no. 3.2 above that complainant’s wife had expired on 22.04.2017 and two years period for filing the complaint was up to 21.04.2019 from the date of death. The Covid-19 spread in India around March 2020 and  there was janta curfew, therefore, complainant’s plea that corona period was one of the reasons for happening of delay in filing the complaint is not acceptable as limitation period was already expired about 11 months 10 days prior  to March 2020 when Covid-19 spread in India. Thus, this contention is decided against the complainant.

3.4  The other ground taken by the complainant is that he is an illiterate person, he was not knowing well everything and consequently he deserves condonation of delay in filing the complaint. However, illiteracy as such is not a specific ground so mentioned for condonation of delay, however, it may be material with other associated aspects. Since there is also a third aspect of legal advices were given wrongly, therefore, the issue of illiteracy will also be discussed with the third ground.

3.5. The third/last plea taken by the complainant is that he was prosecuting his grievances before Medical Council of India and also before Human Right Commission; he was not properly advised to file the complaint before the Consumer Commission but this plea is vehemently opposed on behalf of OPs.

          By looking into the circumstances, what appears is that it is never the case of complainant that he was intending to just file the complaint under consumer law but just advised to proceed before Medical Council of India and Human Right Commission. Ld. Counsel for OPs has rightly pointed out and contended that as per the provisions of the Consumer Protection Act 2019, the remedy of complaint under consumer law is in addition to, and not in derogation of, other laws in force.  To say, the complainant was advised remedy,  he had started the process before Medical Council of India and Human Right Commission, which are distinct and independent having sanction of law and this was also followed by him as per status of proceedings filed. However, when consumer complaint was filed after much delay, the plea is being taken as if he was not properly advised legally, thus to condone the delay.

          It is also not the case of the complainant, as appearing,  that he was advised wrongly for approaching the forum of Medical Council of India and Human Right Commission, which were independent remedy available, instead for complaint under consumer law.  All these circumstances are suggesting that the complainant is just taking plea of wrongly given legal advices, just to seek condonation of delay, otherwise the other independent remedy were being taken and prosecuted under the legal advices;   complainant does not state that those advices or acts were  under wrong legal advices to the complainant.

3.6. By taking the circumstances discussed in para no. 3.5 above along with the complainant’s plea that he is an illiterate person and driver by occupation, it would not help him for the same reason concluded in para no. 3.5. There are no sufficient and sound convincing reasons to condone the delay of 578 days/or one year & seven months in filing the complaint.

4. Accordingly the application fails. The application is dismissed.     

5. Consequently, when the application seeking condonation of delay is dismissed, there is no reason to proceed with the complaint being barred by prescribed time under the Act 2019; the complaint is rejected.

          The rejection of complaint being barred by time, would not construe any opinion on the merits of the case. File be consigned to record room after proper pagination as per rules.

6. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.

7:  Announced on this 2nd May, 2023 [वैशाख 12 , साका 1945].

[Vyas Muni Rai]                        [ Shahina]                            [Inder Jeet Singh]

           Member                            Member (Female)                              President