CC.376/2011

 N.P.Shamsudheen,

Kasar-A1-Naseema,

S.S.Road,

Kunhippangad, Chirakkara 6                               Complainant

(Rep. by Adv.P.K.Balakrishnan)

 Muhammed Faizal,P.,

C/o.Rock Flowers,

Architectural Engineering Consultants,

P.O.Balussery 673 612. 

(Rep. by Adv.Z.P. Zachariah)                             Opposite party                         

O R D E R I N  I.A

Sri.K.Gopalan, President

          The complainant is the owner of Residential house situating in TS No. 28 & 29 IN Ward Xiii of Thalassery Municipality. After obtaining permit for additional construction complainant entrusted the construction work to opposite party. It is alleged that opposite party undertook  to complete the work within he permit period i.e. on 24.09.2006. The period of permit was extended further to the year 2007 and opposite party under took to complete the work before  30.10.2007. The date of cause of action shown in the complaint is 24.04.2008 when the complainant sent lawyer notice to opposite party. It is also alleged that the construction work of the house and swimming pool entrusted to him as per specifications was delayed inordinately. Therefore the agreement for construction work was terminated bilaterally with effect from 31.12.2007 Complainant also sent lawyer notice on 24.4.2008 asking to refund  25 lakhs. Complaint filed on 14.12.2011 for the remedy. Petition also filed to condone the delay. According to complainant there are 597 days delay computed from the date of legal notice.

          Complainant detailed the reason for causing delay as follows: The complainant was suffering from cardiac disese and was undergoing treatment for a long period which finally resulted in by pass surgery on 18.8.2009. Though he was discharged from hospital on 19.9.2009 he had been under bed rest and continuous treatment in Abudhabi. Thereafter he came home and continued the treatment and medical check up from Baby Memorial Hospital. Since he was advised to continue treatment from Sheik Khalifa Medical city he went again to abroad. Hence he was not able to file complaint.

          Opposite party filed version and counter vehemently opposing the petition for condoning the delay. Moreover opposite party filed petition to direct the complainant to produce passport. Though enough time given, complainant did not produce the document. Opposite party contended that date of issuance of notice cannot be considered as the date of cause of action. He has also contended that even if the notice date has been taken as date of cause of action, the complaint is barred by limitation. In the complaint it s specifically stated that the agreement between the complainant and the opposite party terminated on 31.12.2008. The date of termination is the date of cause of action. Hence the complaint is liable to be dismissed as the same is time barred.

          The facts of the case quite clearly reveal that the construction work was terminated bilaterally with effect from 31.12.2007. Notice was sent much later on 24.4.2008. Notice can be sent at any time according to the convenience of the complainant. Even if the notice date is considered the complaint is barred by limitation under section 24A of consumer protection Act. In the application for seeking condonation of delay complainant himself admits that there are 594 days delay. There are number of decisions which made clear the position of law that once a period of limitation starts it cannot be enlarged or extended by correspondence. Hence the limitation starts from the date of terminating the agreement with the opposite party which is categorically stated by the complainant as 31.12.2007 in the complaint. Any how it is an admitted fact that complaint filed beyond the limitation period and not within the limitation period. If the complaint is filed beyond the limitation period of two years the next question that arose for consideration is whether sufficient cause has been shown to condone delay or not, without which Forum is not entitled to entertain the complaint. Hence the Forum is bound to examine whether there are sufficient cause to condone the delay.

          Anyhow delay is an admitted fact. Application filed with the prayer to condone the delay of 597 days. Opposite party contended that even for this admitted delay complainant did not give reasonable explanation. Complainant is bound to show sufficient cause of delay of each date from limitation began to run. When limitation did began to run is a question yet to be decided herein, but whether the admitted delay had been made out to condone the delay can be examined in the first round.

          Complainant pleaded that he was suffering from cardiac failure and was under medication for long period and finally on 18.8.2009 by-pass surgery was done from Sheik Khalifa Medical
City Hospital, Abudhabi and continued treatment under bed rest. Complainant did not say the exact date when he started suffering cardiac problem and so also how long underwent bed rest. Meanwhile complainant came home and again went abroad. Those dates were also not shown but according to him there is 597 days delay. He has taken the date from the date of notice i.e. 24.4.2008 in order to calculate the total delay. By-pass surgery was done on 18.8.2009. What had happened to those dates from 24.4.2008 to 18.8.2009 has not been correctly explained. So also after the discharge from hospital on 19.9.2009 how long the bed rest continued has also not  been explained reasonably. Though complainant was directed to produce passport he neither produced passport or copy of it nor explained his difficulties in producing the document at least copy of the same.

          Complainant’s evidence has taken and Exts.A1 & A2 also marked. Complainant adduced evidence that he has completed the construction work since the opposite party had not completed even in the end of 2007. At that time he could not file complaint before the Forum since he was not well. He was ailing from pressure and cardiac problem at that time. At first he was treated in Kasthuba Medical College but on aggravation by-pass surgery was conducted from Sheik Khalipha Hospital. Ext.A1 is the copy of report. He has also stated that he was advised by the doctor not to engage with any work that causes tension including   engagement of any sort of legal proceedings. He has further deposed as follows: “ BbXn\m 2011 hsc Rm³ ]qÀ® hn{ia¯nembncp¶p. Fsâ AkpJ¯nsâ KuchhpT tUmIvSdpsS D]tZihpamWv Cu tImSXnbn \nÝnX kab¯n\pffn ]cmXn t_m[n¸n¡phm³ IgnbmXncp¶Xp”. Ext.A2 is coy of discharge certificate.

          In cross examination complainant deposed that Ext.A1 and A2 are the copies of the document dated 18.8.2009. He was also admitted no other documents have been produced by him. Even if these documents are taken into account at the most it can be proved that the alleged surgery conducted in Abudhabi is true. That alone is not sufficient enough to prove that the total delay caused to file the complaint is due to this operation. Complainant has to prove that during the total days of delay he was totally incapacitated even to contact with a lawyer. What had happened in the period prior to 18.8.2009 is a question the complaint bound answer. Except taking the contention that he had been suffering from ailment nothing has been proved. Complainant was not even effectively pleaded that he had sufficient cause to be explained except showing the by-pass surgery. After the surgery he came to home and again went away to Abudhabi. He was directed to produce his passport and Medical certificates. He did not produce the same. No doubt adverse inference can be drawn.

          In the light of the above discussion we are of the view that complaint miserably failed to explain the reason for the delay in filing the complaint. We do feel that there is no need to dig further since the complainant could not even place good reasons for the delay he himself admitted. In the absence of  sufficient grounds for filing the complaint for such a long delay, the application for condonation of  the said delay stands  dismissed whereby the above complaint too is dismissed being barred by limitation .

                         Sd/-                    Sd/-                    Sd/-                      

President              Member                Member

APPENDIX

Exhibits for the complainant

 A1.Cardiac Catherizatin report of complaint issued from Khalifa Medical city.

A2.Discharge summary issued from Khalifa Medical city.

Exhibits for the opposite party:

B1.Copty of the manual of world wide limited warranty and technical

    support of Compaq products

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party: Nil

                  /forwarded by order/

          Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.