1.Light Bite Foods Pvt. Ltd. 317, Udyog Vihar, Phase IV, Gurgaon-122016, through its Manager

2.Restaurant Punjab Grill Restaurant by Jiggs Kalra, SCO 120-122, Sector 17-C, Chandigarh, through its Manager.

……Appellants/Opposite Parties

V e r s u s

Himmat Iqbal Singh Jakhar s/o Late Shri Rakeshinder Singh Jakhar, resident of House No.293, Sector 10-A, Chandigarh.

 Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  

Argued by:

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

“In view of the above discussion, we are of the opinion that the present complaint deserves to succeed and the same is accordingly allowed. The opposite parties are directed as under :-

i)      to refund the amount of Rs.5,500/- to the complainant received against the bill amount of Rs.5,413/-;

ii)     to pay Rs.77,040/- to the complainant being the amount spent by him for his hospitalization/treatment at the Fortis Hospital;

iii)   to pay Rs.50,000/- as compensation for mental agony and trauma undergone by him after eating at their restaurant;

iv)    to pay Rs.10,000/- as costs of litigation. 

This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr. No.(i) to (iii) above shall carry interest @18% per annum from the date of filing of this complaint, till actual payment, besides payment of litigation costs.”

2.            Among other things, they also ordered for a dish called “RANN”, comprising boneless pieces of mutton.  However, immediately on consuming the said dish, the complainant felt excruciating pain, in his throat, and rushed to the washroom.  He vomited twice there and the traces of blood were seen in the same.   Upon this, the complainant and his friends started leaving for the Hospital, but they were allowed, after making payment of Rs.6,500/- i.e. the amount of bill. The complainant was immediately taken to the Fortis Multispecialty Hospital, Mohali, at about 11:30 p.m. on 05.08.2012. He was rushed to the emergency of the said Hospital.  After conducting preliminary tests, the Doctors of the said Hospital, concluded that the complainant had consumed a fish bone, which had cut his food pipe, upto lower part of the throat, which needed immediate surgery.  The surgery was carried out, at around 11:00 a.m., on 06.08.2012, and the fish bone was removed.  It was stated that due to negligence, on the part of the Opposite Parties, the complainant, had not only incurred Rs.77,040/-, on his hospitalization, but also suffered tremendous mental agony and physical harassment. When the Opposite Parties were asked to pay compensation, to the complainant, they failed to do so. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, claiming various reliefs.

3.               complainant, his colleagues and friends, ^{It was also admitted that the complainant ordered for “Dal Punjab Grill, RAAN, Khaam Khatai, Murg Tikka, Tandoori Parantha, Butter Naan”. It was also admitted that a few minutes after serving the food/dishes, the complainant went to the washroom, and when he came back, all his guests, started leaving the restaurant, stating that the complainant was suddenly feeling unwell.  It was further stated that against the bill of Rs.5,413/-, one of the ladies, amongst the guests paid a sum of Rs.5,500/-. It was denied that the complainant suddenly fell ill, after consuming “RAAN”.  It was further stated that there was no possibility of any fish-bone, in any of the dishes, ordered by the complainant, because “RANN” was a boneless dish.  It was further stated that the only fish-dish with bone served in the restaurant was “Tandoori Pompret”.  The factum, with regard to admission of the complainant, in Fortis Hospital, was denied for want of knowledge.  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.}

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“Foreign Body Ingestion (Fish Bone in Orophagus)-removed under G/A in MSOT”

10.             

“Patient admitted with? foreign body impaction. X-Ray STM was normal.  He was kept nill orally and started on Inj. Magnex, Inj. Parfalgan, IV fluids and other supportive treatment.  Direct laryngoscopy done (by Dr. G.D. Rattan) followed by UGI endoscopy (by Dr. Arvind Sahni) done under G/A in OT on 6/8/12.  Fish bone?? 1cm removed from vallicula.  UGI endoscopy showed normal esophagus, normal stomach and normal till D2. There was no post-procedure complication.  He was shifted to room and kept under observation.  He is being discharged on request.”

11.             

12.              

“Foreign Body Ingestion (Fish Bone in Orophagus)-removed under G/A in MSOT”

13.             

14.              the District Forum was right, in directing the reimbursement of this amount, to him (complainant).

15.         complainant, in our considered opinion, the District Forum was right, in awarding compensation, to the tune of Rs.50,000/-. The compensation awarded by the District Forum, by no stretch of imagination, could be said to be, in any way, unreasonable, unfair and excessive.

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Pronounced.

January 10, 2014

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

(DEV RAJ)

MEMBER

Rg

STATE COMMISSION

(First Appeal No.)

Argued by:

Dated the 

ORDER

           Alongwith the appeal, an application for condonation of delay of 31 days, in filing the same (appeal) has been moved, by the applicants/appellants, stating therein, that on receipt of certified copy of the order impugned, by their Gurgaon office, on 03.11.2013, it was decided to file an appeal, against the same. It was further stated that, when the appellants sent the complete paper book to their Counsel, at Chandigarh, it transpired that the affidavit, attached with the application for condonation of delay, had been incorrectly stamped, as a result whereof, fresh affidavit was got prepared and notarized, on 10.12.2013, and the same was again sent to the Counsel, which was received by her, on 13.12.2013. It was further stated that, thereafter, on 18.12.2013, when the appeal was being filed, in this Commission, it was pointed out by the Registry, that

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                  (i).    The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.

                (ii).    Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.

               (iii).    Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.

                (iv).        Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law”.

4.           N.Balakrishnan v. M.Krishnamurthy, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-

“It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."

The Court further observed in paragraphs 11, 12 and 13 which run thus:-

"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice videShakuntala Devi Jain v. Kuntal KumariState of W.B. v. Administrator, Howrah Municipality

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "

5.           Delhi High Court, while condoning 52 days delay, in filing the appeal, observed as under:-

“No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of the

6.                   The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. The stand taken up by the applicants/ appellants, in the application is that, on receipt of the certified copy of the order impugned, by their Gurgaon Office, on 03.11.2013, it was decided to file an appeal, whereafter, the complete paper book, relating to the same (appeal), was sent to their Counsel, at Chandigarh. On receipt of the same, it transpired that the affidavit, attached with the application for condonation of delay, had been incorrectly stamped, as a result whereof, fresh affidavit was got prepared,

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Sd/-                                                    

 (DEV RAJ)

MEMBER

(JUSTICE SHAM SUNDER (RETD.))

PRESIDENT