Respondent No.2 was ex-parte.  Today, he has put in appearance through counsel Sh. S. J. Amith, Advocate.  Order proceeding ex-parte against him is recalled.

          Complainant/appellant filed the complaint before the State Commission against Nursing Home, Respondent No.1, Dr. M. S. Sridhar, Respondent No.2 and Insurance Company, Respondent No.3 alleging medical negligence on part of Respondent No.1 and 2.

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          Appellant got his son Prasad, who was suffering from severe stomach pain, admitted in the Nursing Home, Respondent No.1, on 29.3.1997.  Respondent No.2 admitted him and diagnosed his ailment as ‘Abdominal Appendicitis’ and advised surgery.  Respondent No.2 performed the surgery.  Within 3-5 days of performing operation, the patient developed severe post operative complications and started vomiting at regular intervals.  Respondent No.2 again examined him and this time diagnosed his ailment as ‘Abdominal TB’ and advised him to undergo another operation.  But, by that time, condition of patient further deteriorated and he breathed his last on 08.5.1997.  The appellant obtained the expert opinion from two experts and they opined that Respondent No.2 should not have performed the operation as the deceased was very lean and weak and suffering from ‘Abdominal TB’.  Karnataka Medical Counsel also held that Respondent No.2 committed an act of “Error of Judgment and Negligence”.  Aggrieved by this, the appellant filed the complaint before the State Commission on 01.5.2000.

          The State Commission dismissed the complaint as Barred by Time.  The cause of action had arisen to the appellant on 08.5.1997

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i.e. the date on which the patient died.  The complaint was filed on 01.5.2000 without even an application for condonation of delay.  The State Commission relying upon its earlier order, held that the time spent in pursuing the complaint before Karnataka Medical Council could not be condoned, especially in the absence of any application for condonation of delay.

          Counsel for the appellant is unable to displace the finding recorded by the State Commission that the complaint was filed beyond the statutory period of 2 years from the date of arising of cause of action, i.e. the date of death of the patient.  Under Section 24 of the Consumer Protection Act, 1986 the complaint has to be filed within two years of arising of cause of action and the delay in filing the complaint can be condoned only if sufficient cause is shown for condonation of delay, which in the present case, has not been shown.  In this case, admittedly, the appellant did not file any application for condonation of delay. 

          Faced with this difficulty, counsel for the appellant prays that                           he may be permitted to file the application now for                     condonation of delay.  The complaint was filed in the year 2000.  It

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was decided by the State Commission on 04.8.2005.  The appeal was also filed on 27.10.20005.  Even at the time of filing the appeal, counsel for the appellant did not file the application for condonation of delay.  This appeal has been pending for the last more than 4 years and yet, no application was filed by counsel for the appellant for condonation of delay.  Prayer that the appellant was permitted to move an application to condone the delay, at this stage, cannot be allowed.

          We find no infirmity in the order passed by the State Commission.   First appeal stands dismissed.  No costs.