Delhi

StateCommission

A/1139/2014

INDRAPRASTHA APOLLO HOSPITAL - Complainant(s)

Versus

SUBHAS CHANDRA SRIVASTAVA - Opp.Party(s)

BHASIN & CO.

27 Aug 2015

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision: 27.08.2015

Appeal No.1139/14 

 

Indraprastha Apollo Hospital,

Sarita Vihar, Delhi Mathura Road,

New Delhi-110076                                                                       …..Appellant

 

Versus

Subhas Chandra Srivastava,

A-145, Sector-27,

Noida, UP.                                                                                     …..Respondent

                                                                

CORAM

Salma Noor, Member

OP Gupta Member (Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 OP Gupta, Member (Judicial)

1. This order will dispose of application for condonation of delay moved by the appellant. The appeal has been preferred against the order dated 22.05.2014 passed by District Forum-VII vide which the District Forum directed the OP (now appellant) to refund Rs.5,01,338/- incurred by the complainant on treatment of his wife.  At the same time, rupees one lac was awarded as compensation for mental agony due to pre-mature death of complainant’s wife. In case of failure to pay the amount within 30 days, the appellant was to pay interest @10% per annum from the date of filing complaint till realization.  Appellant was to pay Rs.10,000/- as cost of litigation.

 

2. Now, the contention of the appellant is that impugned order was dispatched on 02.07.2014 and was received by the appellant on 14.08.2014.  There is delay of 92 days in filing the present appeal, calculated from 14.08.2014. The same is not intentional but due to fact that file was lost during the shifting of office and it was found only during cleanness activities of Deepawali.  Further time was taken in giving instructions and preparing draft of the present appeal. The appellant has a good prima facie case and likely to succeed. Irreparable loss would be caused to the appellant if delay in filing appeal is not condoned. The application is accompanied by affidavit of Sh. A.K. Singhal, Vice President-cum-Company Secretary of appellant.

 

3. The respondent has filed reply to the application for condonation of delay.  He has taken preliminary objections that appellant has failed to show sufficient cause for delay. It is a settled principle of law that applicant must have account of each day’s delay in filing appeal. The appellant had full information about the proceedings before the District Forum and the execution proceedings.  He deliberately did not choose to file appeal within the limitation period. If delay is counted from the day of dispatch of the order, it comes to 134 days.  The appellant instead of filing the first copy of impugned order, applied for fresh one and got it   on 04.08.2014. On merits, he stated that even if it is presumed that file was really lost, appellant was supposed to be vigilant and expected to obtain copy of entire record from the District Forum and file the appeal in time. There was no reason to wait till the Deepawali cleanness activities i.e. 23.10.2014. Preparing and obtaining obstructions to file the appel is not a ground for condonation of delay. The reply is accompanied by affidavit of Ms. Monika Nair, one of the LRs of the respondent.

 

4. We have gone through the material on record and heard the arguments. The bare perusal of the application reveals that it is as vague as it can be. It does not specify when file was lost, from whose custody the file was lost. Further the file is alleged to have been lost during shifting of the office. It has not been mentioned from where the office was to be shifted and where it was actually shifted. It does not specify as to who found the same and how. Merely saying that it was found during the cleanness activities of Deepawali, is not enough.  Cleanness activities can be fortnight before, it can be a week before Deepawali.

 

5. The appellant has not alleged that file was mixed up with some other file or that it was found in the bundle of waste papers.  One cannot make out as to from where the file was found.

 

6. The counsel for appellant relied on decision of Hon’ble Supreme Court in Collector, Land Acquisition, Anantnag Vs. Mst. Katiji and Ors. (1987) 2 SCC 107 to make out that court should adopt a liberal and justice oriented approach. In that case, delay was only of four days.

 

7. On the other hand, the counsel for respondent placed reliance on decision of National Commission in Revision Petition No. 2863/13 titled as Baljeet Singh Brar Vs. Birla Sun Life Insurance Co. Ltd. Decided on 07.03.2014.  In the said case the cause pleaded for condonation was that lost file was misplaced in the office of counsel by clerk of the counsel, hence the appeal could not be filed in time.  On 30.07.2013, the same was traced out in the office of clerk of counsel, which was inadvertently placed in another file of case titled as Jai Kishan Vs. Amit, peding in the court of Sh. Sunil Chaudhary, Civil Judge, Delhi.

 

8. The National Commission observed that court has not to function in accordance with the whims and fancies of the litigant(s). When the case was dismissed in default, warning bells should have rung, but petitioner, after receipt of the copy of the order on 25.01.2013, filed the revision petition on 02.08.2013. The plea that  counsel could not trace the file for more than six months was found to be frivolous story.  It was also observed that even if the file was lost, the counsel should have got prepared another file, which in emergent period can be prepared in day or two.

 

9. The judgement goes on to observe that negligence of a litigant’s agent is negligence of the litigant himself and not sufficient cause for condoning delay.  In doing so, reliance was placed on decision in N/s. Chawla & Co. Vs. Felici Rodrigues, 1971 ACJ 92. The present case is on worst footing where negligence has been on the part of the appellant and not on the part of its counsel.

 

10. Further reference can be made to decision of Hon’ble Supreme Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) where it was held that while deciding application for condonation in consumer cases, the court has to keep in mind that special period of limitation has been prescribed under Consumer Protection Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if the court was to entertain highly belated petitions against the orders of Consumer For a. Similar view was taken  in R.B. Ramlingam Vs. Bhavaneshwari, 2009 (2) Scale 108.

 

11. In case of Baljeet Singh Vs. Birla Sun Life Insurance Co. Ltd.,supra there was delay of 99 days only in filing the revision and application for condonation of delay was dismissed.  The present case is worst than that case as here the delay is of 134 days.

 

12. The decision cited by the counsel for appellant does not help him.  Simply, because court should adopt liberal and justice oriented approach while construing sufficient cause does not mean that court should help negligent party. Court can help a vigilant party and not a negligent party.  Liberal interpretation does not mean that the same is omnibus plea for condonation of delay.

 

13. As a result of the above decisions, we do not find any sufficient cause for condoning the delay.  The application for condonation is dismissed.  With this, the appeal must automatically stand dismissed as being barred by limitation.  Accordingly, the appeal is also dismissed.

 

                                                                                                                                                                                             (Salma Noor)   

Member

(O.P. Gupta)

Member (Judicial)