Per – Hon’ble Mr. Justice S. B. Mhase, President
Heard Adv. S. M. Suryawanshi on behalf of the Applicant/Appellant.
[2] This is an appeal filed by the original Complainant as against the order dated 3/11/2010 passed by the South Mumbai District Consumer Disputes Redressal Forum in Consumer Complaint No.192 of 2009. By the said order, the consumer complaint has been dismissed for default. Challenging the said order this appeal has been filed. In filing this appeal there is a delay of 412 days on the part of the Applicant/Appellant and to seek condonation of delay the Applicant/Appellant has filed Miscellaneous Application No.76 of 2012. The address of the Applicant/Appellant as shown in the title clause of the appeal memo is of Morewadi (Kuthare), Taluka – Phaltan, District – Satara. Her husband was working at Mumbai and the insurance policy was taken from the Non-Applicant/Respondent. The husband of the Applicant/Appellant met with an accident and, therefore, an insurance claim was made which was repudiated by the Non-Applicant/Respondent and, therefore, a consumer complaint was filed. The District Forum, in its impugned order, has noted that from the month of April-2010 onwards the Complainant did not take steps to complete the hearing of the case and has not attended the case and, therefore, the complaint was dismissed for default on 3/11/2010. There is no dispute about these facts.
[3] Thereafter, it is stated that a restoration application was filed sometime in the month of March-2011. That restoration application was disposed of in view of the decision of the Apex Court, holding that it was not maintainable. Thereafter, this appeal has been filed. What is important to be noted is that the parties are expected to be diligent in prosecuting the matter. Initially, the District Forum waited for more than six months for taking steps and attending the matter on the part of the Applicant/Appellant and we are told that there were two advocates on the record and inspite of two advocates being on the record, no steps were taken to proceed in the matter and, therefore, ultimately, the District Forum had no alternative but to dismiss the consumer complaint and accordingly, it was dismissed.
[4] In fact, thereafter, an appeal should have been immediately filed. However, it was not filed. Instead a restoration application was filed which was not tenable in law. What is interesting to note that the restoration application has also been filed before the Forum after lapse of a period of six months. We can understand that the Applicant/Appellant is a lady coming from rural area and she may not be able to attend the matter. However, it is to be noted that there were two advocates on the record and the advocate appearing before us agrees that there was no incapacity for him to attend the matter. However, he states that he was busy in other Courts. That shows that this matter was simply neglected for more than one year. We can understand that sometimes on a specified date an advocate is unable to attend the matter but at-least he is expected to be vigilant enough to attend the matter on the next date and he should try to find out as to what is the next date given by the Forum and what is the next stage in the matter. But in the present case, the advocate on record totally neglected to attend the matter before the District Forum for more than six months on the ground that he was busy in other Courts. That shows that the advocate is either not interested in this brief or he his negligent in looking after the present brief. Reasons are best known to the advocate. We need not enter into this area.
[5] The fact remains that for more than six months initially when the consumer complaint was alive, there was a failure on the part of the advocate for the Applicant/Appellant to attend the matter and even after the consumer complaint was disposed of not steps were taken and when it was found that the restoration application was not tenable this appeal has been filed with a prayer to condone the delay of 412 days in filing the appeal and that too on the ground that the advocate for the Applicant/Appellant was busy in some other Courts.
[6] Having found that lapse is on the part of the advocate for the Applicant/Appellant and that too, admitted by him in the application for condonation of delay, we showed our willingness to issue a notice to the other side on the application for condonation of delay provided the advocate for the Applicant/Appellant deposits with this State Commission an amount of `25,000/- in advance. We also clarified to him that we will not necessarily impose costs of `25,000/- but an appropriate costs after hearing the other side will be imposed, maximum being `25,000/-. This was done in order to test the bonafides of the advocate for the Applicant/Appellant. However, the advocate for the Applicant/Appellant refused to deposit the said amount. Under these circumstances, we are not inclined to condone the delay. Hence, the application for condonation of delay stands rejected. Consequently, the appeal does not survive for consideration. Order accordingly.
Pronounced and dictated on 22nd February, 2012
