Date  : 22.04.2013.

Per Mr.B.A.Shaikh, Hon`ble Presiding Judicial Member.

1.       We have heard Adv.S.V.Deo present for the appellant and Adv.Shri.M.M.Ambhore present for respondent on the delay condonation application filed by appellant in which delay shown is of 765 days as occurred in preferring appeal. This application is strongly opposed by learned advocate of respondent.  It is submitted by learned advocate of appellant that District Forum below passed the impugned order on 12.03.2009 and its copy was received by appellant by post in the first week of April 2009 and appeal ought to have been filed on or before first week of May 2009.  Appeal is filed on 6.7.2011.  He has explained said delay to the effect that appellant was suffering from acute Pro Lapse Inter Vertebral Disc L-3 L-4 in lumber region and he was unable to stand, walk and travel. He was confined to bed, followed by massage and exercise under supervision of Ayurvedic experts. Thereafter appellant was admitted to hospital of Dr.Kulkarni and he was treated there from 27.3.2009 to 26.4.2009. Thereafter he was discharged and he was taking bed rest for about 6 to 8 months. During those 8 months also treatment was continued.  By the end of October 2009, appellants condition was completely reviewed and doctors opined that there is recovery to certain extent but as the age related  attending ailments, process of recovery was very slow. Therefore he was advised to confine himself to bed and follow earlier treatment for six months thereafter. After said six months period appellant was in a position to stand and walk few steps with the help of other persons. By the end of March 2011, progress was remarkable and appellant was able to walk some distance with the help of stick. Appellant was under continuous treatment for the aforesaid disorder for nearly 765 days and therefore the said delay in preferring appeal has been occurred.  He therefore submitted that said delay may be condoned. He has invited our attention to medical certificate dated 10.7.2011, affidavits of appellant and copies of papers of his treatment placed before us.  He also submitted that otherwise also appellant has got a very good case as at least claim could have been settled on non-standard basis.  He relied on observations made in the following cases.

          1)       Collector, Land Acquisition -Vs- Katiji:AIR 1987 SC 1353:

It is observed that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of non-deliberate delay.  Courts should adopt liberal approach in condonation of delay.

2)       State of Nagaland -Vs- Lipok AO :SC: Appeal (Cri) No.484/2005: it is observed that "Sufficient cause" should be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause explaining every day`s delay. Cause of substantial justice to be preferred on technicalities.

3)       Oriental Aroma Chemical Industries Ltd. -Vs- Gujrat Industrial Development Corporation: (From WWW.Indiakaoon Civil Appeal NO.2075/2010 SLP (C) 10965/09. It is observed that that law of limitation is founded on public policy.  The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay.  The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribed a period within which legal remedy can be availed for redress of the legal injury.  At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

4)       B.V.Nagaraju -Vs- Oriental Insurance Co. Ltd. 1996 ACJ 1178 SC: It is observed that the terms of policy of insurance should not be construed strictly but be read down to advance the main purpose of the contract.

5)       B.M.Rajashekaraiah -Vs- Oriental Insurance Co. Ltd. 2005(1) TAC 267 NCDRC:

          It is observed that the exclusion terms in the policy must be read down so as to serve the main purpose of the policy, i.e. to indemnify the damages caused to the vehicle.

6)       Skandia Insurance Co.Ltd. -Vs- Kokilben Chandravadan : 1987 AIR 1184 SC:

          Main purpose of provisions for the protection of victims has to be safeguarded.

7)       New India Assurance Co.Ltd. -Vs- Narayan Prasad Appaprsad Pathak : II (2006) CPJ 144(NC):

          it is observed that in case of breach of motor driving license, claim to be settled on non-standard basis as per GIC guidelines.

8)       National Insurance Co.Ltd. -Vs- Nitin Khandelwal : 2008 ACJ 2035 SC:

          It is observed that, insurance Company is liable to indemnify the insured for his loss when he has taken comprehensive policy.

9)       Amalendu Sahoo -Vs- Oriental Insurance Co.Ltd.: 2010 ACJ 1250 SC:

          It is observed that breach of comprehensive policy, insurance company cannot repudiate the claim in toto and claim has to be settled on non-standard basis.

10)     United India Insurance Co.Ltd. -Vs- Sunil Kumar : 2013 ACJ 102:

          It is observed that, Insurance company cannot contend breach of terms of policy merely because there were more passengers than what was provided as seating capacity for the vehicle, unless accident was on account of overloading.  That is not breach of condition of policy and insurance company is liable.

2.       On the other hand, learned advocate of respondent submitted that delay is abnormal i.e. of 765 days and that it is also not properly explained. He further submitted that otherwise also appellant has got no good case.  Hence application may be rejected.

3.       The perusal of medical certificate produced by appellant shows that appellant was suffering from Acute Prolapse of Intervertabral Disc (L3, L4) and he had severe pain in limber region and hip joint and he was unable to make movement and unable to stand/walk.  It also shows that he was admitted in hospital of Dr.Kulkarni from 27.3.2009 to 26.4.2009 and he was treated conservatively and he was discharged on 26.4.2009 with advise of complete bed rest and for six months with same treatment at home and monthly follow up checking. It also shows that appellant has recovered slowly and he is now working with crutches or attendant, he is still under treatment.  He was advised further investigation at higher centre and further management. The date on that certificate is given as 10.6.2011. 

4.       It is not stated in that certificate as to whether further treatment was taken by the appellant in hospital of Dr.Kulkarni after he was discharged from that hospital on 26.4.2009.  Thus from the said certificate it is only proved that appellant was suffering from Acute Prolapse of Intervertabral Disc (L3, L4) and he had severe pain and he was under treatment from 27.3.2009 to 26.4.2009. 

5.       No medical certificate is produced by appellant about his medical treatment after he was discharged from hospital of Dr.Kulkarni on 26.4.2009.  Appellant simply produced prescription of some of the doctors.  He also produced certain investigation reports. However it is not explained as to why no medical certificate of doctors who treated the appellant subsequent to his discharge from hospital of Dr.Kulkarni are produced. We thus find that mere production of some prescription about certain treatment and certain investigations report are not sufficient to show that the appellant was confined to bed for such a long period of 765 days.  On the contrary the application made for condonation of delay itself shows that after initial six months of treatment, applicant could stand and walk up with the help of other person. Therefore he could have consulted his advocate and could  have taken proper steps after said six months for the filing appeal. 

6.       Hon`ble Supreme Court in the case of "Anshul Aggarwal -Vs- New Okhia Industrial Development Authority" IV(2011) CPJ 63 (SC), observed that,  " It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the Consumer Foras"  Therefore we find that the delay which is of 765 days occurred in preferring appeal is not properly explained and it cannot be condoned.

7.       We also find from perusal of papers placed before us by the appellant that no arguable case is made out by the appellant. Therefore on this ground also we find that delay cannot be condoned. Hence we proceed to pass the following order. 

                                                O   R    D    E    R

1.     Application made for condonation of delay bearing M.A.No.228/2011 is rejected.

2.     Appeal is dismissed as time barred.

3.     No order as to cost.

4.     Copies of the judgment be issued to both the parties.

Pronounced on 22.04.2013.