OM PRAKASH AGARWAL vs PRIYANKA SAHA

The Petitioner, Dr. Om Prakash Agarwal, prefers the present Revision Petition under Section 21 of the Consumer Protection Act, 1986 against the order dated 29.10.2013 passed by the State Consumer Disputes Redressal Commission, West Bengal (in short, ''State Commission'') in First Appeal No. 200 of 2013. The State Commission allowed the Appeal. The Appeal was filed by the Petitioner against the order of the District Consumer Disputes Redressal Forum, (in short, ''District Forum'') Kolkata, West Bengal dated 31.12.2012 in Consumer Complaint No. 185 of 2009. The District Forum allowed the Complaint of the Complainants.

There is delay of 333 days in filing this Revision Petition. The Counsel for the Petitioner, Mr. Sourabh Gupta and Mr. Puneet Yadav were present and argued vehemently, that the delay was not intentional and the case on merits is good. Perused the application for Condonation of

delay. The delay is explained in Paras 3 to 7 of the application for Condonation of delay. On a careful perusal, it appears to be a well built up story to avoid liability and delay the proceedings. Some interesting relevant paragraphs are reproduced as:

The copy of the order dated 29.10.2013 passed by the Hon''ble State Commission was received by the Petitioner on 08.01.2015 through post. After receiving the Impugned Order, it came to Petitioner''s knowledge that the Hon''ble State Commission has decided the case against the Respondent. In the third week of January, 2014 the Petitioner approached his counsel who contested his case in the Hon''ble State Commission to given an opinion whether he should file a revision against the Impugned Order.

The Counsel for the Petitioner sought time to give an opinion and therefore the Petitioner contacted him in the second week of February, 2014 when the counsel for the Petitioner did not respond to the Petitioner and returned the copy of the Impugned Order in the last week of February, 2014. The Petitioner was unwell in the month of March, 2014 for around 15 days as he was suffering from viral fever. Therefore, he could not take steps to approach another counsel for taking an opinion on the Impugned Order.

In the month of March-April, 2014, the health of Mr. Ratanlal Agarwal and Mr. Sharda Devi Agarwal started deteriorating who are the real uncle and aunty of the Petitioner. The Petitioner being the only doctor in the family and being very close to the uncle and aunty had to take care of them and started their treatment. The uncle and aunty of the Petitioner were being treated at the his house for 2 months approximately after which they were admitted to hospital time and again as their health continued to deteriorate.

The uncle and aunty of the Petitioner were being treated when on 20.11.2014, the uncle of the Petitioner left for her heavenly abode. The Petitioner then continued the treatment of his aunty. To the utter dismay, the health of the aunty of the Petitioner also left for her heavenly abode. The Petitioner was shattered and was not in the right state of mind to take steps to pursue the matter and thereby filing of the appeal due to illness of his uncle and aunty.

After the death of the Petitioner''s uncle and aunty, the Petitioner contacted a counsel at New Delhi who was referred through some relative in the last week of December, 2014, who opined that considering the orders passed, a revision petition should be filed against the order passed by the Hon''ble State Commission. Therefore, the Petitioner sent all the remaining documents to the counsel at New Delhi to the counsel for preparing the revision petition. The counsel for the Petitioner immediately thereafter prepared and filed the petition before this Hon''ble Commission along with the present application seeking Condonation of delay in filing the present revision petition before this Hon''ble Court is neither deliberate nor intentional and the delay has been only due to the reasons as stated hereinabove.

It is also submitted that the Petitioner has acted as a reasonable man and had to take care of his ailing real uncle and aunty in their last days, due to which he could not take steps for filing the revision petition. Further, as the Petitioner resides at West Bengal, it was difficult to approach a lawyer at New Delhi, which required considerable time and effort. The medical documents and death certificate of the Petitioner''s uncle and aunty are placed on record. It is pertinent to note that as per Para 5 of the application for Condonation of delay, it appears that the Petitioner was the only doctor in the family, who was engaged for whole time, for the treatment of his uncle and aunty. There is nothing on record or any affidavit by the Petitioner to prove that he was not attending his professional work during the illness of his uncle and aunty.

In a catena of judgments of Hon''ble Supreme Court and that of this Commission, the delay was not condoned for such huge unexplained delay. The expression ''sufficient cause'' cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach, which would defeat the very purpose of Section 5 of the Limitation Act and the Consumer Protection Act, 1986. There must be some cause which can be termed as sufficient one for the purpose of Condonation of delay.

The following authorities neatly dovetail with my view. In Banshi Vs. Lakshmi Narain - 1993 (1) R.L.R. 68 , it was held that reason for delay was sought to be explained on the ground that the counsel did not inform the appellant in time, was not accepted since it was primarily the duty of the party himself to have gone to lawyer''s office and inquired about the case.

In Jaswant Singh Vs. Assistant Registrar, Co-operative Societies 2000 (3) Punj. L.R. 83, it was observed that cause of delay was that the counsel of the appellant in the lower Court had told them that there was no need of their coming to Court and they would be informed of the result, as and when the decision comes, was held to be a story which cannot be believed.

In Bhandari Dass Vs. Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer that he did not inform the client about the progress of the case nor did he send any letter, was disbelieved while rejecting an application to condone delay.

Similar view was taken in Anshul Aggarwal v. New Okhla Industrial Development Authority , IV (2011) CPJ 63 (SC), R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC ), Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361 and Bikram Dass Vs. Financial Commissioner and others AIR 1977 Supreme Court 1221 and Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr . 2012 STPL(Web) 132 (SC).

The Apex Court in a recent case i.e. Sanjay Sidgonda Patil vs. Branch Manager, National Insurance Co. Ltd. & Anr., Special Leave to Appeal (Civil) No. 37183 of 2013 decided on 17.12.2013 , confirmed the order of the National Commission and refused to condone . the delay of 13 days. Likewise, delay of 78 days was not condoned by the Apex Court in the case of M/s Ambadi Enterprise Ltd. vs. Smt. Rajalakshmi Subramanian in SLP No. 19896 of 2013 decided on 12.7.2013. Again delay of 77 days was not condoned in case of Chief Off. Nagpur Housing & Area Dev. Boa & Anr. vs. Gopinath Kawadu Bhagat, SLP No. 33792 of 2013 decided on 19.11.2013. Thus, there is a huge delay in filing the present revision petition, which deserves to be dismissed, with exemplary costs. It is well said that justice delayed is not only justice denied, it is also justice circumvented, justice mocked and the system of justice undermined. The complaint in this case was filed in the year 2007. The case of the petitioner further stands demolished by various authorities. Even on merits, there is nothing. The order passed by the State Commission cannot be faulted. It is a case of gross negligence on the part of the petitioner. A young girl, aged about 22 years, and an unmarried girl, being a meritorious student in English literature, suffered facial disfigurement (having lost a live tooth) and the cosmetic aspects due to the dental treatment by OP/petitioner.

Therefore, due to, the inordinate unexplained delay and on the basis of foregoing discussion, the revision petition is dismissed.