Prashant Tanaji Patankar vs Malhar Popatrao Shinde

As per the record Shri Satish K. Kumar, Advocate has filed his Vakalatnama on behalf of the respondent on 23 rd October, 2017.

This appeal is directed against the order of the State Commission, Maharashtra dated 19.6.2017 which reads as under: -

“ Adv. P.K. Patil is present for the complainant. Adv. S.B. Chougule is present for the opponent.

Consumer complaint is already admitted on 02/02/2017 and notice after admission is received by the opponent on 21/02/2017. Subsequently, Adv.

Chougule appeared on 06/03/2017 before the Commission and sought time for filing written version. However, till today, written version is not filed on

record and 45 days are already over. Hence, the matter to proceed without written version of the opponent. Now, the consumer complaint is

adjourned to 04/09/2017 for filing affidavit evidence by the complainant.â€​

I have heard learned counsel for the appellant. Learned counsel for the appellant has submitted that failure on the part of the appellant/opposite

party to file written version within the permissible period of limitation was unintentional. Actually the appellant was prevented from filing written

version within time because he was suffering from joint pain and was confined to bed pursuant to the medical advice. In support of the contention,

learned counsel for the appellant has relied upon the medical certificate purported to have been issued by Dr. Suhas Pachapurkar, MBBS, Regd.

No.29208. The medical certificate is reproduced as under: -

“ This is to certify that Shri Prashant Patankar age 36 yrs of Khuja Colony Miraj was suffering from severe pain in joint due to Rheumatoid

Arthritis & was under my care from 15.03.2017 upto 25.06.2017. He was advised bed rest during the above period.

Sd/-

Dr. Suhas Pachapurkar

M.B.B.S.,D.C.H

Regd.29208â€​

Section 13 (2) (a) of the Consumer Protection Act, 1986 provides for the procedure on admission of a complaint relating to deficiency in service on

the part of the service provider. It provides that on the admission of a consumer complaint, the Consumer Fora shall refer a copy of such complaint to

the opposite party directing him to give his version of the case within 30 days or such extendable period not exceeding 15 days. Undisputedly, the

appellant/opposite party failed to file written statement within the period of limitation including the extendable period of 15 days. For that reason the

State Commission closed the right of the appellant to file written station and listed the matter for filing of affidavit evidence by the complainant.

Three Judges Bench of Hon’ble Supreme Court in the matter of New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage Pvt. Ltd.

SLP (C) No.2833 of 2014 & SLP (C) Nos.11257-11258 of 2014 decided on 4.12.2015 had an occasion to interpret the scope of period of limitation

under Section 13 (1) & (2) of the Consumer Protection Act, 1986 wherein the Supreme Court has categorically held as under: -

“17. We are, therefore, of the view that the judgment delivered in the case of Dr. J J Merchant (supra) holds the field and therefore, we reiterate

the view that the District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that.

There is one more reason to follow the law laid down in the case of Dr. J J Merchant (supra). Dr. J J Merchant (supra) was decided in 2002,

whereas Kailash (supra) was decided in 2005. As per law laid down by this Court, while deciding the case of Kailsh (supra), this Court ought to have

respected the view expressed in Dr. J J Merchant (supra) as the judgment delivered in the case of Dr. J J Merchant ( supra) was earlier in point of

time. The aforesaid legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in Dr. J J Merchant (supra)

should be followed.â€​

In view of the aforesaid finding of the Hon’ble Supreme Court the order of the State Commission cannot be faulted unless the opposite party is

able to show some cogent reason which prevented the opposite party to file the written statement within the period of limitation. Only reason given is

the medical condition of the opposite party. I have carefully perused the medical certificate filed by the opposite party in support of his explanation for

failure to file written statement within time. Medical certificate is not convincing firstly for the reason that if the opposite party was under treatment of

Dr. Suhas Pachapurkar, the Doctor must have given some medical prescription to the opposite party but no such prescription or copy thereof has been

filed.

Further in the medical certificate it is recorded that the patient is suffering from joint pains due to Rheumatoid Arthritis and he has been advised rest

from 15 th March, 2017 to 25 th June, 2017. No pathological test report has been filed nor it is the case of the appellant that any pathological tests

were prescribed and done in order to arrive at a conclusion that the ailment of the appellant was such that he actually required bed rest. Under these

circumstances, I am not inclined to accept the medical certificate. It appears to have been procured just to create a ground for getting rid of the order

of the State Commission. The order of the State Commission is in terms of the order passed in Hilli Multipurpose Cold Storage Pvt. Ltd (supra).

Therefore, it cannot be faulted.

Appeal is dismissed.