SURENDRA PARMAR vs BAI HAVLI

-HEARD Mrs. Nayanaben S. Shah, learned Advocate for the applicant and Mr. D. M. Advani, learned Advocate for opponent No. 3. Opponent Nos. 1, 2 and 4 are served, but absent.

BY this application delay of 1261 days caused in filing the appeal under Section 15 of the Consumer Protection Act is sought to be condoned. Vide order dated 27. 6. 2007 notices were issued to the opponents as to why the delay should not be condoned. It is suggested from the copies of the notices placed on record by the applicant that opponent No. 1 Bai Havli the original complainant, is served with the notice as there is thump impression overleaf of the copy of the notice. Opponent No. 2 Dr. Harsahd P. Zhaveri is served as copy of the notice suggested signature of the recipient along with the rubber seal of the opponent No. 2. Opponent No. 3 - Dr. P. D. Modi is also served as copy of the notice suggested signature of the recipient on 17. 7. 2007. Opponent No. 2 has also given application Exh. 9 stating that he has been served with the notice of the CMA No. 340/2007 and requested to issue notice to the New India Insurance Co. Ltd. by joining them party in the proceedings as he is insured with the said Insurance Company. Opponent No. 3 has appeared through Advocate and filed objections to the condonation of delay.

It is suggested from the application that the present applicant was not served with the summons in the Complaint No. 13/1995 which has been decided on 3. 5. 2001; that he learnt about passing of the order on 3. 5. 2001 in Complaint No. 13/2005 when he was served with the notice of execution in the year 2003 nd thereafter he immediately contacted his Advocate Mr. J. K. Desai and applied for the certified copy of certain record from the learned Forum and after receiving the said record he had entrusted all the papers/records to Advocate Mr. J. K. Desai for preferring appeal before the Commission. It is stated in the application that the said Advocate had obtained signature of the applicant on certain papers and the applicant was also assured that the appeal has been preferred before the State Commission. It is stated by Mrs. N. S. Shah, learned Advocate for the applicant that meanwhile the said Advocate Mr. J. K. Desai died on 31. 10. 2003 as he was suffering from Cirrhosis of Lever with Hepatitis B.

IT is stated in the application that then the mother of the applicant was suffering from Gangrene of both the legs, Hypertension D. M. and she expired on 14. 12. 2003; that thereafter the niece of the applicant was suffering from Peripheral Thrombosis in the year 2004 and the applicant had to go to Hyderabad along with his niece and he was at Hyderabad for about six months approximately for the treatment of his niece and because of all these the applicant could not file the appeal in time. It is further stated in the application that in the year 2007 he was served with the notice in the execution proceedings No. 9/2007 from the learned District Forum. Godhra directing him to remain present before the Forum on 6. 6. 2007. Thereafter, he contacted the family members of deceased Advocate Mr. J. K. Desai to get his file regarding the appeal preferred by Mr. J. K. Desai before the State Commission, but he was informed that no file is traceable. Therefore, he could not find out whether any appeal has been preferred before the State Commission or not.

IT is suggested from the above that order in Complaint No. 13/1995 was passed on 3. 5. 2001. According to the applicant he was not served with the notice of the complaint and, therefore, he could not remain present before the learned District Forum; that the applicant was served with the notice in execution proceedings in the year 2003 and thereafter he approached his Advocate and applied for certified copy of the order, that the papers were entrusted to Mr. J. K. Desai, learned Advocate for filing the appeal; that but Mr. Desai died on 31. 10. 2003 and that his mother was suffering Gangrene of both the legs, Hypertension D. M. and she died on 14. 12. 2003 and thereafter, his niece was suffering from Peripheral Thrombosis in the year 2004 and the applicant was required to go to Hyderabad for the treatment of his niece and stay there at about six months and because of all these things he could not file the appeal in time. Again in the year 2007 he was served with the notice of execution proceedings No. 9/2007 and thereafter the present application has seen the light of the day. In an answer to the question it has been stated by Mrs. N. S. Shah, learned Advocate for the applicant that during the entire period right from 2003 to 2007 the applicant was attending to his medical profession/practice. First notice of execution was served in 2003, leaving aside the question whether he was served with the notice in the complaint proceedings though the learned District Forum in the impugned judgment has categorically stated at more than one place that the present applicant was served with the notice in the complaint proceedings and yet he did not remain present, the first notice in execution proceedings was served in the year 2003. Assuming that he had engaged Advocate Mr. J. K. Desai and he died on 31. 10. 2003 as stated in the application, the applicant could have enquired from Mr. Desai when he was alive what about the progress of the appeal i. e. , whether he has filed the appeal or not. The applicant''s mother died on 14. 12. 2003 due to her sickness and his niece was sick in 2004 and the applicant was required to attend/accompany her to Hyderabad for about six months. Be that as it may, it is not suggested from the application what was the reason for the applicant not to enquire about the appeal, if any, filed by Mr. Desai or not. Even after January, 2004 the applicant could have ascertained by making inquiry with the Registry, State Commission whether his appeal is filed against the order of the learned District Forum. Nothing of that sort seems to have been done by the applicant. The applicant in the year 2007 received notice in execution proceedings No. 9/2007 whereby he was required to remain present before the learned District Forum and thereafter, the present application is filed. The period from middle of 2004 to middle of 2007 has not been explained at all as to why the appeal has not been filed during the three years nor any inquiry was made from the Registry, State Commission whether appeal has been filed or not. Ordinarily one would wait upto six months or one year, but what happened in the instant case is that the Advocate Mr. Desai died on 31. 10. 2003, thereafter his family problems i. e. , death of his mother and sickness of his niece, etc. and from middle 2004 to middle 2007 nothing has been done by the applicant and the present application has been filed only on 26. 6. 2007. Learned Advocate for the applicant has placed reliance on the decision reported in (2000) 9 SCC 733 in the case of Radha Krishna Rai v. Allahabad Bank, wherein the delay was of 1418 days and sufficient cause was found to condone the delay as the applicant was kept in dark by the Advocate concerned. It is suggested from the facts in the aforesaid judgment that the petitioner had engaged Advocate M. M. Verma to know about the progress of his case, but he did not receive any satisfactory information. So the petitioner engaged another Advocate Mrs. Heera Jain. On inquiry by Mrs. Heera Jain, Advocate it came to her knowledge that no appeal was filed by the Advocate for the appellant before the Division Bench and then she filed the appeal before the Division Bench with a petition to condone the delay, in the circumstances mentioned above. In the light of these facts the delay has been condoned as the Advocate misled the petitioner about filing of the appeal before the Hon''ble Supreme Court. In our opinion the principle laid down by the Hon''ble Supreme Court in the aforesaid decision can be of no assistance to the present applicant.

THE learned Advocate for the applicant has also placed reliance on the decision reported in III (2005) SLT 455= (2005) 3 SCC 752 in the case of State of Nagaland v. Lipok AO and Ors. , wherein the Hon''ble Supreme Court condoning the delay of 57 days has held that when substantial justice and technical approach are pitched against each other the former has to be preferred and Section 5 of the Limitation Act has to receive liberal consideration and without resorting to technicalities the delay can be condoned with a view to do substantial justice between the parties. This proposition cannot be disputed. At the same time sufficient cause has to be proved by the applicant who wants the delay to be condoned. In the instant case sufficient cause as submitted by the learned Advocate for the applicant is that the applicant was not served with the notice/summons in he complaint proceedings and that in 2003 notice was served first in the execution proceedings and he contacted Advocate but the appeal could no be filed in time because of the sickness and demise of the advocate. Thereafter, applicant''s mother died in 2003 as she had been suffering from the diseases as mentioned earlier and then his niece was required to be taken to Hyderabad for treatment as observed earlier. All these would go to show that the period from the middle of 2004 to the middle of 2007 i. e. , June, 2007 has remained totally unexplained and not an iota of evidence to say as to why inquiry could not be made about the filing of appeal, if any, by his Advocate J. K. Desai, and if not filed during this period, he could have preferred the appeal seeking condonation of delay and it is only in June, 2007 when he was served with the second notice in execution proceeding No. 9/2007 the present application has been filed.

IN our opinion the inordinate delay for the aforesaid reasons cannot be said to be satisfactorily explained. It may also be seen from the copy of the judgment produced on record which suggests that besides the present applicant other doctors as opponent Nos. 1 and 2 and opponent No. 3 Chairman of the Hamilton Mc Cleerry Hospital all belonging to the same town i. e. , Dahod in Panchmahal District of Gujarat and had also been served with the summons in the complaint proceedings and they had received the notice on 4. 5. 2001 and 11. 5. 2001 respectively. Dahod being a small town and the opponents belonging to the same profession i. e. , medical profession it can be reasonably presumed that when the present applicant is also allegedly involved in the same incident, other opponents normally, would talk about the complaint and consequent liability of the present applicant according to the impugned order passed by the learned District Forum. Thus in our opinion the inordinate delay of 1261 days caused in filing the appeal cannot be said to have been satisfactorily explained and there is no sufficient cause proved by the present applicant for condoning the said delay. In the result, the present application fails. Order accordingly.

It is submitted by Mrs. Nayanaben S. Shah, learned Advocate for the applicant that an amount of Rs. 1,00,000 deposited in the Registry of the Commission vide order dated 27. 6. 2007 in C. M. A. No. 340/2007 be refunded to the applicant. In view of the above Registry is directed to verify the deposit of Rs. 1,00,000 in CMA No. 340/2007 pursuant to the order dated 27. 6. 2007 and if the said amount is deposited then the same be refunded to the applicant with interest accrued, if any, by A/c payee cheque in the name of the applicant Dr. Surendra Parmar. Ordered accordingly.