Tilak Gupta vs KAMLESH

THIS revision petition has been filed by the petitioner against the order dated 20.09.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ''the State Commission '') in Appeal No. 1103 of 2008 - Dr. Tilak Gupta Vs. Mrs. Kamlesh and Anr. by which, appeal was dismissed as barred by limitation.

BRIEF facts of the case are that Complainant/Respondent No. 1 filed complaint before District Forum alleging medical negligence on the part of OPs and learned District Forum allowed complaint and directed OPs to pay Rs.1,50,000/ - along with interest and further awarded Rs.1,00,000/ - on account of mental agony and Rs.10,000/ - on account of litigation expenses against which, petitioner/OP No. 2 filed appeal before State Commission along with application for condonation of delay and learned State Commission vide impugned order dismissed application for condonation of delay and also dismissed appeal on merits against which, this revision petition has been filed. Heard learned Counsel for the Petitioner and Respondent no. 1 in person and Authorized Representative of Respondent No. 2 finally at admission stage and perused record.

LEARNED Counsel for the petitioner submitted that learned State Commission committed error in dismissing appeal on the ground of limitation on wrong facts; hence, revision petition be allowed and impugned order be set aside.

PETITIONER along with appeal filed application for condonation of delay in which it was mentioned that petitioner left the job of OP No. 1 on 28.11.2002, whereas complaint was instituted on 27.3.2003. It was further submitted that after decision of case certified copy sent by District Forum at the address of OP No. 1 and OP hospital did not inform petitioner regarding decision of the case and petitioner came to know only by receiving notice of Execution Petition. He immediately applied for certified copy which was delivered on 7.4.2008 and appeal was filed before the State Commission on 11.4.2008. In such circumstances, delay of 835 days in filing appeal may be condoned. Learned State Commission in its order while dismissing application for condonation of delay observed as under: ''''There is delay of 823 days in filing the present appeal. It is well settled principle of law that the delay cannot be condoned on the ground of equity of generosity and the delay has to be condoned if ''''sufficient cause '''' is shown by the appellant. In the present case the appellant has taken the plea that after receiving the copy of the impugned order the same was sent to the higher authorities for seeking approval for filing the appeal before the State Commission. The file has to pass through various channels and during this entire official process delay of 823 days in filing the present case has been occurred. In our view this is not a ''''sufficient cause '''' to allow the application for condonation of delay ''''.

It appears that learned State Commission has mentioned different facts which were not pleaded in the application. Learned State Commission mentioned in its order that after receiving copy of the order it was sent to higher authorities for seeking approval for filing the appeal and file had to pass through various channels for which 823 days were taken, whereas in the application petitioner mentioned that he did not receive copy of the order. Admittedly, in the complaint address of the petitioner has been given as Diamond Hospital, but as per application he had left job of Diamond hospital even before institution of complaint. In the affidavit filed before the District Forum he has given his address of B -6, Joshi Colony, Mandawali Fazalpur, Delhi and same address has been given by him in Memo of Appeal as well as in the application for condoantion of delay. Thus, it becomes clear that on account of not receiving certified copy of the order sent by District forum, delay occurred in filing appeal and in such circumstances; learned State Commission ought to have condoned delay in filing appeal.

LEARNED State Commission in last paragraph of the order also observed that there was deficiency on the part of OP and dismissed appeal on merits also. Learned State Commission ought not to have considered merits when appeal was to be dismissed as barred by limitation and in such circumstances, impugned order is liable to set aside and matter is to be remanded back to the learned State Commission to decide the appeal afresh on merits.

CONSEQUENTLY , revision petition filed by the petitioner is allowed and impugned order dated 20.9.2012 passed by learned State Commission in Appeal No. 1103/2008 - Dr. Tilak Gupta Vs. Mrs. Kamlesh & Anr. is set aside and application for condonation of delay filed by the petitioner is allowed and matter is remanded back to learned State Commission to dispose of appeal on merits after giving an opportunity of being heard to both the parties. Parties are directed to appear before the learned State Commission on 3.7.2014.