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Judgment
K.P. Sivasubramaniam, J.—In this revision under Article 227 of the Constitution of India, the petitioners, who are the respondents before
the State Consumer Disputes Redressal Commission in O.P.No. 118 of 2002, seek to set aside the order of the State Consumer Disputes
Redressal Commission, Chennai, in M.P.No. 102 of 2004.
The impugned order relates to the refusal on the part of the State Consumer Disputes Redressal Commission to condone the delay of 355 days
in filing the respondents'' version.
To appreciate the contentions raised in this revision petition, it is necessary to extract the affidavit filed by the petitioner in support of her petition.
The petitioner has contended that she had received the summons from the Commission without any annexures such as the copy of the complaint
and the typed set filed by the complainant along with the complaint. She engaged her counsel and handed over the summons and vakalat to him.
The counsel filed the vakalat on 6.6.2003 and after filing the vakalat, they have received the copies of the complaint and typed set from the
Registry of the Commission. In this process, the prescribed time limit stipulated in the Act to file the version by the opposite parties within thirty
days had lapsed before the petitioners'' counsel had received the copies in the complaint and typed set. The third opposite party Dr. Ravichandran
was set ex parte for his non-appearance and the petitioner herself and the Nursing Home are the parties required to defend the case of the
complainants. The complainants have levelled false allegations and averments in order to make a tall claim against the petitioner and the Nursing
Home, without any basis or proof and there was no medical negligence on the part of the petitioner or the Nursing Home and therefore, she has
got good defences.
It is further stated that when the counsel was preparing the version, lot of information and materials were required with reference to the
allegations made in the complaint. For collection of the facts and information, she had to return to her place and had to look into all the records.
She then asked her Manager to forward the same to her counsel, but due to work load, the necessary records were not forwarded by the
Manager to the counsel. She was enlightened about the facts only now and she had immediately rushed to her counsel and handed over the
records for preparing the version. As a result, there was a delay in filing the version, which was not due to any wilful nor wanton reasons.
Consequently, she had prayed for condonation of delay of 355 days in filing the response.
In the counter affidavit filed by the party respondents herein, while denying the various contentions, it is stated that the complaint was admitted
on 13.1.2003 and notice was ordered on 22.4.2003. Notice was sent by Registered Post with Acknowledgment Due, informing that the date of
hearing was 6.6.2003. The same had been received on 6.5.2003. The petitioner has not shown sufficient cause for condonation of delay. It is
further stated that the provisions of the Limitation Act were not applicable. The respondents further contend that in terms of Section 3 of the
Consumer Protection Act, there was no power to invoke the provisions of the Limitation Act. The mandatory provisions have to be strictly
complied with and the very Forum had been constituted only for speedy trial and the legislative mandate for quicker disposal cannot be subverted
by unreasonable delay. The Advocate himself had taken notice on 6.6.2003 and therefore, there was no proper explanation for the delay and the
delay has to be held as deliberate.
The State Consumer Disputes Redressal Commission, after considering the submissions of both sides, held that the Commission had the power
to condone the delay. It was however held that the petitioner had not submitted proper explanation for the delay. The Commission held that the
counsel had filed vakalat on 6.6.2003 and as the 30 days'' period provided under the Act had then expired, had a further period of 15 days time to
file the respondents'' version. But the said opportunity was not utilised and it was only on 26.5.2004, the present application has been filed. After
referring to the reasons stated in the affidavit in support of the petition, the Commission held that the condonation of delay was not a matter of
course and necessary facts have to be pleaded and proved to show that there was sufficient cause and reason for proving that the petitioner was
prevented from filing the version for reasons beyond her control. Unless such facts were established, the petitioner cannot seek for condonation of
delay of 355 days. With the result, the application for condonation of delay was rejected. Hence, the above revision.
Mr.G.Rajagopalan, learned senior counsel appearing for the petitioner, contends that the State Consumer Disputes Redressal Commission has
not taken into account the various reasons stated in the affidavit in support of the petition. There were certain practical difficulties in the filing of the
response, considering that lot of facts had to be gathered after the petitioner had returned to her place of practice. She had directed the Manager
of the Nursing Home to forward the papers to her counsel, but due to work load, the necessary records were not forwarded by the Manager
promptly. She would further state that when the said fact came to her notice, she had promptly taken steps to have the delay condoned.
Mr. S. Aravamuthan, learned counsel for the respondents, however, contends that there was an adequate remedy by filing an appeal before the
National Commission, as provided under the Consumer Protection Act, 1986 and that the petitioner having failed to utilise the alternate remedy,
cannot be permitted to approach this Court under Article 226/227 of the Constitution of India, when disputed questions of fact require to be
considered, namely, as to whether the petitioner had adequate reasons to have the delay condoned.
Learned counsel refers to the following two judgments in support of his contention that this Court has rejected similar petitions under Article
226/227 of the Constitution of India, in view of the availability of an appellate remedy:
(i) K.S. Sornam Vs. S. Venkatasubbaian and S. Thirumalainambi, ; and
(ii) Manimalan Vs. K. Subrayan, .
In reply, Mr. G. Rajagopalan, learned senior counsel, contends that there is no bar for entertaining a revision or writ petition under Article
227/226 of the Constitution of India in appropriate cases where it is found that the Tribunal has not exercised its power in a proper manner and it
would be an onerous exercise to drive one of the parties on a interlocutory issue to go before the National Commission at Delhi. Reference is
made to the observations of the Supreme Court in State of Karnataka Vs. Vishwabarathi House Building Coop. Society and Others, , which
considered the validity of the provisions of the Act. The Supreme Court, while upholding the provisions, held that provisions relating to the power
to approach the appellate Court by a party aggrieved by the decision of forums / State Commissions, as also the power of the High Court under
Article 226/227 of the Constitution of India provide for adequate safeguards. The parties were also entitled to approach the civil Court. Therefore,
the learned senior counsel would contend that in a matter relating to interlocutory relief, it would be an onerous exercise to the affected party to
approach the National Commission at Delhi.
I have considered the submissions of both sides.
As regards the power of this Court to entertain a petition under Article 226 or 227 of the Constitution of India, it is no doubt true that this
Court would generally decline to interfere when there is an adequate appellate remedy before a properly constituted forum. In this case, this Court
has to bear in mind that the stage at which the petitioner has approached this Court is only with reference to a petition relating to condonation of
delay. No doubt, the delay is quite long, namely, 355 days. But, considering the reasons stated by the petitioner in the affidavit in support of the
petition for condonation of delay, I am inclined to hold that in a matter where the claimants have prayed for a huge sum of Rs. 6,50,000/- as
compensation, in the interest of justice, a humanitarian approach has to be adopted and there has to be a proper adjudication of the merits of the
claimants in the main O.P.
It is true that the delay on the part of the respondents in the claim petition is rather long and has to be properly explained. In this case, apart
from the reasons stated in the affidavit in support of the petition, learned senior counsel for the petitioner also states that there was no Presiding
Officer till March, 2004, after which only, the Presiding Officer of the State Commission was appointed. It is true that the fact that there was no
Presiding Officer is no excuse for the respondents in not having filed the counter affidavit within the period of limitation. There is no necessity for
the presence of the Presiding Officer for filing a counter affidavit, which could have been filed in the Registry. But the said factor has to be borne in
mind while considering the state of mind of the parties, who are lulled into a thinking that the further proceedings can be followed up as and when
the Presiding Officer is appointed. The Presiding Officer is stated to have been appointed during March, 2004 and the present petition has been
filed on 26.5.2004.
It is also true that the petitioner herein could have adduced oral evidence in support of her contention. The petitioner''s failure to adduce oral
evidence alone need not be put against her. It is generally taken for granted in such matters that it may not be necessary to adduce oral evidence. It
can be easily inferred that such failure could also be due to inadequate legal advice. I do not think a party facing the risk of a decree of more than
Rs. 6� lakhs would have by herself failed to adduce oral evidence. However, considering the overall facts and circumstances and the quantum of
compensation claimed by the claimants, in the interest of justice, there has to be a proper adjudication of the merits of the claim. I am inclined to
hold that the delay can be condoned by awarding adequate costs to the respondent in order to compensate any incidental expenses, which the
respondents herein would have incurred.
With the result, the above revision is allowed, subject to the petitioner paying a sum of Rs. 5,000/- as costs to the respondents within a period
of two weeks from the date of receipt of a copy of this order.
With the above observation, the revision is allowed. Connected C.M.P.No. 20281 of 2004 is closed.