Ajay Saxena vs Devki Devi Fundation & 2 Ors

Subhash Chandra, Presiding Member

This appeal has been filed impugning the order dated 6th October 2022 of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in Complaint no. 1406 of 2018 wherein the appellant’s application for condonation of delay was dismissed on the ground of delay of 106 days in filing the aforesaid complaint. The appellant has prayed that the delay of 106 days in filing the CC no. 1406 of 2018 before the State Commission be condoned and to direct the State Commission to decide the said consumer complaint on merit and pass any other order as deemed fit and proper.

The order of the State Commission reads as below:

“Reverting to the material available before us, we find that the time for filing the present complaint had expired on 12.07.2018. There are no cogent reasons given by the complainant as to why he did not take immediate steps to file the present complaint from the date on which cause of action has arisen. The complainant has not explained as to why the present complaint was not filed within two years as provided by the Consumer Protection Act, 1986. It was for the complainant to give the date on which the case was assigned to the counsel, how much time it took the counsel to draft the complaint etc. However, no special dates have been mentioned in the application for condonation of delay filed by the complainant. The complainant has vaguely mentioned the reasons for not filing the complaint in the application for condonation but failed to file any document to substantiate his reasons for the delay occurred in filing the present case. It is abundantly clear from the above facts that the complainant was moving at his own pace unmindful that the prescribed period to file a complaint is two years from the date on which cause of action has arisen.

Having regard to the facts of the case and the legal position, we find no reasons to condone the delay in filing the present complaint and accordingly, the application praying to condone the delay is devoid of merits and is dismissed. Consequently, the present complaint shall also stands dismissed.

The brief facts of the case are that the wife of the appellant noticed a node on the left side of her neck and after consulting in Safdarjung Hospital, New Delhi consulted respondent no.2 for a second opinion and respondent no.3 diagnosed her with Cervical Lymphadenopathy Tuberculosis. She was admitted to respondent no.2 hospital on 24.06.2016 for three days for deranged liver function test. However, it is contended that no definite opinion for line of treatment was framed by the doctor of respondent no.2 and on account of the negligence of the respondents, appellant’s wife expired on 12.07.2016. On account of emotional shock of the death of his wife, his own comorbidities of hypertension, diabetes, urinary incontinence and chronic kidney disease and the fact that his adult son who is 80% disabled needed to be looked after in his home town at Bareilly, Uttar Pradesh, it was not possible for him to travel to New Delhi which leds to the delay of 106 days in filing the complaint before the State Commission. It is also submitted that the appellant had incurred huge medical expenses which also constrained him from approaching the State Commission.

The State Commission has relied upon the judgment of the Hon’ble Supreme Court in Basawaraj and Ors., vs The Special Land Acquisition Officer, AIR 2014 SC 746 wherein sufficient cause has been contemplated to mean that “the party should have acted in a negligent manner or there was a want of bonafide on its part in view of the facts and circumstances of the case……….” It has also relied upon the judgment of Lingeswaran Etc., vs Thirunagalingam in Special Leave to Appeal (C) nos.2054-2055 of 2022 decided on 25.02.2022, wherein it was held that the delay which is not properly explained cannot be entertained.

In the present case, the appellant has filed various documents including medical prescriptions to substantiate the pleading that he was suffering from diabetes, hypertension and other ailments and has also produced a certificate to substantiate the 80% physical disability of his son issued by the Medical Superintendent of VMMC, Safdarjung Hospital, New Delhi. He has also relied upon the judgment of the Hon’ble Supreme Court in the case of V N Shrikhande (Dr) vs Anita Sena Fernandes in Civil Appeal no. 8983 of 2010 decided on 20.10.2010 to argue that while the limitation period for filing a complaint under the Consumer Protection Act, 1986, is prescribed as two years as per under section 24 (a) of the Act, an opportunity of hearing is required before dismissing the complaint and that the power to reject the complaint at the admission stage should not be exercised lightly for the reasons that the objective of the Act is to provide expeditious and inexpensive remedy to consumers. He has also relied upon the judgments of this Commission in (i) Prashant Hospital and Anr vs Vinayak Dahiya in FA no. 173 of 2021, decided on 28.12.2021; (ii) Mahindra Holidays and Resorts India Ltd., vs Mr Vasantkumar H Khandelwal in RP No. 1849 of 2012 decided on 18.09.2012; (iii) Dr Rajeshwar Shah and Anr., vs Arun Kumar Rai and Ors., in FA no. 670 of 2017 decided on 06.06.2019; and Thagalla Vidhyadhar vs Dr S Lokanadham and Anr., in RP no. 233 of 2017 decided on 01.11.2017.

From the foregoing it is apparent that the impugned order has dismissed the appeal of the appellant on the ground that the same was barred by limitation since the delay in its filing was insufficiently explained. In the instant appeal, the impugned order has dismissed the appeal on grounds of limitation due to delay which has not been sufficiently been explained. However, the delay has been adequately explained on the basis of evidence which has not been controverted by the respondent.

In view of the above, the appeal is partly allowed. The impugned order is set aside and the matter is remanded to the State Commission with the direction to the parties to appear before the concerned State Commission on 26/03/2024. The State Commission is advised to dispose of the appeal expeditiously, preferably within six months with due opportunity to both parties.

All pending IAs are also stand disposed of by this order.