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Judgment
Dr. S.M. Kantikar, Presiding Member
The instant I.A. was filed by the Opposite Party raising the question of maintainability on the ground of limitation (delay in filling the instant Complaint) and the pecuniary jurisdiction.
Heard the learned Counsel for both the sides.
[A] On the point of Limitation:
There was delay of 954 days in filing the Consumer Complaint before this Commission. The Complainant filed an I.A. No. 4756/2017 for condonation of delay under section 24A of the CP Act, 1986.
The learned counsel for the Complainant submitted that it was the continuous cause of action and therefore there was no delay. We have perused the application for condonation of delay filed by the Complainant.
The reasons for the delay are explained in Paragraphs Nos. 4 to 8 of the application, same are reproduced as below:
(a) That cause of action has arisen on 25-08-2012 when the opposite party doctor administered the anaesthesia on the complainant's father thereby resulting in him going in to a complete state of coma. The cause of action is a continuing cause of action as the respondents continuous neglect has resulted in the situation in which the complainant's father has presently reached.
(b) The Applicant/Complainant had gone for criminal prosecution against the respondents and therefore some time was lost before filing this complaint.
(c) That the father of the Applicant/Complainant is having about 90% chance of survival and he is trying every way possible to restore his father's health. However, the huge medical expenses which is not affordable for the Complainant.
(d) Therefore, the Applicant/Complainant has approached this Hon'ble Commission for compensation for the pecuniary loss suffered by the family because of this event and for deficiency in service, medical expenses, future medical expenses, and recurring medical expenses, pain and suffering and the mental trauma suffered by the family of the complainant.
(e) The delay in filing the Complaint is neither wilful nor wanton. If the delay is not condoned the Applicant/Complainant will be put to irreparable loss and hardships.
The learned Counsel for the Opposite Party filed his reply through IA No. 20478/2017. He vehemently argued that the Complaint was filed almost after five years after the cause of action. It was not a continuous cause of action. The grounds explained in the application for the condonation of delay are vague, baseless and misconceived. Even assuming the cause of action had occurred on 25.08.2012, the present Complaint ought to have been filed within two years, but it was filed after delay of more than 954 days.
The learned Counsel for OP further argued that the ground taken by the Complainant that he was busy in pursuing the criminal proceedings is not legally tenable. He has not produced any documentary evidence to satisfy such huge delay and the day to day explanation was not given.
The learned Counsel relied upon the decision of the Hon’ble Supreme Court in State Bank of India Vs. B.S. Agricultural Industries [(I) 1, Civil Appeal No. 2067 of 2002]. He also relied upon the decision of the Hon’ble Supreme Court in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation[(2010) 5 SCC 459], wherein it was observed as under:
"We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time."
[B] On the point of Pecuniary Jurisdiction:
The learned Counsel for OP argued that the prayer in the Complaint is highly inflated and unjustified. The Complainant prayed Rs. 6 Crores compensation towards pecuniary loss and Rs. 2 Crores for personal loss, medical expenses, future expenses and mental agony. To support his argument, the learned Counsel relied upon few precedents of this Commission and of the Hon’ble Supreme Court viz:
This Commission in Ashok Kumar Goel Vs. Branch Manager, ICICI Bank[C.C. No. 1520/2015 decided on 21.01.2016], held that:
“6. We are of the opinion that it is necessary to curb such tendencies, so that the mechanism prescribed in the Consumer Protection Act for redressal of the grievances of a consumer is not distorted. The claim being highly inflated, excessive and unrealistic, made with a view to bypass the fora below, the complaint is dismissed with liberty to the complainants to file a suitably amended complaint before an appropriate consumer forum, other than the National Commission.”
In another case, Sushil Gupta Vs. Master Vintage International[CC No. 236 of 2013 decided on 18.07.2014], the complainant claimed about Rs. 3.00 crores as damages under several heads. Rejecting the complaint at the very threshold, this Commission inter-alia observed and held as under:-
“Under the scheme of the consumer protection Act, 1986 (in short, the Act) the original complaint can be filed in the District Forum or the State Commission or the National Commission depending upon the value of the cost of the goods/services. Section 11, Section 17 and section 21 provides that pecuniary jurisdiction of the respective foras. Section 11 provides that District Fora shall have jurisdiction to entertain complaints where value of the goods or services and compensation, if any, does not exceed rupees twenty lakhs. According to section 17, State Commission can entertain the complaint where the value of the goods or services and compensation claim exceeds rupees 20 lakhs but does not exceed one crore and if the said value is more than rupees one crore, jurisdiction to entertain the original complaint lies with the National Commission as provided under section 21 of the Act. Presently, no court fee on the claims preferred before the foras concerned is payable. Therefore, tendency to defeat the hierarchy as per the scheme of the Act is always there. Thus, in our considered view, the consumer fora at various levels are required to guard against the inflated claims with malafide intentions to defeat the hierarchy of the foras concerned. In the instant case, the amount allegedly spent by the complainant is only rupees eighteen lakh plus but he has added disproportionate demand of compensation of Rs.2,88,88,000/- approximately as compensation to bring this case within the jurisdiction of the National Commission. The above act of the complainant obviously is malafide with a view to defeat the scheme of the Act. Thus, the complaint is liable to be dismissed on the ground that this Commission does not have pecuniary jurisdiction. In our view, we are supported by three Members Bench of this Commission in the matter of Praveen Kumar Singhia Vs. State Bank of India 2003 INDLAW NCDRC 144)”.
Similarly in Indrani Chatterjee and Anr. Vs. Amri Hospitals[CC/383/2013 and connected matter - decided on 07.11.2014], the complainant claimed more than Rs.7.00 crores as damages/compensation for alleged medical negligence. This Commission rejected the exaggerated claim and observed as under:-
“11. We now advert to the second objection relating to the exaggeration of the claim in the complaints. In Charan Singh (supra) alleging medical negligence, a complaint was filed before this Commission under the Act, claiming 34 lakh by way of compensation from the respondent hospital on various grounds, under different heads. The complaint was however, dismissed by a brief order, which reads as follows:-
“…. The complainant was drawing a salary of 3000 plus allowances. This is his allegation which is not admitted by the opposite party. even if we accept this contention is correct and even if we accept that as a result of wrong treatment given in the hospital he has suffered permanent disability, the claim of 34 lakhs made by the complainant is excessive. We are of the view that this exaggerated claim has been made only for the purpose of invoking the jurisdiction of this Commission……”
In Sujata Nath Vs. Popular Nursing Home and Ors.[ CC No. 60 of 2011], this Commission rejecting the contention of the complainant that the complainant was free to claim the compensation as per his own assessment. At preliminary stage on the ground that the claim was exaggerated, vide order dated 08.07.2011, the complaint was dismissed with a direction to the complainant to suitably amend her complaint and file before an appropriate consumer forum. The said order has been affirmed by the Hon’ble Supreme Court, in Civil Appeal No. 8642 of 2011 vide order dated 14.10.2011.
We have given our thoughtful consideration to the arguments on the maintainability of the instant Complaint. Let us go through the provision under Section 14 of the Limitation Act. The relevant text is reproduced as below:-
“14 Exclusion of time of proceeding bona fide in court without jurisdiction. —
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.— For the purposes of this section,—
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.”
In our view, the Complainant has tried to take undue benefit of Section 14 of the Act. Admittedly, the complaint was filed after delay of more than 954 days. The grounds stated by the Complainant are devoid of merit, hence not acceptable. The criminal proceedings in the alleged medical negligence are separate and distinct, which has no bearing on filing complaint under the Consumer Protection Act, 1986. On careful perusal of the Complaint and the medical record, the Cause of action arose on 25.08.2012, but the Complaint was filed before this Commission on 05.04.2017. The Complainant has neither explained day to day delay nor filed any cogent evidence to explain the huge delay. In our view, the Complainant approached this Commission with unclean hands and with ill intention to harass the doctor/hospital.
We would like to rely upon the decisions of the Hon’ble Supreme Court that if the party who has not acted diligently or remains inactive is not entitled for condonation of delay. In the case of “R. B. Ramlingam vs. R. B. Bhavaneshwari[I (2009) CLT 188 (SC)]” the Hon’ble Supreme Court has held as under:-
"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”
Moreover, the Condonation of delay is not a matter of right and the applicant has to set out the case showing sufficient reasons which prevented them to come to the Court/Commission within the stipulated period of limitation. The Hon’ble Supreme Court in the matter of Ram Lal and Ors. Vs. Rewa Coalfields Limited[AIR 1962 Supreme Court 361] has held as under:
“It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”
In the case of “Anshul Aggarwal Vs. New Okhla Industrial Development Authority[(2011) 14 SCC 578], the Hon’ble Supreme Court has warned the Commissions to keep in mind while dealing with such applications the special nature of the Consumer Protection Act. The Hon’ble Supreme Court has held as under:
“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer foras."
The burden is on the applicant to show that there was sufficient cause for the delay. The expression ‘sufficient cause’ has been discussed and defined by the Hon’ble Supreme Court in the case of Basawaraj & Anr. Vs. The Spl. Land Acquisition Officer[2013 AIR SCW 6510], as under:
“Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bonafide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever he court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bonafide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd. V. Bhootnath Banerjee &Ors, AIR 1964 SC 1336; LalaMatadin V. A.Narayanan, AIR 1970 SC 1953; Parimal V. Veena alias Bharti AIR 2011 SC 1150 L2011 AIR SEW 1233); and ManibenDevraj Shah V. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629: (2012 AIR SCW 2412).
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The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature”.
In the instant case the Complainant failed to explain the sufficient cause for the huge delay. The Hon’ble Supreme Court in the case of “Kandimalla Raghavaiah & Co. v. National Insurance Co. Ltd.[ (2009) 7 SCC 768]” held that a consumer complaint filed beyond period of two years of the cause of action cannot be entertained, unless there are sufficient reasons for condoning the delay in filing the same.
The Hon’ble Supreme Court in a recent judgment, University of Delhi vs. Union of India & Ors.[ Civil Appeal Nos.9488-9489 of 2019 (Arising out of SLP (Civil) Nos.5581-5582 of 2019) decided on 17.12.2019], observed that condonation of delay would depend on the background of each and every case; and routine explanation would not be enough. The Hon’ble Supreme Court held as under: -
“The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even¬ handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation
… xxx…
That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal.”
Based on the discussion above, we find no ground to condone such huge delay of 954 days. The application for condonation delay is accordingly dismissed. Similarly, the prayer of Complainant for the compensation of Rs. 8 crores was just imaginary, without any basis.
The instant Complaint is not maintainable on both the counts on limitation and on pecuniary jurisdiction. Accordingly, the IA No. 20478/2017 is allowed and the Complaint is dismissed.