ARVIND vs Gunashekaran

THERE is a delay of 432 days in filing the instant first appeal. The appellant has moved an application for condonation of delay. The delay is explained in paras 2 and 3, which are reproduced as under: "2. It is submitted that the Appellant herein filed a complaint before the State Commission in Complaint No. 11 of 2013 on 31.01.2013 against the Respondents herein, inter alia, for gross medical negligence and malpractice and unfair trade practice. It is submitted that when the matter came up for hearing on 19.07.2013, the Hon'ble State Commission erroneously dismissed the complaint of the Appellant herein holding therein that the amount claimed as compensation therein were highly exaggerated. It is submitted that a certified copy of the said order was applied for by the Appellant herein and the same was made ready and available to the Appellant on 02.08.2013.

Aggrieved by the aforesaid order, the Appellant herein filed a writ petition before the Hon'ble High Court of Karnataka under Article 226 and 227 of the Constitution of India which came to be numbered as W.P. No. 38584 of 2013. It is submitted that the said remedy was preferred by the Appellant under the bonafide belief and legal advice that there was no other alternative efficacious remedy under the Act against an order of dismissal in limine of a complaint by the State Commission. It is submitted that when the writ petition was listed before the Hon'ble High Court on 15.07.2014, the Appellant filed a memo through his counsel in view of the judgment of the Hon'ble Supreme Court in (2012) 8 SCC 524 seeking liberty to withdraw the writ petition and seek recourse in accordance with law, keeping open all contentions, in the interest of justice and equity. The same came to be allowed by the Hon'ble High Court vide order dated 15.07.2014 and the writ petition was dismissed as withdrawn. A certified copy of the said order was made available and delivered to the appellant on 20.10.2014."

IT may be mentioned here that the impugned order was passed on 19.7.2013. A writ petition before the Hon'ble High Court was filed on 28.8.2013. The writ petition before the Hon'ble High Court was withdrawn on 15.7.2014. The Hon'ble High Court did not give any liberty to approach this Commission within a certain period. The first appeal was filed on 7.11.2014 i.e. after expiry of 30 days from the date order of Hon'ble High Court. There is huge delay.

LEARNED counsel for the appellant submits that he was trying to have certified copy which he received on 20.10.2014. This is no ground at all. Time had already elapsed. The appellant should have got the certified copy, immediately, within a period of 30 days. Moreover, Consumer Protection Act, 1986 is clear, specific and unequivocal. It does not provide any provision to approach the Hon'ble High Court. This was held by the Supreme Court as back as in the year 2010. In M/s Advance Scientific Equipment Ltd. and Anr. Vs. West Bengal Pharma and Photochemical Development Corporation Ltd. (Appeal Civil Nos. 17068 -17069/2010 decided on 09.07.2010), Hon'ble Supreme Court was pleased to hold: "We are further of the view that the petitioners'' venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction."

Another authority of the Apex Court is Cicily Kallarackal vs. Vehicle Factory, 2012 4 CPJ 1 (SC) 1, wherein it was held: "Despite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher Court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher Court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds."

IT is thus clear that the appellant was ill advised to file the writ petition before the High Court.

IT must be borne in mind that more than 2 years have elapsed since the cause of action had arisen.

NO ground is made out to condone the delay of 432 days. Therefore, the first appeal is dismissed as barred by limitation.