Dr. Prakash Singh vs Tribeni Prasad Tiwari & 3 Ors

C. Viswanath, J

The present Revision Petition is filed by the Petitioner under Section21(b) of the Consumer Protection Act, 1986 against Order passed by the State Consumer Disputes Redressal Commission, Jharkhand (hereinafter referred to as the "State Commission") in Appeal No. 191 and 240 of 2009 dated 27.08.2012.

Brief facts of the case are that the Respondent No. 1 suffered compound fractures in a road accident on 23.04.2005 and was admitted in Bokaro General Hospital for more than 15 days. He was discharged on 09.05.2005 and then he went to Pragati Nursing Home for the treatment under Dr. Prakash Singh, the Petitioner. He was operated upon on 14.05.2005 by fixing fractured parts of condyle and femur by screwing and plating. This treatment was found insufficient and wrong by the X-ray taken on 10.07.2005. The Petitioner performed another operation on 12.07.2005 and fixed the plate. He was discharged on 21.07.2005. Thereafter, during the several consultations with Dr. Singh, it was detected that the plate implanted had been "bent" and "screws free" causing 50% disability. Thereupon, Complaint was lodged on 02.06.08 for compensation for causing permanent disability to him before the District Forum. The District Forum held that the treatment at Bokaro Hospital and Pragati Nursing Home was not proper and effective resulting in the third operation.

Aggrieved by the order of the District Forum, Appeal was filed before the State Commission. The State Commission dismissed both the Appeals filed, i.e., FA No. 191/2009 and FA No. 240/2009 confirming the impugned order. The Appellants were directed to pay the awarded amount within 60 days.

Aggrieved by the order passed by the State Commission, the Petitioner filed the Revision Petition before this Commission.

I have heard the Learned Counsel for the Petitioner as well as Counsel for Respondent No. 1 and also carefully perused the record. There is a delay of 139 days. Learned Counsel for Respondent No.1 strongly objected to the Revision Petition on grounds of limitation. Learned Counsel for Respondent No.1 stated that the order of the State Commission was received on 28th November 2012 and the medical certificate was dated 30th April 2013, the period between the receipt of the order of the State Commission and the issuance of the medical certificate needed to be explained. Learned Counsel for the Petitioner stated that the Petitioner, who was himself a doctor, unfortunately fell sick due to jaundice and therefore there was delay in filing the Revision Petition.

I A No. 4369/2013 is filed on behalf of the Petitioner for condonation of delay in filing the Revision Petition. Copy of the impugned order dated 27.08.2012 was received by the Petitioner on 24.11.2012. According to the Petitioner, he was suffering from Jaundice due to which he could not contact his lawyer. He thereafter contacted his lawyer to prepare and file the Revision Petition. According to the Petitioner, there was a delay of 139 days in filing the present Revision Petition. As per the medical prescription enclosed, his Blood was tested for Jaundice on 23.02.2013 and his condition improved by 2.05.2013. He recovered by 25.06.2013. The Petitioner has not been able to explain the entire period of the delay but only a part in terms of illness. Even when he was unwell, it is seen that his condition improved midway by 2.05.2013 and he could not have been incapacitated during the entire period from attending to important work.

The Petitioner appears to have not acted diligently and remained inactive for fairly a long time. The Hon'ble Apex Court held that the settled legal proposition of law of limitation has to be applied with all its rigour when the statute so prescribes, though it may harshly affect a particular party. The Petitioner has not been able to give adequate and sufficient reason which prevented him to approach this Commission within the limitation.

It is a settled proposition of law that condonation of delay is not a matter of right and the applicant has to set out the case showing sufficient reasons for not being able to come to the Court / Commissions 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."

The burden is put upon the applicant to show sufficient causes 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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It is a settle legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lexsedlex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.

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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".

The Hon'ble Supreme Court has clearly held that party who has not acted diligently or remain inactive is not entitled for condonation of delay. The Hon'ble Supreme Court in the case of "R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC)" has also described the test for determining whether the petitioner has acted with due diligence or not. 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."

Also 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."

In view of above, I find no sufficient ground to condone the delay in filing the Revision Petition. The application for condonation of delay is accordingly dismissed. As a consequence, Revision Petition is also dismissed in limine being barred by limitation.