Surekha Arun Sankhe vs Jitendra P Bhayade & 3 Ors

This Order shall decide both the Revision Petitions filed against the Order dated 10.10.2017 passed by the Maharashtra State Consumer Dispute Redressal Commission (hereinafter referred to as ‘State Commission’) in First Appeal Nos. A/14/23 and A/14/38 respectively.

For the convenience, parties are being referred to as placed in the Original Complaint filed before the District Forum.

The case of Complainant that the nurse - Surekha Arun Sankhe (OP-4) negligently administered diclofenac injection to the Complainant’s left arm, damaging the Radial nerve, which led to paralysis of left hand.

The District Forum, Thane held the nurse for medical negligence causing injury to the left radial nerve and partly allowed the Complaint. It allowed the Complaint. The OPs (1 to 4) were directed to pay Rs. 10 lakh within three months.

Being aggrieved, three separate first appeals were filed before the State Commission as, A/14/23 by the nurse Surekha Arun Sankhe (OP- 4), A/14/38 by the Central Hospital & Dr. Arun Pole ((OP-1& 2) and A/14/108 by Dr. Vilas Dongre (OP-3)-the Orthopedics surgeon. The State Commission disposed the appeals by confirming the award against OP-1 & OP-4. It imposed cost of Rs. 20,000/-. The OPs- 2 and 3 were exonerated.

Being aggrieved, the Nurse (OP-4) filed RP No. 231 of 2018 & the Central Hospital (OP-1) filed RP No. 771 of 2021.

Heard the arguments from the parties.

There was delay of 1320 days in filing RP No. 771 of 2021 (as calculated by the Registry). The learned Counsel for the Petitioner (Central Hospital) submitted that the delay was due to departmental formalities as the Petitioner being Govt. Hospital, which had to follow certain procedures. I have perused the application for condonation of delay. According to the Petitioner, the delay was due to  sanction of the invoice amount by the Office of the Dy. Director, Health Services, Thane and also due to first and second wave of COVID-19 pandemic, which made it difficult to follow up with their Advocate. It took time upto August, 2021.

It is strange that the Petitioner received the certified copy of the State Commission Order on 09.11.2017, therefore, the time limit for filing the Revision Petition was 90 days i.e. before 09.02.2018. The outbreak of Covid-19 pandemic occurred only in December, 2019, but the Petitioner raised frivolous ground of Covid-19 pandemic. It clearly shows the casual approach of the Petitioner, who slept over their rights. Thus, I notice that long before the outbreak of Covid-19 pandemic, the limitation to file the Revision Petition had expired.

In my view, the explanation as given in the application for condonation of delay filed by the Petitioner does not make out sufficient cause for condonation of the inordinate delay of 1320 days in filing the instant Revision Petition. The law of limitation binds everybody including the Government. The Government Departments are under an obligation to exercise due diligence to ensure that their right to initiate legal proceedings is not extinguished by operation of the law of limitation. A different yardstick for condonation of delay cannot be laid down because the government is involved.

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. I would like to rely upon the judgments of Hon’ble Supreme Court, discussed and defined the expression ‘sufficient cause’. 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.”

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."

Thus, the burden is on the applicant to show that there was sufficient cause for the delay. 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)], it was 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.”

The next point for discussion that in case of huge delay, whether the matter should be decided on merits. I would like to rely upon the recent judgment of the Hon’ble Supreme Court in the case of State of Uttar Pradesh & Ors. vs. M/s. Satish Chand Shivhare And Brothers[2022 LiveLaw(SC) 430], wherein it was held in para ‘21’ that the right of appeal is a statutory right, subject to the laws of limitation. The law of limitation is valid substantive law, which extinguishes the right to sue, and/or the right to appeal. Once an appeal is found to be barred by limitation, there can be no question of any obligation of the Court to consider the merits of the case of the Appellant. It was also observed in para ‘22’ as below:

When consideration of an appeal on merits is pitted against the rejection of a meritorious claim on the technical ground of the bar of limitation, the Courts lean towards consideration on merits by adopting a liberal approach towards ‘sufficient cause’ to condone the delay. The Court considering an application under Section 5 of the Limitation Act may also look into the prima facie merits of an appeal. However, in this case, the Petitioners failed to make out a strong prima facie case for appeal. Furthermore, a liberal approach, may adopted when some plausible cause for delay is shown. Liberal approach does not mean that an appeal should be allowed even if the cause for delay shown is glimsy. The Court should not waive limitation for all practical purposes by condoning inordinate delay caused by a tardy lackadaisical negligent manner of functioning.

Similar view was taken by the Hon’ble Apex Court in M/s Singal Udyog vs National Insurance Company Ltd.,[ Civil Appeal no. 9161 of 2019 decided on 02.12.2019] has held that "when the matter is barred by time, the National Commission could not have dealt with the merits of the matter". A consumer court is required to consider preliminary issues/ objections in any matter before it. In view of the fact that consumer fora are set up in order to expeditiously address complaints and grievances through a summary approach, a special provision for considering limitation under the Act has been provided under section 24 A. The intention of the Act is to ensure that matters under its ambit get addressed expeditiously and without recourse to litigation over a prolonged period of time that does not provide finality to matters.

Evidently, there was huge delay in filing the Revision Petition No. 771/2021. I respectfully following the law laid down by the Hon’ble Supreme Court (supra), there is no need enter into the merits of case.  Both the fora below have given concurrent findings of facts and attributed medical negligence upon the Opposite Parties.

It is pertinent to note that the State Commission directed the OP-1 and OP-4 to pay the compensation, jointly and severally, to the Complainant. In my view, as the OP-4 was a nurse working in the Central Hospital, which was a ‘Contract of Service’. Thus, vicarious liability attracts to the Central Hospital for the acts of its servants (nursing staff and the doctors). Accordingly, the entire compensation shall be paid by the Central Hospital (OP-1).

To conclude, both the Revision Petitions are dismissed with modification of the Order of State Commission to the extent of vicarious liability that, the entire compensation shall be paid by the Central Hospital to the Complainant within six weeks from today.

There shall be no Order as to costs.