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Dharambir v/s Dr. Akhil Saxena & Others


Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

    First Appeal No. 744 of 2013

    Decided On, 11 February 2014

    At, Haryana State Consumer Disputes Redressal Commission Panchkula

    By, THE HONOURABLE MR. JUSTICE NAWAB SINGH
    By, PRESIDENT
    By, THE HONOURABLE MR. B.M. BEDI
    By, JUDICIAL MEMBER & THE HONOURABLE MRS. URVASHI AGNIHOTRI
    By, MEMBER

    For the Appellant: R.S. Sharma, Advocate. For the Respondents: R2, Rajesh Mahna, Advocate.



Judgment Text

Nawab Singh, President (Oral):

1. This complainant’s appeal is directed against the order dated July 31st, 2013 passed by District Consumer Disputes Redressal Forum, (for short ‘District Forum’), Sonepat, whereby an application filed under Section 24-A (2) of the Consumer Protection Act, 1986 (for short ‘the Act’), for condonation of delay in filing of the complaint, was dismissed without dealing with the complaint on merits.

2. Section 24-A of the Act reads as under:-

'24-A. Limitation period– (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

PROVIDED that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.]'

3. A reading of the aforesaid Section shows that it is clearly peremptory in nature requiring the Consumer Forum to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of cause of action.

4. In the case in hand, Anita (since deceased) wife of Dharambir –complainant (appellant herein) was taken to ‘Rai Hospital’ of Dr. Manoj Rai (respondent No.2) at Sonepat on October 24th, 2000, while she was having stomachache. She was properly examined by the doctor, as stated by the appellant in paragraph No.2 of his complaint and after thorough examination, she was referred to Dr. Akhil Saxena (respondent No.1), where she was medically examined and was referred to ‘Sunder Lal Jain Hospital, Delhi’ on the same day. She was brought to ‘Jaipur Golden Hospital, Delhi’ where the medical authorities asked the appellant to deposit Rs.10,000/- but he was not having the sufficient funds. So, he took his wife to ‘Sunder Lal Jain Hospital, Delhi’ where she breathed her last.

5. The complaint was filed by the appellant on dated November 24th, 2004, that is, after about four years from the date on which the cause of action arose.

6. The ground on which the appellant filed the application under Section 24-A(2) of the Act, was that he engaged Krishan Kumar Malik, Advocate to file complaint but he did not. He relief upon the affidavit of Shri Krishan Kumar, wherein it was stated by him that he did not file the complaint till June, 2002 and thereafter he became the President of the District Forum at Narnaul and asked his clerk to engage Shri Anil Dahiya, Advocate or some other advocate to file the complaint but none of them filed the complaint. When the appellant learnt about it, he filed the complaint on November 24th, 2004.

7. Now it is to be seen as to whether the complainant satisfied the District Forum that he had sufficient cause for not filing the complaint within the period prescribed, that is, two years from the date on which the cause of action had arisen or not?

8. In State Bank of India v. B.S. Agriculture Industries, II(2009) CPJ 29 (SC)=II(2009) SLT 793=(I)(2009) 5 SCC 121, Hon’ble Supreme Court while commenting upon Section 24-A of the Act held as under:-

'Section 24-A of the Act, is peremptory in nature and requires the Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24-A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder.

As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. It is the duty of the Consumer Forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.'

9. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV(20011) CPJ 63 (SC), Hon’ble Supreme Court has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if the appeals and revisions which are highly belated are entertained. The observations of the Hon’ble Supreme Court read 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 Fora.'

10. In State of Nagaland v. Lipokao and Others, reported in II(2005) CCR 47 (SC), Hon’ble Supreme Court observed that proof of sufficient cause is a condition precedent for exercise of discretion by the Court in condonation of delay.

11. In D. Gopinathan Pillai v. State of Kerala and Another, reported in I(2007) SLT 635, Hon’ble Supreme Court held as under:-

'When mandatory provision is not complied and the delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay on sympathetic ground only.'

12. It does not appeal to common sense that the appellant-complainant engaged his counsel immediately after the death of his wife, that is, on 24th of October, 2000 but he did not enquire from the lawyer or from lawyer’s office about his case for more than four years. It shows the negligence, inaction and impassivity on the part of the appellant. In this regard, reference may be made to the authority of the Hon’ble Supreme Court in Banshi v. Lakshmi Narain, 1993(1) R.L.R. 68, wherein it was held that reason for delay was sought to be explained on the ground that the Counsel did not inform the appellant in time, was not accepted since it was primarily the duty of the p

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arty himself to have gone to lawyer’s office and enquired about the case. 13. In the instant case, the appellant-complainant except the affidavit of Shri Krishan Kumar Malik, Advocate that he handed over the brief in June, 2002 to Shri Anil Dahiya, Advocate, that is, after one year and eight months of the death of complainant’s wife, would not justify to condone the delay in filing the complaint beyond the period of limitation. 14. In view of what has been stated above, this Commission is of the firm opinion that the complaint filed by the appellant was barred by limitation and the appellant has failed to prove sufficient cause for not filing the complaint within the period of limitation, that is, two years. 15. Hence, the appeal is dismissed.
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