13.05.2016

MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.

                   This order relates to the hearing on the petition for condonation of delay held on 11.05.2016.

                Perused the petition filed by the Appellant/OP praying for condonation of delay. It appears that there is a delay of 296 days in filing the Appeal by the Appellant/OP.

                Heard Ld. Advocates of both sides.

                The Ld. Advocate appearing on behalf of the Appellant/OP submitted that the Appellant/OP met with a serious accident on 31/01/14 when he received injuries leading to multiple fractures in his left leg. The Appellant/OP, as submitted, had to undergo an operation by the orthopedic surgeon on 12/02/14 by internal locking and screw fixation in a Multi Speciality Hospital. He was discharged on 15/02/14, but, the operation made him almost immobile for a long time and as advised by the doctor, he had to take bed rest for six months initially with extension of the period of taking such rest from time to time as situation demanded. This apart, as the Ld. Advocate maintained, the Appellant/OP suffered from various kinds of illness during the period which restricted his movement providing him hardly any scope to file the Appeal within the statutory period of limitation as per provision of the C P Act, 1986.

               Ld. Advocate, while making his submission, referred to the order passed by the Hon’ble Supreme Court in Civil Appeal No. 4855 of 2012 reported in (2012) 12 Supreme Court cases 693 [Madhuri Goud vs. Damodar Reddy] wherein the Hon’ble Apex Court observed that sufficient cause for delay must be liberally viewed in a pragmatic manner to subserve ends of justice and that the discretion to condone the delay should be based, not on length but on sufficient and satisfactory explanation.

              Ld. Advocate cited further the order passed by the Hon’ble Apex Court reported in (2013) 11 Supreme Court cases 341 [ Sharaju (Dead) through LRS and another vs. Narasamma (Dead) through LRS and others] wherein it has been observed that unless the Respondents are able to show mala fides in not approaching the court within the period of limitation, generally as a moral value, delay should be condoned.

             The Ld. Advocate, with his above submission, prayed for the Appeal to be admitted condoning the delay as prayed for.

              Heard Ld. Advocate appearing on behalf of the Respondent/Complainant. It was submitted that the Appellant/OP has submitted no substantial document to establish the type of injury he had actually received and the state of his injury at the relevant point of time. There was a discharge certificate from the Multi specialty hospital which indicates only that he had undergone an operation on 12/02/14 and discharged on 15/02/14, that is, five months before 18/07/2014, the date of passing the impugned judgment and order. Taking into consideration a further time of one month, being the period of limitation for filing the Appeal, he had six months altogether from the date of his discharge from the hospital which is expectedly a reasonable period for healing his injury.

              The Ld. Advocate went on to submit further that the Appellant/OP, did not submit a single prescription to enable the Respondent/Complainant understand the nature of physical injury or ailments he has been suffering from. As submitted, the Appellant/OP adduced only some Medical Certificates certifying him to have been suffering sometime from hypertension, sometime from acute pain in the leg and sometime even from bacillary dysentery. The said certificates, as the Ld. Advocate pointed out, were filed one after another immediately on expiry of the validity of the earlier one by the Appellant/OP in his effort to establish continuity of his ailments. The said certificates which prima-facie appear to be fabricated ones with a designed motive, should not be taken cognizance of.

               The Ld. Advocate cited the order passed by the Hon’ble national Commission while dismissing the Revision Petition No. 2570 of 2014 reported in IV (2015) CPJ 166(NC) [Prakash Road lines vs. New India Assurance Company Ltd. And Anr.] wherein the Hon’ble National Commission did not condone the delay with the observation that “ sufficient Cause” for condonation of delay in each case is a question of fact.

              The Ld. Advocate further referred to the order of the Hon’ble National commission in Revision Petition Nos 563 and 564 of 2015 reported in IV (2015) CPJ (100) NC [ Kadam Brothers and Developers vs. Unmesh Ganpatrao Sathe Sagar Raosaheb Godhare and Anr.] wherein, while not condoning the delay, the Hon’ble National Commission observed that no cogent or sufficient cause had been shown, nor any period had been mentioned as to when the petitioner was ill and what was the period of limitation.

              The Ld. Advocate, in the light of his submission, prayed for rejection of the petition for condonation of delay.

              Perused the papers on record. It appears that the accident injuring the Appellant/OP had taken place at least six months before the ultimate day for filing the Appeal. Moreover, barring and excepting a discharge certificate from the Multi Speciality Hospital, the Appellant/OP has submitted no prescription so as to enable us to ascertain the gravity of his illness. The other documents that he submitted are some medical certificates all not related to his treatment for injuries caused due to the accident, rather some of those documents certify his suffering , sometime from hypertension, sometime even from bacillary dysentery.

              The complaint case was actually contested by the Ld. Advocate on behalf of the Appellant/OP before the Ld. District Forum as it would appear from the impugned order. This contravenes the averment made by the Appellant/OP in his prayer for condonation of delay ( paragraph 4 continuation at page 7) where it has been stated that the Ld. Advocate on behalf of the Appellant/OP did not argue in his behalf before the Ld. District Forum at the time of final hearing. Further, the Ld. Advocate appearing on behalf of the Appellant/OP before the Ld. District Forum will not make his client aware of the fate of the complaint is something unbelievable and that is exactly what has been averred by the Appellant/OP in the same paragraph of his prayer for condonation of delay.

             Hon’ble Apex Court in this direction in Civil Appeal No.4855 of 2012, referred to above, has observed that the discretion to condone the delay should be based not on length of delay but on sufficient and satisfactory explanation. In the instant case, while examining the very point of sufficient and satisfactory explanation for delayed filing of the Appeal, irrespective of the length of the delay, we do not find any cogent or convincing proof documented by the Appellant/OP so as to enable us to arrive at a positive consideration towards the condonation of delay, as prayed for. The grounds for the delay being not substantiated, the prayer for condonation is liable to be rejected.

             Hence, ordered the prayer for condonation of delay be rejected.  Consequently, the Appeal is dismissed being barred by limitation.  There shall be no order as to cost.