Delhi

StateCommission

A/275/2018

ESI CORPORATION & ANR. - Complainant(s)

Versus

RAM SARAN - Opp.Party(s)

YAKESH ANAND

18 Feb 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                         

First Appeal No. 275/2018

 

(Arising out of the order dated 20.01.2017 passed in complaint case No. 1090/2015 by the District Consumer Disputes Redressal Forum (North-West) Shalimar Bagh, Delhi-110088)

In the matter of:

 

1. Employee’s State Insurance Corporation

Through its Manager

Panchdeep Bhawan

CIG Marg

New Delhi-110002

 

2. ESIC Dispensary

C-2/35, Model Town-III

Azadpur

•  

 

Versus

 

Ram Saran

S/o Sh. Shree Pal

R/o H.No. 86, Sarai Pipal Thala

Adarsh Nagar, Delhi-110033                    .........Respondent

                                                                  

                                                                  

BEFORE:

 

JUSTICE VEENA BIRBAL                 -                       PRESIDENT

SALMA NOOR                                    -                       MEMBER

1.             Whether reporters of local newspaper be allowed to see the judgment?                                    Yes

2.             To be referred to the reporter or not?                                                                                                      Yes

 

Dated: 18^th February 2019

 

ORDER

Salma Noor, Member

 

1.     This is an appeal under section 15 of Consumer Protection Act (in short the ‘Act’) wherein challenge is made to the order dated 20.01.2017 passed by District Consumer Disputes Redressal Forum (North-West) (in short the ‘Ld. District Forum’) in Complaint Case no. 1090/2015 whereby the aforesaid complaint has been allowed.
2.     Alongwith the appeal the appellants/OPs have filed an application for condonation of delay under Section 5 of the Limitation Act.
3.     According to the appellants/OPs there is a delay of about 411 days in filing the appeal.
4.     The grounds on which appellants/OPs seek the delay to be condoned are mentioned as under:

“3. The Ld. District Forum, Shalimar Bagh, Delhi was pleased to issue notices to the appellants on 29.09.2015 for appearance in Consumer Complaint on 28.10.2015. It is pertinent to mention herein that the court notices which was sent at the address of ESI Headquarters had nothing to do with the Consumer Complaint as the same pertained to and was being handled by the office of Directorate (Medical) Delhi having its office at Tilak Vihar, New Delhi and/or by ESI Dispensary in Azadpur, Delhi. Therefore, the concerned clerks of the appellant corporation dealing with the legal cases could not communicate with the senior officials of the appellant corporation about any court notice or about any consumer complaint filed by the respondent. The officials of ESI, Directorate (Medical) Delhi Office had no information about the consumer complaint pending before the District Forum, Shalimar Bagh, Delhi or about the next date of hearing.

4. That it was some time in first week of January 2018, a copy of the order dated 20.01.2017 passed by the Ld. District Consumer Disputes Redressal Forum, Shalimar Bagh, Delhi thereby allowing the consumer complaint was wrongly found in the office of Directorate (Medical) Delhi with some other office files. That immediately on coming to know about passing of some ex-parte order in some consumer complaint case, the officials of the appellants had visited the registry of Ld. District Forum, Shalimar Bagh, Delhi. On enquiry, the representative of ESI Corporation came to know that they have been proceeded ex-parte in the complaint case and final order/judgment was passed by the Ld. District Forum on 20.01.2017, allowing the complaint filed by the complainant/respondents herein.

5. The appellant corporation thereafter, contacted the empanelled lawyer/counsel and instructed him to defend the ESI Corporation in the case. The appellant are therefore filing the present appeal for setting aside the order dated 29.03.2016 proceeding ex-parte against the appellant as well as the final ex-parte judgment and order dated 20.01.2017 passed by the Ld. District Consumer Forum, Shalimar Bagh, Delhi. The certified copy of the order dated 20.01.2017 alongwith the entire case record was applied by the court clerk of the counsel in the registry of Ld. District Consumer Forum, Shalimar Bagh, Delhi on 15.01.2018, which was received on the same day i.e. 15.01.2018 itself.”

 

5.     The respondent/complainant has strongly opposed application for condonation of delay by filing reply.
6.     We have heard counsel for parties on the application for condonation of delay and perused the material on record.
7.     It is submitted by the appellants/OPs that notice of the complaint case was wrongly sent to the ESI Headquarter as it was being handled by the office of Directorate (Medical), Delhi at Tilak Vihar, New Delhi or by ESI dispensary in Azadpur, Delhi as such the concerned clerk of the appellants/OPs who deals with the legal cases could not communicate the same to senior officials of appellants/OPs. Thus, the officials of the ESI Directorate (Medical) Delhi office had no information about the consumer complaint pending before the District Forum. It is further argued that in the first week of January 2018 copy of the order passed by the Ld. District Forum dated 20.01.2017 was wrongly found in the office of Directorate (Medical) Delhi with some other office files and immediately after coming to know about the passing of the order, the officials of the appellants/OPs visited the District Forum to enquire about the case, wherein they came to know that they had been proceeded ex-parte and an ex-parte judgment is passed against them. Thereafter certified copy of the order was obtained and the empanelled advocate of appellants/OPs was contacted to file an appeal for setting aside of order dated 20.01.2017. It is stated that the delay is neither intentional nor deliberate.
8.     At the time of arguments counsel for respondent/complainant has vehemently argued that notice of the complaint issued by the District Forum was duly served upon both the appellants/OPs and upon being satisfied with the proof of delivery of service, the District Forum proceeded ex-parte against both the appellants/OPs. It is further submitted by the respondent/complainant that he has already filed execution petition no. 36/07/27 against the appellants/OPs, which is pending before the District Forum and bailable warrant has also been issued against both the appellants/OPs and just to avoid the execution proceedings present appeal is filed with the malafide intention to harass the respondent/complainant. It is further stated by the respondent/complainant that the delay is about 483 days and not of 411 days as alleged by appellants/OPs and the same is deliberate.
9.     It is also submitted by respondent/complainant  that the contention of appellants/OPs that the address of the ESI headquarters has nothing to do with the consumer complaint, has no substance as the same was being handled by the office of Directorate (Medical) Delhi having its office at Tilak Vihar, New Delhi. Appellants/OPs have themselves admitted in para 3 of the application that “consumer complaint” was being handled by the office of Directorate (Medical) Delhi having its office at Tilak Vihar New Delhi/or by ESI Dispensary in Azadpur, Delhi who was appellant-2/OP-2 in the complaint case.
10. It is further stated that appellants/OPs had no information about the complaint case pending before the District Forum is also not correct in view of the fact that a card which was issued to respondent/complainant by the appellants/OPs themselves mentioned the address of appellant-1/OP-1 as “Panchsheel Bhawan, CIG Marg, New Delhi”. Therefore the notice issued by the District Forum was at the correct address of the appellants/OPs. Copy of the card is annexed with the appeal on page 23.
11. We find substance in the contentions of the respondent/complainant that service had been carried out by Ld. District Forum at the address mentioned by appellants/OPs. Another contention of the appellants/OPs is that somewhere in first week of January 2018 copy of the impugned order dated 20.01.2017 was wrongly found in the office of the Directorate (Medical) Delhi in some other office file. This shows the careless attitude of appellants/OPs and reflects on how carelessly court matters are handled in their department. However, no affidavit of concerned clerk has been filed.
12. Further more if we go according to the contention of appellants/OPs that they have received certified copy of the impugned order on 15.01.2018 and filed the appeal on 06.04.2018 even then there is a delay of more than 50 days in filing the appeal. Appellants/OPs have not explained about aforesaid delay anywhere in the complaint.
13. It is well settled by a catena of cases that “sufficient cause” with regard to condonation of delay in each case is a question of fact.
14. In the matter of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), the Apex Court has highlighted the object of Consumer Protection Act particularly expeditious and in inexpensive remedy to the consumers.

“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”

In Balwant Singh v. Jagdish Singh & Ors., V (2010) SLT 790=III (2010) CLT 201 (SC)=Civil Appeal No.1166 of 2006, decided by the Apex Court on 08.07.2010 it was held:

        “The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention.”

        In Ram Lal and Ors. v. Rewa Coalfields Ltd., 1961 (SLT Soft) 168=AIR 1962 Supreme Court 361, it has been observed;

       “It is, however, necessary to emphasize 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 discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condonation 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 inquiry 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.”

        Similarly in Oriental Insurance Co. Ltd. v. Kailash Devi and Ors., II (1994) ACC 326 (DB)=AIR 1994 Punjab and Haryana 45, it has been laid down that:

       “There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

In R.B. Ramlingam v. R.B. Bhavaneshwari, I(2009)SLT701=I(2009)CLT188(SC)-2009(2)Scale 108, it has been observed:

       “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.”

15. In light of the aforementioned authorities and the explanation given by appellant/OP, we are of the view that appellants/OPs have failed to show sufficient cause for condonation of inordinate delay of more than 411 days. The delay is not properly explained. The same is intentional and deliberate. Amount awarded by Ld. District Forum is towards medical treatment of wife of respondent/complainant. An important right has already accrued in favour of respondent/complainant.  In view of the above discussions, the application for condonation of delay is dismissed and consequently present appeal is also dismissed as being barred by limitation.
16. A copy of this order as per statutory requirements be sent to the parties free of costs and also to the concerned District Forum. Thereafter the file be consigned to record room.

 

(Justice Veena Birbal)

President

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(Salma Noor)

Member

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