1.      This First Appeal is filed under Section 51(1) of the Consumer Protection Act, 2019, challenging the Order dated 06.10.2023 passed by the State Consumer Disputes Redressal Commission, Delhi ("State Commission"). The order pertained to the dismissal of applications IA/1578/2022 (Condonation of delay), IA/1569/2022, and IA/1845/2022 (Impleadment) in CC/72/2022.

2.      In the present First Appeal, the Appellants/OP sought the following:

1. Allowing the appeal.
2. Calling for State Commission records in CC No. 72 of 2022, issuing notice to respondents and hearing the parties.
3. Setting aside the interim order dated 06.10.2023.
4. Awarding the cost of the case in favor of the appellants.
5. Any other appropriate orders.

3.      The learned counsel for the Appellants argued that the Written Version was filed within the prescribed limitation period of 45 (30+15) days under Section 38(2)(a) of the Consumer Protection Act, 2019 (referred to as "Act"). They contended that the State Commission erroneously relied on inapplicable judgments and should have condoned the 10 days delay within the prescribed period. The impleadment of the insurance company was necessary to avoid multiplicity of litigation. He sought to allow the First Appeal and set aside the impugned order passed by the State Commission, the Written Version be taken on record and impleaded the insurance company as a party in the Complaint. He relied upon the following judgments:

A. Raheem Shah and Ors. vs. Govind Singh & Ors., MANU/SC/0829/2023;

B. CC Choubal Vs. Pankaj Srivastava, R.P. No.1454 of 2003, decided on 29.05.2003;

C. Docland Services Limited Vs. Dr. Sunil Prakash, R.P. No.2602 of 2023, decided on 08.12.2023.

4.      The learned counsel for Respondent No.1 argued in support of the impugned order and cited the Supreme Court judgment in New India Assurance Company Ltd vs. Hilli Multipurpose Cold Storage Private Ltd & Ors. (2020)5SCC757. As per the learned counsel for Respondent No.2 they are mere proforma party in this Appeal.

5.      I have examined the pleadings, associated documents and the impugned order placed on record and heard the learned counsels for both the parties.

6.      The Constitution Bench of Hon’ble Supreme Court’s in New India Assurance Company Limited (Supra) has held that consumer fora under the Act have no power to condone delay beyond 45 (30+15) days. The notice was served on the Appellants on 26.09.2022 and the written version was filed on 04.11.2022, i.e. within the 45 days limit, but beyond the initial 30 days. Therefore, the 10 days delay is within the 45 days limit as provided under Section 38(2)(a) of the Act. The said 10 days delay is condoned on the grounds of non-availability of the counsel. The written version be taken on record subject to, the Appellants directly paying Rs.50,000/- in equal share to Respondent No.1/ Complainant, by way of demand draft, within a period of four weeks from the date of this order.

7.      As regards impleadment of Insurance Companies, in terms of Order 1 Rule 10(2) CPC, the court may add a party at any stage, if their presence is necessary for effective adjudication. The insurance companies are deemed proper but not necessary parties in this medical negligence case. Adding them would delay the proceedings without affecting the primary issue's resolution.

8.      In Sudhamayee Pattnaik and Others versus Bibhu Prasad Sahoo and Others (2022 LiveLaw (SC) 773) decided on16.09.2022, the Hon’ble Supreme Court observed as under:

“As per the settled position of law, the plaintiffs are the domius litis. Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs. Not impleading any other person as defendants against the wish of the plaintiffs shall be at the risk of the plaintiffs."

9.      Following the Supreme Court's principle in Sudhamayee Pattnaik (supra), as the complainant is opposing the impleadment of the insurance companies, she is conscious of implications.

10.    In view of the foregoing discussions, the impugned order dated 06.10.2023 passed by the State Commission is modified to the extent that the delay of 10 days delay within the 45 days limit as provided under Section 38(2)(a) of the Act is condoned due to the reasons stated thereat and the written version be taken on record, subject to the Appellants/OP1&2 directly paying Rs.50,000/- in equal share as costs to the Respondent No.1/ Complainant, by way of demand draft, within four weeks from the date of this order. The rest of the impugned order with regard to non- impleadment of the insurance company is affirmed.

11.    The First Appeal No.1022 of 2023 is disposed of accordingly.

12.    All pending applications stand disposed of. 

13.  Both parties are directed to appear before the State Commission on 30.09.2024. The Appellants shall also produce the proof of payment of cost before the learned State Commission on the said date.