What is important is that he may be suffering from said ailment but ailment must be of such nature which incapacitated him to appear and file any proceeding in the Court or Tribunal. Advocate himself has not filed any affidavit of concerned doctor and secondly there is no evidence produced on record that he was not working in any Court or Tribunal. If Advocate can work in other Court and not filing appeal in the State Commission it cannot be said that there is a valid ground for condoning the delay. Apart from that Rules framed under the Consumer Protection Act 1986 permit filing by registered post. Personal presence is not necessary.14. For all these reasons there is no substance in the delay condonation application. It is hereby rejected.
| Judge(s) : S.B. MHASE, PRESIDENT & NARENDRA KAWDE, MEMBER |
Heard Mr.K.G. Kulkarni Advocate for the applicant/appellant.2. This appeal is directed as against the order passed by District Forum Nashik in consumer complaint No.114/2005 decided on 24/04/2012. By the said order consumer complaint was dismissed. On the same day i.e. 24/04/2012 true copy of the said order was delivered to the appellant/org. complainant. However appeal has been filed on 29/10/2012 and thus there is delay in filing appeal. Therefore delay condonation application has been filed to condone the delay of 35 days. However we find that actual delay is more than 35 days and it has not been properly calculated by Advocate for the applicant/appellant who himself is brother of the deceased and brother-in-law of the applicant/appellant.3. The ground for condonation of delay is that on 26/04/2012 Advocate for the applicant has preferred two applications for getting certified copies of the documents. It is stated that certified copies of the documents are required to be filed along with memorandum of appeal to support the objection mentioned in it. It is submitted that after his written request documents demanded were received by the Advocate on 23/08/2012 and applicant/appellant has submitted applications to the District Forum for providing required certified copies on 26/04/2012 21/06/2012 05/07/2012 30/07/2012 & 23/08/2012. All this is a cock and bull story. In fact when the appeal is filed on 29/10/2012 there was no question of any office objection in the appeal on 26/04/2012. Office objections are raised in the appeal by the office of the State Commission when the appeal is presented. Therefore statement made in Para 5.1 that – “on 26/04/2012 an application was made to provide certified copies of the documents required to be filed along with memo of appeal to support the objections mentioned in it” this part of the statement is absolutely incorrect because at that time appeal was not preferred and there was no question of raising any objection by the office of the State Commission.4. Further it is stated that several applications on 26/04/2012 21/06/2012 05/07/2012 30/07/2012 & 23/08/2012 were submitted and they were continuously followed-up. But the fact still remains that as per those applications documents were given to the applicant on 23/08/2012. However appeal has been filed thereafter on 29/10/2012. What was the difficulty in filing appeal after receipt of copies on 23/08/2012 till 29/10/2012 (it is practically a period of two months) has not been explained anywhere so far as applicant/appellant is concerned. What we find that this ground of getting certified copies of the documents is also not sustainable in law. Advocate who is appearing in the matter as stated earlier is very close relative of the applicant/appellant and at least this being a matter from his family he should have been more diligent in looking to the provisions of law because according to the Commission applications which were made for getting certified copies of the other documents were not necessary to be made to the District Forum. What is important is Regulation No.20(3) which is very relevant in this context. It reads as follows:-“(3)Immediately after the consumer complaint first appeal or revision petition as the case may be is disposed of extra sets shall be given to the parties who may use the same for filing of appeal or revision petition and in that case the necessity to summon the record from the forums below can be dispensed with.”Sub-regulation (5) of Regulation No.20 also states that – “A period of at least one month shall be given for the purpose of collection of records by the party and in case of default the extra sets shall be weeded out.” This makes it clear that party who desires to prefer an appeal would be entitled to get two sets out of three sets of complaint so that they can be annexed to the appeal and exigency of calling for the record can be dispensed with. These sets are equal sets of the records of the District Forum and therefore one set is maintained for the record and two sets are returned to the party so that they can be utilized for the purpose of filing appeal is one aspect and secondly party need not waste time for getting certified copies of other documents than for judgement and order. This has been provided by the National Commission by framing Consumer Protection Regulations 2005 to save the time in preferring appeal after disposal of the case to avoid wasting of time in getting documents so also time for calling for Record & Proceeding from the subordinate court is to be saved. Had Learned Advocate looked to this provision and collected sets from the District Forum all the documents could have been with him and there was no necessity to prefer applications dated 26/04/2012 21/06/2012 05/07/2012 30/07/2012 & 23/08/2012 and therefore said cause cannot be said having valid and legal cause for the purpose of condoning the delay. There is one more aspect that if necessary compilation from the subordinate forum are not annexed with the appeal memo and the appeal only contained grounds of appeal memo and the judgement then Appellate Forum may give time for obtaining documents from the subordinate Forum and/or can call for the records but however getting certified copies of those documents cannot be a ground for condonation of delay.5. Delay condonation has to be considered in the light of facts namely what is the time spent by the applicant/appellant in getting certified copies of the judgement and order and not in respect of other documents though may be relevant for final disposal but may not be relevant for filing of the appeal. It is well settled practice that appeal memo when filed shall be accompanied with the judgement. Looking to this fact we do not find any substance in the ground made out in Para 5.1 of condonation of delay application.6. In Para 5.2 it is stated that District Forum has not taken note of medical literature and citations submitted along with written arguments. This cannot be a ground for condonation of delay. This may be a ground put up against District Forum while we hear the appeal and to consider whether the material supplied by the party has been considered by the District Forum or not and therefore Para 5.2 is not relevant for disposal of condonation of delay application.7. Para 5.3 in respect of same literature and efficacy of said literature but we have already stated that that is the merit of the case and not for delay condonation application.8. In Para 5.4 it is stated that District Forum has suo-moto referred certain judgements of the Superior Courts in the impugned order and therefore for getting certified copies of those judgements application was made. This ground is also not relevant. District Forum has mentioned the citations of each and every judgement of the Superior Courts and therefore it was not necessary to obtain copies from the District Forum. These judgements could have been obtained from the relevant Journals or from the Internet and especially when the Advocate for the applicant/appellant is their family member. It was very much accessible to him to get these judgements and therefore this ground is not sustainable in law. Instead of making research and find out those judgements it is being submitted that copies are being asked from the District Forum. This is only a flimsy ground which has no relevancy for condonation of delay.9. In Para 5.5 it is submitted that applicant/appellant is having three daughters and one minor son and the boy is taking education in Xth Standard and due to some domestic problem beyond the control of the applicant/appellant she was not able to prepare and file this appeal. In fact when the brief is in the hands of Advocate who happens to be a brother-in-law of the applicant/appellant and practicing lawyer this ground is not sustainable in law.10. In Para 5.6 it is further stated that in May 2012 there was death of younger sister of the applicant/appellant and therefore appeal could not be filed. However there was no difficulty for the Advocate to present the appeal. Therefore Para 5.6 is also not a sufficient ground for condonation of delay.11. Applicant/appellant has submitted that due to some unfortunate trouble-some incidents in the family life of her just married daughter it is stated in Para 5.7 that there was difficulties with the married daughter of the applicant/appellant and therefore she was at Pune for five months and therefore appeal could not be preferred. That has also no relevance in view of the facts that papers could have been given immediately to the Advocate and he could have filed appeal as for filing of the appeal presence of appellant is not necessary especially in a dismissed case where stay is not required to be obtained or affidavit is not to be sworn.12. In Para 5.8 it is stated that consumer complaint is relating to the medical negligence and there are rare authorities/persons in this field of medical treatment on Brain at Nashik and it is a reality that it becomes impossible for the ordinary man to contact and to get medical expert opinions from the doctors because no doctor openly come forward to give his opinion against another doctor. This is irrelevant because complaint is of medical negligence. However it has been conducted by the complainant from 2005 onwards till 2012 and therefore there was ample time to get expert evidence which must have been produced on record and therefore that cannot be ground for condonation of delay. Except this other paragraphs are irrelevant.13. It is further stated that learned brother of the deceased who is looking after this case who is an Advocate has physical problem for last six months. It is therefore submitted that delay may please be condoned. In order to support this contention a certificate of SumanHospital has been annexed and it is stated that he was suffering from “Lumbar Canal Stenosis & Osteoarthritis knees”. He was under treatment and he was advised physiotherapy and activity modifications. What is important is that he may be suffering from said ailment but ailment must be of such nature which incapacitated him to appear and file any proceeding in the Court or Tribunal. Advocate himself has not filed any affidavit of concerned doctor and secondly there is no evidence produced on record that he was not working in any Court or Tribunal. If Advocate can work in other Court and not filing appeal in the State Commission it cannot be said that there is a valid ground for condoning the delay. Apart from that Rules framed under the Consumer Protection Act 1986 permit filing by registered post. Personal presence is not necessary.14. For all these reasons there is no substance in the delay condonation application. It is hereby rejected. Hence the order:-ORDERMisc. Application No.371/2012 for condonation of delay stands rejected. Consequently appeal No.1033/2012 does not survive for consideration.1. No order as to costs.2. Copies of the order be furnished to the parties.
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