DR. A. SURESH KUMAR & ORS. versus AMIT AGARWAL on 8 July 2021

[2021] 6 S.C.R. 1

DR. A. SURESH KUMAR & ORS.

v.

AMIT AGARWAL

(Civil Appeal No. 988 of 2021)

JULY 08, 2021

[VINEET SARAN AND DINESH MAHESHWARI, JJ.]

Consumer Protection Act, 1986: Claim for medical negligenceagainst appellant-doctors – Appellants filed reply but with a delayof 7 days beyond the period of 30+15 days (45 days) – NationalCommission rejected application for condonation of delay in filingwritten statement on the ground that in Constitution Benchjudgment of Supreme Court in *National India Assurance v. HilliMultipurpose Cold Storage, it was held that the delay beyond theperiod of 30+15 days (45 days) cannot be condoned by NationalCommission – Held: It is categorically stated in the CB judgmentthat it would operate prospectively – In the instant case, since theapplication for condonation of delay was filed prior to the CBjudgment, the said application for condonation of delay ought tohave been considered on merits and should not have been dismissedon the basis of the CB judgment – Order of National Commissionset aside – Delay in this case was only for 7 days for which validexplanation was given – With the consent of parties, delay of 7days is condoned but on payment of Rs. 25000/- – Limitation –Delay, condonation of.

*New India Assurance Company Limited v. HilliMultipurpose Cold Storage Private Limited (2020) 5SCC 757 – followed.

Case Law Reference

(2020) 5 SCC 757followedPara 1

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 988of 2021.

From the Judgment and Order dated 14.12.2020 of the NationalConsumer Disputes Redressal Commission at New Delhi inInterlocutory Application No. 18361 of 2019 in CC No. 480 of 2019.

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AAnand Shankar Jha, Arpit Gupta, Girish Bhardwaj, AbhilashGopinath, Shubham Tripathi, Advs. for the Appellants.

Amalpushp Shroti, Adv. for the Respondent.

The following Order of the Court was passed:

BO R D E R

The respondent had filed a claim for medical negligence againstthe appellants-Dr. A. Suresh Kumar and others. The appellants filedtheir reply but with a delay of 7 days beyond the period of 30+15 days(45 days). The National Consumer Disputes Redressal Commission (forCshort ‘NCDRC’) rejected the application for condonation of delay infiling the written statement on the ground that in the Constitution Benchjudgment of this Court in the case of New India Assurance CompanyLimitedvs. Hilli Multipurpose Cold Storage Private Limited,reported in (2020) 5 SCC 757, it has been held that the delay beyondthe period of 30+15 day (45 days) cannot be condoned by the NCDRC.DHowever, in paragraph 63 of the said judgment dated 04.03.2020, it iscategorically stated that this judgment would operate prospectively. Inthe present case, the written statement was filed by the appellants on25.11.2019 with an application for condonation of delay of 7 days.

In our view, since the application for condonation of delay wasEfiled prior to the judgment of the Constitution Bench, which wasdelivered on 04.03.2020, the said application for condonation of delayought to have been considered on merits and should not have beendismissed on the basis of the Constitution Bench judgment in the caseof New India Assurance CompanyLimited(supra) because the saidFjudgment was to operate prospectively and the written statement aswell as the application for condonation of delay had been filed muchprior to the said judgment.

Accordingly, the impugned order of the NCDRC deserves to be,and is, hereby set aside.GAt this stage, learned counsel for the parties have submitted thatthis Court may consider the matter with regard to the condonation ofdelay of 7 days, which has been rejected by the NCDRC.

Having heard learned counsel for the parties and after goingthrough the record and for the reasons given in the application forHcondonation of delay filed before the NCDRC and also considering the

Facts

fact that the delay was only for 7 days for which valid explanation hasbeen given and with the consent of learned counsel for the parties, wecondone the delay of 7 days in filing the reply by the appellants beforeNCDRC, but on payment of cost of Rs.25,000/- (Rupees twenty fivethousand only). The said cost shall be paid by the appellants to therespondent within 15 days from today. In case, the said payment is notmade, written statement already filed by the appellants on 25.11.2019shall not be accepted. However, if the payment is made, the writtenstatement shall be accepted by the NCDRC and every effort shall bemade by the NCDRC to decide the complaint filed by the respondentas expeditiously as possible, preferably within six months.

The appeal stands allowed with the above observations.

Devika Gujral

Appeal allowed.

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