Manish Kumar v. All India Institute of Medical Sciences

1. The learned counsel for the petitioner submits that as the present petition is directed only against the respondent no.1 and no relief has been claimed against the respondent nos. 5 and 6 in the present petition, the adjudication of the present petition need not await the service of notice of the petition on the respondent nos. 5 and 6 and they be treated as deleted from the array of the parties as far as the present petition is concerned. It is ordered accordingly. 2021:DHC:787 CM(M)285/2019 Page 2

2. This petition has been filed challenging the order dated 25.01.2019 passed by the learned National Consumer Dispute Redressal Commission (hereinafter referred to as the ‘learned Commission’) in Consumer Complaint No.261/2018, Manish Kumar v. All India Institute of Medical Sciences & 6 Ors., allowing the respondent no. 1, which is the Opposite Party no.1 in the Consumer Complaint, to file its written version to the Complaint.

3. The learned counsel for the petitioner submits that notice of the complaint was issued to the respondents, including the respondent no.1 on 07.02.2018. The respondent no. 1 was duly served with the notice on 12.04.2018. The statutory period for filing of the reply to the complaint as provided in Section 13 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’), including the maximum condonable period of delay, had expired on 03.07.2018, when the complaint was listed before the learned Commission. In spite of the same, the learned Commission condoned the delay in filing of the reply by the respondent no. 1 and extended the time by a period of one week therefrom. The written version of the respondent no. 1 was, however, still not filed.

4. The complaint was then listed before the learned Commission on 31.08.2018, when recording the undertaking of the learned counsel for the respondent no. 1 that the written version would be filed during the course of the day, the learned Commission was pleased to again condone the delay, directing that a cost of Rs. 25,000/- be paid to the CM(M)285/2019 Page 3 complainant by way of a Demand Draft within a period of four weeks therefrom.

5. As neither the written version was filed nor the cost was paid, on an application of the petitioner, being IA 19048/2018, the learned Commission by its order dated 12.10.2018 was pleased to close the right of the respondent no. 1 to file its written version.

6. On 25.01.2019, however, by the Impugned Order, which is nonspeaking in nature the learned Commission has been pleased to condone the further delay in filing of the written version; reviewed its order dated 12.10.2018; and allowed further opportunity to the respondent no. 1 to file its written version.

7. The learned counsel for the petitioner submits that the order of the Commission, apart from being legally unsustainable on the ground that the learned Commission has no power to condone the delay once the statutory period including the maximum permissible period by which the delay in filing written version can be condoned has expired, does not record any reason for condoning the delay. She submits that the Impugned Order has also been passed without supplying a copy of the application, if any, by the respondent no. 1 seeking condonation of delay/review of the order dated 12.10.2018 filed by the respondent NO. 1. In support of her submissions, she has placed reliance on the judgment of Supreme Court in New India Assurance Company Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., (2020) 5 SCC 757; and Daddy’s Builders Pvt. Ltd. and Anr. v. Manisha Bhargava and Anr.,

8. The learned counsel for the petitioner further submits that the respondent no. 1 could also not have taken the benefit of the pendency of the reference before the Constitution Bench of the Supreme Court in New India Assurance Co. Ltd. (supra), inasmuch as, the Supreme Court in Reliance General Insurance Co. Ltd. and Ors. v. Mampee Timbers and Hardwares Pvt. Ltd. and Ors., 2017 SCC OnLine SC 2027 had placed reliance on the earlier order of Bhasin Infotech and Infrastructure (P) Ltd. v. Grand Venezia Buyers Assn., (2018) 17 SCC 255, wherein it had been clarified that pending the reference, though the Commission may condone the delay in appropriate cases, such condonation shall be subject to the consent of the complainant. In the present case, apart from the fact that there was no sufficient cause made out by the respondent no. 1 for seeking condonation of delay, even otherwise, the petitioner/complainant not having accepted the order passed by the learned Commission condoning the delay, no benefit of the pendency of the reference before the Constitution Bench of the Supreme Court can be granted to the respondent no. 1.

9. Answering the objection of the learned counsel for the respondent of the petition being not maintainable in view of the availability of an alternate efficacious remedy in form of a review to the Commission itself or an appeal to the Supreme Court, the learned counsel for the petitioner submits that the power of the Constitutional Court cannot be curtailed. CM(M)285/2019 Page 5

10. On the other hand, the learned counsel for the respondent no. 1 has challenged the maintainability of the present petition on the ground of availability of alternate efficacious remedy in form of a Review Petition before the learned Commission under Section 22(2) of the Act as also in form of an appeal before the Supreme Court under Section 23 of the Act.

11. On merit, the learned counsel for the respondent no. 1 submits that by an order dated 31.08.2018, the learned Commission while granting time to the respondent no. 1 to file its written version, had adjourned the complaint to 25.01.2019. In the integrum, the petitioner had filed the application being IA 19048/2018 seeking closure of the right of the respondent no. 1 to file its written version. Without issuing any notice on the said application to the respondent no. 1 and in the absence of the counsel for the respondent no. 1, the learned Commission on 12.10.2018 went on to close the rights of the respondent no. 1 to file its written version. The respondent no. 1 came to know of the said order only on receiving a communication of the said order from the learned Commission pursuant to the directions of the learned Commission itself as contained in its order dated 12.10.2018. The respondent no. 1 thereafter paid the cost as was imposed by the learned Commission in its order dated 31.08.2018 to the petitioner; changed the counsel representing the respondent no. 1 before the learned Commission; and without any further delay prepared its written version to be filed before the learned Commission. He submits that on 25.01.2019, the respondent no. 1 handed across its CM(M)285/2019 Page 6 written version alongwith the application seeking condonation of delay in filing the same to the learned Presiding Member of the Commission, who in turn, having perused the same, was pleased to condone the delay in filing of the written version of the respondent NO. 1 by the Impugned Order.

12. The learned counsel for the respondent no. 1 submits that the application that was handed across the bar to the learned Presiding Member to the learned Commission had explained in detail the reasons for seeking condonation of delay in filing of the written version by the respondent no. 1. The learned Commission having perused the same and exercised its discretion in condoning the delay, this Court could not interfere with the same in exercise of the powers under Article 227 of the Constitution of India. He submits that even otherwise the respondent no. 1 being a public institution deserves the delay to be condoned by the learned Commission and in equity the delay was rightly condoned by the learned Commission. In judging the equity, the fact that the respondent no. 1 has already released an ex gratia payment of Rs.10 lakhs to the petitioner even before the filing of the consumer complaint should also weigh with this Court.

13. I have considered the submissions made by the learned counsels for the parties.

14. It is not denied by the respondent no. 1 that the period prescribed under Section 13(2)(a) of the Act including the maximum period of the delay that can be condoned by the learned Commission in filing of the written version by the respondent no. 1 had already CM(M)285/2019 Page 7 expired on 03.07.2018 when the learned Commission, exercising its discretion, had granted a weeks’ further time to the respondent no. 1 to file its written version. By the subsequent order dated 31.08.2018, the undertaking of the learned counsel for the respondent no. 1 was recorded to the effect that the written version of the respondent no. 1 shall be filed during the course of the day. The learned Commission directed that the respondent no. 1 should also pay cost of Rs.25,000/for the delay caused in the adjudication of the complaint.

15. Inspite of the above order, neither the written version was filed by the respondent no. 1 nor the cost was paid.