KUNHALAN GURUKKAL Vs. A M MUHAMMED

JUDGEMENT

(1.) Challenge in this appeal is to the order dated 08.01.2010 passed by Kerela State Consumer Disputes Redressal Commission Thiruvananthapuram ( in short the State Commission) in OP No.69/2001. By the impugned order the State Commission has partly allowed the complaint filed by the respondents complainants and has directed the appellants herein to pay a compensation of Rs.1,00,000/- with interest @ 7.5% from the date of complaint besides cost of Rs.6000/- with the stipulation that amount shall be paid within two months from the date of receipt of the copy of the order failing which the rate of interest shall stand enhanced to 12% p.a.

(2.) An application seeking condonation of 206 days delay in filing the appeal has been filed alongwith Memorandum of Appeal. We have heard Mr.Simon Benjamin, Advocate, learned counsel representing the appellant on the application for condonation of delay. As per the averments made in the application, the copy of the impugned order was received by the appellants on 24.02.2010 and thereafter he tried to obtain certified copy of relevant documents; that the delay was inter alia caused primarily due to their own fault, meaning thereby fault of the appellants although it is stated that said delay was neither intentional nor deliberate. Besides it is mentioned that appellants had good case on merits. The law as to what are the considerations for allowing or dismissing an application for condonation of delay has been settled by the Apex Court and various High Courts in catena of its judgments. It has been laid down that Courts and Tribunal should be liberal in dealingwth the prayer for condonation of delay. Nonetheless it has also been held that the party seeking condonation of delay must show existence of 'sufficient cause' which prevented the party from taking prompt action in filing the proceedings for which statutory limitation has been prescribed. We are afraid that in the case in hand, the appellants have miserably failed to establish or even plead any 'sufficient cause' which can be said to have delayed the filing of the present proceedings. Infact there is a clear cut admission by the appellants in the application itself that it was due to their own fault that delay has occurred. That being so, the appellants are not within their rights to invoke judicial discretion in their favour from the Commission. The application is otherwise vague as it has not been specified when the appellants applied for certified copies and of what documents and when such copies were supplied to him thereby causing delay in filing the appeal. Infact except for the certified copy of the impugned order which the appellants had received free of charge from the Commission sometimes in February 2010, no other certified copy of any other document has been placed on record. In the case of undue delay, the applicant must explain each days' delay rather than making a bald and vague averments that some delay was caused in filing the appeal. The delay in this case is by no means small and it is of more than 200 days. This Commission is, therefore not favourably inclined to condone this undue delay. The application is accordingly dismissed and appeal is also liable to be dismissed on this ground alone.

(3.) Despite having declined the application for condonation of delay, we have considered the submissions of learned counsel for the appellants which he made in order to assail the finding of the State Commission. The present case presents a disturbing situation in as much as opposite party no.1 who is stated to be an ayurvedic practitioner and opposite party no.2 Dr. Firdous Iqbal, daughter of OP No.1, though an MBBS doctor and practitioner of medicine had held out to the public at large through print media that they have the skill to treat the cancerous tumor of the children. Allured by such publicity and the assurance given by the opposite parties, the complainants had taken their son aged 21 years to the opposite parties for treatment although the said patient has already been diagnosed as suffering from "Osteosacoma right distal femur with marrow involvement" at the Regional Cancer Centre Thiruvananthapuram and had been advised to undergo amputation of leg so as to save the life of the son of the complainants, lest the caner spreaded to the other parts of his body. The opposite parties were sure of curing the son of the complainant but ultimately when they failed to do so and the condition of the son of the complainants worsened due to the improper treatment and time lag in not amputating the leg of the son of the complainants, he ultimately died. The State Commission has taken note of all these circumstances in its well reasoned order, holding the appellants guilty of adopting and indulging in unfair trade practice and also for deficiency in service in the treatment given to the son of the complainants by observing as under: