DR. A. SURESH KUMAR & ORS. versus AMIT AGARWAL

Citation: [2021] 6 S.C.R. 1 · Decided: 08-07-2021 · Supreme Court of India · Bench: VINEET SARAN, DINESH MAHESHWARI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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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 negligence
against appellant-doctors – Appellants filed reply but with a delay
of 7 days beyond the period of 30+15 days (45 days) – National
Commission rejected application for condonation of delay in filing
written statement on the ground that in Constitution Bench
judgment of Supreme Court in *National India Assurance v. Hilli
Multipurpose Cold Storage, it was held that the delay beyond the
period of 30+15 days (45 days) cannot be condoned by National
Commission – Held: It is categorically stated in the CB judgment
that it would operate prospectively – In the instant case, since the
application for condonation of delay was filed prior to the CB
judgment, the said application for condonation of delay ought to
have been considered on merits and should not have been dismissed
on the basis of the CB judgment – Order of National Commission
set aside – Delay  in this case was only for 7 days for which valid
explanation was given – With the consent of parties, delay of 7
days is condoned but on payment of Rs. 25000/-  – Limitation –
Delay, condonation of.
*New India Assurance Company Limited v. Hilli
Multipurpose Cold Storage Private Limited (2020) 5
SCC 757 – followed.
Case Law Reference
(2020) 5 SCC 757
followed
Para 1
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 988
of 2021.
From the Judgment and Order dated 14.12.2020 of the National
Consumer Disputes Redressal Commission at New Delhi in
Interlocutory Application No. 18361 of 2019 in CC No. 480 of 2019.
   [2021] 6 S.C.R. 1
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SUPREME COURT REPORTS
[2021] 6 S.C.R.
Anand Shankar Jha, Arpit Gupta, Girish Bhardwaj, Abhilash
Gopinath, Shubham Tripathi, Advs. for the Appellants.
Amalpushp Shroti, Adv. for the Respondent.
The following Order of the Court was passed:
O R D E R
The respondent had filed a claim for medical negligence against
the appellants-Dr. A. Suresh Kumar and others. The appellants filed
their reply but with a delay of 7 days beyond the period of 30+15 days
(45 days). The National Consumer Disputes Redressal Commission (for
short ‘NCDRC’) rejected the application for condonation of delay in
filing the written statement on the ground that in the Constitution Bench
judgment of this Court in the case of New India Assurance Company
Limited vs. Hilli Multipurpose Cold Storage Private Limited,
reported in (2020) 5 SCC 757, it has been held that the delay beyond
the period of 30+15 day (45 days) cannot be condoned by the NCDRC.
However, in paragraph 63 of the said judgment dated 04.03.2020, it is
categorically stated that this judgment would operate prospectively.  In
the present case, the written statement was filed by the appellants on
25.11.2019 with an application for condonation of delay of 7 days.
In our view, since the application for condonation of delay was
filed prior to the judgment of the Constitution Bench, which was
delivered on 04.03.2020, the said application for condonation of delay
ought to have been considered on merits and should not have been
dismissed on the basis of the Constitution Bench judgment in the case
of New India Assurance Company Limited (supra) because the said
judgment was to operate prospectively and the written statement as
well as the application for condonation of delay had been filed much
prior to the said judgment.
Accordingly, the impugned order of the NCDRC deserves to be,
and is, hereby set aside.
At this stage, learned counsel for the parties have submitted that
this Court may consider the matter with regard to the condonation of
delay of 7 days, which has been rejected by the NCDRC.
Having heard learned counsel for the parties and after going
through the record and for the reasons given in the application for
condonation of delay filed before the NCDRC and also considering the
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fact that the delay was only for 7 days for which valid explanation has
been given and with the consent of learned counsel for the parties, we
condone the delay of 7 days in filing the reply by the appellants before
NCDRC, but on payment of cost of Rs.25,000/- (Rupees twenty five
thousand only). The said cost shall be paid by the appellants to the
respondent within 15 days from today. In case, the said payment is not
made, written statement already filed by the appellants on 25.11.2019
shall not be accepted. Howev

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