Dr. A. Suresh Kumar & Ors. v. Amit Agarwal

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 appellant s 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 d elay 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 b eyond 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 t he 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 b een 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 stat ement as well as the application for condonation of delay had been file d 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 condonat ion of delay of 7 days, which has been rejected by the NCDRC. Having heard learned counsel for the parties and after g oing through the record and for the reasons given in the applic ation for condonation of delay filed before the NCDRC and also considering the 3 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 partie s, 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 appella nts to the respondent within 15 days from today. In case, the said payment is not made, written statement already filed by the appellants on 25.11.20 19 shall not be accepted. However, if the payment is made, the w ritten statement shall be accepted by the NCDRC and every effort shall be made by the NCDRC to decide the complaint filed by the re spondent as expeditiously as possible, preferably within six months. The appeal stands allowed with the above observations. Devika Gujral Appeal allowed. DR. A. SURESH KUMAR & ORS. v. AMIT AGARWAL