DR. A. SURESH KUMAR & ORS.versusAMIT AGARWAL

                         [2021] 6 S.C.R. 1                             1


                DR. A. SURESH KUMAR & ORS.                             A
                                 v.
                        AMIT AGARWAL
                   (Civil Appeal No. 988 of 2021)
                          JULY 08, 2021                                B
    [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         C
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       D
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         E
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                    F
      Multipurpose Cold Storage Private Limited (2020) 5
      SCC 757 – followed.
                      Case Law Reference
(2020) 5 SCC 757                  followed             Para 1
                                                                       G
      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.
                                                                       H
                                 1
2            SUPREME COURT REPORTS                          [2021] 6 S.C.R.


A        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:
B                                ORDER
            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
C   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.
D   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
E   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
F   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.
G         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
H   condonation of delay filed before the NCDRC and also considering the
      DR. A. SURESH KUMAR & ORS. v. AMIT AGARWAL                             3


fact that the delay was only for 7 days for which valid explanation has      A
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
                                                                             B
made, written statement already filed by the appellants on 25.11.2019
shall not be accepted. However, if the payment is made, the written
statement shall be accepted by the NCDRC and every effort shall be
made by the NCDRC to decide the complaint filed by the respondent
as expeditiously as possible, preferably within six months.
       The appeal stands allowed with the above observations.                C


Devika Gujral                                              Appeal allowed.


                                                                             D




                                                                             E




                                                                             F




                                                                             G




                                                                             H