S.M. Shembole, Presiding Judicial Member:
1. We heard counsel for both side and perused the application under order. We have also perused the copy of impugned judgment and order and copies of medical certificate and other documents.
2. Undisputedly there was 119 days delay in preferring the appeal against the judgment and order dated 15.05.2013 passed by District Consumer Forum, Aurangabad allowing consumer complaint No.283/2011.
3. It is submitted by Shri. Lakhotiya, learned counsel for the applicant that the applicant received the copy of impugned judgment and order on 09.10.2012, but she could not file appeal in time as she was hospitalized and further she was advised for bed rest. Thereafter her husband met with an accident and on 10.11.2012 was hospitalized. Her husband discharged from hospital on 18th November, 2012. Thereafter the applicant Hemlata was ailing and she was advised for rest for the period from 12.12.2012 to 27.12.2014 and again for the period from 27.01.2013 to 10.02.2013 etc. In support of his submission he has also produced copy of discharged card which reflects that the husband of complainant was admitted in Mohagaonkar Hospital, Aurangabad for the period from 10.11.2012 to 18.11.2012 as he had sustained injuries in the accident. Further medical certificate dated 21.02.2013 reflects that appellant Smt. Hemlata was suffering from some ailment and she was advised for rest for the period from 12.12.2012 to 27.12.2012. Moreover certificate dated 10.02.2013 reflects that she was advised for rest for the period from 27.01.2013 to 10.02.2013. It is further submitted that after 18.11.2012 when the complainants husband was discharged from hospital, complainant was required to accompany with her husband for taking his care and therefore she could not file the appeal etc. On all these grounds it is submitted to condone the delay.
4. Per contra, Mr. Thite, learned counsel for the non-applicant submitted that there is no just and reasonable ground to condone such inordinate delay. According to him though the husband of applicant was hospitalized for the period from 10.11.2012 to 18.11.2012 no explanation is given by the applicant as to why she has not filed the appeal before 10.11.2012 when she had already received the copy of impugned judgment and order of 09.11.2012. Moreover, no explanation is given by the applicant that why she has not filed the appeal after 27.12.2012 though she was again advised for rest since 27.01.2013 etc. Further it is submitted that the medical certificate showing that the complainant was ailing and she was advised for rest are also not genuine. The certificate dated 21.02.2013 pertained to the period from 12.12.2012 to 27.12.2012 which itself appears to be false etc. It is submitted to dismiss the application.
5. True it is that from the copy of discharge it reflects that the husband of the complainant was hospitalized for the period from 10.11.2012 to 18.11.2012. But there could be no difficulty for the applicant to contact with her counsel for filing the appeal, even if she was required to take care of her husband after his discharge. Therefore the submission of the learned counsel of the applicant that she could not file the appeal till she became ill on 12.12.2012 cannot be considered. Moreover, even if the applicant was ailing for the period from 12.12.2012 to 27.12.2012, and thereafter from 27.01.2013 to 10.02.2013, there could be no difficulty for her to file the appeal after 27.12.2012. No explanation is given as to why the appeal was not filed during that period. Further no explanation is given as to why medical certificate of Dr. Mohagaonkar was not obtained till 21.02.2013, if she was treated by the said doctor on or before 12.12.2012. Therefore genuineness of medical certificate dated 21.02.2013 is being doubtful cannot be relied on.
6. Thus on any count we find no just and reasonable ground to condone such inordinate delay of 119 days. If such inordinate delay in the absence of any reasonable explanation is condoned the very object of the legislature would be defeated. Not only this, but the right accrued in favour of the non-applicant as a result of the failure of the applicant to file the appeal in time would also be deprived, as observed by the Honble Apex Court in case of Balwant Sing (Dead) Vs. Jagdish Singh and Ors, 2010 (6) ALL MR 480.
7. However the learned counsel for the applicant tried to support his submission by relying the decision of Honble Supreme Court in the case of Milk Specialties Ltd. Vs. Rajiv Singh, (2005) 11 SCC 402, in which it is observed by the Honble Apex Court that a small delay of 57 days should have been condoned etc. But in view of the decision of the Honble Apex Court in the case of Balwant Sing, Supra and also the facts of this case as noted above, the decision of Apex Court in the case of Milk Specialties, Supra cannot be applicable.
8. For the foregoing reasons we are declined to condone the delay and pass the following order.
1. An application for condonation of delay is dismissed.
2. Consequently, the appeal is dismissed.
3. No order as to cost.