Chandigarh

StateCommission

RP/41/2024

FORTIS HEALTHCARE LTD. AND ORS - Complainant(s)

Versus

DEEPAK GOYAL DECEASED THROUGH HIS LRS - Opp.Party(s)

MUNISH KAPILA

25 Nov 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

============

Revision Petition No.	:	RP/41/2024
Date  of  Institution	:	03/05/2024
Date   of   Decision	:	25/11/2024

 

 

 

 

 

1.   Fortis Healthcare Ltd., a company registered under the Companies Act, 1956, having its Regd. Office at Fortis Hospital, Phase-VIII, Sector 62, S.A.S. Nagar, Mohali, Punjab.   

 

2.   Fortis Hospital, through its Medical Superintendent, Sector 62, Phase-VIII, Mohali, Punjab.  

 

3.   Dr. Subash C. Verma, Director - Internal Medicine & Hematology, Fortis Hospital, Sector 62, Phase-VIII, Mohali, Punjab.  

 

4.   Dr. Mohinish Chhabra, Senior Consultant, Department of Gastroenterology & Hepatology,  Fortis Hospital, Sector 62, Phase-VIII, Mohali, Punjab.  

…… Petitioners

V E R S U S

 

       Deepak Goyal (Deceased) through his LRs namely:-

 

1.   Shiv Goyal (father) son of Sh. Ram Niwas Goyal, resident of House No. 2054/3, Sector 45-C, Chandigarh.

 

2.   Sudesh Goyal (mother) wife of Sh. Shiv Goyal, resident of House No. 2054/3, Sector 45-C, Chandigarh.  

…… Respondents

 

BEFORE:   MRS. PADMA PANDEY       PRESIDING MEMBER

          PREETINDER SINGH        MEMBER

 

 

PRESENT

:

Sh. Munish Kapila, Advocate for the Revision Petitioner. None for the Respondent.

 

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

This Revision Petition is filed against the order dated 11.03.2024, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as the “Ld. District Commission”) in Consumer Complaint bearing No.CC/511/2022, whereby the Ld. District Commission is stated to have reviewed its earlier order dated 16.08.2023 while allowing a composite application moved by the legal heirs seeking their impleadment. The Petitioners, among other prayers, have made following prayer:-

 

“………….to allow the present Revision by setting aside the impugned order dated 11.03.2024 (Annexure P-1) passed by the Learned District Commission.”

 

 

2.     The only issue in this Revision Petition relates to passing of the order dated 11.03.2024 granting opportunity to the LRs of the Complainant to file replication to the written version of the Opposite Parties (Revision Petitioners herein) by reviewing the order dated 16.08.2023 whereby the said opportunity was ordered to be closed. The merits of this case, therefore, need not be discussed.

 

3.     Pursuant to notice, Sh. Devanshu Aggarwal, Advocate entered appearance on behalf of Respondents on 05.06.2024 through V.C., but subsequently despite being granted ample opportunities, failed to make his oral submissions. As such, this Commission proceeded to hear the arguments of the Revision Petitioners.

 

4.     Heard the Learned Counsel for the Petitioners and carefully gone through the record with utmost care and circumspection.  

 

5.     After giving our thoughtful consideration, to the material on record, we are of the considered opinion, that the instant Revision Petition is liable to be partly allowed for the reasons to be recorded hereinafter.

 

6.     The backdrop of the case is that the Sh. Deepak Goyal, Complainant (now deceased) had preferred a Consumer Complaint before the Ld. District Commission alleging medical negligence on the part of the Opposite Parties (present Revision Petitioners). Pursuant to notice, Opposite Parties filed replies and evidence on 22.09.2022 and the matter was adjourned to 08.12.2022 for filing of rejoinder by the Complainant. On 08.12.2022, Complainant did not file any rejoinder and the matter was adjourned to 10.03.2023. Again on 10.03.2023 no rejoinder was filed and the matter was adjourned to 26.05.2023. On 26.05.2023, the Complainant did not file rejoinder and while adjourning the case to 16.08.2023 last opportunity was granted to file the same, subject to payment of cost. On 16.08.2023, no rejoinder was filed by the Complainant and the following order was passed:-

 

“Despite last opportunity replication to the written version not filed by the Complainant. Therefore, opportunity of filing replication is closed.

 

Now for submission of documents by way of affidavit by the parties, if any, alongwith any other documents to come up on 20.10.2023.”

 

 

After passing of the aforesaid order, the case was fixed for filing of written arguments by the parties. On 11.03.2024, a Misc. App. No. 158 of 2024 has been moved on behalf of the Complainant for impleading LRs of Complainant and for granting opportunity to file replication to the written version of the Opposite Parties. The said application was allowed by the Ld. District Commission in toto vide order dated 11.03.2024, which reads as under:-

 

“The Ld. Proxy Counsel for the Complainant filed a Misc. Application No. 158 of 2024 for impleading LRs of Complainant and for granting opportunity to file replication to the written version of OPs.

 

We have gone through the above mentioned Misc. Application and in view of the grounds mentioned in the application the same is allowed.

 

On the request made by Ld. Counsel for the Complainant to come up for filing amended memo of parties as well as replication on 09.05.2024.”

 

 

7.     In view of foregoing, it is apparent on record that the Ld. District Commission had closed the right of the Complainant to file rejoinder on 16.08.2023 after numerous opportunities having been granted to him.

 

8.     Learned Counsel for the Revision Petitioners vociferously argued that the Ld. District Commission lacked jurisdiction to review its own order dated 16.08.2023. For apt appreciation, it would be prudent to reproduce the provisions of Section 40 of the Consumer Protection Act, 2019, which reads as thus: -              

 

“40. Review by District Commission in certain case. – The District Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order.”

 

 

A bare reading of the aforesaid section clearly makes out that error apparent on the face of record is main criteria/ requirement of law for review of the order passed by the Ld. District Commission.

 

9.     We have minutely perused the contents of Misc. Application No. 158 of 2024 moved on behalf of the Complainant for impleading LRs of Complainant and for granting opportunity to file replication to the written version of Opposite Parties. In the application, it was nowhere averred, much less brought to the notice of the Ld. District Commission that the right of the Complainant to file replication stood already closed on 16.08.2023. Admittedly, during the pendency of the Consumer Complaint, the sole Complainant Sh.Deepak Goyal expired on 05.10.2023. Record transpires that even when the right to file rejoinder was closed by the Ld. District Commission, it was never ever been mentioned on behalf of the Complainant that rejoinder could not be filed owning to his ill health. In these set of circumstances, by allowing the application moved by the Complainant vide impugned order dated 11.03.2024, the Ld. District Commission has virtually reviewed its own order dated 16.08.2023, which is not permissible in law. 

 

10.     Pertinently, the Consumer Commissions are creations of the Statute and derive their power from the express provisions of the Statute. The District Commissions have been given the power to review any of the order passed by it if there is an error apparent on the face of the record and the powers which have not been expressly given by the Statute cannot be exercised. Here, we lend support from the ratio of law laid down by the Hon’ble Supreme Court in Rajeev Hitendra Pathak & Ors. Vs Achyut Kashinath Karekar & Ors, (2011) 9 SCC 541.  Hence, in this manner, the Ld. District Commission passed the impugned order dated 11.03.2024 in excess of jurisdiction conferred under the Consumer Protection Act, 2019.

 

11.     Sequel to the above discussion, the revision petition is partly allowed. The impugned Order dated 11.03.2024 of the Ld. Lower Commission is set aside to the extent it permit the legal heirs of the Complainant to file rejoinder to the replies filed by the Opposite Parties and the order allowing the impleadment of the legal heirs of the Complainant is upheld. Nevertheless, the Respondents shall have the right to address final arguments and also to file their written arguments before the Ld. District Commission. In the peculiar facts & circumstances of the case, the parties are left to bear their own costs.

 

12.     Parties are directed to appear before the Ld. District Commission-II, UT, Chandigarh on 23.01.2025, on which date, consumer complaint is already listed before it.

 

13.     Complete record of complaint file be sent back to the Ld. Lower Commission alongwith certified copy of this order, so as to reach there well before the date fixed.

 

14.     The pending application(s), if any, stand disposed off accordingly.

 

15.     Certified copies of this order be sent to the parties free of charge.

 

16.     The file be consigned to Record Room, after completion.

Pronounced

25^th November,2024

              Sd/-

                                  (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”