ORAL JUDGMENT

PER JUSTICE MR. V.R. KINGAONKAR

            We have heard learned counsel for the Respondent.  The petitioner is absent.

2.      We have perused the impugned order rendered by the State Commission.   By the impugned order passed on consumer complaint no. 27/2003, the State Commission, Maharashtra, Mumbai straightaway rejected the complaint in limine.

3.          Perusal of the impugned order shows that the State Commission did not give any opportunity to the appellant to prove the alleged negligence.  It appears from the record that a report was called from J.J. Hospital.  The learned President and Members of the State Commission observed that the opinion was not required though it was called and, therefore, they need not wait further for the expert’s opinion of the J.J. Hospital.  We find it difficult to reconcile the statement in as much as it runs contrary to the earlier order dated 10/09/2009 whereby the State Commission thought it fit and proper to call for the opinion of experts committee of the J.J. Hospital.  We do not understand as to why strange stance was adopted and all of a sudden by taking somersault, the State Commission held that there was no need to further await for the expert’s opinion.

4.      We also find that the reasons ascribed by the State Commission for dismissal of the complaint at the outset are somewhat arbitrary and queer.  The State Commission observed:

    “What is important to be noted that when the patient was brought to the hospital, doctors had informed to the patient and the complainant that patient could not be recovered and, therefore, there was no question of any deficiency of service on the part of the doctors, more specifically as against Respondent.  It is because of insistence of the complainant; mother of the complainant was kept in the hospital.  Ultimately, she was discharged and she died at home.  What we note that first day doctors were aware that she was/is not likely to survive and the treatment was/is of no use to her.  They had rendered their services in accordance with their ethics.  Complainant submits that discharge of a serious patient is a negligent act on the part of the opponents and, therefore, complaint may be admitted.  We are not in agreement of such submissions.”

5.      In our opinion, the State Commission failed to apply judicial mind to the fact situation and has not given proper opportunity to the appellant to lead evidence.  We are at pains to note that the aspect of “summary procedure” contemplated for trail of a complaint case before the State Commission/District Fora is sometime misunderstood as “touch and go procedure”.  We have further noticed from some of the orders of some of the State Commissions that the necessity of giving proper opportunity to the parties and observing the principle of natural justice in the course of such summary trail of complaints had not been adhered to.   We make mention here that very recently in FA No. 339 of 2011, we noticed that the complaint was dismissed by the State Commission, Maharashtra with single line order and with a statement that the reasons will be separately given.  The grievance of the counsel for the appellant (complainant) in that matter was that the reasons had not followed inspite of the fact that much time had elapsed.  This kind of arbitrariness is not proper if the statement of the learned counsel for the appellant is to be believed and accepted.

6.      All said and done, in the fact situation of the present case we are anguished to note that the learned President and the two Members unanimously came to the conclusion that the complaint was liable to be dismissed without any further opportunity being required to be given to the complainant.  It is to be noted that a Division Bench or larger Bench is constituted to hear the complaint or appeals with a specific object, namely, to have collective wisdom reflected in the orders of the Commission or Fora, as the case may be. In the present case such element seems to be absent. We appreciate fair submissions of learned counsel appearing for the Respondent.  Still, however, in view of the very nature of the impugned order, he was faced with difficulty to defend the same. 

7.      For the aforestated reasons, we are inclined to remand the matter to the State Commission.  We make it clear that all questions of facts and law are kept open and afresh decision is required to be taken by the State Commission on merits of the matter.

8.      In the result, the appeal is allowed.  The impugned order is set aside.  The matter is remitted to the State Commission with direction to decide the same afresh on merits by giving due opportunity to the appellant and Respondents to prove their rival contentions.  The appeal is accordingly disposed of with no order as to cost.