Tamil Nadu

StateCommission

RP/30/2023

The Managing Director, Mehta's Hospital Pvt. Ltd., - Complainant(s)

Versus

Rajkamal & Anr. - Opp.Party(s)

M/s V.Shankar

02 May 2023

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI - 3.

 

Present: Hon’ble Thiru Justice R.SUBBIAH  ... PRESIDENT

             Thiru. R VENKATESAPERUMAL        … MEMBER

 

Revision Petition No.30 of 2023

 

(Against the Order dated 23.02.2023 passed in CMP Sr. No.48/2023 in RBT/ C.C. No.66/2022 on the file of the DCDRC, Perambalur))

 

Orders, dated:02.05.2023

The Managing Director,

Mehta’s Hospital Pvt. Ltd.,

(Group of Dr. Mehta’s Hospitals),

No.2, Mc Niocholas Road,

3^rd Lane, Chetpet,

Chennai – 600 031.      

                     … Revision Petitioner / Petitioner / 1^st Opposite party.

 

- Versus –

1. Mr. Rajkamal,

S/o. Mr. Kanniah,

‘Q’ Block, No.115, Arumbakkam,

Chennai.            … 1^st Respondent /1^st Respondent / Complainant. 

 

2. Dr. Latha Jawahar,

Surgeon,

Mehta’s Hospital Pvt. Ltd.,

(Group of Dr. Mehta’s Hospitals),

No.2, Mc Niocholas Road,

3^rd Lane, Chetpet,

Chennai – 600 031.         

              … 2^nd Respondent / 2^nd Respondent / 2^nd Opposite party.

 

For Revision Petitioner / Petitioner

/ 1^st Opposite party                             : M/s. V. Shankar

 

For 1^st Respondent /1^st Respondent

/ Complainant                                    : M/s. R. Dhanasekaran

1^st Respondent /1^st Respondent

/ 2^nd Opposite party                         : Notice dispensed with

 

 

       This Revision Petition is listed today and, after hearing the arguments of the counsel for the Revision Petitioner and upon perusing the materials on record, this Commission passes the following in the Open Court:-

 

O R D E R

 

           The Revision Petitioner is the 1^st Opposite Party/Hospital in the main case-CC. No.66 of 2022, on the file of the DCDRC, Perambalur, and they filed CMP No.48 of 2023 in the said C.C., seeking the District Commission to receive their additional proof affidavit along with documents and, aggrieved by the said Commission’s order, dated 23.02.2023, in rejecting the said Miscellaneous Petition, they have come up with the present Revision.

           2. Heard the learned counsel appearing for the Revision Petitioner. No representation for the other side.

           From the impugned order, we find that the District Commission, by citing the decision, dated 19.08.2011, of the Apex Court, rendered in Civil Appeal Nos.4307 of 2007 & 8155 of 2001 (between Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinatha Kaerkar & Another), and by observing that there is no provision in the Consumer Protection Act, 2019, to re-open the complaint for the purpose of receiving additional proof affidavit along with the documents, has rejected the CMP at the SR Stage.

           But, we are unable to find any justification in the impugned rejection for more than one reason.  Firstly, in the decision cited by the District Commission, the actual issue dealt with by the Apex Court and the dictum laid down was –

       “ whether the District Consumer Forums and the State Commissions have the power to set aside their own ex parte orders or in other words have the power to recall or review their own orders.”

-

          “ On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.”

Secondly, in the present case, the actual issue involved is a different one – as to whether the District Commission is empowered to receive the additional proof affidavit/documents or not.  In that regard, straight away, we may refer to the Act itself which explicitly says that the District Commission, in certain matters, shall have the same powers, including the one to receive evidence on affidavits, as are vested in a civil court under the Code of Civil Procedure while trying a suit, and the relevant provision being Section 38 (9) of the CP Act, 2019, the same is reproduced below for a ready reference:-    

               “38. PROCEDURE ON ADMISSION OF COMPLAINT.

        (9) For the purposes of this section, the District Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:-

 (a) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;

(b) requiring the discovery and production of any document or other material object as evidence;     

        (c) receiving of evidence on affidavits;

       (d) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

      (e) issuing of commissions for the examination of any witness, or document; and

    (f) any other matter which may be prescribed by the Central Government.”

Hence, when a party seeks permission to file any such affidavit or documents, apparently at a stage when the arguments have not been closed yet, if the District Commission concerned, upon examination of the pleas and papers, is satisfied that the additional proof affidavit sought to be filed would give clarity to the case and the documents sought to be received would have a direct bearing on the main issues in the case and further, interests of justice renders it imperative that receipt of the same is absolutely necessary, there is no embargo at all to entertain the plea.

            But, in the present case, without even appreciating the plea in the above perspective, the District Commission has rushed to reject the CMP at the SR stage by misperceiving the decision of the Apex Court and erroneously presuming that exercise of discretion in such a matter is impermissible. The impugned rejection order grounded thus on erroneous reasonings cannot be endorsed by us. Further, inasmuch as there is nothing to suggest that, with the additional proof affidavit/documents sought to be received, a new case is sought to be introduced, we are inclined to allow the Revision.

           3. Consequently, the Revision Petition is allowed by setting aside the order, dated 23.02.2023, passed by the DCDRC, Perambalur, in CMP SR. No.48 of 2023 in C.C. No.66 of 2022, with a direction to the said Commission to receive the papers from the Revision Petitioner/1^st OP and, needless to mention, the defence and contentions of the other side against the same shall be duly discussed/considered while deciding the case finally.

  

R VENKATESAPERUMAL                            R.SUBBIAH, J.

MEMBER                                                    PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/MAY/2023.