Tamil Nadu

North Chennai

CC/11/2022

Parthasarathi Rajagopalan - Complainant(s)

Versus

SIMS Hospital SRM Institute of Medical Sciences,Rep by its Chairman - Opp.Party(s)

M.V.Shankar

25 May 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

       PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                         TMT. KAVITHA KANNAN, M.E.,                         : MEMBER-I

                                         THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA.,    :MEMBER-II

 

WEDNESDAY THE 15^TH  DAY OF JUNE 2022

C.M.P.23/2022 in C.C. NO.11/2022

 

SIMS Hospital

(SRM Institute Of Medical Sciences)

Represented by its Chairman

No.1, Jawaharlal Nehru Road,(100 Feet Road)

Vadapalani, Chennai-600 026                                                                                                                                          

                                                                   …....Petitioner/Opposite party

 

 

                                                   / verus/

Parthasarthi rajagopalan

Flat No.5, Sri Ganga Flats,

New No.191,Royapettah,

Chennai-600 004.                                             ……Respondent/Complainant

 

 

Date of petition                                                 :02.05.2022

Counsel for Petitioner/ Complainant              : M/s. A. Thayapan and others

 

Counsel for Respondent/Opposite party           :M/s.V.Shankar & Lavanya Shankar

 

 

 

 

 

O R D E R

 

BY PRESIDENT THIRU: THIRU. G. VINOBHA, M.A., B.L.,

This petition is filed by the petitioner/ opposite party to set aside the exparte order dated:01.04.2022 passed against the petitioner/ opposite party.   Petition Averment in brief:-

1. The petitioner/opposite party contended that the complainant has filed this complaint against the petitioner/hospital raising a consumer dispute and has claimed compensation. Further stated that the petitioner/hospital has not been served with the copy of the complaint and its annexure and unable to meet out the allegations in the complaint and could not file the version of the petitioner.  Petitioner stated that the notice in the complaint was served upon the petitioner hospital privately on 15.03.2022 without a copy of complaint to appear on 01.04.2022.  Petitioner stated that on the date of hearing scheduled on 01.04.2022, there was no appearance before the Hon’ble commission on petitioner side and hence this petitioner/opposite party was called absent and set exparte and adjourned to 02.05.2022 for further proceedings. Petitioner stated that the private notice sent in the original petition was received by an administrative staff at the reception counter at the Nungambakkam Unit of the Hospital.  Petitioner stated that during that period they were under the process of shifting the Nungambakkam unit to the main buildings at Vadapalani and there was an unintended misplacement of the notice and inadvertent omission on the part of the ministerial staff in forwarding the notice to the responsible officer of the hospital and therefore  there was no follow up action.  There was no appearance or representation on behalf of the petitioner/opposite party herein on 01.04.2022 and on all subsequent dates and that a copy of interim order dated 07.04.2022 passed by this Hon’ble commission was despatched to the Nungambakkam address and its forwarded to Vadapalani Head Office recently and immediately thereafter the petitioner made arrangements to check with the Registry of this Hon’ble commission and have found that the petitioner hospital was called absent and set exparte on 01.04.2022. and hence  this petition to setaside the exparte order dated 01.04.2022. Further it is stated that there was no willful or wanton absence on their part. Petitioner stated that Hon’ble commission to setaside the exparte order passed in the proceeding before this commission as against the petitioner and the petitioner may be permitted to contest the case on merits.

2. Counter in Brief:-

          The respondent stated that the Petition under reply has to fail on 2 counts viz in view of the order passed by the Hon’ble Apex court in Rajeev Hitendra Pathak & Ors Vs. Achyut Kashinath Karekar & Anr, the petition filed by the opposite party to set-aside the order of exparte dated:01.04.2022 is not maintainable, as the Hon’ble Apex Court in unequivocal terms upheld that neither the District Forums  not the State Consumer Commissions have power to recall or review their own order.  In the case on hand the admitted facts are that the summon and the copy of the complaint posted from this commission to the opposite party’s last known address was returned unserved upon which the complainant was directed to ascertain the present address of the opposite party and take out private notice to the opposite party. Accordingly, the complainant took out the private notice to the opposite party on 06.03.2022, seeking their appearance before this commission on 01.04.2022 and the same was received and acknowledged by the opposite party on 15.03.2022.  On 15.03.2022 the opposite party was aware that the complainant has filed the above proceedings and the same stands for their appearance on 01.04.2022,if be so the opposite party could have been diligent by entering appearance between 15.03.2022 to 01.04.2022 however for reasons best known. Interest of justice requires that this commission may be pleased to dismiss the petition under reply with exemplary cost.  The petition under reply is not only frivolous and vexatious in nature and also an abuse of process of law.

3.Point for consideration:-

1. Whether the petition to setaside the exparte order Dated:01.04.2022 has to be allowed or not?

4.Point No.1

The petitioner has been filed  by the opposite party to set aside the exparte order dated:01.04.2022 passed against the opposite party by alleging that the respondent/complainant has filed the above complaint against the petitioner hospital raising a consumer dispute and has claimed compensation.  As per the petitioner averment the notice of the complaint was served to the petitioner hospital privately on 15.03.2022 without a copy of complaint and annexure to appear on 01.04.2022 since, there was no appearance before this commission on that date the opposite party was called absent set exparte and the complaint was adjourned to 02.05.2022 for further proceedings.  According to the petitioner the private notice was received by and administrative staff at the reception counter at Nungambakkam Unit of the Hospital and during that period the petitioner was  in process of shifting the Unit to  Mainbuilding at Vadapalani and therefore by misplacement of notice and omission on the part of the staff in forwarding notice to responsible  officer of the hospital, there was no follow up action and hence there was no appearance on that date.  It is further contended that on receipt of interim order dated 07.04.2022 passed by the commission to the Vadapalani Office then only it came to knowledge of the petitioner about the exparte order dated 01.04.2022 and prayed to setaside the same by filling petition under Sec 13(2) and (4) of CP Act 1986 and rules 88 and 89 of Tamilnadu consumer protection rules 1988.

5. But on the other hand the respondent/complainant opposed the application by stating that that the petition is not maintainable in view of order passed by the Apex Court in Rajeev Hitendra Pathak & Ors Vs. Achyut Kashinath Karekar & Anr as the Apex court clearly upheld neither district forum nor the state consumer commission have power to recall or review its own order and further contended the summon and copy of the complaint was posted to last known address of the opposite party which was returned unserved and thereafter the complainant took out private notice by ascertaining the present address and same was served on 15.03.2022 and if the petitioner was diligent he could have entered appearance between 15.03.20222 to 01.04.2022 but on the otherhand the present petition was filed on 29.04.2022 with frivolous reasons and prayed to dismiss the petition with cost.

6. It is found that the notice sent by the commission to Nungambakkam Unit which is stated in the complaint was returned unserved but the private notice sent to Vadapalani unit was served on 15.03.2022 and for non appearance of the petitioner, the petitioner was set exparte on that date.  The counsel for the petitioner by relying upon a decision reported in 1964 AIR 993 Supreme court  Arjun Singh Vs Muhindra Kumar and others contended that the proceeding setting Ex-parte is merely recording the minutes of proceedings and it is not an order which the court is authorized to make.  Further the petitioner counsel relied upon AIR 1955 Page 425 Supreme Court Sangram Singh Vs Election Tribunal, Kotah and contended that the law of Natural Justice require that a party must be heard in a court of Law and must be afforded opportunity to defend himself unless there is express provision to the contrary.  The petitioner counsel also relied upon a decision reported in AIR 1981 Supreme Court Page No.606 where in it was held that in the interest of justice even though there is no express provision in the Act or  rules the Tribunal should be considered as having ancillary powers which are necessary to do its function effectively and therefore contended that even though there is no specific provisions in the Consumer Protection Act 2019, for setting aside the Ex-parte order by the district forum or State Forum the commission has incidental power to setaside the Ex-parte order.  The petitioner also relied upon the decisions reported in 2017 MWN (Civil) Page.77 B.Nagaraj Vs. Green Earth Biotech and also 2015 (7)Allahabad MR 356 Bombay High Court Arun son of Sudamrao Vs. Sangameswar Tractor and also a decision in New India Assurance co. ltd. Vs Hill Multipurpose Cold Storage and by relying upon the above said decisions the petitioner counsel contended that the Ex-parte order can be setaside by the District Forum in order to give opportunity to the petitioner to defend his case.

 7. But on the other hand the counsel for the respondent relied upon a decision reported in Jyotsana Arvindkumar Shah & Others Vs Bombay Hospital Trust Dated:22.01.1999, and contended that the order of State commission in that case setting aside of the Ex-parte order was one without jurisdiction and cannot be sustained as there was no provision in the Act enabling the State commission to set aside an exparte order.  The respondent counsel also relied upon  a decision reported in Rajeev Hitendra Pathak & Ors Vs. Achyut Kashinath Karekar & Anr dated 19.08.2011wherein New India Assurance co. and Jyotsana Arvindkumar Shah & Others Vs Bombay Hospital Trust cases were referred and discussed and in view of the divergent views expressed by Co-ordinate Benches the matter was referred to larger Bench to consider with regard to power to recall the Ex-parte order after referring  to various provisions contained in the Consumer Protection Act it was held that the District Forum and the State Commission have not been given any power to setaside the exparte order and power of review which have not been expressly given in the Act and rules and further held that the decision in Jyotsana Arvindkumar Shah & Others Vs Bombay Hospital Trust case laid down the correct law and the later decision in New India Assurance Company Limited is untenable and cannot be sustained and further held that after the introduction of Sec.22 A in the Act in the year 2002 by which the power of review or recall was vested with the National Commission only. The respondent counsel also relied upon a decision by the Hon’ble Tamil Nadu State Consumer Disputes Redressal  Commission in CMP Sr.NO.484/2021 in F.A.No.06/2015 in CC.No.137/2011 Dated:28.04.2022 wherein it was held that the District Forum and State Commission have not been given any power to review or setaside the Ex-parte orders and contended that the Consumer Protection Act is a Self contained Act which has a separate set of procedures and the common procedural law viz., Civil Procedure code, hardly has any applicability to the same unless expressly mentioned in the Act itself and therefore the respondent counsel contended that the petition to setaside Ex-parte order is not maintainable before the District forum. 

8. On perusal of contention and the citations relied upon by either side it is clear that the District Forum has no power to setaside the Ex-Parte order and no such power has been granted in the Consumer Protection Act or in the Rules made thereunder. Hence there is no force in the contention of the petitioner that the natural justice require that the petitioner must be given an opportunity to appear and defend its case.  In view of the reasons as discussed above the application filed by the petitioner to setaside the Ex-parte order dated 01.04.2022 is not maintainable before this commission and hence the same is dismissed.  Point No.1 is answered accordingly.

          In the result, this petition is dismissed.  No costs.

Dictated to the Steno-Typist transcribed and typed by him corrected and pronounced by us on this 15^th day of   June  2022.

 

MEMBER – I             MEMBER – II                                   PRESIDENT