Bishama Kumar vs Subhash Chand & 4 Ors

Prem Narain, J

This revision petition has been filed by the petitioner Bishama Kumar, Pharmacist who is the OP no.5 in the complaint case, against the order dated 17.05.2018 passed by the Himachal Pradesh State Commission, Shimla ('the State Commission') in FA no. 164 of 2017 filed by respondent no.1 who is the original complainant. All the parties are present today.

It is argued by the learned counsel for the petitioner that the District Forum had dismissed the complaint vide order dated 20.04.2017 and the complainant/ respondent no. 1 preferred an appeal before the State Commission. The State Commission vide order dated 17.05.2018 has passed the following order:

"In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum is partly set aside. It is ordered that consumer complaint against opposite parties No.1 to 4 is dismissed and minor complainant is relegated to civil court for redressal of grievance against opposite parties No. 1 to 4. It is further ordered that consumer complaint against opposite party No.5 is partly allowed. It is ordered that opposite party No.5 would pay compensation to minor handicapped complainant aged eleven years to the tune of Rs.100000/- (One lac) alongwith interest @ 9% per annum from the date of institution of complaint till realization within one month after the receipt of certified copy of order of State Commission. It is further ordered that in addition opposite party No.5 would pay litigation costs to the tune of Rs.5100/- (Five thousand one hundred) to minor handicapped complainant. Order of learned District Forum is modified to this extent only. Prescription slip dated 21.08.2009 annexure C-1, medical bill issued by opposite party No.5 annexure C-2 dated 21.08.2009 and handicapped certificate annexure C-3 issued in favour of minor complainant would form part and parcel of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of".

Hence, the present revision petition.

Heard the learned counsel for the parties and perused the record. Learned counsel for the petitioner stated that the petitioner/ OP no.5 was proceeded ex parte vide order dated 04.08.2017 of the State Commission. The State Commission has passed the order on the basis of deemed service against OP no.5 and the petitioner was proceeded ex parte, therefore, he did not get any information that he has been proceeded ex parte. Further, the State Commission in its final ex parte order dated 17.05.2018, has burdened the petitioner with liability to pay Rs.1.00 lakh to the complainant. It is stated by the learned counsel that the petitioner is a small shop keeper at Bilaspur District, Himachal Pradesh and the notice sent by the State Commission has not been received by him. The State Commission has proceeded with the matter on the basis of presumption of deemed service as per section 28 of the Consumer Protection Act, 1986. It is further stated that the address on the notice sent was not complete, and therefore, it is not clear as to whom the notice was served. He had only sold Gentamycine injection of 80 mg whereas the slip sent by the doctor was for 40 mg, because, he was not having the Gentamycine injection of 40 mg at that time. It was the duty of the doctor and the concerned nurse to give the right dose to the patient. The District Forum and the State Commission have dismissed the complaint against the concerned doctor and the concerned nurse, however, the State Commission has put the blame on the OP No.5/ petitioner. He wants to contest the appeal on merit and he has a strong case and the matter be remanded to the State Commission for fresh adjudication.

On the other hand, the complainant has stated that after the injection was administered, he felt numbness and pain in his left leg. Further, he has not received Rs.7000/- which was ordered by this Commission on 26.06.2018 as to and fro and allied expenses. Learned counsel for respondent no.5/ OP No. 4 has stated that it is wrong to say that the address given by the complainant was wrong and the notice was sent at the wrong address. The same address has been provided in the present petition as well as same has been recorded in the order of the District Forum. Therefore, it is wrong to say that the notice was not served to the petitioner. It is further stated by him that orders dated 04.08.2017 and 17.05.2018 have been challenged in one revision petition which is not permissible.

I have carefully considered the arguments of the learned counsel for the parties and examined the record. It is clear that notice was sent to the correct address on which the shop was situated however, neither the AD card nor the notice was received back. The State Commission has taken a view that under section 28 of the CP Act, 1986, the service may be treated as deemed service if the notice has not been received back within 30 days. Though the provision is legally correct, however, in practice, sometimes registered letters are not delivered at the proper address or they are lost and in such situation, this provision of deemed service may result in miscarriage of justice.

Taking a practical view in the matter and looking at the facts and grounds of the revision petition, I deem it appropriate to remand the matter to the State Commission for deciding the appeal afresh in respect of liability of OP no.5/ petitioner, subject to payment of Rs.20,000/- to the complainant. The petitioner has stated that he has deposited Rs.1.00 lakh with the District Forum for getting stay of the execution order vide this Commission's order dated 26.06.2018.

Cost of Rs.7,000/- which was ordered by this Commission on 26.06.2018 as to and fro and allied expenses, has not yet been paid and therefore, the District Forum is directed to release Rs.27,000/- to the complainant when the complainant approaches the District Forum. The State Commission to proceed with the case only after the complainant has received Rs.27,000/- from the District Forum.

Accordingly, the revision petition is allowed and the order of the State Commission dated 04.08.2017 is set aside and the order of the State Commission dated 17.05.2018 is also set aside in respect of the order relating to Rs.1.00 lakh to be paid by the petitioner/ OP No.5 to the complainant.

After the release of Rs.27,000/- to the complainant by the District Forum, the remaining amount of Rs.73,000/- would be returned to the petitioner/ OP no.5.

Parties to appear before the State Commission on 1st October 2019.