Dr. Anand Peter vs M. Afzal Khan & 6 Ors

The Registry has reported that inadvertently, the notice could not be issued to the Respondents as per Order dated 31.01.2022. The learned Counsel for the Appellant submits that he has affected the service of notice to the Respondent – M. Afzal Khan on 10.02.2022. He has filed the proof alongwith the acknowledgment receipt. However, same is not placed on our files. The Court Master confirmed that acknowledgment receipt is on record.

Heard the learned Counsel for the Appellant, who submitted that the appeal may be allowed and order issued to consider his written version by the State Consumer Disputes Redressal Commission, Madurai Bench, Tamilnadu (for short – the State Commission). He cited and relied upon the decision of the Hon’ble Supreme Court in the case of Diamond Exports & Anr. vs. United India Insurance Co. Ltd. & Ors. , Civil Appeal No. 7546 of 2021, wherein it was held that it has retrospective effect.

We have perused the impugned Order. Paragraph 8 of the Order is reproduced below:

The counsel for the respondents/ complainants stated the Commission has not empowered to set aside its own order and also not empowered to extend the statutory period of limitation for filing the written version and the Commission has not empowered to set aside its own order. Moreover the petitioner stated the reason for delay in the accompanying affidavit is only in vague there is no acceptable reasons was stated to condone the delay. The application having multiple prayer is also not maintainable since, the petitioners can raise a single prayer in single application, raising multiple prayer in a single application will raised confusions. Therefore, the application is not maintainable before this Commission and answered accordingly for the point for consideration.”

We have carefully perused the impugned Order. The State Commission, on 30.04.2019, recorded that the Opposite Parties Nos. 1 to 4 have not filed their written version within time and due to their absence on that day, they were proceeded ex-parte. Thereafter, on 11.12.2019, the Opposite Parties filed an application after the delay of 195 days to set aside ex-parte Order and to take on record the written version.

As under the Act, 1986, the State Commission has no power to review or recall its own Order, it dismissed the application. The State Commission also observed that the Opposite Parties filed the application to condone the delay to set aside the ex-parte Order, but they have not raised any prayer to condone the delay in filing the written version.

In our view, be that as it may, to avoid further delay and for the holistic adjudication of the instant case of alleged medical negligence, we at this stage, allow the Opposite Party to file a proper application for condonation of delay in filing the written version.

Thus, putting reliance upon the decision of the Hon’ble Supreme Court (supra ), we allow the Appellant (Opposite Party) to file its written version within three weeks from today, subject to cost of Rs. 10,000/- to be paid to the Respondent no. 1/ Complainant by way of Demand Draft directly in his name on or before the next date of hearing.

The Appeal is allowed with these terms.

The matter stands disposed of.