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Judgment
Dr. S. M. Kantikar, Presiding Member
This is the case of alleged medical negligence against the Petitioner / Opposite Party, Dr. G. Ch. Hanumantha Rao. The District Forum, Srikakulam partly allowed the Complaint and directed the Opposite Party to pay Rs. 3 lakhs + Rs. 3,000/- towards the cost of litigation.
The Petitioner appealed before the State Commission, Andhra Pradesh, Vijaywada (State Commission in short). It was dismissed for non-prosecution. The relevant paragraphs (2) of the impugned Order is reproduced as below:
“2. No representation on behalf of the appellant from 01.06.2016 to 18.09.2019. Hence, the matter is posed to today under the caption “for dismissal”. Today also no representation on behalf of the appellant, even though the matter is posted “for dismissal”. It seems that the appellant is not interested to prosecute the matter, hence the appeal is liable to be dismissed.
In the result, the appeal is dismissed for non-prosecution.”
Being aggrieved, the Petitioner filed the instant Revision Petition.
We have heard the learned Counsel for both sides. There was a delay of 184 days in filing the Revision Petition. We have perused the application for condonation of delay. The Petitioner stated that due to lapse on the part of the Advocate, he should not suffer. He has already deposited the amount as ordered by the State Commission for the conditional stay of the Order of District Forum.
With respect to the impugned Order of dismissal of Appeal for non-prosecution, the submission filed by the learned Counsel are reproduced as:
That the Appellant's Counsel had failed to appear before the Hon'ble State Consumer Forum on 09.10.2019 which is neither willful nor wanton and it is due to bonafide mistake on account of the bifurcation of the State of Andhra Pradesh and also the bifurcation of State Consumer Forum into two Telangana State Consumer Forum and AP State Consumer Forum There was lot of confusion and difficulties arose in transfer of pending cases from common State Consumer Forum at Hyderabad to AP State Consumer Forum at Vijayawada. The State Consumer Forum was used to function at Hyderabad commonly for both the States for a long time. The Hon'ble A.P. State Consumer Disputes Redressal Commission has been shifted to Vijayawada and started functioning independently from May, 2018 and all the files pertaining to the State of Andhra Pradesh have been transferred to Vijayawada. There was serious confusion with regard to the sitting of the President and other members of the State Consumer Forum at Vijayawada and also with regard to the transfer of pending cases. The petitioner's Advocate who was practicing at Hyderabad at that time had no knowledge of the dates of hearings. Neither the petitioner nor his Advocate had any knowledge of hearing and listing of the Appeal before the State Commission on 09.10.2019.
That the Government of India and all other States including the State of Andhra Pradesh declared Lockdown on 22.03.2020 on account of the spread of COVID-19 and all public services including Courts were closed down. The Hon'ble State Commission did not deliver the free copy of the Order immediately. On coming to know of passing of the impugned Order in the first week of October, 2020 the petitioner got applied for the Certified Copy of the Order and the same was delivered on 18.10.2020. The certified copy was delivered on 25.02.2020.
It is apparent from record that the appeal was filed before the State Commission in the end of year 2016. The proceedings from 14.03.2017 till 09.10.2019 reveal that for about 20 dates, the Petitioner remained absent. Therefore, in our view, the State Commission rightly dismissed the Appeal for non-prosecution .
However, in the interest of justice, in our considered view, a fair opportunity should be granted to both the parties for a holistic and proper adjudication of such a case of alleged medical negligence. Considering the prevailing circumstances of bifurcation and formation of new State of Andhra Pradesh, transfer of pending matters from Hyderabad to Vijaywada created confusion amongst litigants and delay.
Therefore, we grant one more opportunity to the Petitioner to appear before the State Commission, subject to payment of cost of Rs. 50,000/- to the Complainant through the State Commission. Accordingly, the Order of the State Commission is hereby set aside and the matter is remanded to the State Commission to decide on merit. This shall not be treated as a precedent and the same has been decided keeping the unique facts of the case, with ingredient of advocate – client relationship inherent therein.
The Petitioner, within four weeks from today, shall submit the Demand Draft of Rs. 50,000/-, in favour of the Complainant, to the Registrar, State Commission, who shall handover the same to the Complainant on his next appearance.
The Parties on both the sides are directed to appear before the State Commission for further proceedings on 07.06.2022.
We request the State Commission to decide this matter expeditiously, preferably within 6 months.