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Judgment
Subhash Chandra, Presiding Member
This First Appeal challenges the order dated 15.12.2022 in Review Application No.82 of 2022 emanating from the final order dated 01.11.2022 of the State Consumer Dispute Redredssal Commission, West Bengal (for short “the State Commission”) in Consumer Complaint No.28 of 2013. The Appellants have sought review of the order in Consumer Complaint No.28 of 2013 on the ground that certain submissions made by them had not been considered by the State Commission in its order. It was also contended that this order contained conclusions which would have implications on the health of the public at large in future, practice of medicines in relation to cases involving accidental head injury and/or traumatic brain injury.
The State Commission considered the Review Application filed under Section 50 of the Consumer Protection Act, 2019 and held that it could not be considered and dismissed it at the admission stage. The State Commission has held as under:
“The provision under section 22(2) of the Consumer Protection Act 1986 clearly connotes that without prejudice to the provisions contained in sub-section (1), the National Commission shall have the power to review any order made by it, when there is an error apparent on the face of the record.
So it is crystal clear to us that the State Commission has no such power to review any order made by it. Only Hon’ble National Commission can do this as per provisions mentioned therein. So, question of preferring review by invoking Section 50 of new Act, 2019 does not arise at all. Practically the Review Applicants have no locus standi to prefer review application on the strength of Section 50 of the new Act, 2019.
We have perused the observations of the Hon’ble Apex Court passed in 2008(2) S.C.C. cases, page-95 meticulously. The review applicant has cited this decision in support of his argument. In our considered view the facts and circumstances of the present case and the facts and circumstances of the cited decision are not alike in nature. Practically the cited decision has no application in the present facts and circumstances of the present review application.
Under such situation, we come into conclusion that there is no such provision under the old Act, 1986 whereby the State Commission can set aside or review of its own order.
The relief as sought for in the Review Application cannot be and should not be granted by the same Court who passed the final judgement in CC case being No.28/2013.
Considering all aspects from all angles and keeping in mind the settled principles of law and also regard being had to the citation mentioned above, we hold and firmly hold that the instant Review Application being no-RA/82/2022 has no leg to stand upon and devoid of merit. Accordingly the instant RA stands dismissed at the admission stage without any order as to the costs.”
The Appellants have contended, on the basis of the judgment of the Hon’ble Supreme Court in Mohd. Akram Ansari vs. Chief Election Officer And Others (2008) 2 SCC 95, that the State Commission ought to have considered the Review Application. It was submitted that the Revisionist/Complainant had raised several specific vital points in their original Complaint/Petition that were also argued before the State Commission, none of which were dealt with in the impugned order while dismissing the original Complaint No.28 of 2013. Therefore, reliance was placed on the above judgment which had held as under:
“If a point is not mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with.”
It was also contended that as per Section 50 of the Act, the State Commission had the power to review an order passed by it if there was an error apparent on the face of the record, on an application made by any of the parties. It was also contended that the Hon’ble Supreme Court had held in State Of Rajasthan vs. Rajendra Prasad (AIR 2008 SC 1589) that an order without any reason becomes arbitrary. It was, therefore, prayed that the Appeal be allowed and the impugned order be set aside.
We have heard the learned Counsel for the parties and perused the material on record.
The short issue before us is whether the dismissal of the Review Application under Section 50 of the Act by the State Commission was in order.
It is apparent that the Appellants had filed a Review Application under Section 50 of the Act. This Section reads as under:
“50. Review by State Commission in certain cases.—The State Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order”.
While it is evident from this Section that State Commission shall have power to review its own order, it is also explicit that the power to review is only if there is an error apparent on the face of the record. It is further evident that this review can be done either of its motion by the State Commission or on application made by any of the parties within 30 days of such an order.
Learned Counsel for the Respondent No.3 has relied upon the judgment of the Hon’ble Supreme Court in Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr. (2011) 9 SCC 541 whereby a three Member Bench of the Apex Court laid down that following amendment of Section 22 and insertion of Section 22-A of the 1986 Act, power of recall is vested only with National Commission and that the ratio laid down in Jyotsana Arvindkumar Shah vs. Bombay Hospital Trust, (1999) 4 SCC 325 was the correct position of law. In Pancham Lal Pandey vs. Neeraj Kumar Mishra and Ors., 2023 SCC Online SC 143 the Hon’ble Supreme Court held that rehearing and rewriting the judgment in Appeal without there being any error apparent on the face in the earlier order amounted to exceeding of review jurisdiction.
In the instant case, the review applicant has sought a reassessment of its submissions which, according to it, have not been considered by the State Commission. This does not amount to rectification of an error on the face of the record. Rather, it seeks a rehearing and rewriting of the order itself which is clearly not permitted under the Act. The law laid down by the Hon’ble Supreme Court in Rajeev Hitendra Pathak (supra) is explicit and hence the contention of the Appellant cannot be sustained.
In light of the discussion above, the Appeal is found to be without merits and is accordingly dismissed with no order as to costs.