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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 58(1)(b) of Consumer Protection Act 2019, against the order dated 25.11.2021 of the State Consumer Disputes Redressal Commission, U.P., Lucknow (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 403 of 2015 in which order dated 25.11.2014 of District Consumer Disputes Redressal Forum, Kanpur City (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 153 of 2008 was challenged, inter alia praying for:-
(i) Calling for the records of CC/158/2008 from the District Forum and Appeal No. 403/2015 from State Commission.
(ii) Allowing the Petition and quashing the order of the Fora below.
(iii) Remit the matter back to District Forum for fresh adjudication while granting the Revisionist an opportunity to participate in the same and submit its Defense.
While the Revision Petitioner (hereinafter also referred to as Hospital) was Appellant and the Respondent (hereinafter also referred to as Patient) was Respondent in the said FA/403/2015 before the State Commission, the Revision Petitioner was Opposite Party (OP) and Respondent was Complainant before the District Commission in the CC No.153/2008.
Notice was issued to the Respondent on 03.06.2022. Parties filed Written Arguments/Synopsis on 01.03.2023 and 03.10.2022 respectively.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:
i. On 25.08.2007, the Respondent/patient approached the Hospital seeking consultation for a severe injury in the left eye due to impact by a cricket ball. On examining, the Hospital advised mediate LRD Surgery with Guarded Visual Prognosis. Despite the urgency shown by the Hospital, the patient failed to turn up for the said procedure. The patient approached the hospital on 30.08.2007 for the said procedure. The hospital performed the surgery on the patient on the very same day. The patient was discharged from the clinic on 02.09.2007 and was advised to take rest and avoid doing any physical activity. The patient consulted the hospital on 22.09.2007 and 28.09.2007 complaining discomfort in the left eye. The patient disclosed that he cycled for a distance of 10 to 15 kms. Everyday. In the light of the said disclosure, the hospital carried a minor procedure to save the retina of the patient’s eye. On 08.10.2007, the hospital referred the patient to Dr. Rajendra Prasad, AIIMS, New Delhi.
ii. On 04.12.2007, the hospital received a Legal Notice charging false accusations and erroneous allegations against the Hospital. On 26.12.2007, the hospital gave detailed response to the Legal Notice. After that the hospital did not receive any counter-response from the patient.
iii. On 13.02.2008, the patient filed a complaint before the District Forum.
The District Forum passed the ex-parte order dated 25.11.2014 in CC no. 153 of 2008. Allowed the complaint and directed the OP/hospital to pay compensation of Rs.3,00,000/-, Rs.25,000/- expenses for treatment and costs of Rs.10,000/-.
The Hospital approached the State Commission against the ex-parte order passed by the District Forum. The State Commission dismissed the Appeal on the ground of Appeal being time barred.
The Hospital has filed the Revision Petition before this Commission with the following grounds:-
(i) the impugned order erroneously dismissed the Appeal on the ground of limitation. The State Commission failed to appreciate that there is no delay in filing the Appeal against the order of the District Forum dated 25.11.2014. The execution notice dated 03.02.2015 was received by the Revisionist on 07.02.2015. It was the first time i.e. 07.02.2015, that the Revisionist came to know about the passing of order dated 25.11.2014 by the District Forum. On receiving the Execution Notice and knowing about the order dated 25.11.2014, Appeal was filed on 02.03.2015 before the State Commission, within the statutory period. The District Forum issued the certified copy on 11.02.2015, therefore, there was no delay in filing the said Appeal. Hence, the impugned order on the ground of limitation is erroneous.
(ii) The State Commission failed to consider that delay cannot be ground for dismissal of the Application when the Revisionist contended that it was not even aware of the order being passed.
(iii) The State Commission failed to consider that the limitation can only start to run from the date of knowledge of order. If a party is not even aware of the order, the limitation cannot start to run.
(iv) State Commission failed to consider that the certified copy of the District Forum was issued only on 11.02.2015. The Appeal was filed on 02.03.2015, hence, the impugned order is erroneous and merits being quashed. The State Commission has taken a hyper-technical approach and dismissed the Appeal on extraneous and irrelevant grounds. Therefore, the order suffers from infirmity and must be set aside.
(v) State Commission failed to consider that substantial justice cannot be permitted to be defeated by technical rules of procedure. No exercise of a jurisdiction to condone the delay as per the decision and dicta of this Commission as well as the Hon’ble Apex Court amounts to failure to exercise jurisdiction and for the said reason, the impugned order merits to be set aside.
(vi) The State Commission erroneously affirmed the order of District Forum to the effect that the Revisionist had deliberately refused to accept Notice issued was without any basis in the record. There was no document of the postal authorities which recorded the observation made by the District Forum, the finding of District Forum that the Revisionist had deliberately refused to accept service was contrary to record. The District Forum had itself recorded that reason for Notice returning back was ‘addressee not available’. District Forum ought to have directed the service of Notice through substituted means of pasting or publication. The District Forum ought not to have proceeded Ex parte against the Revisionist directly. The District Forum also failed to consider that the Revisionist had duly replied to the Legal Notice issued by the complainant.
(vii) The State Commission failed to consider that if the intention of the Revisionist was to avoid being served with the Notice issued by the District Forum, it would not have accepted the service of Execution Notice also. However, both the Legal Notice as well as the Execution Notice addressed at the residential address of Revisionist was accepted.
(viii) The State Commission failed to consider that judgment relied upon it, pertains to condonation of delay, whereas the present case pertained to absence of knowledge of the impugned order. State Commission did not consider the fact that a decision is precedent only for the facts of the case it has been passed in. Even small change in facts can make a decision entirely inapplicable, especially when the same pertains to a mixed question of fact and law.
(ix) District Forum has exercised a jurisdiction not vested in it by law & the Ex-parte impugned order passed by it suffers from illegality with material irregularity. The impugned Exparte order dated 21.11.2014 was passed without giving any notice of the complaint case was ever served upon the Revisionist. As such, an opportunity of being heard was ever afforded to the Revisionist, which amounts to violation of the right of the Revisionist to a fair trial and adjudication. Hence, the impugned orders merit to be set aside. The District Forum ought to have satisfied itself that the Revisionist had refused as service as compared to Revisionist not even being served with the said Notice. Thus the Exparte order has been passed in a hurried, if not a prejudged manner without assuring the service of notice on Revisionist. State Commission failed to consider that the impugned ex-parte order dated 25.11.2014 was passed by the District Forum without there being any evidence substantiating, let along proving that any deficiency had been committed by the Revisionist.
(x) District Forum failed to consider that eye sight of the Respondent was damaged due to the cricket related injury and the failure of the Respondent to adhere to follow up treatment and advise given. Even otherwise, a claim for medical negligence could not be solely decided on the basis of the outcome of the treatment in the absence any evidence to show any deficiency or negligence on the part of the Doctor. No finding of deficiency in service in respect of medical treatment has been given by District Forum. Hence, no relief could have been granted. The State Commission while dismissing the Appeal of the Revisionist on merits has dwelled into the merits of the case also. It is trite law that an authority while dismissing a challenge on a preliminary issue cannot also decide the same on merits. The act of State Commission in doing so amounts to material irregularity in exercise of a jurisdiction vested in the State Commission. The impugned order and the order of District Forum has been passed in impudent violation of the principles of Natural Justice & Audi Alterum Partem. District Forum proceeded to hear the matter ex-parte, despite the service of notice of the complaint not being effectively made upon the Revisionist. By dismissing the Appeal of the Revisionist, the Ld. State Commission perpetuated the error so committed by the District Forum, thereby causing grave prejudice and irreparable losses to the Revisionist. The award of compensation is absolutely on the higher sided without any quantification thereof.
Heard counsel of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
8.1. The Petitioners contended that the District Forum has made a gross error in proceeding ex-parte against the Petitioner. The State Commission has also erred in finding the Appeal to be barred by limitation. The Respondent consulted the Petitioner on 25.08.2007 on account of a severe injury from a cricket ball on his left eye. The left eye of the Respondent was having multiple hole full of contaminated liquid like water. After examining the condition of the Respondent, the Petitioner had advised the Respondent for an immediate operation with the diagnosis of LRD Surgery with Guarded Visual Prognosis (GV). The Respondent, however failed to turn up for the said procedure and treatment. The Respondent approached the Petitioner on 30.08.2007 for treatment. The Petitioner operated the left eye of the Respondent on the very same date. The Respondent was discharged on 02.09.2007 in satisfactory condition with strict advise of taking rest and not doing any physical work. The Respondent again consulted the Petitioner on 22.09.2007 with complaint of some discomfort in his eye. As per the Respondent’s own disclosure, despite the advise of strict rest, the Respondent had been cycling for a distance of 10 to 15 kms. every day. In light of the situation the Petitioner undertook a minor procedure to save the retina of the Respondent’s eye on 28.09.2007 and the Petitioner referred the Respondent to Dr. Rajendra Prasad of AIIMS, New Delhi for further and better treatment. The referral by the Petitioner on 08.10.2007 reflected not only the professional but also concerned attitude of the Petitioner for the betterment of the Respondent. After 08.10.2007 never came back to the Petitioner.
8.2 The Petitioner received a legal notice on 04.12.2007. In the said notice, allegations had been made by the Respondent against the Petitioner for the first time, which were based on false, incorrect and incomplete facts. A detailed response to the said legal notice was sent to the Respondent on 26.12.2007. Thereafter, the Respondent filed a CC before District Forum. The Petitioner did not receive any notice of the said complaint. The District Forum proceeded ex-parte against the Petitioner, holding Petitioner guilty of medical negligence. Information qua the same was received by the Petitioner only on 07.02.2015 when an execution petition had already been filed by the Respondent/complainant. The Petitioner approached the State Commission by filing an Appeal against the order passed by the District Forum with an application for condonation of delay.
8.3. It is also contended by the Petitioner that the delay has been calculated from date of passing of order i.e. 25.11.2014. However, it is reiterated that the knowledge of the complaint as well as order of District Forum was only received by the Petitioner on 07.02.2015 and the Petitioner filed the Appeal before the State Commission within 30 days of the date of knowledge of the Order dated 25.11.2014. Despite timely steps taken by the Petitioner to seek appropriate legal recourse, the State Commission dismissed the Appeal being barred by limitation.
8.4 It is contended by the Respondent in his written arguments that the facts stated as to severe ball injury and LRD surgery with Guarded Visual Prognosis (GV), both are afterthought and no such facts were ever told by the Petitioner while replying notice dated 04.12.2007. It is also contended by the Respondent denying the facts in para 5(d) of the Petition that in the prescription of Respondent, having OPD No. 931579 of the AIIMS New Delhi, the doctor of AIIMS has written ‘insufficient records’. The Respondent has filed copy of OPD Card for support of his contention. It is further contended that the plea taken by the Petitioner that the Respondent has filed a baseless and frivolous complaint for medical negligence, are denied. It is contended that the Petitioner conducted the operation and was responsible for the condition of the Respondent. The Petitioner’s allegation that Respondent himself responsible for his condition as he did not follow the poster-operation medical advices, is only to hide the negligence caused, the baseless allegations on the Respondent to cover up its negligence are being imputed on the Respondent. The plea that grave prejudice and irreparable loss has been caused to the Petitioner is denied, when it itself chose not to appear and answer while having been given ample opportunity. The whole act of the Petitioner was to prolong the case and cause delay in delivering justice to the Respondent who has lost his eye sight due to two wrong operations by the Petitioner. Hence, the Revision Petition be dismissed.
We have carefully gone through the rival contentions of the parties, the orders of State Commission and District Forum and other relevant records and are of the view that Petitioner has made out a reasonable case that Petitioner was not property served and hence did not know about the proceedings before the District Forum and contest the case on merits. As per stamp of District Forum, he got the copy of order of District Forum on 11.02.2015. In the interest of justice, we consider it appropriate, even giving him a benefit of some doubt, that perhaps he got to know about the order of District Forum on 07.02.2015 only, when execution proceedings were initiated, and he after getting a certified copy of order of District Forum on 11.02.2015, filed the Appeal before the State Commission on 02.03.2015.
We, in the interest of justice, consider it appropriate that Petitioner is heard by the District Forum on merits. Accordingly, we set aside the order dated 25.11.2021 of the State Commission as well as order dated 25.11.2014 of District Forum and remand the case back to District Forum for fresh consideration on merits after giving an opportunity to both sides to be heard in the matter subject to payment of costs of Rs.30,000/- to be paid by Petitioner to Respondent.
Parties to appear before the District Forum on 30.08.2023. We make it clear that we have not gone into the merits of case. The Petitioner shall deposit the cost of Rs.30,000/- before the District Forum within four weeks of this order, and the same shall be disbursed by the District Forum to the Respondent herein (complainant) within one month of 1st date of appearance of both the parties before the District Forum as fixed under this order.
Revision Petition stands disposed of. The pending IAs in the case, if any, also stand disposed off.