Subhash S vs Dr. Pradeep GK & Anr

Subhash Chandra, Presiding Member

The present revision petition has been filed against the judgment dated 24.03.2021 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ‘the State Commission’) in RP no. 06 of 2021 arising from the order dated 28.01.2021 of the District Consumer Disputes Redressal Forum, Vazhuthacaud, Thiruvananthapuram (in short, ‘the District Forum) in IA no. 25 of 2020 in CC no. 323 of 2017.

The brief facts of the case are that the petitioner Mr Subhash S visited Chaithanya Eye Hospital and Research Institute on 30.06.2017 due to a problem in his left eye. After carrying out some eye tests, eye drops were prescribed for two weeks by Dr Pradep G K, respondent no.1 herein. After using the eye drops for two weeks the petitioner’s problem was cured completely. On 27.07.2017, the petitioner went to the doctor for review. The petitioner was directed to go for another dilation eye test. After the test, the doctor prescribed spectacles and directed the petitioner to go to Drishti Opticals located in the premises of the respondent no.1. On the same day, i.e., 27.07.2017, the sales expert at Drishti Opticals explained to him about progressive bifocal lenses and spectacles amounting to Rs.8600/- were ordered. An advance of Rs.4000/- was paid against a receipt. On 04.08.2017, the petitioner was given the spectacles and a card for reading.

The petitioner alleges that using the spectacles while working in the computer, the petitioner could see the center portion of the computer screen in depressed and all other four corners bending towards the petitioner’s face as distorted/ concave. The petitioner further states that he could see the letters clearly only where the eyes were accurately focused on the letter and other letters around were blurred. The petitioner alleges that he is using reading glasses for working on computer and reading which were bought for Rs.120/- and which are more comfortable to use than the one which he had purchased for Rs.8600/-. The petitioner further states that he never used the spectacles while walking or driving a vehicle. The petitioner only faces only difficulty while reading the small letters on TV screen. The petitioner states that when using the reading glass, the surface of book, computer screen, calendar are seen flat, whereas when the spectacles purchased are used, the vision gets distorted / concave. This gives discomfort to his eyes and his vision.

The petitioner on 05.08.2017 visited Drishti Opticals and informed them about the problems being faced while using the spectacles. Drishti Opticals made some adjustments and returned the spectacles with the excuse that the petitioner has to use it for 10-15 days for getting the right vision. The petitioner again visited Drishti Opticals on 17.08.2017 and informed them that he was unable to use the spectacles.  As there was no proper response from Drishti Opticals, the petitioner approached the District Forum seeking return of Rs.8600/- for the purchase of the spectacles, compensation of Rs.10,000/- and cost of court expenses.

The District Forum vide IA no.25 of 2020 in CC no.323 of 2017 dated 28.01.2021 has held as under:

Heard both sides. An impleading petition can be filed at any stage of the proceedings in order to enable the court/ Commission effectually and completely to adjudicate upon and settle all the questions involved in the case. In short, the Commission has got the discretion to add a party, any person who is found to be a necessary party or proper party. The general rule in regard to impleadment of parties is that the complainant in case, being dominus litis may choose the persons against whom he wishes to litigate. The opposite party has not produced any evidence to show that they are the tenant of the M/s Chithanya Eye Hospital and Research Institute. The M/s Chithanya Eye Hospital and Research Institute will be having an owner. We cannot expect a lay many to know the name and details of the owners. So the objection raised on that ground cannot be accepted.

Hence for fair and effective trail of the complaint, IA no. 25 of 2020 filed by the complainant is allowed.”

Aggrieved by the order of the District Forum, Dr Pradeep G K and Managing Partner of of Chaithanya Eye Hospital and Research Institute, respondent herein, approached the State Commission. The State Commission in RP no. 06 of 2021 decided on 24.03.2021 has held that:

“Having heard the matter at length, we find that the District Commission has not addressed the issue in the proper perspective. Addition or removal of parties after a litigation has commenced is permissible only at the discretion of the court or tribunal trying the matter. Therefore, it is not within the absolute right of the complainant as dominus litis to decide who all should be made parties, after institution of the proceedings. Any addition or removal of parties after institution of the proceedings can be done only by the court. Therefore, it is the discretion of the court or tribunal to permit an addition or removal of parties to a litigation.

Going by the provisions of Code of Civil Procedure, only persons who are necessary parties or proper parties would be permitted to be brought on the party array of a suit. Courts have time and again reiterated the position that no person would be impleaded as an additional party unless he is a necessary or proper party. The tests for determining whether a person is a necessary or proper party have been laid down by the Supreme Court in “Kasturi vs Iyyamperumal and Others (2005) 6 SCC 733 in the following words:

“From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are – (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party”.

In the above case, there is nothing on record to show that the revision petitioners are persons who satisfy the above two tests. The 1st respondent has not disclosed how and on what basis he is claiming relief against them. In fact, no relief has been claimed against them in the complaint. The 2nd respondent is the proprietor of M/s Drishti Opticals. He is the person who is alleged to have sold the disputed spectacles to the 1st respondent. The 1st revision petitioner is a medial practitioner and Consultant Ophthalmologist of a hospital. The 2nd revision petitioner is the Managing Partner of the Hospital. There is nothing on record to show that they are necessary as parties, for a proper and complete adjudication of the dispute in the complaint preferred by the 1st respondent. In the above context, the following further observations of the apex court in Kasturi vs Iyyamperumal and Others (supra) are illuminating:

“13.   From the aforesaid discussion it I pellucid that necessary parties are those persons in whose absence no decree can be passed by the Court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the Court would be necessary  in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person”.

In the present case, the above tests have not been satisfied. Therefore, there was no justification for allowing the impleading petition filed by the 1st respondent.

In view of the above, this revision petition is allowed. The order under the revision is set aside. There shall be no order as to costs”.

Hence, the present revision.

I have heard the amicus curiae for the petitioner and respondent no.2. None appears on behalf of respondent no.1.

On behalf of the petitioner it was argued that after the prescription of spectacles by respondent no.1 it was respondent no.2 who prepared the spectacles and he was acting on behalf of respondent no.1. His impleadment is necessary before the District Forum in the interest of justice.

The respondent in their written submissions has stated that after using the eye drops, the petitioner was cured completely and after a month the respondent no.1 directed the petitioner to take a dilation test and found that the petitioner’s eyes does not have any infection and instead prescribed spectacles.  The respondent states that the petitioner purchased a pair of progressive bifocal spectacles from the 2nd respondent for an amount of Rs.8600/-. The respondent alleges that the petitioner could not use the spectacles as it was giving him distorted vision. Hence, he sought return of the amount paid by him and claimed a compensation of Rs.10,000/-. It is argued that the interim order is flawed as respondent no.2 is a tenant in the premises of respondent no.1. The respondents further allege that the District Forum had erred in allowing the impleading petition. Hence, the respondent alleges that the revision petition be dismissed.

It is apparent that the impugned order is against an order based on an interim application filed before the District Forum. While allowing this interim application, the State Commission has relied upon the order of the Hon’ble Supreme Court in Kasturi (Supra) which laid down a two-fold test to determine whether a party can be impleaded during the course of a trial. The State Commission has disallowed the impleading petition holding that the two fold criteria was not met. Having observed in its order that “Addition or removal of parties after a litigation has commenced is permissible only at the discretion of the court or tribunal trying the matter”, the State Commission erred in deciding that impleadment was not warranted and in setting aside the order of the District Forum which was trying the matter rather than directing the District Forum to examine the issue in light of the criteria laid down by the Hon’ble Apex Court. The order of the State Commission is therefore, liable to be set aside.

For the foregoing reasons, the revision petition is partly allowed. The order of the State Commission is set aside and the matter remanded to the District Forum with directions to examine the Interim Application as per the criteria laid down by the Hon’ble Supreme Court in Kasturi (supra) expeditiously.

Parties are directed to appear before the concerned District Forum of Kerala on 10.07.2023.