DR. BHARAT J. PATEL & ANR. vs SURESHBHAI N. PARIKH & ANR.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 01.09.2015, passed by the Gujarat State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in CMA No. 736/2015 in FA No. 980/2013 "Dr. Bharat J. Patel vs. Sureshbhai N. Parik", vide which, the said application was ordered to be dismissed.

Briefly stated, the facts of the case are that the consumer complaint No. 699/2002 was filed by the Consumer Education and Research Society and Ors. against the present petitioner/Opposite Party (OP) Dr. Bharat J. Patel, alleging medical negligence on their part, during surgery for total knee replacement upon the respondent No. 3. The complainants sought direction for payment of compensation of 89,686/- alongwith interest @12% p.a. and a compensation of 3 lakh for mental harassment etc. and 5,000/- as the litigation cost. The District Forum vide their order dated 29.11.2012, dismissed the said complaint, saying that there was no negligence on the part of the treating doctors. Being aggrieved against the order of the District Forum, the complainants filed an appeal before the State Commission. The State Commission passed their order on 30.04.2015, vide which, they partly allowed the appeal and directed the OPs to pay a compensation of 2 lakh alongwith interest @9% p.a. from the date of the complaint till its payment and 5,000/- as cost of litigation. While passing this order, the State Commission observed that the respondents were served in the case, but since they were not present, they were proceeded against exparte. Alleging that none of the submissions / contentions were considered by the State Commission, the petitioner/OP filed CMA No. 736/2015 before the State Commission. However, the said application was dismissed by the President of the State Commission. Being aggrieved against the order of the State Commission, the OPs are before us by way of the present revision petition.

During hearing before us, the learned counsel for the petitioner stated that in the main order passed by the State Commission on 30.04.2015, it was recorded as follows:- "Heard Mr. H.P. Motiramani learned advocate for the appellants. The respondents are served but not remained present. Hence proceeded ex parte."

The position stated above was factually incorrect as the learned counsel for the petitioner/OPs had been regularly attending the hearings before the State Commission. In fact, the arguments had also been heard on 23.12.2014. On the next date of hearing, i.e., on 20.01.2015, the counsel for the petitioner was not present. The order was made on the next date, i.e., 30.04.2015. It was not correct to record in the said order that the respondents were being proceeded against exparte, in view of the fact that they had participated in the proceedings practically on all the dates. Against the order of the State Commission, CMA No. 736/2015 was filed, which was decided by the President of the State Commission on 1.09.2015. It has been recorded in the said order that the power of attorney of the Advocate for the petitioner was very much on record, and the reply had also been filed. There were some notes taken by the Judicial Member of the State Commission of the arguments advanced by the Advocate for the petitioner. Instead of recording this observation, the President of the State Commission had dismissed the application filed by them without any rhyme or reason. The matter should, therefore, be remitted to the State Commission for deciding the case on merits after considering all the averments made by the petitioner.

In reply, the learned counsel for the respondents stated that the petitioners, should have challenged the main order passed by the State Commission on 30.04.2015. Instead of challenging that order, they had filed the revision petition against the order dated 01.09.2015, passed by the President of the State Commission in review. The petition should, therefore, be dismissed as non-maintainable.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

It is evident from the material produced on record that Sh. Kapil Bhatt, Advocate appeared for the petitioners/OPs before the State Commission and there is a mention of this fact in the order of the State Commission dated 01.09.2015, saying that reply was also filed by the petitioner before the State Commission. It is also recorded that Judicial Member had taken notes of the arguments advanced by the Advocate, Kapil Bhatt. According to the petitioners, their written submissions were also on record. It is not understood, therefore, how the State Commission, while passing their order dated 30.04.2015, proceeded exparte against the petitioners. Even if the counsel for the petitioners/OPs had not put in appearance on that day, or on the previous date of hearing, it was the duty of the State Commission to have taken into record the material placed before them on behalf of the petitioners/OPs and then taken a decision, after considering the averments made by the petitioners.

It is clear, therefore, that the order dated 01.09.2015 and 30.04.2015 are perverse in the eyes of law, as they have not taken into consideration the viewpoint of the petitioners, while passing the said orders. This revision petition is, therefore, allowed; the orders dated 01.09.2015 & 30.04.2015 passed by the State Commission are set aside and the matter is remitted back to the State Commission with a direction to decide the matter afresh, after granting an opportunity of hearing to both the parties and their respective counsels. There shall be no order as to costs.