M/S. Specialist Hospital vs Jesus John

THIS revision is directed against the order of the State Commission Kerala dated 09.06.2014 whereby the State Commission allowed the application for restoration of appeal dismissed in default moved by the respondent complainant and restored the appeal to its original number.

SHORN off unnecessary details, facts relevant for the disposal of this revision petition are that respondent filed a consumer complaint against the petitioners alleging medical negligence in his treatment. The complaint was dismissed by the District Forum vide order dated 25.01.2011. Being aggrieved of the order of the District Forum, the respondent preferred an appeal. The said appeal came up for hearing on 23.01.2014 and it was dismissed by the State Commission for non prosecution on account of failure of the respondent or his counsel to put in appearance. Respondent, therefore, moved an application for restoration of appeal which was allowed by the State Commission vide the impugned order.

MS . K. Radha, Advocate for the petitioner has contended that the impugned order of the State Commission restoring the appeal is without jurisdiction because the State Commission has no power to review its own order. In support of this contention, he has relied upon the judgment of the Supreme Court in the matter of Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karkar & Anr. 2011 (9) SCC 541. Learned counsel for the respondent on the contrary has argued in support of the impugned order. In the alternative he has contended that if the State Commission ''s order is held to be without jurisdiction, then Commission may condone the explanation for non appearance and restore the appeal. Hon ''ble Supreme Court in the case of Rajeev Hitendra Pathak (supra) has observed thus:: "On a careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the statute and derive their power from the express provisions of the statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and the power of review and the powers which have not been expressly given by the statute cannot be exercised."

IN view of the above finding of the Supreme Court, it is clear that the District Forum and the State Commission cannot review their own order. As such the impugned order restoring the appeal is without jurisdiction and is liable to be set aside.

BE that as it may, the fact remains that respondent complainant had filed an application for restoration of appeal explaining the circumstances which prevented him from appearing before the State Commission on the date of hearing. The petitioner alongwith the revision petition has filed copy of the affidavit of the respondent complainant giving reasons for his non appearance. The explanation for non appearance is spelt out in para 2 of the said affidavit, which is reproduced thus: In the above appeal, there was a posting on 18.11.2013. On the same day there was an Harthal through out the country and hence myself and my counsel could not reach Trivandrum in order to attend the above case. On the same day the above appeal was suomoto adjourned by this Hon ''ble State Commission to 13.01.2014. But due to some accidental mistake, the above posting date was wrongly noted by counsel as 23.01.2014 instead of 13.01.2014. Since there was some inconvenience for him on 23.01.2014 to attend in the above appeal, I was called upon by him to come over at Trivandrum and attend the above appeal case before this Hon ''ble Court, as a party -in -person, also seeking an adjournment of the above case for hearing on another day. But on 23.01.2014, when I reached before this Hon ''ble State Commission, it was understand that there was no posting of the above appeal on 23.01.2014. On inquiry in the office, it was understood tome that on 13.01.2014 itself the above appeal was called in open court and it was dismissed due to my absence on 13.01.2014.

ON reading of the above, it is clear that respondent complainant could not appear in the appellate court on hearing dated 18.11.2013 because of a country wide bandh. It is stated in the affidavit that on 18.11.2013 the State Commission adjourned the matter to 13.01.2014 but counsel for the respondent complainant due to inadvertence wrongly noted the adjourned date as 23.01.2014 and for that reason, the respondent as well as his counsel could not appear before the State Commission on 13.01.2014, the date on which the appeal was dismissed for non prosecution. For the inadvertent mistake of the counsel, the respondent complainant cannot be made to suffer injustice. Thus, in our view the explanation for non appearance is justified. Thus, we take suo -moto notice of the explanation for non appearance given by the respondent and in exercise of our revision jurisdiction under section 21 (b), set aside the order dated 13.01.2014 and restore the appeal to its original number. Matter is remanded back to the State Commission with the direction to decide the appeal on merits.

PARTIES are directed to appear before the State Commission on 04.12.2014.