MUKAT HOSPITAL AND HEART INSTITUTE vs Brij Lal

THE sole contention in this appeal is about the denial of opportunity of hearing allowed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum) to the appellant.

IN the complaint filed by the respondent/complainant, notice was issued to the appellant-Mukat Hospital and Heart INstitute. The notice was served and appearance was put in on the date fixed by Mr. Kamaljit Singh Walia, Advocate. The appellant/O.P. was allowed time to file written statement for which the date was fixed as 24.3.2003. On 24.3.2003, the learned Counsel for the appellant Mr. Kamaljit Singh Walia, Advocate could not appear due to his illness and the complaint was proceeded ex parte against the appellant/O.P. and a date for ex parte evidence was fixed as 4.6.2003. The ex parte evidence of the complainant was received on the aforesaid date and the complaint case was listed for hearing arguments for 5.9.2003 and the complaint case was decided in favour of the respondent/complainant ex parte. Notice of appeal was issued to the respondent/complainant who put in appearance through his Counsel Mr. B.P. Gupta, Advocate. We have summoned and received the record of the complaint case and heard learned Counsel for the appellant as well as the learned Counsel for the respondent.

As mentioned above, the sole contention of the learned Counsel for the appellant is that due to illness of the then Counsel of the appellant namely Mr. Kamaljit Singh Walia, Advocate and due to the negligence of his Clerk who was deputed to find out the date fixed in the case, the reply to the complaint case could not be filed and the case was decided ex parte. Mr. Kamaljit Singh Walia, Advocate, the then Counsel for the appellant filed his affidavit in appeal wherein he deposed, inter alia, as under: "..... The deponent appeared on 29.1.2003 and the case was fixed for written statement for 24.3.2003. The deponent could not appear on the said date as he had contracted jaundice. Later on, he was diagnosed with stone in gall bladder. Thus, due to his ill health, he could not appear in the Court on said date. So the deponent asked his Clerk, Somnath to appear in the Court. The clerk had arrived a little late in the Court, so Reader asked him to come later and collect the dates. The clerk subsequently forgot to do so and as a result, the case was fixed for 4.6.2003 for ex parte evidence. Hence, because of negligence of the clerk, and due to the ill health of the deponent, ex parte order has been passed without giving even one opportunity to the deponent to produce the evidence."

IN support of his illness, Mr. Kamaljit Singh Walia, Advocate, the then Counsel for the appellant filed a photocopy of the out patient record for the treatment, which he received from the Mukat Hospital as an outdoor patient. There is no rebuttal of the averments made in the affidavit of the Counsel Mr. Kamaljit Singh, Advocate. The appellant has thus successfully shown that its Counsel in the District Forum could not appear and contest the case due to his illness. The Counsel took the care of deputing his Clerk who arrived a little late in the District Forum and was asked to come later but he forgot and thus he was negligent for which the appellant should not be allowed to suffer. The grounds mentioned above appear to be sufficient. The appellant was not allowed a reasonable opportunity of defending the case. The appeal is allowed. The impugned order is set aside. The complaint case is remanded to the District Forum-II, U.T., Chandigarh for allowing a reasonable opportunity to the appellant to file written statement and evidence and to decide the case on merit and according to law and then within the time frame as set out in the amended provisions of the Consumer Protection Act, 1986 as amended vide Amendment No. 62 of 2002. The parties are directed to appear before the District Forum-II, U.T., Chandigarh on 9.2.2004. Copies of this order be sent to the parties free of charge. Appeal allowed.