Savi Aggarwal vs Poonamjit Kaur

THIS appeal has been directed by the complainant against order dated 23.3.2005 passed by District Consumer Disputes Redressal Forum -I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) vide which her application for restoration of the Complaint No. 860 of 2003 (which was dismissed in default) has been dismissed.

BRIEFLY stated the facts are that Mrs. Savi Aggarwal herself an Advocate, filed a complaint under Section 12 of the Consumer Protection Act, 1986 against the respondents on the allegations, that she was suffering from Thyroid disease and was getting regular treatment from Dr. S.D. Deodhar, M.D., M.A.M.S., Rheumatologist and General Physician, Santokh Nursing Home, 846, Sector 38 -A, Chandigarh. She was advised to get her Haemoglobin checked after every six months. The last time, she got it checked from Medilab (Medical Diagnostic Lab Services) Sector 6 Market, Panchkula on 1.4.2003. As per (Report (C -1), it was found to be 8.3. gm%. It was further averred that she approached respondent on 9.10.2003 for getting Haemoglobin checked, which was tested by their lab and the report indicated the result, ''14.0 gm/dl'' and the respondents charged Rs. 40 as charges vide report (C -2). However, the report was shown to Dr. S.D. Deodhar who immediately opined that the result shown to him was somewhat shocking as the Haemoglobin of the appellant did not appear to be 14.0 gm/dl and advised her to get it checked from some other lab. She again got checked Haemoglobin from Medilab, Sector 6, Panchkula on 11.10.2003 and the report showed Haemoglobin 8.9 gm % vide report (C -3). Therefore, it was averred that the respondents had checked her Haemoglobin in a careless manner and cheated her by giving inflated report and thus there was deficiency in service. The respondents were asked to compensate her for making wrong report, orally as well as vide legal notice, but of not avail.

WITH these allegations, above mentioned complaint was filed.

THE said complaint was dismissed in default on 10.8.2004 as none turned up on behalf of the appellant on that day. Aggrieved by the said order, the appellant filed an application dated 31.8.2004 for restoration of the complaint, which was contested by the respondents. The District Forum, after hearing the learned Counsel for the parties vide order dated 23.32005, dismissed the application for recalling order dated 10.8.2004 by holding that if the Counsel was to go out, he should have made some alternative arrangement for appearance and thus, she had not shown good cause for non -appearance of her Counsel. Along with the application, an application for condonation of delay of 30 days in filing the appeal was also filed. The said application for condonation of delay was allowed vide order dated 30.8.2005.

WE have heard Mr. Hemen Aggarwal, Advocate, learned Counsel for the appellant and Mr. K.S. Bawa, Advocate for the respondents and carefully gone through the file.

THE allegation of the appellant is that on 10.8.2004, her Counsel had to go out due to some domestic/family problem and he had requested Mr. Pankaj Chandgothia, Advocate to attend the case but he could not appear as had to go suddenly to Delhi for some urgent work and as such due to non -apperance for unavoidable circumstances, the complaint was dismissed. The respondents have filed reply stating that the learned Counsel for the appellant as well as Mr. Pankaj Chandgothia, Advocate were very much in Chandigarh as Mr. Pankaj Chandgothia, Advocate was seen on 10.8.2004 before the Forum at Chandigarh but did not intentionally appear. It was further stated that the learned Counsel for the appellant was the husband of the appellant who had attended other Courts but did not appear in this case as he was physically present before the First Division Bench consisting of Honble The Chief Justice and Honble Mr. Justice Surya Kant in his case ''Improvement Trust, Amritsar v. Harjinder Kaur'', which was listed at Serial No. 232 at page 54 of the ordinary supplementary list dated 10.8.2004. Copy of the list dated 10.8.2004 has been attached with the reply as Annexure R -1. From the mere fact that the case of the learned Counsel for the appellant was mentioned in the ordinary supplementry list dated

8.2004, IT cannot be said that he actually appeared before the First Division Bench on 10.8.2004. The copy of the order showing that he had appeared on that date before the First Division Bench has not been produced on file. Mr. Hemen Aggarwal, Advocate has filed duly sworn affidavIT stating that he did not appear before the First Division Bench in Punjab and Haryana High Court at Serial No. 232 in ordinary supplementary list. It is true that the appellant did not file reply to the applications filed by the respondent Nos. 2 and 3 adjournments. It appears to be the reason for the District Forum to dismiss the complaint in default. However, IT has been held a number of times that the District Forum should be slow in dismissing the complaints in default. There is nothing to disbelieve the sworn affidavIT of the appellants Counsel to the effect that he was to go out to attend to some domestic/personal problem and had told Mr. Pankaj Chandgothia, Advocate to appear but he did not appear. The other party can be compensated for by costs. 10. In such circumstances, we are of the opinion that a good cause had been made out for non -appearance of the Counsel and as such, the appeal is accepted and the order dated 10.8.2004 dismissing the complaint is recalled subject to payment of Rs. 500/ - as costs and the complaint be restored to ITs original number. Now, the parties are directed to appear before the District Forum -I, U.T., Chandigarh on 26.10.2005. Copies of this order be sent to the parties free of charge. Appeal allowed.