SH.SHEIKH FARID vs UDAYAN MEDICAL CENTRE

BRIEFLY the facts are that the complainant filed a complaint for the recovery of Rs. 4,00,000/- against Udayan Medical Centre, opposite party on the ground that the respondent did not exercise the amount of care and expertise in treating his son Mr. Sheikh Abdul Samad which they ought to have exercised. Ultimately he died on 9th September'' 91. The complaint was dismissed in default on 20th March, 1991 as neither the complainant nor his counsel turned up on that date.

THE complainant moved an application dated 10th April, 1992 for restoration of the complaint. It is stated therein that the complainant''s Counsel appeared on 20th March, 1992 to file a rejoinder but the Commission was busy in hearing arguments in another case and it had kept the matter pending on the first call. He went away to attend two other cases in the other Courts. When he came again he was informed by the Court Master that the presence of the Counsel had been noted and he could go away THE Court Master at his request assured him that short adgournment would be granted for filing the rejoinder. It is further pleaded that the complainant sent his clerk after lunch to find out the date and he was informed by the Court Master that the case had been adjourned for 10th April, 1992. He pleaded that when he reached the court on 10th April, 1992, he found that the case was not on the cause list. Upon verification from the office it was revealed that the complaint had been dismissed in default on 20-3-1992. It is alleged that the complaint had been dismissed due to human error. Consequently it is prayed, that the order of dismissal be set aside and the complaint be restored

The complainant along with application has filed an affidavit of Shri Inder Singh, Clerk of Shri S.N. Verma. It is stated by him that the facts given in the application for restoration were true and correct to his knowledge.

THE application has been contested by the respondent. It is pleaded by him in the written reply that the complainant had not come with clean hands. In fact his counsel never appeared in the case which was called several times. THE complainant with malafide intention put the blame for dismissal of the complaint on the staff of the Commission. It is further stated that the Counsel of the respondent was present in the court through out the proceedings and appeared on each occasion when the case was called. However, on account of the absence of the complainants counsel, the matter was passed over a number of times. Finally the Commission dismissed the same as no one appeared on behalf of the complainant. The respondent further states, that if the Commission was holding the Court, it was the duty of the complainant to make a request to the Commission and not to the Court Master to grant adjournment. Consequently, it is prayed that the application be dismissed as it has been made to harass the respondent.

THE reply is supported by an affidavit of the Counsel for the respondent. It is stated in the affidavit that on 20th March, 1992 he appeared for respondent before the Commission but Counsel for the petitioner did not appear even once whereas the matter was called several times after regular intervals. Ultimately the Hon''ble Commission dismissed the complaint. He further stated that he appeared on each and every occasion when the case was called and remained present in the Court Room till the complaint was dismissed in default. We have heard the learned Counsel for the parties. In the allegations made in the petition the complainant has put the blame on the Court Master. If the complainant''s Counsel wanted adjournment it was his duty to have made a request to the Commission. It was not expected from the complainant''s counsel that he should have put the blame on the Court Master. Mr. Verma stated that he came in the Court Room twice. The counsel for the respondent in his affidavit has categorically stated that the counsel for the complainant did not appear on that date. It may be possible, that the counsel for the respondent might not have seen the complainant''s counsel as he never appeared before the Commission. Mr. Verma''s statement at the bar that he did come to the Court room can not be disbelieved. It is possible that when he entered the Court room, the respondents counsel might not have seen him. It is well settled that for the fault of the counsel normally litigant should not be allowed to suffer. We think that the respondent will be amply compensated, if the complaint is restored on payment of costs. Consequently we accept the application and restore the complaint subject to payment of Rs. 500.00 as costs. The copies of the order be given to the parties. Complaint allowed with costs.