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TMI Blog2011 (8) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... are recapitulated as under: CIVIL APPEAL NO.4307 OF 2007 5. Smita Achyut Karekar was admitted to Ashirwad Nursing Home as she was suffering from the ailment of slip disc. The operation was performed on 8.10.1997. It was noticed, at about 3.45 pm on that day, that her blood vessels had ruptured accidentally during the surgery. She was declared dead at 5.35 pm. 6. The complainants issued a legal notice on 24.7.1999. Reply to the legal notice was sent on 7.8.1999. The complainants filed complaint alleging deficiency in service and claimed compensation of Rs. 15,00,000/-. The complainants did not take necessary steps to remove objection and to complete procedure under the Consumer Protection Act, 1986. The State Commission, Maharashtra issued notice to the opposite parties/appellants herein on 10.02.2004. On 9.9.2004, the State Commission dismissed the complaint for want of prosecution. On 04.11.2004, the complainants filed an application for recalling 9.9.2004 order and consequently the State Commission recalled the order dated 9.9.2004 and restored the complaint. 7. The appellants aggrieved by the said order preferred a Revision Petition No.551 of 2005 before the National Consum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring in mind that the Act under which it is functioning has not provided it with any jurisdiction to set aside the ex parte reasoned order. It is also seen from the order of the State Commission that it was influenced by the concluding portion of the judgment of the Bombay High Court to the effect that the respondent (writ petitioner) could approach the appellate authority or make an appropriate application before the State Commission for setting aside the ex parte order, if permissible under the law. Here again, the State Commission failed to appreciate that the observation of the High Court would help the respondent, if permissible under the law. If the law does not permit the respondent to move the application for setting aside the ex parte order, which appears to be the position, the order of the State Commission setting aside the ex parte order cannot be sustained. As stated earlier, there is no dispute that there is no provision in the Act enabling the State Commission to set aside an ex parte order." 6. Subsequently, in New India Assurance case this Court appears to have taken a different view as it is evident from what has been stated in para 18, the same reads as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath; (ii) the discovery and production of any document or other material object produced as evidence; (iii) the reception of evidence on affidavits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; (v) issuing of any commission for the examination of any witness; and (vi) any other matter which may be prescribed." 13. Mr. Bhatnagar has also drawn our attention to Regulation 26(1) of the Consumer Protection Regulations, 2005, framed in exercise of powers conferred by Section 30-A of the Consumer Protection Act, 1986. Regulation 26(1) reads as follows: "26. Miscellaneous-- (1) In all proceedings before the Consumer Forum, endeavour shall be made by the parties and their counsel to avoid the use of provisions of Code of Civil Procedure, 1908 (5 of 1908): Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made thereunder." 14. Mr. Bhatnagar submitted that only very few provisions of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any complaints or any proceedings before it, have-- a) the powers of a Civil Courts as specified in Sub-Sections (4), (5) and (6) of Section 13; b) the power to issue an order to the opposite party directing him to do any one or more of the things referred to in clauses (a) to (i) of Sub-Section (1) of Section 14, and follow such procedure as may be prescribed by the Central Government." 18. After the 2002 Amendment, Section 22 of the Act now reads as follows: "22. Power and procedure applicable to the National Commission -- (1) The provisions of Sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum shall, with such modifications as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission. (2) Without prejudice to the provisions contained in Sub-Section (1), the National Commission shall have the power to review any order made by it, when there is an error apparent on the face of record." 19. The 2002 Amendment also introduced Section 22A which reads as follows: "22A. Power to set aside ex parte orders.-Where an order is passed by the National Commission ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cifically vested in them under the Act and the Rules. 24. Mr. Bhatnagar submitted that it is evident from the Statement of Objects and Reasons of the Act that the purpose of the Act is to provide speedy and simple redressal to consumer disputes. It is for this reason that all the provisions of the Civil Procedure Code have not been extended to the Consumer Forums. 25. Mr. Bhatnagar further submitted that the salutary object of speedy and simple redressal under the Act is to be found inter alia in Sections 13(2) and (3) of the Act which provide for the procedure to be adopted by the forum in deciding the complaints admitted by it. The said provisions read as follows: 13. (2) The District Forum shall, if the complaints admitted by it under Section 12relates to goods in respect of which the procedure specified in Sub- Section (1) cannot be followed, or if the complaint relates to any services,-- (a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum; (b) where the opposite party, on receipt of a copy of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28. According to the counsel for the appellants, in New India Assurance Co. Ltd., this Court did not notice the earlier decision in Jyotsana's case. He submitted that the Tribunals constituted under the Consumer Protection Act, 1986 exercise only such powers as are expressly conferred by the provisions of the said Act and Rules framed thereunder. Since no power of review and recall was conferred on the District Forums and the State Commissions, they can exercise no such power. 29. The counter affidavit was filed by the respondents stating that the Commission was justified in setting aside the ex parte order and restoring the respondents' complaint. The counter affidavit also states that the respondents cannot be deprived of their right without contest on the basis of trivial technicalities. 30. The respondents relied upon the judgment of this Court in New India Assurance Co. Ltd. in which this Court held that the Consumer Courts have inherent powers to restore the complaints dismissed for default. It is also stated in the counter affidavit that due to old age, respondent no.1 lost track of the case and therefore, the State Commission was justified in setting aside the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly. 38. In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained. 39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law. 40. There has been considerable delay in disposal of the complaint. Therefore, we direct the State Commission to dispose of the Complaint No.473 of 1999 [in Civil Appeal No.4307 of 2007] as expeditiously as possible and in any event within three months f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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