IMPORTANT POINT
The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.

Headnote:Consumer Protection Act,1986-Sections 22 ,22A-Power to Recall - Whether the District Consumer Forums and the State Commissions have the power to set aside their own ex parte orders or have the power to recall or review their own orders-Held -On careful analysis of the provisions of the Act, held that Tribunals are creatures of Statute and derive their power from the express provisions of Statute- The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised- The legislature chose to give National Commission power to review its ex parte orders- Before amendment, against dismissal of any case by Commission, consumer had to rush to Apex Court- The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers- Findings of the National Commission were set aside as far as it had 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 had vested with the National Commission only-Appeals disposed off (Paras 36 to 42)
       Facts of the Case :
        Issue in consideration whether the District Consumer Forums and the State Commissions have the power to set aside their own ex parte orders or in other words have the power to recall or review their own orders?
       Findings of the Court :
        On careful analysis of the provisions of the Act, held that the Tribunals are creatures of the Statute and derive their power from the express provisions of Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised. The legislature chose to give National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by Commission, consumer had to rush to Apex Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. Findings of the National Commission were set aside as far as it had 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.

JUDGMENT

Dalveer Bhandari, J.

1. These appeals emanate from the order dated 16.11.2005 in Revision Petition No.551 of 2005 and order dated 12.7.2001 in Miscellaneous Petition No.1 of 2001 in Original Petition No.110 of 1993 passed by the National Consumer Disputes Redressal Commission, New Delhi.

2. The main question which arises for consideration is whether the District Consumer Forums and the State Commissions have the power to set aside their own ex parte orders or in other words have the power to recall or review their own orders?

3. The questions of law involved in both the appeals are identical, therefore, we deem it appropriate to dispose of both these appeals by a common judgment.

4. Brief facts necessary to dispose of these appeals 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 Consumer Disputes Redressal Commission, New Delhi. The appellants in the revision petition made two main arguments before the Commission : firstly, that the State Commission did not have the power to restore the complaint and, secondly, that the State Commission restored the complaint without issuing notice to the appellants. The National Commission dismissed the revision petition which has been challenged by the appellants before this Court.

8. The appellants relied on the judgment in the case of Jyotsana Arvind Kumar Shah & Others v. Bombay Hospital Trust1 (1999) 4 SCC 325. In this case, the Court held that the State Commission did not have the power to review or recall its ex parte order.

9. In New India Assurance Co. Ltd. v. R. Srinivasan2 (2000) 3 SCC 242, this Court took the contrary view and held that the State Commission could review or recall its ex parte order.

10. In the instant case, a two-Judge Bench of this Court vide judgment and order dated 17.9.2007 reported in 2007 (11) SCALE 166 noted the controversy and observed as under:

“5. In Jyotsana’s case it was observed at para 7 as follows:

“We heard the learned counsel on both sides for quite some time. When we asked the learned counsel appearing for the respondent to point out the provision in the Act which enables the State Commission to set aside the reasoned order passed, though ex parte, he could not lay his hands on any of the provisions in the Act. As a matter of fact, before the State Commission the appellants brought to its notice the two orders, one passed by the Bihar State Commission in Court Master, UCO Bank v. Ram Govind Agarwal 1996 (1) CPR 351 and the other passed by the National Commission in Director, Forest Research Institute v. Sunshine Enterprises 1997 (1) CPR 42 holding that the redressal agencies have no power to recall or review their ex parte order. The State Commission had distinguished the abovesaid orders on the ground that in those two cases the opponents had not only not appeared but also failed to put in their written statements.

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2011 Supreme(SC) 795

IMPORTANT POINT The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.

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IMPORTANT POINT
The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.