Veena Birbal, J.

1. Consumer Complaint No. 59/2003 was filed by respondents No. 2 to 5 who happen to be the family members of deceased Vishnu Kumar Shukla before the UP State Commission Dispute Redressal Forum alleging negligence in providing medical treatment to the deceased by the hospital run by the petitioners. The allegations made against the petitioners were that the deceased was kept in the hospital with the ulterior motive of extracting money from the respondents. It was also alleged that the petitioners did not refer the deceased to PCI Hospital as a result of which he died. Since no one appeared before the State Commission it proceeded ex parte against the petitioners and awarded Rs. 22 lakhs as compensation to the widow and family members of the deceased i.e. respondent nos. 2 to 5 together with interest @ 12% p.a.

2. Aggrieved by the judgment of the State Commission, the petitioners preferred an appeal under Section 19 of Consumer Protection Act, 1986 (hereinafter referred to as the Act) before the National Consumer Dispute Redressal Commission. The National Commission asked the petitioners to file their written submissions as also affidavits by way of evidence. The case thereafter came up for hearing on 11th September, 2007 on which date the respondents also appeared before the National Commission, who stayed the operation of the impugned order subject to deposit of 50% of the amount awarded by the State Commission. Aggrieved by the said order the present two petitions have been filed one by Regency Hospital and its Director Smt. Rashmi Kapoor and the other by Dr. Ashutosh Bajpai who had treated the deceased at the relevant time.

3. On behalf of the petitioners it was contended that the impugned order dated 11th September, 2007 passed by the National Commission is contrary to the provisions of Section 19 of the Act. It was further contended that under the second proviso to Section 19, the National Commission cannot pass an order asking the appellant before it to deposit an amount over and above 50% of the amount awarded by the State Commission or Rs. 35000/- whichever is less. In support of that contention learned Counsel relied upon a judgment of this Court in Dr. Mrs. K Kathuria v. National Consumer Dispute Redressal Forum AIR 2007 Delhi 137.

4. We have given our careful consideration to submissions made at the Bar and perused the record.

5. For deciding the aforesaid contention of petitioners it will be appropriate to reproduce the order dated 11.9.2007 of the State Commission, which is as follows:

In compliance with our order dated 5.9.2007, an application for permission to file written version and affidavit by way of evidence has been filed by the appellant. We had to issue this direction for the simple reason that appellant/opposite party were ex parte before the State Commission.

A copy of this application has been given to learned Counsel for the complainant, who was caveator.

Caveator is directed to file his reply to the application for permission to file written version etc. filed by the appellant within a period of four weeks.

Till then the execution of the order is stayed subject to deposit of 50%

of amount with the State Commission.

List on 30.10.2007 for admission.

6. For the sake of convenience Section 19 is also reproduced below:

Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by Sub-clause (i) of Clause (a) of Section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:

"Provided" that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:

["Provided" further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained