IMPORTANT POINT
Recall of Order – Even a wrong order requires setting aside by a higher or appropriate forum – So long as order stands, it will continue to attach finality in absence of any challenge raised to it.

ORDER

A.P. Sahi, President.—The petitioner - complainant filed CC No. 157 of 2015 before the DCDRC, Hardiwar alleging deficiency and negligence in the medical services rendered to the complainant during her pregnancy period. The allegation was about the blood group and its infusion during the surgical operation to be performed.

2. The District Commission recorded that none appeared on behalf of the OPs nor any written arguments were filed and accordingly, the complaint was allowed. It may be however pointed out that the written versions had been filed and the incorrect report of the blood group had not been denied. The complaint was accordingly allowed with Rs.5 lakh as compensation and Rs.10,000/- as litigation expenses.

3. The order passed by the District Commission dated 01.07.2019 was sought to be recalled by moving a miscellaneous application that was allowed on 05.08.2020 on costs of Rs.500/- with a further direction to restore the complaint to its original number and with a further direction to the parties to lead evidence.

4. The case was again heard and decided by the District Commission on 27.10.2020 and this time the complaint came to be dismissed with a clear finding that there was no expert report available on the file to substantiate the allegations. It was further held that there was no deficiency or negligence on the part of the OPs and further the blood report was sent correctly for the sample and hence there was no negligence in that regard.

5. The complainant, aggrieved by the order of recall passed by the District Commission dated 05.08.2020 had filed F.A. No. 114 of 2020. During the pendency of the said appeal, the main case was decided on 27.10.2020. The complainant did not appear through her counsel on 28.01.2022 and the said appeal was dismissed in default with an observation that the appeal would serve no purpose as the main case had already been decided on 27.10.2020.

6. It may be pointed out that there was no interim order or stay of the proceedings in F.A. No. 114 of 2020 and it was also dismissed finally in default as indicated above.

7. Unfortunately, no steps were taken by the petitioner to challenge the final order dated 27.10.2020. The present revision petition has been filed assailing the order dated 28.01.2022 praying that if the order dated 05.08.2020 passed by the District Commission restoring the case is set aside, then the final order dated 27.10.2020 will automatically fall through. The submission is that if the present revision petition is allowed and the order of the State Commission dated 28.01.2022 is set aside, the same will automatically result in the restoration of the original order dated 01.07.2019.

8. Mr. Mahajan contends that no error has been committed by not challenging the subsequent order dated 27.10.2020 as the fate of the same would be dependent upon the orders passed in the present revision petition as indicated above.

9. He urges that the order dated 05.08.2020 passed by the District Commission recalling the order dated 01.07.2019 is patently without jurisdiction in as much as under the provisions of the Consumer Protection Act, 1986, the District Commission had no power to review or recall its order dated 01.07.2019 once the complaint had been allowed. He therefore submits that if the present petition succeeds, then in that event the order dated 01.07.2019 will operate and the impact of the order dated 27.10.2020 would be automatically taken away.

10. Mr. Mahajan has relied on his written submissions particularly the judgments cited by him to urge that the claim of the petitioner - complainant was based on ample evidence and the merits thereof has been erroneously dealt with by the District Commission in the order dated 27.10.2020. In this background, the appellant should not be deprived of a right that had accrued by virtue of the order dated 01.07.2019.

11. We have considered the submissions at length, but in our considered opinion, even a wrong order requires setting aside by