STATE CONSUMER DISPUTES REDRESSAL COMMISSION CIRCUIT BENCH SILIGURI APPEAL EXECUTION APPLICATION NO. SC/CB2/19/AEA/1/2023 SMT SUMANA BARMAN PRESENT ADDRESS - W/O- SRI BHOLA BARMAN VILL & P.O. SITALKUCHI ,WEST BENGAL.

.......Complainant(s)

Versus DR. APURBA CHOWDHURY PRESENT ADDRESS - MRINAL DIAGNOSIS CENTRE, MATHABHANGA HOSPITAL ROAD, P.O. MATHABHANGA, DIST. COOCH BEHAR 736146 ,WEST BENGAL.

.......Opposite Party(s)

BEFORE:

HON'BLE MR. JUSTICE KUNDAN KUMAR KUMAI , PRESIDING MEMBER FOR THE COMPLAINANT:

NEMO FOR THE OPPOSITE PARTY:

NEMO DATED: 30/04/2025

ORDER

KUNDAN KUMAR KUMAI This is an appeal preferred u/s 41 of the Consumer Protection Act, 2019, against an order dated 05/06/2023, passed by the Ld. DCDRC, Cooch Behar, in Execution Petition Case No.

EA/18/2022.

The Appellant’s case in brief is that, the Appellant had filed one complaint, being No. CC/55/2021, before the Ld. DCDRC, Cooch Behar against the Respondent/Doctor, for causing deficiency in service while performing ligation, causing mental, physical stress and financial loss. The notices upon the Respondent/Doctor had been served, but as he failed to respond, the case had been decided ex-parte, in favour of the Appellant/Complainant, with a direction upon the Respondent/Doctor, to pay a sum of Rs.4,85,167/- (Rupees four lakhs eighty-five thousand one hundred sixty-seven) only, as compensation for medical negligence, litigation, mental pain and agony. As the Respondent/Doctor failed to comply with the direction, one Execution Petition had been filed being EA/18/2022. During the pendency of the above Execution Petition, the Respondent/Doctor filed a petition dated

10/02/2023, praying for vacating the ex-parte order passed in Case No. CC/55/2021.

After hearing both the sides and on perusal of the materials on record, the Ld. DCDRC, Cooch Behar, passed the impugned order, allowing the petition dated 10/02/2023 with cost of Rs.10,000/- (Rupees ten thousand) only and restoring the Case No. CC/55/2021and dropping the Execution Application.

Being aggrieved by the impugned order, the Appellant/Complainant, preferred this instant appeal on the ground that the DCDRC, Cooch Behar, had erred in law and facts, while passing the impugned order.

Decisions with Reasons Ld. Advocate for the Appellant, at the time of final hearing, had submitted that the impugned order passed by the Ld. DCDRC, Cooch Behar was completely illegal, as the Ld. DCDRC, Cooch Behar, was not empowered to recall its own order.

Ld. Advocate for the Respondent/Doctor, on the other hand, had submitted at the time of final hearing, that the Ld. DCDRC, Cooch Behar had rightfully passed the impugned order and relied on the judgements passed by Hon’ble Manipur SCDRC (Imphal) in Revision Petion no. RP/01/2019 dated 27/09/2022 between Prof. L Ranjit Singh & Ors, - Appellants Vs. Smt. Nongmeirakpam (o) Sanatombi Devi – Respondent and by the Hon’ble Madras High Court in CRP No. 3935 of 2008 dated 04/11/2016 between B. Nagraj – Petitioner Vs.

Green Earth Biotechnologies Ltd. – Respondent.

After going through the materials on record, it transpires that the impugned order passed in EA/18/2022, had arisen from a complaint case being no. CC/55/2021, thereby indicating that the matter being filed after the advent of the Consumer Protection Act, 2019, would be governed by the provisions of the above Act. The Ld. DCDRC, Cooch Behar had relied on the judgement passed by the Hon’ble Madras High Court in CRP No. 3935 of 2008 dated 04/11/2016 between B. Nagraj – Petitioner Vs. Green Earth Biotechnologies Ltd. – Respondent. But the above judgement was based on the principles of Consumer Protection Act, 1986. As mentioned earlier, the instant case is based on the provisions of Consumer Protection Act, 2019, wherein the legislators in their collective wisdom, had incorporated the provisions of Section 61 inter alia, which is reproduced below, to confer such power upon only the Hon’ble National Commission:

“Power to set aside ex parte orders – Where an ord