SUPREME COURT OF INDIA
DALVEER BHANDARI,MUKUNDAKAM SHARMA,ANIL R. DAVE, ,
RAJEEV HITENDRA PATHAK – Appellant
Versus
ACHYUT KASHINATH KAREKAR – Respondent
C.A. No.-004307-004307 / 2007
19-08-2011
V. D. KHANNARAVINDRA KESHAVRAO ADSURE
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4307 OF 2007
Rajeev Hitendra Pathak & Others
... Appellants
Versus
Achyut Kashinath Karekar & Another
... Respondents
WITH
CIVIL APPEAL NO.8155 OF 2001
M.O.H. Leathers
... Appellants
Versus
United Commercial Bank
... Respondents
J U D G M E N T
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
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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.
3
8.
The appellants relied on the judgment in the case of
Jyotsana Arvind Kumar Shah & Others v. Bombay
Hospital Trust (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. Srinivasan
(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 Commissi