State Consumer Disputes Redressal Commission
Thyrocare Technologies Limited vs Dr. Swapan Kumar Samanta on 13 January, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/429/2009 M.A 264/2010 DATE OF FILING : 03.11.2009 DATE OF FINAL ORDER: 13.01.2012 PETITIONER : Thyrocare Technologies Limited, Having its registered office at B-37/1, T.T.C. MIDC Turbhe, Navi Mumbai-400 703. RESPONDENT : Dr. Swapan Kumar Samanta, S/o Late Golak Behari Samanta, 5/13, Sarat Pally, Belghoria, Dist- North 24 Parganas. Kolkata- 700 056. BEFORE HONBLE JUSTICE : Mr. Kalidas Mukherjee. President. HONBLE MEMBER : Smt. Silpi Majumder. HONBLE MEMBER : Sri Shankar Coari. FOR THE PETITIONER : Mr. Phalguni Bandopadhyay, Advocate. FOR THE RESPONDENT: Mr. Sudipta Manna, Advocate. Silpi Majumder, Member
The present M.A. Being no 264/2010 has been filed by Thyrocare Technologies Limited, B-37/1, TTCMIDC Turbhe, Navi Mumbai, 400 703 praying for setting aside the expate order passed by this Commission on 30.04.2010 on the ground that though the present applicant was made a party in the complaint case as well as in the appeal by its name, but the address of the applicant given by the Complainant was wrong. Due to wrong address this applicant did not receive any notice either from the Ld. Forum below or from this Commission and hence the complaint as well as the appeal was heard and disposed of exparte against this applicant.
The brief history of the case made out by the RespondentComplainant is that the Respondent herein filed the complaint before the Ld. District Forum, Barasat against the present applicant alleging that he had given blood to the Complainant at 65/1, Feeder Road, Kolkata- 700 056 for ascertaining HCV contents in his blood. The report by this Applicant as HCV positive due to which he suffered loss, mental agony and upon hearing the Ld. Forum below pleased to pass an exparte order on 25.06.2009 dismissing the above complaint case. Being aggrieved by the said order dated 25.06.2009 the Complainant has preferred the present appeal being no FA/429/2009 before this Commission. In the cause title of the said appeal the Appellant has named the present applicant as Respondent having address at 65/1, Feeder Road, Kolkata- 700 056. Upon hearing only the Appellant this Commission was pleased to pass an exparte order on 30.04.2010 whereby the appeal has been allowed. It has been mentioned in the said M.A. that it appears from the order sheet of the Ld. Forum below as well as judgment and order that the notice was served upon this applicant at the address of Feeder Road but the same was returned unserved with the endorsement not known. It further transpires from the said judgment of the Ld. Court below that one Mr. Himangshu Debnath of Pathonova Diagnostic Centre having the said address of 65/1, Feeder Road, Kolkata-700 056 appeared and stated by filing a petition that the applicant did not have any address at 65/1, Feeder Road, Kolkata-700 056 rather this applicant was carrying on its business from its office at Mumbai. The Ld. Court below dismissed the complaint on the ground stated therein. Thereafter the Complainant-Respondent preferred an appeal being no429/2009 before this Commission and once again adduced the address of this Applicant as 65/1, Feeder Road, Kolkata-700 056 with malafide intention.
No notice was served upon the present Applicant and the appeal was allowed to be heard and disposed of exparte in favour of the Complainant. It has been further stated in the said M.A. that on or about 02.08.2010 the applicant received a letter dated 25.06.2010 issued by the Advocate for the Appellant Complainant at the registered office of the applicant at D/37/1, TTC MIDC, Turbhe, Navi Mumbai-400703, Maharasthra and was not send at 65/1, Feeder Road, Kolkata-700 056 at which address this Commission was pleased to pass and exparte order. The copy of the order passed by this Commission was annexed with the said letter with a caution to comply with the Courts order passed in the Case no-FA/429/2009. The Applicant has stated that it was never served with any summons of neither the complaint case nor the Appeal. Upon receiving the letter from the Complainant the Applicant contacted its Advocate at Kolkata and instructed to obtain a certify copy of the judgment passed by this Commission. It is stated by the Applicant that in spite of mentioning by Mr. Debnath that the present Applicant has no office at Feeder Road, but at Mumbai, the Complainant did not take any step to amend the address of this Applicant in the petition of complaint by incorporating the correct address as at Thane, Navi Mumbai. The Complainant had every knowledge about the address of this Applicant at Thane, Mumbai at which address the Complainant send a legal notice on 07.07.2005 through his Advocate, but the Complainant deliberately suppressed the correct address of this Applicant and mentioned a wrong address in the petition of complaint as such this applicant was deprived from contesting the case before the court below as well as this Commission. The Applicant submits that the Complainant practising fraud upon this court by not disclosing the proper and correct address of the Applicant got a decree in his favour and as a result of which the appeal has been disposed of exparte because this applicant did not receive any notice from this Commission. Due to aforesaid mischievous act of the Complainant, the Applicant was denied an opportunity to defend its case before the Ld. Trial Court and also before the Ld. Appellate Court. According to the Applicant the judgment passed by this Commission is illegal as this Applicant did not get any chance to be appear to contest its case, hence the said judgment is liable to be set aside and accordingly prayer has been made by the Applicant to allow the present M.A. being no-264/2010 after recalling the exparte order dated 30.04.2010.
The Ld. Counsel for the Respondent-Complainant submits that an exparte order cannot be recalled by way of review and the Honble National Commission, (no other Forum or State Commission) established under the Consumer Act 1986 is empowered to recall an exparte order passed by it. According to the Complainant the M.A. application praying for recalling the exparte order is liable to be dismissed.
At the very outset we have noticed that the present M.A. being no-264/2011 has two parts-1) praying for condoning the delay in filing of the said M.A. and 2) praying for recalling the exparte order dated 30.04.2010. As the first part has already been decided, we are only concerned with the second part.
We have perused the record carefully and heard the arguments advanced by the Ld. Counsel for the parties. The Ld. Counsel for the Applicant has submitted that as it has no office at 65/1, Feeder Road, Kolkata- 56 and for this reason it did not receive any notice from this Commission in respect of the Appeal being no 429/2009. It has been further submitted by the Applicant that it has registered office at Navi Mumbai. As the Complainant has failed to give appropriate address of the Applicant in the cause title of the complaint as well as in the Appeal, the Applicant was not in a position to receive any notice in respect of this case either from the Court below or from this Commission. It has been further contended that this Applicant in no way is related with the grievance of the Complainant and hence, it has been victimized by the order passed by this Commission illegally as the Complainant has never impleaded it as a party by incorporating the correct address. On the other side the Ld. Advocate for the RespondentComplainant has relied on the judgment passed by the Honble Supreme Court, reported in AIR 1970, Page-1273, wherein their Lordships have held that, it is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. The question whether the Governments order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. The Ld. Counsel for the Respondent has submitted that the exparte order passed by the State Commission based on reasons, and the order of recall, or review thereof by the State Commission is not permissible. It is further submitted that the State Commission has no authority to set aside the exparte order passed by it. Of course, he has referred to the Section 22A of the Consumer Protection Act, 1986, the National Commission is empowered to set aside the exparte order passed by it w.e.f. 15.03.2003, the District Forum or the State Commission is not empowered to set aside the exparte order passed by it in the said amendment Act of 2003. We may mention the decision of T.Gunasundari vs- B. Chitra and ors reported in AIR 2005 Madras, 181, wherein it has been held that the Consumer Forum or State Commission has no jurisdiction to set aside its previous exparte order. It is pertinent to mention that this judgment is based on Jyotsana Arbind Kumar Shah and ors (Supra). In the case of Jyotsana Arvind Kumar Shah Vs. Bombay Hospital Trust, reported in 1999 CPJ (SC) 3-1, Their Lordships have held that State Consumer Redressal Forum has no power to set aside its own exparte order.
Admittedly, there is no express provision in the Consumer Protection Act that the State Commission can set aside an exparte award passed by it. On the contrary, there is a provision for the aggrieved party to take appropriate steps in the said Act against the exparte order passed by the State Commission and that recourse is to be adopted. Section 21 of the Consumer Protection Act is an effective remedy to the aggrieved person against an exparte order passed by the State Commission. In our opinion when such a remedy is provided in the Act for the aggrieved person, the prayer for setting aside the exparte order before this State Commission is impermissible. In a very recent case of Tapas Dutta vs- Falguni Das (Case no CC/87/2009), wherein this Commission has recalled its own order and being aggrieved by the said order the Complainant approached before the Honble High Court, Kolkata (Civil order no 831/2011) under Article 227, wherein the Honble High Court has set aside the impugned order passed by this Commission wherein recalling of the original order has been made and it has been mentioned by the Lordship that this Commission has passed the judgment/order without any jurisdiction.
In view of the aforementioned judgments, specially the latest judgment of the Honble High Court we are also of the opinion that this Commission cannot recall any order and judgment passed by it and hence, the judgment passed by this Commission on 30.04.2010 will be unaltered and the M.A. being no 264/2010 is hereby by dismissed on contest without any cost. The office is directed to send down the LCR to the Ld. Forum below along with a copy of this judgment forthwith.
Shankar Coari Silpi Majumder Justice. Kalidas Mukherjee (Member) (Member) (President)