Mehra Bal Chikitsalaya Evam Navjat ... vs Manoj Upadhyay on 6 November, 2020

[Cites 14, Cited by 0]

Madhya Pradesh High Court

Mehra Bal Chikitsalaya Evam Navjat ... vs Manoj Upadhyay on 6 November, 2020

1. Present petition filed u/Art.226 of the Constitution assails the legality and validity of the order of M.P. State Consumer Disputes Redressal Commission, Bhopal (M.P.) ["State Commission" for brevity] dated 08.01.2020 dismissing the revision of the petitioners thereby upholding the order of the District Consumer Disputes Redressal Forum, Gwalior ["Forum" for brevity] dated 05.11.2019 passed in a pending Complaint Case No.32/2015 by which the Forum had dismissed three interlocutory applications; first for calling of case-diary in which the petitioner No.2 is an accused, the second seeking the copy of the medical report of a team of doctors constituted under the guidelines of the Apex Court decision in the case of "Jacob Mathew Vs. State of Punjab and Another [(2005) 6 SCC 1]" tendering opinion regarding medical negligence alleged against petitioners in the consumer complaint and the third was for summoning to cross-examine Dr. D.D. Sharma whose 2 WP.8361.2020 affidavit had been filed by the complainant in support of his complaint.

2. The Registry of this Court and as well as the respondents object to the maintainability of this petition by relying upon the decision in the case of "Cicily Kallarackal Vs. Vehicle Factory [(2012) 8 SCC 524]"

that no writ petition lies against the order of the State Commission impugned herein. It is submitted that remedy of appeal/revision is available to the petitioners before National Consumer Disputes Redressal Commission ["National Commission" for brevity].

3. Learned counsel for the petitioners, to overcome the objection of maintainability raised by the respondents, relied upon Single Bench decision of Orissa High Court in the case of "Oriental Bank of Commerce Vs. Minarva Dash and Ors. [2015 (II) OLR 786]", relevant paragraph 21 of which, for ready reference and convenience, is reproduced below:

"21. In view of the aforesaid facts and circumstances, from the clear and literal language of Section 21(b) of the Act, it can be construed that revisional jurisdiction can only be exercised if some dispute is pending or has been decided by the State Commission. In other words, the National Commission would have no jurisdiction if the impugned order is passed in exercise of the appellate power or revisional power exercised by the State Commission under Section 17(1)(b). The power under Section 21(b) is in respect of complaint filed before the State Commission. Therefore, "any order" as mentioned in section 27 3 WP.8361.2020 must include within its sweep not only final orders, but all orders including interim orders, which are also capable of execution under Section 25. Section 27 makes no distinction between an 'order' and "final order" it involves "any order". In that view of the matter, this Court is of the considered opinion that the writ petition is maintainable and issue No. (i) is answered accordingly."

3.1 Learned counsel for the petitioners also relied upon Division Bench decision of High Court of Andhra Pradesh in the case of "M/s. Megacity Builders Vs. A.P. State Consumer Dispute Redressal Commission, Hyderabad and Anr. [AIR 2004 AP 49]", relevant paragraphs 17 and 18 of which, for ready reference and convenience, are reproduced below:

"17. The jurisdiction conferred upon the National Commission is with reference to the consumer dispute either pending before or has been decided by the State Commission. Section 2(e) of the Act defines 'consumer dispute'. It means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint. The expression complaint is defined in Sec.2(1)(c) of the Act. It means any allegation in writing made by a complainant that an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider etc.

18. That a plain reading of Sec. 21(b) makes it abundantly clear that the National Commission is vested with the jurisdiction to call for the record and pass appropriate order

4 WP.8361.2020 against any and every order passed by the State Commission in any Consumer Dispute but its jurisdiction is limited to call for the records and pass appropriate orders only in a "consumer dispute" which may be pending before or has been decided by any State Commission."

3.2 To deal with the preliminary objection as regards maintainability of this petition, a few provisions of Consumer Protection Act, 1986 ["1986 Act" for brevity] need to be gone into. Relevant provisions being Sections 2(1)(e), 17 and 21 are reproduced below:-

2. Definitions. -(1) In this Act, unless the context otherwise requires,--

      (a)    XX    XX    XX
      (aa)   XX    XX    XX
      (b)    XX    XX    XX
      (c)    XX    XX    XX
      (d)    XX    XX    XX
      (e)    "consumer dispute" means a dispute where the person

against whom a complaint has been made, denies or disputes the allegations contained in the complaint.

17. Jurisdiction of the State Commission.--(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--

(a) to entertain--

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and 5 WP.8361.2020

(ii) appeals against the orders of any District Forum within the State; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.

(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

21. Jurisdiction of the National Commission.-- Subject to the 6 WP.8361.2020 other provisions of this Act, the National Commission shall have jurisdiction--

(a) to entertain--

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and

(ii) appeals against the orders of any State Commission; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity."

3.3 Bare perusal of Section 21 reveals that National Commission has three different kinds of jurisdictions. The first is the original jurisdiction of entertaining and deciding complaints where value of goods or services and compensation, if any, exceeds Rs. One Crore. The second is the appellate power which the National Commission exercises over the orders passed by the State Commission and third is the revisional power u/S.21(b).

3.4 Present is a case where the State Commission passed the order impugned herein rejecting a revision preferred against rejection of three 7 WP.8361.2020 interlocutory applications in a consumer dispute pending before the Forum. Thus, it has to be seen as to whether against exercise of revisional powers by State Commission u/S.17(1)(b), any remedy is available before the National Commission or not ? 3.5 As regards the original jurisdiction of entertaining and deciding complaint u/S.21(a)(i) of 1986 Act, the dispute herein would not be covered.

3.6 As regards second type of jurisdiction available u/S.21(a)(ii) to National Commission is as an appellate authority for hearing appeals against orders of the State Commission. This appellate jurisdiction of National Commission is exercised qua final orders passed by the State Commission and not against revisional orders. 3.7 In both the above two kinds of jurisdictions i.e. original and appellate, the dispute herein would not be covered. Thus, the impugned order passed by the State Commission being a revisional order cannot be assailed before the National Commission under its appellate jurisdiction. 3.8 Now, it is to be seen as to whether a revisional order passed by the State Commission u/S.17(1)(b) as is the case herein can be assailed by invoking revisional jurisdiction of the National Commission or not. 3.9 The National Commission's revisional jurisdiction conferred by Section 21(b) can be exercised in respect of orders passed in a pending or 8 WP.8361.2020 a decided consumer dispute by the State Commission. Thus, the corollary is that revisional jurisdiction by the National Commission cannot be exercised against orders not passed in a consumer dispute pending before the State Commission.

3.10 A "consumer dispute" as defined in Section 2(1)(e) is a complaint which is denied or disputed by the party against whom it is made. Thus, a "consumer dispute" before the State Commission is the one contemplated u/S.17(1)(a)(i) which relates to the original jurisdiction of the State Commission. As such for enabling the National Commission to invoke its revisional jurisdiction u/S.21(b) it is imperative that the order assailed is either an interlocutory or a final order in a consumer dispute which is or was pending before a State Commission.

3.11 The above analysis leads to the necessary conclusion that National Commission cannot exercise revisional jurisdiction u/S.21(b) against an interlocutory order passed in a consumer complaint pending before District Forum, as is the case herein.

3.12 The above legal discussion of the relevant provisions reveals that against the order impugned herein which is a revisional order of State Commission where the consumer dispute is presently pending before the District Forum, no further statutory remedy is available u/S.21 of 1986 Act before the National Commission.

9 WP.8361.2020 3.13 As such, this Court is constrained to hold that preliminary objection of maintainability of this petition is not tenable and is therefore rejected.

4. Taking up the merits of the matter, it is seen that there were three interlocutory applications before the District Forum whose dismissal impelled the petitioners herein to unsuccessfully invoke revisional jurisdiction of the State Commission. The State Commission in its concise but precise order has found no jurisdictional error in the interlocutory order of the District Forum dismissing all the three IAs.

5. This Court has considered the submissions of learned counsel for the petitioners and has also gone through the citations relied upon, but is unable to persuade itself to accede to prayer of the petitioners on merits for the reasons infra.

5.1 The reasons assigned by District Forum for dismissing the three IAs were that the petitioner being an accused in Crime No.85/2013 can very well obtain the copies of case-diary; the report of the Committee of medical doctors opining about medical negligence is already available with the petitioners and that the procedure prescribed by 1986 Act coupled with it's objective is not commensurate with the demand of cross-examining the witness whose affidavit has been filed, especially when acceding to any such demand would lead to delay which is 10 WP.8361.2020 abhorrent to one of the objectives for which 1986 Act was promulgated i.e. to expeditiously decide the consumer dispute. 5.2 All the aforesaid reasons assigned by the District Forum, in the considered opinion of this Court, are reasonable enough to pass the test of Art.14 of the Constitution.

6. The window of interference available to this Court u/Art.226 in matters of this nature where orders of statutorily created tribunals [District Forum & State Commission] are under challenge, is extremely limited. Unless a case of abject injustice and blatant illegality is pointed out, this Court ordinarily refrains from exercising its power of judicial review.

7. Learned counsel for the petitioners has relied upon certain decisions of the Apex Court which need not be gone into since they relate to the field of power of judicial review in the face of unavailed statutory remedy. Since this Court has not dismissed this petition on the ground of maintainability but on merits, the said decisions are of no avail to the petitioners.

8. In view of above discussion and the limited jurisdiction available to this Court, no interference on merits is called for.

9. Consequently, the present petition stands dismissed sans cost.

                                            (Sheel Nagu)                       (Rajeev Kumar Shrivastava)
                                               Judge                                     Judge
PAWAN
        Digitally signed by PAWAN
        DHARKAR
        DN: c=IN, o=HIGH COURT OF
        MADHYA PRADESH BENCH
        GWALIOR, ou=HIGH COURT OF


DHARK
        MADHYA PRADESH BENCH
        GWALIOR, postalCode=474011,
        st=Madhya Pradesh,
        2.5.4.20=345b3604d572ed9dd14


AR
        92fe82dc3b1eef67eff2cb59f3ac9
        7e920ac264de7828, cn=PAWAN
        DHARKAR
        Date: 2020.11.08 18:45:18 +05'30'

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