State Consumer Disputes Redressal Commission
Chief Medical Officer vs Smt. Pratibha on 5 April, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 07 / 2022
1. Chief Medical Officer
District Haridwar, Haridwar
2. Chief Medical Officer
Community Health Centre, Bahadrabad
P.S. Bahadrabad, Tehsil and District Haridwar
...... Appellants / Opposite Parties
Versus
Smt. Pratibha W/o Sh. Arjesh
R/o Village Shivdaspur Urf Teliwala
P.S. Piran Kaliyar, Tehsil and District Haridwar
...... Respondent / Complainant
Sh. Ashok Dimri, A.D.G.C. (Civil), Dehradun, Learned Counsel for the
Appellants
None for Respondent
Coram: Hon'ble Mr. Justice D.S. Tripathi, President
Mr. Udai Singh Tolia, Member-II
Dated: 05/04/2023
ORDER
(Per: Justice D.S. Tripathi, President):
This appeal has been preferred against the impugned judgment and order dated 31.03.2021 passed by the District Consumer Disputes Redressal Commission, Haridwar (in short "The District Commission") in consumer complaint No. 303 of 2019; Smt. Pratibha Vs. Chief Medical Officer, Community Health Centre and another, whereby the consumer complaint was allowed ex-parte and the appellants - opposite parties were directed to pay compensation of Rs. 4,50,000/- to the respondent - complainant together with Rs. 10,000/- towards mental agony and Rs. 5,000/- towards costs and counsel fee, in all, Rs. 4,65,000/- within a period of one month, failing 2 which the respondent - complainant was also held entitled to interest @6% p.a. on the above amount from 25.09.2019, i.e., the date of filing of the consumer complaint till payment.
2. The facts of the case, in brief, as stated in the consumer complaint, are that on 16.02.2019, the respondent - complainant underwent sterilization operation at Community Health Centre, Bahadrabad, Haridwar and she was assured that she will not conceive in future. Since the complainant was already having six children, hence she had undergone sterilization operation. However, even after undergoing sterilization operation, the complainant got pregnant, which was revealed from ultrasound report and the same transpired that the foetus in the womb is 9 weeks' 6 days' old. Therefore, alleging deficiency in service on the part of the appellants on account of failure of sterilization operation, after serving legal notice dated 07.08.2019 upon the appellants, the complainant filed a consumer complaint before the District Commission.
3. The District Commission issued notice to the appellants (opposite parties before the District Commission), but the appellants did not turn up before the District Commission and consequently, the District Commission vide order dated 23.10.2020, closed the opportunity of filing written statement by the appellants and went on to allow the consumer complaint vide impugned judgment and order dated 31.03.2021 in the above terms. Feeling aggrieved, the appellants have preferred the instant appeal.
4. We have heard arguments advanced by learned counsel for the appellants and perused the record. None appeared on behalf of respondent - complainant, although service of notice upon respondent has already been held to be sufficient vide order dated 17.01.2023.
35. Learned counsel for the appellants submitted that the impugned judgment and order was passed ex-parte by the District Commission and the appellants did not get opportunity to file the written statement to rebut the averments made in the consumer complaint. His further submission is that the appeal should be allowed and the matter should be remanded back to the District Commission for decision afresh on merit, after providing proper opportunity of hearing to both the parties.
6. We find substance in the arguments advanced by learned counsel for the appellants. We find from record that impugned judgment and order has been passed by the District Commission ex-parte against the appellants. The appellants did not get opportunity to file written statement before the District Commission against the consumer complaint filed by respondent - complainant. It is settled principle of law that all the parties involved in the matter in question should get proper opportunity of being heard. It is further settled principle of law that substantial justice should prevail over technical one. It would not be out of place to mention here that at no stage of the proceedings of the consumer complaint before the District Commission, the District Commission passed an order to proceed the consumer complaint ex-parte against the appellants. The District Commission also did not held the service of notice upon the appellants as sufficient and inspite of all that, closed the opportunity of filing the written statement by the appellants per order dated 23.10.2020, against the settled preposition of law.
7. We have noticed that the appellants could not file written statement before the District Commission and the appellants did not get opportunity for adducing evidence on affidavit. Appellants were 4 deprived from getting opportunity of hearing. In the case of Topline Shoes Ltd. Vs. Corporation Bank reported in II (2002) CPJ 7 (SC), Hon'ble Apex Court has observed that "it is for the Forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time frame to file reply, as a guideline, and then to exercise its discretion as best it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind the principle of natural justice as well."
8. Thus, we are of the view that the consumer complaint should be decided on its merit, after providing opportunity of hearing to both the parties. Therefore, we set aside the impugned judgment and order dated 31.03.2021 passed by the District Commission. The appellants shall file the written statement before the District Commission on or before the date fixed for appearance of the parties before the District Commission and thereafter the District Commission shall afford a reasonable opportunity to the parties to adduce evidence in support of their case.
9. For the reasons aforesaid, this appeal succeeds and is hereby allowed. Impugned judgment and order dated 31.03.2021 passed by the District Commission is set aside. The matter is remanded back to the District Commission for deciding the consumer complaint on its merit. The parties are directed to appear before the District Commission on 28.04.2023, by which date, the appellants shall file the written statement before the District Commission. The District Commission shall provide proper opportunity of hearing to both the parties and proceed to decide the consumer complaint expeditiously according to law. The amount deposited by the appellants with this Commission, be released in their favour. No order as to costs. Copy of the order be sent to the District Commission forthwith.
510. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.
(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)
Member-II President
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