Bombay High Court
Radha Rajesh Mandhani U/G Rajesh B ... vs Dilip Patwardhan And Anr on 22 March, 2016
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
This Order is modified/corrected by Speaking to Minutes Order dated 30/03/2016
WP 3985/12
- 1 -
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3985/2012
Miss.Radhika D/o Rajesh Mandhani,
Age : 15 years, Occ. At present "Nil"
Through guardian Mr.Rajesh B. Mandhani,
R/o Zambad Estate, Aurangabad.
...Petitioner...
Versus
1 Dr. Dilip Pathwardhan,
Orthopedic Surgeon,
ig Pathwardhan Hospital,
Bansilal Nagar, Aurangabad.
2 United India Insurance Company Ltd
Through its Divisional manager,
Divisional Office, Osmanpura,
Aurangabad.
...Respondents...
.....
Shri Rupesh Totala, Advocate h/f Shri S.M. Kshirsagar,
Advocate for petitioner.
Shri J.G. Chitnis, Advocate for respondent no.1.
Shri J.R. Joshi, Advocate h/f Shri S.S. Rathi, Advocate
for respondent no.2.
.....
CORAM: RAVINDRA V. GHUGE, J.
DATE: 22.03.2016
ORAL JUDGMENT :
1] Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2] The petitioner is aggrieved by the order dated ::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 10:00:15 ::: This Order is modified/corrected by Speaking to Minutes Order dated 30/03/2016 WP 3985/12
- 2 -
24.1.2012 delivered by the State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad (hereinafter referred to as the State Commission) by which First Appeal No.145/2009 has been dismissed in default.
3] I have heard the learned Advocates for the respective sides.
4] Advocate Shri Chitnis and Advocate Shri Rathi vehemently oppose this petition on behalf of respondent nos.1 and 2 respectively. They contend that this petition is not maintainable.
5] This petition was earlier dismissed by an order dated 8.4.2013 passed by this Court (Coram: S.S. Shinde, J.) and it was held that an alternative remedy before the National Commission was available. However, the Review Application No.72/2013 filed by the petitioner herein was decided by this Court (Coram: S.S. Shinde,J.) by its judgment dated 22.7.2014 and placing reliance on the judgment of this Court in the case of R.B. Upadhyay v.
State Commission for Consumer Disputes, Mumbai (AIR 2010 Bombay 139), it was concluded that the petition challenging the order of dismissal in default by the ::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 10:00:15 ::: This Order is modified/corrected by Speaking to Minutes Order dated 30/03/2016 WP 3985/12
- 3 -
State Commission could be entertained by this Court.
6] This Court earlier had an occasion to deal with a similar matter in between Branch Manager, H.D.F.C. Ltd.
v. Pravin Devidas Pawar & others (Writ Petition NO.6384/2012 decided on 5.10.2012). This Court (Coram:
S.V. Gangapurwala, J.) by its order dated 5.10.2012 has concluded that this Court could deal with the issue of a First Appeal being dismissed in default by the State Commission. Paragraph nos.6 & 7 of the said order reads as under:-
"6] It is true that when the matter was dismissed in default, the advocate for petitioner was absent. But, on that day, the representative of petitioner was present and he had made a request to keep back the matter. The Commission could have considered for keeping back the matter. It also appears that immediately an application was given on the same day for recalling the order of dismissal. The said application was rejected on the ground that the Commission has no power.
7] Considering the above, I am inclined to offer one more opportunity to the petitioner. Hence, the impugned order is quashed and set aside. Appeal is restored to its original position, on condition that the petitioner deposits the cost ::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 10:00:15 ::: This Order is modified/corrected by Speaking to Minutes Order dated 30/03/2016 WP 3985/12
- 4 -
which were levied by the State Consumer Dispute Redressal Commission, by 22nd October, 2012. Parties shall appear before the State Consumer Dispute Redressal Commission on 22nd October, 2012. If cost as directed by the Commission is deposited by the petitioner, the Commission shall hear the Appeal on its own merits as per its convenience. Taking into account the fact that the matter is remanded, the Commission shall endeavour to dispose of the matter expeditiously."
7] This Court had also dealt with a similar case in the matter of United India Insurance Company Ltd. v.
Yogesh Goraklal Jaiswal dated 20.3.2013. Paragraph nos.5 & 6 of the said order read as under:-
"5. Once the Appeal is filed, it is normally advocate who appears in the matter. Due to personal difficulty, advocate of the petitioner could not appear. Moreover, it does not appear that notice was issued to the parties notifying the date. I deem it appropriate to give one opportunity to the petitioner to contest the Appeal on merits, at the same time the petitioner also deserves to be mulct with some cost.
6. In the result, I pass the following order:
(i) Impugned order dated 19.01.2012 is hereby quashed and set aside. The First Appeal bearing ::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 10:00:15 ::: This Order is modified/corrected by Speaking to Minutes Order dated 30/03/2016 WP 3985/12
- 5 -
No. 320 of 2011 is restored to its original position on condition that the petitioner pays cost of Rs.5000/- to the respondent within a period of four weeks from today.
(ii) The cost may be directly paid to the petitioner or be deposited in the office of Maharashtra State Consumer Dispute Redressal Commission Mumbai, Circuit Bench at Aurangabad. In case it is deposited in the office of Commission, as directed above, respondent is entitled to withdraw the same.
(iii) The parties shall appear before the State Commission on 17.04.2013."
8] In yet another case in the matter of Arun Sudamrao Modale v. Sangameshwar Tractor Authorized Dealer Ahmedpur (2014 (4) Mh.L.J., 757), this Court held that the question as to whether the District Consumer Disputes Redressal Forum or the State Commission had the power to set aside their own ex-parte orders or in other words have the power to recall or review their own orders.
Placing reliance upon the judgment delivered by the Hon'ble Supreme Court in the matter of Rajeev Hitendra Pathak & others v. Achyut Kashinath Karekar & another (2011 (9) SCC 541), it was held that in a case of DID order passed by the State Commission, such an order ::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 10:00:15 ::: This Order is modified/corrected by Speaking to Minutes Order dated 30/03/2016 WP 3985/12
- 6 -
cannot be recalled by moving an application before the said Court. This Court, however, concluded that an order dismissing the First Appeal in default by the State Commission can be set aside by this Court by entertaining a writ petition.
9] Learned Advocates for respondent nos.1 & 2 have strenuously submitted that though the First Appeal was filed on 20.2.2009, it was circulated for the first time on 25.11.2010, which is after a span of about 20 months.
For about eight dates from 25.11.2010 onwards, none appeared for the petitioner. Finally, it was dismissed in default on 24.1.2012. In these circumstances, the respondents pray for costs.
10] It cannot be ignored that the petitioner was a minor school going girl on the date when the cause of action arose. Since then she has been litigating through her guardian, who is her father. Considering the peculiar facts emerging from the record as regards the cause of action, I am inclined to impose nominal costs on the petitioner.
11] As such, this petition is allowed. The impugned order dated 24.1.2012 is quashed and set aside. First ::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 10:00:15 ::: This Order is modified/corrected by Speaking to Minutes Order dated 30/03/2016 WP 3985/12
- 7 -
Appeal No.145/2009 is restored to the file of the State Commission at Aurangabad. The petitioner shall pay costs of Rs.1,000/- to each of the two respondents, which shall be deposited before the State Commission within six weeks from today.
12] The litigating sides shall appear before the State Commission on 22nd day of April, 2016. Formal notices need not be issued by the State Commission.
Needless to state, the State Commission is at liberty to refuse an adjournment to the litigating sides if the same appears to be on trivial and unreasonable grounds and shall endeavour to decide the said First Appeal as expeditiously as possible and preferably on or before the 30th day of July, 2016.
13] Rule is made absolute in the above terms.
(RAVINDRA V. GHUGE, J.) ndk/c2231611.doc ::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 10:00:15 :::