NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
(CIRCUIT BENCH AT
PUNE,
FIRST APPEAL NO.
436 OF 2005
(From
the order dated 18.3.05 in M.A. No. 1571 of 2004
of the State Commission,
Smt. Sharda
D. Kamble & Anr. ….
Appellants
Vs.
Dr. Shanti Kumar Chivade ….Respondents
BEFORE :-
HON’BLE MR. JUSTICE M.B. SHAH, PRESIDENT
DR. P.D.
SHENOY, MEMBER
For the
Appellant : Mr. U.B. Wavikar,
Advocate
For the
Respondent : Mr. S.B. Prabhawalkar, Advocate
Dated
ORDER
M.B.SHAH, J. PRESIDENT:
Being
aggrieved and dissatisfied by the Judgement and Order dated 18.3.05 passed by
the State Consumer Disputes Redressal Commission, Maharashtra
in Miscellaneous Application No.1571 of 2004, dismissing the Review Application
against the Order dated 8.7.2004 in Complaint No. 70 / 2000, the
Original Complainant has filed this Appeal.
By
order dated 8.7.04, the State Commission dismissed the complaint on the ground
that the complainants have not filed any affidavit in support of her
pleadings. For this purpose, reliance
was placed on the decision rendered by the Apex Court in the case of “Lata Construction and Others Vs. Dr. Rameshchandra
Ramniklal Shah and another” in Civil Appeal No. 2418
of 1996 decided on 12.8.1999 [1986-2002 Consumer 6211 (NS)].
Ld.
Counsel appearing on behalf of the Respondent vehemently contended that there
is also delay in filing this Appeal and hence, Appeal requires to be
dismissed. He further contended that
original order passed by the State Commission is in conformity with the
decision of the
As
against this, Ld. Counsel appearing on behalf of the Appellant submitted that
the State Commission has ignored the entire spirit of the Consumer Protection
Act, 1986. It is his contention that
complaint was filed alleging medical negligence on the part of the Medical
Practitioner for treating her husband, who died leaving behind the Complainant,
her widow and a young daughter. He
pointed out that Complainant is totally illiterate and she had placed only
thumb-mark on the Complaint as wall as on the Memo of Appeal. It is his contention that with a specific
purpose of equitable justice, Parliament has not made Civil Procedure Code
applicable to the proceedings before Consumer Fora.
In support of his
contention, he has relied upon the decision of the Apex Court in the case of
“M/s. India Photographic Co. Ltd. Vs. H.D. Shourie”
in Civil Appeal No. 5310 of 1990 decided on 3rd Aug. 1999 [1986-99
Consumer 5043 (NS)], wherein it is stated as under:-
“4. The
Consumer Protection Act, 1986 has been enacted to provide for better protection
of the interests of the consumers by making provisions for the establishment of
consumer councils, other authorities for the settlement of Consumer disputes
and for matter connected therewith. The
Act was enacted as a result of wide ‘spread’ consumer protection movement. On the basis of the report of the Secretary
General on Consumer Protection dated 27th May, 1983, the United
Nations Economic and Social Council recommended that the world governments
should develop, strengthen and implement a coherent consumer protection policy
taking into consideration the guidelines set out therein……….. The reference to
the consumer movement and the international obligations for protection of the
rights of the consumer, provision has been made herein with the object of interpreting the relevant law in a rational
manner and for achieving the objective set forth in the Act. Rational approach and not a technical
approach is the mandate of law.”
It
is also to be stated that apart from it, various other Judgements of the
The
Judgement rendered by the
Further,
it is to be highlighted that Parliament has specifically exclude the operation
of the provisions of C.P.C except for a limited purpose.
Further,
in Revision Petition No. 2721 of 2007 decided on 13.12.07, this Commission has
observed as under:-
“Unfortunately, in the present case, an over-technical view has been
taken by the State Commission and the District Forum in dismissing the
complaint by holding that father/mother of an aggrieved person or his Power of
Attorney is not entitled to file complaint under the Consumer Protection Act,
1986 (hereinafter referred to as the Act).
This is erroneous. It is to be reiterated that under the Act,
technicalities are not to be encouraged because the only procedure, which is
prescribed under the Act is to follow the principles of natural justice and to
decide the matter after hearing both the parties.
Repeatedly it has been observed that complaint alleging defects in goods
or deficiency in service can be entertained on receipt of a letter stating
sufficient facts and the cause of action.
If required, it can be entertained after recording statement of the
Complainant and if grounds are made out, notice is required to be issued to
Opposite Party.
This is forgotten and we still erroneously try to adhere to the
procedure prescribed under the C.P.C. or elsewhere”.
The
aforesaid Judgement was followed by this Commission in the case of “Deepak Jaiswal Vs. Oriental Insurance Company” – Revision Petition
No. 1922 of 2004 decided on 12.12.2005, [2006 NCJ 789 (NC)], wherein it is
observed that the proceedings before the Consumer Fora
are inquisitorial and not adversarial.
The orders are required to be passed in accordance with justice and
equity on the basis of the evidence available on record.
Considering
the aforesaid settled law, it is apparent that the impugned orders passed by
the State Commission, holding that as the complainant has not filed the
affidavit, complaint requires to be set aside.
Further,
it is also to be stated that as per Regulation No.9, framed under the Consumer
Protection Act, it is the duty of the Registry to point out any defect in
filing of the Complaint, and give an opportunity to the complainant for
removing the defects. That has not been
done in the present case.
However,
Ld. Counsel appearing on behalf of the Respondent further vehemently contended
that there is a delay in filing this Appeal before this Commission. In our view, this submission is also required
to be rejected because firstly, the Appellant being an illiterate widow was
ill-advised to file Review Petition before the State Commission. That Review Petition was dismissed. Thereafter, she was not
knowing where to go and with the assistance of one of the Advocates
practising before the National Commission, she was advised to file Appeal
against the impugned order. Hence, the
delay in filing the Appeal is required to be condoned and is condoned.
In
this view of the matter, impugned orders passed by the State Commission are set
aside and the Appeal is remitted back to the State Commission. The State Commission is directed to decide
the complaint on merits.
Both
the parties are directed to appear before the State Commission on 26.3.08 for
appropriate directions.
Sd/-
…………………….…J.
(M.B. SHAH)
PRESIDENT
Sd/-
…………………..…….
(P.D. SHENOY)
MEMBER
rs/9