Pratap Ram Patil vs Venkat Pandurang Yelale
2016 Latest Caselaw 591 Bom

                                               1                         WP-5120.15


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                           BENCH AT AURANGABAD

                            WRIT PETITION NO. 5120 OF 2015




                                                   
     Pratap S/o Ram Patil,
     Age: 30 years, Occu :LIC Agent,
     R/o : Sant Dnaneshwar Nagarbdhind
     Guru Hotel, Rajiv Gandhi Chowk, Latur,




                                                  
     Tq. Dist. Latur .                                      ...PETITIONER
                                                            (Ori. Complainant)
              versus

     Dr. Venkat Pandurang Yelale,




                                       
     Age: Major, Occu.: Doctor,
     R/o Yelale Hospital, behind
     Muktai Mangal Karayalaya,ig
     Ambejogai Road, Latur,
     Tq. Dist. Latur                                        ...RESPONDENT
                                                            (Ori. Respondent)
                            
                                       .....
     Mr. Hanmant V. Patil, Advocate for petitioner
     Mr. S.S. Panale, Advocate for respondent
                                       .....
      

                                   CORAM : SUNIL P. DESHMUKH, J.

DATED : 14th MARCH, 2016.

ORAL JUDGMENT :-

1. Rule. Rule made returnable forthwith and with consent of learned

advocates for parties heard, finally.

2. Present writ petition has been moved against orders dated

07-04-2015 passed by Presiding Member, Maharashtra State Consumer

Disputes Redressal Commission, Maharashtra State, Circuit Bench at

Aurangabad, whereunder revision petition no. 05 of 2015 came to be

dismissed in default observing that no report about service to the other

side had been produced and the petitioner or his counsel had not been

present. It appears that immediately thereafter, an application had

been moved for recall of said order and restoration of revision petition

2 WP-5120.15

no. 05 of 2015. However, on the very same day, said application came

to be rejected holding that the commission has no power to set aside

its own order of dismissal.

3. Learned counsel for petitioner earnestly requests to take

sympathetic, lenient and compassionate view while considering the

matter taking into account that the revision petition for the first time

had appeared before the commission on 07-04-2015 after issuance of

notice and on the very day little delay had been caused under the

circumstances referred to in the petition, and impugned order came to

be passed just few minutes before counsel making it before the

commission. Immediately measures had been taken to have the

impugned order set aside, yet said request also had not been acceded

to.

4. Learned counsel for petitioner relies on order dated 25 th April,

2013 in writ petition No. 2190 of 2013 of this court in the case of

Mahadev Shankarappa Here Vs. The New India Assurance Company Ltd. as well as a

decision in case of Arun Sudamrao Modale Vs. Sanmeshwar Tractor Authorized

Dealer Ahmedpur and another reported in 2014(4) Mh.L.J. 757. With reference

to the same, learned counsel states that in quite a few matters as have

been referred to in the reported decision, this court has taken a view

that having regard to circumstances, such orders as impugned in

present writ petition can be set aside.

5. Learned counsel Mr. Panhale, appearing for respondent,

however, purports to oppose request on behalf of the petitioner and he

3 WP-5120.15

refers to a decision in the case of Cicily Kallarackal Vs. Vehicle Factory,

reported in 2012(8) SCC 524. The Supreme Court perhaps facing situation

when High Court had decided the matter in spite of statutory appeal

having been provided against decision in consumer disputes. In the

context of that case, it had been observed by the Supreme Court that it

is not appropriate for High Court to entertain in respect of such orders

against statutory remedy is provided under Consumer Protection Act.

So far as nature of order with which present petition is concerned, such

situation does not appear to have been before the Supreme Court.

6. Having regard to the situation, interest of justice can be met with

in present case by following order dated 25th April, 2013 in writ petition

No. 2190 of 2013 of this court in the case of Mahadev Shankarappa Here Vs.

The New India Assurance Company Ltd. as well as in the matters as have been

referred to in paragraph No. 13 of the decision in case of Arun Sudamrao

Modale (Supra).

7. Taking overall view in the matter, I deem it appropriate that

following suit of aforesaid orders subject, of course, to payment of

costs to be to the respondent, the impugned orders deserve to be set

aside.

8. In view the same, the impugned orders dated 07-04-2015

passed by the commission, Aurangabad dismissing revision in default

as well refusing to recall said order stand set aside on payment of costs

of Rs. 5000/- to be payable to respondent which shall be deposited

with the State Commission within a period of four weeks from the date

4 WP-5120.15

of receipt of writ of this order.

9. Writ petition is allowed in aforesaid terms. Rule is made absolute

accordingly.

Sd/-

( SUNIL P. DESHMUKH, J. )

MTK

***