Bombay High Court
Radha Rajesh Mandhani U/G Rajesh B ... vs Dilip Patwardhan And Anr on 22 March, 2016
Bench: R.V. Ghuge
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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
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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
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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
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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
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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
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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
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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
