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RADHAKRISHNAN V/S MANIKANDANUNNI, decided on Friday, July 7, 2000.
[ In the Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram, Appeal No. 932 of 1998. ] 07/07/2000
Judge(s) : L. MANOHARAN, PRESIDENT & PROF. R. VIJAYAKRISHNAN, MEMBER
Advocate(s) : N.M. Madhu. T.K. Venugopalan, Shibu Joseph.
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  "2001 (2) CPJ 167"  ==   ""  







    L. Manoharan President:1. The complainant in O.P. No. 186/96 on the file of the Consumer Disputes Redressal Forum Malappuram is the appellant.2. The complainant alleged before the District Forum he was employed as Tutor in Paramount Academy of Computer Education and since he suffered from dust allergy due in which he developed cough and obstruction in breathing. Then attracted by the notice issued by the opposite party claiming the qualities of a medicine “Swasasudarana” he approached the opposite party who assured him that on taking the aforesaid medicine for one year his ailment would be got redressed upon which he took 20 bottles of the said medicine and on coming to know that the said medicine was banned he again approached the opposite party who claimed same medicine is available as ’Vasakasamrutham’ believing the said representation on consuming two bottles of the said medicine he developed swelling on the tongue and feet it became difficult for him to talk and walk growth from the side of the eyes were also noticed. Thereupon he approached Dr. P.P. Joy and Dr. Krishnakumar who treated him at Medical College Hospital Calicut. He was hospitalised for 12 days in the Medical College Hospital Calicut and had to spend an amount of Rs. 12 000/- for treatment. Apart from financial loss he had to undergo anxiety and agony due to the said conduct and act of the opposite party. He wanted fedressal.3. In the version filed by the opposite party he denied to his having supplied such medicine or advised him to take the said medicines. He is not the owner of “J.R. Consultants” mentioned in the complaint the proprietor of which is one Rajan. He has not published any notice as is alleged. If at all the complainant sustained any injury the opposite party is not responsible for the same and the complication for which he allegedly underwent treatment in the Medical College Hospital also was not due to his consuming any medicine supplied by the opposite party. He is not trained for treating patients. He is only a “Kazahakakaran” in a temple. He wanted dismissal of the complaint.4. The complainant got himself examined as P.W. 2 and produced Exbts. Al to A13 MO 1 and M02 Commissioner filed Exbts. CI and C2 reports. The opposite party was examined as OPW 1. On a consideration of the said material the District Forum dismissed the complaint. The said dismissal is under challenge in this appeal.5. Learned Counsel for the appellant assailed the order of the District Forum maintaining that the District Forum did not correctly appreciate the evidence produced on behalf of the complainant and had it was approached the same in the correct perspective the Forum would have seen that actually the opposite party sold the medicine to the complainant and on consuming the same he developed complications which required him to get himself admitted in the Medical College Hospital Calicut and undergo treatment. Yet another argument was also advanced by the learned Counsel maintaining that the setting aside of the ex-parte order dated 27th September 1996 by the order dated 21st April 1997 on I A. 18/96 by the District Forum was erroneous and without jurisdiction and therefore the order on I A. 18/96 has to be ignored. Consequently the order dated 27th September 1996 even now govern on that ground also the impugned order by the District Forum cannot be sustained. On the other hand the learned Counsel for the respondent supported the order of the District Forum pointing out that there was no material before the District Forum to show either the opposite party sold the medicines in question to the complainant or on consuming the same he sustained injury. In other words according to him on both aspects viz. the opposite party sold the medicine and on consuming the same the complainant developed complications which required him to be hospitalised and undergo treatment there is no acceptable evidence. Apart from the same there being no expert evidence to show that the aforesaid medicines caused the complication the complainant is not eligible for direction in his favour. As regards the order of the District Forum on I A. 18/96 it is maintained by the learned Counsel since the said order has not been challenged the complainant cannot question the same. Alternatively it was maintained that the ex-parte order since was secured by practising fraud and abuse of process of Court the District Forum was within its jurisdiction to re-call the said order. It is also contended that since the said order was rendered not by a Court the infirmity if at all any cannot make the same absolutely void so as to be ignored.6. In the impugned order it is pointed out by the District Forum that there is no material to connect the opposite party that he caused to issue any advertisement. As regards the qualities of medicine in the question no advertisement was produced. It is also pointed out that the notice Exbt. A13 contains nothing to connect the opposite party with the same. OPW1 denied to his having sold the said medicine. The Commission who filed Exbt. C1 report at his visit did not see the opposite party in the concern he says two colleagues of his were in the shop. As to how he inferred them as the colleagues of the opposite party are not stated. The District Forum also points out that Exbts. A3 A5 A8 A9 and A10 the prescriptions and bills for purchase of medicine and Exbt. Al series the treatment record of the Medical College Hospital though could show that the complainant was an in patient in the Medical College Hospital and he underwent treatment there is no acceptable material to show that the ailment of the complainant for which he underwent treatment in the Medical College Hospital was caused due to consuming the aforesaid medicines. In a matter like this expert evidence as to the said aspect was necessary without which it would be hazardous to find that the ailment of the complainant was due to his taking the aforesaid medicines. No expert evidence was tendered. When no expert evidence on this aspect is tendered to connect the ailment of the complainant with the defects or deficiency of the medicine that he consumed one cannot find that there was deficiency of service on the part of the opposite party even assuming that he supplied aforesaid medicine. Opposite party is a ‘Kazhakakaran’ attached to the temple he is not a physician. Having regard to the fact that there is no expert evidence to demonstrate that on analysis of the aforesaid medicine it was found to have defect and the said defect caused ailment to the complainant even if it is assumed that the opposite party sold or caused to be sold the aforesaid medicine and that the complainant consumed the same as claimed by him unless the aforesaid expert evidence is forthcoming negligence or deficiency alleged by the complainant cannot be taken to have been established or proved. There is no evidence on that aspect. Having regard to the same the aforesaid finding of the District Forum cannot be successfully assailed.7. Now as noticed that there is another argument by the learned Counsel for the appellant that this complaint was once allowed ex-parte by the order dated 27th September 1996 the same came to be set aside by the order on I A. 18/96. The said order according to the learned Counsel for the appellant being void as without jurisdiction the ex-parte order which allowed compensation must be deemed to be in force. Therefore irrespective of the aforesaid finding on the basis of the evidence on the strength of the said ex-parte order the second order passed by the District Forum cannot have any effect. Reliance was made by the learned Counsel on the decision of the Supreme Court in Jyotsana Arvind Kumar Shah & Ors. v. Bombay Hospital Trust III (1999) CPJ 1 (SC)=VII (1999) SLT 146=1999 (1) SCC 402. In the said decision the Supreme Court holds “State Commission however fell into an error in not bearing in mind that the Act under which it is functioning has not provided with any jurisdiction to set aside the ex-parte reasoned order”. It is urged by the learned Counsel a reading of the order dated 27th September 1996 since would show that the same is a reasoned order the District Forum did not have the jurisdiction to set it aside. It is also urged by the learned Counsel that IA. 18/96 was a petition seeking review of the order dated 27th September 1996 since the Forum has no jurisdiction to review its earlier order on that ground also the order of the District Forum is without jurisdiction. On the other hand learned Counsel for the respondent maintained since the same is not a reasoned order the decision in Jyotsana’s case (supra) cannot have application. One cannot confuse an order on “merit’ with a “reasoned order”. Here a reading of the order would show that though the complainant has filed an affidavit claiming an amount as compensation the District Forum restricts the claim in the affidavit to the amount mentioned in the complaint and directs to pay the said amount. This would show that the Forum applied its mind appreciated the ex-parte evidence tendered and then passed the order. Therefore it cannot be said that the same is not a reasoned order though it is an ex-parte order.8. It is true though the petition is styled as a review petition the contents of the petition would show that the same is simply to set aside the order passed on 27.9.1996. The petition was treated as such by the District Forum. It will be noted that in para 4 of the said petition the opposite party alleges that by giving wrong description of the opposite party the ex-parte order was secured by fraud. Therefore the petition cannot be treated as one for review though it purportedly is styled as a review petition. The argument of the learned Counsel is assuming that the District Forum has no jurisdiction to set aside the ex-parte order or review its order since the Forum has the jurisdiction to recall an order obtained by fraud or forgery; or by abuse of process of Court the Forum can recall the order. Reliance was made by the District Forum on the decision of the Supreme Court in Indian Bank v. Satyam Fibers (India) Pvt. Ltd. 1996 (5) SCC 550. The learned Counsel has another alternate argument that the order since was rendered by a ‘Forum’ not a ‘Court’ even if the order is void that would be effective inter-parties till the same is set aside by higher Forum. Reliance was made by the learned Counsel on the decision of the Supreme Court in State of Kerala v. M.K. Kurhikannan Nambiar Manjeri Manikoth Naduvil (dead) & Ors. AIR 1996 Supreme Court 906. Still another argument advanced by the learned Counsel is in view of the decision of the Supreme Court in New India Assurance Co. Ltd. v. R. Srinivasan I (2000) CPJ 19 (SC)=II (2000) SLT 520=(2000) 3 SCC 242 the order on I A. 18/96 cannot be held to be without jurisdiction.9. We may first take up the last point urged by the learned Counsel for the opposite party as to the applicability of the decision in Sreenivasan’s case (supra). The said decision considers the jurisdiction of the Forum on the matter of restoration of a complaint dismissed for default; what is urged is since the Supreme Court held that the Consumer Disputes Redressal Forum has inherent power and jurisdiction to restore a complaint dismissed for default provided the complainant shows good reason for non appearance the same principle should apply for setting aside ex-parte order also which also is rendered due to the default of the opposite party to appear on the date to which the matter stood posted. We cannot go into the worthiness of this argument the reasoning maintained by the learned Counsel though may seem attractive as has already been noted the Supreme Court since has held in Jyotsana’s case (supra) the Act has not provided jurisdiction to set aside ex-parte reasoned order the Forum cannot set aside an ex-parte reasoned order. We cannot hold since the later decision held in a matter for restoration of a complaint dismissed for default the FORA has inherent jurisdiction to restore it there is inherent jurisdiction to set aside ex-parte order also when there is the specific decision of the Supreme Court in Jyotsana’s case to the contrary.10. Now as to the question whether the order can be treated to have been recalled as has already been noted in para 4 of the petition he alleges by giving the wrong description the opposite party the complainant got the ex-parte order by practising fraud. If there is suppression of the description of the opposite party and on account of the same the complainant secured an ex-parte order having regard to the attending circumstances in a given case the same could amount to abuse of process of Court which would enable the FORA to recall the ex-parte order. The order on I A. 18/96 is self-explanatory. It states the notice to the opposite party initially was issued to “Mr. Unni J.R. Consultants Fathima Nagar Mandoor”. The said notice was returned stating that there is no such establishment in Fathima Nagar Mandoor and the name of the establishment is J.R. & Co. Tax Practitioners and Job Typing. The name of the owner was reported to be Manikandan Unni. Therefore the name of the opposite party was wrong and the name and details of the establishment also was wrong. The whole description of the opposite party thus was far from correct. Another notice sent with the particular furnished too was with incorrect description his name was not shown in full. The service of the same notice was as “unclaimed” and it was on the strength of the said service the opposite party was set ex-parte and the ex-parte order came to be passed. Now the name of the complainant is stated to be ‘Manikantanunni’. Even after getting the correct name and address of the opposite party the complainant did not take steps to amend cause title of the complaint. The District Forum notes all these and says that the order came to be passed with the wrong description of the opposite party; it finds therefore the order cannot be said to be against the petitioner/opposite party. The District Forum also stated that it is doubtful whether the said order could be binding on the opposite party observing so the District Forum sets aside the order. From the materials thus revealed it could be seen that not only the name of the opposite party/respondent was wrongly mentioned the address of the establishment also was wrong and to crown that the service was as unclaimed’. When such is the situation pronouncement of the ex-parte order with the wrong person in the party array stating that himself is the opposite party in the facts and circumstance would amount to abuse of process of Court Then the order on I A. 18/96 has to be upheld as one which recalled the ex-parte order. Now having regard to the aforesaid view taken by us it will not be necessary to go into the other question whether the said order was liable to be set aside by a higher Forum. When such is the situation the setting aside of the exparte order since has to be deemed under law as one by which the ex-parte order was recalled. We hold that the appellant is not entitled to maintain that the order on LA. 18/96 is invalid and without jurisdiction. On this point also the appellant is not entitled to succeed. In view of the findings above the appeal is liable to be dismissed.11. In the result the appeal fails and the same is dismissed.