Director, St. John's Hospital, Kattappana vs Rajan Thomas and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938** **WP(C).No. 8689 of 2010 (I) ---------------------------** **PETITIONER(S): -------------** **THE DIRECTOR, ST. JOHN'S HOSPITAL, KATTAPPANA.P.O, KATTAPPANA.** **BY ADVS.SRI.SUSHEEL JOSEPH CYRIAC SRI.MANU GEORGE KURUVILLA SRI.GEORGE THOMAS (MEVADA)(SR.)** **RESPONDENT(S):** - **--------------** **1. RAJAN THOMAS, S/O. THOMAS, KONNACKAL HOUSE, PULIYANMALA.P.O, KAMPANIPADY, IDUKKI DISTRICT.** **2. PRASAD.V.K. S/O. KARTHIKEYAN, VARIYATHUKALAYIL HOUSE, KATTAPPANA.P.O, VALIYAKANDAM, IDUKKI DISTRICT.** **3. THE STATE COMMISSIONER FOR CONSUMER DISPUTE'S REDRESSAL, VAZHUTHACAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS, SECRETARY.** **4. THE DEPUTY TAHSILDAR (RR), UDUMBANCHOLA, IDUKKI DISTRICT.** **5. DR.K.V. VANKATRAMKUMAR, M.B.B.S (D. ORTHO), ST. JOHN'S HOSPITAL, KATTAPPANA.P.O, KATTAPPANA.** **6. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF CIVIL SUPPLIES AND CONSUMER, AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM.** **R1-2 BY ADVS. SRI.P.CHANDY JOSEPH** **SRI.C.K.VIDYASAGAR** **R4 & 6 BY ADV. GOVERNMENT PLEADER SRI. SANTHOSH PETER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MLG** **WP(C).No. 8689 of 2010 (I) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 TRUE PHOTOCOPY OF THE MEMORANDUM OF APPEAL 330/08 AGAINST THE ORDER IN CC 41/06 EXHIBIT P2 TRUE PHOTOCOPY OF THE MEMORANDUM OF APPEAL 331/08 AGAINST THE ORDER IN CC 42/06** **EXHIBIT P3 TRUE PHOTO COPY OF THE COVERING LETTER FOR THE D/D FOR RS. 25,000/- SUBMITTED TOWARDS THE PRE DEPOSIT IN APPEAL 330/08.** **EXHIBIT P4 TRUE PHOTO COPY OF THE OF THE COVERING LETTER FOR THE D/D FOR RS. 25,000/- SUBMITTED TOWARDS THE PRE DEPOSIT IN APPEAL 331/08** **EXHIBIT P5 TRUE PHOTOCOPY OF THE COMMUNICATION SENT BY THE 3RD OPPOSITE PARTY DATED 20/03/2004** **EXHIBIT P6 TRUE PHOTO COPY OF THE REVALIDATED DD NO. 048526 DATED 01/11/2008** **EXHIBIT P6A TRUE PHOTO COPY OF THE REVALIDATED DD NO. 048527 DATED 01/11/2008 EXHIBIT P7 TRUE PHOTO COPY OF THE LETTER DATED 06/11/2008 EXHIBIT P8 TRUE PHOTO COPY OF THE AFFIDAVIT IN APPEAL 330/2008 DATED 27/03/2009 EXHIBIT P8A TRUE PHOTO COPY OF THE AFFIDAVIT IN APPEAL 331/2008 DATED 27/03/2009 EXHIBIT P9 TRUE PHOTO COPY OF THE OBJECTION FILED BY the 1ST RESPONDENT.** - **EXHIBIT P9A TRUE PHOTO COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT** - **EXHIBIT P10 TRUE PHOTO COPY OF THE ORDER DATED 06/01/2010 EXHIBIT P10A TRUE PHOTO COPY OF THE ORDER DATED 06/01/2010** - **EXHIBIT P11 TRUE PHOTO COPY OF THE ORDER DATED 06/01/2010 IN APPEAL NO. 330/2008** **EXHIBIT P11A TRUE PHOTO COPY OF THE ORDER DATED 06/01/2010 IN APPEAL NO. 331/2008** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXHIBIT R4(A) A TRUE COPY OF SUBMISSION BY THE DECREE HOLDERS IN C.C NO. 41/06 OF THE HONOURABLE C.D.R.F IDUKKI.** **EXHIBIT R4(B) A TRUE COPY OF SUBMISSION BY THE DECREE HOLDERS IN C.C NO. 42/06 OF THE HONOURABLE C.D.R.F IDUKKI.** **//TRUE COPY//** **P.S TO JUDGE** **MLG** ## **P.V.ASHA, J.** **-----------------------------------------------W.P.(C).No.8689 of 2010 -------------------------------------------------** Dated this the 29[th ] day of November, 2016 ## **J U D G M E N T** Petitioner who is the first opposite party in C.C.Nos.41/06 and 42/06 before the Consumer Disputes Redressal Forum-Idukki, is challenging the dismissal of the applications filed for condoning delay in re-presenting the appeals and consequent dismissal of the appeals F.A.Nos.330 and 331 of 2009 by the Kerala State Consumer Redressal Commission (hereinafter referred to as 'State Commission'). 2. Aggrieved by the orders passed in C.C.Nos.41/06 and 42/06 by the CDRF-Idukki, petitioner had filed separate appeals Exts.P1 and P2 before the State commission. The appeals were sent by post and were received by the Commission on 01.02.2007, as seen from the acknowledgment cards Exts.P3 and P4. Along with the appeals demand drafts for a sum of Rs.25,000/- each were also sent, which is also evident from Exts.P3 and P4 letters of the counsel for the petitioner. Petitioner submits that the usual practice was in a case where appeal is sent by post, the Commission would intimate the party or his agent about the defects by post. In support of his contention petitioner has produced Ext.P5 in which Secretary of the State Commission by letter dated 20.3.2004 informed the W.P.(C).No.8689 of 2010 2 appellant therein to cure the defects within a period of 15 days. Petitioner submits that such an intimation was not received in this case. However, on receipt of notice under Revenue Recovery Act from the 4[th] respondent, on 2.8.2008, the counsel for the petitioner made enquires in the office of the commission and came to know that the office had noted a defect to the effect that documents relied on for admission or a memo to that effect were not produced along with the appeal. By that time the demand drafts had got invalidated. Petitioner thereupon got the DDs re-validated as per Exts.P6 and P6A. 3. As per Ext.P7 letter dated 6.11.2008, a registered letter was sent to the commission forwarding the revalidated D.Ds and informing that the appellant does not have any document to be produced for considering the appeals and requesting to process the appeals with intimation to the counsel. The petitioner submits that petitioner cured the defects and thereafter when the appeal came up for admission on 18.3.2009, the Commission expressed its displeasure in not filing a petition for condoning delay in representing the appeal. Thereupon the counsel for the petitioner himself filed Exts.P8 and P8A affidavits on 27.03.2009 stating that appeals had reached the registry in time and since petitioner was not relying on any document, they were waiting for intimation from the registry regarding the posting of the appeal for admission. The registry noted that the appellants did not produce any document W.P.(C).No.8689 of 2010 3 along with the appeal and there was no memo to the effect that the appellant did not rely on any document. The defect noted was cured by 11.11.2008. The Counsel stated that due to oversight it was omitted to file a petition for condoning the delay. Stating that the same was not wilful, it was prayed that the delay of 618 days in representing the appeals may be condoned. I.A was filed in both the appeals along with identical affidavits of the counsel. 4. The respondents 1 and 2 filed Exts.P9 and P9A objections opposing the petition stating that the petition should have been filed by the party and there was no ground for condoning delay. 5. Thereafter as per Exts.P10 and P10A judgments, the Commission dismissed I.A. 307/2009 in F.A.No.330/2008 and in I.A. 309/2009 in F.A.No.331/2008 respectively, filed for condoning delay in re-presenting the appeals. Consequent to that F.A.Nos.330 and 331 of 2009 were also dismissed as per Ext.P11 and P11A judgments. The Commission, found that after filing the appeals on 1.2.2007, the petitioner did not take any effort to enquire about the appeal till 11.11.2008, and hence no diligence was shown by the petitioners to verify whether there were any defects in the appeal or the appeal had been posted for admission or not. Therefore it was held that the slackness on the part of the petitioner cannot be justified especially in the back drop of the fact that there occurred a delay of 618 days in curing the defects and hence there was serious W.P.(C).No.8689 of 2010 4 laches on the part of the appellants in pursuing the appeal and there was no satisfactory explanation for the delay. On the basis of the dismissal of the petition to condone delay, appeals were dismissed as per Exts.P11 and P11A. This writ petition was filed at that stage challenging the orders Exts.P10, P10A, P11 and P11A. 6. I heard the learned Senior Counsel Adv. George Thomas Mevada appearing for the petitioner and the learned Government Pleader. There is no appearance for the respondents 1, 2 and 5. 7. Learned Senior Counsel pointed out that due to the technical approach adopted by the Commission despite the affidavit of the counsel, the matter is yet to be finalised on merits. It was also pointed out that the defect noted was one not envisaged by the rules or regulations. Moreover the Commission itself committed default in so far as no intimation was sent to the party or the Counsel regarding the defects noted, as provided in Regulation 9(ii) of the Consumer Protection Regulations. 8. This Court has been consistently allowing the applications for condoning delay in re-presenting the appeals when the petitions are supported by affidavits of the learned Counsel appearing for the parties. But the Commission did not give any credence to the affidavit of a responsible Advocate who appeared for the petitioner. Commission found fault with the petitioner in not being diligent in making any enquiries about the fate of the appeal. The appeal was received in the Commission as early as on 1.2.2007. W.P.(C).No.8689 of 2010 5 The Commission failed to see that the hen the appellant had entrusted the counsel to file the appeal and the Counsel who sent the appeal by registered post received the acknowledgment from the Commission, it is quite normal and natural that any party would be under the bonafide belief that every further proceedings would be taken care of by the Counsel especially one who is well versed in the field. Similarly the Counsel will also be under the bonafide impression that appeal will be posted for admission in its due course as it is filed in accordance with rules without expecting any defects being noted and if at all there is any defect, that would be duly intimated as was the practice in vogue. In these circumstances the Commission was not right in accusing the appellant for being not diligent after filing the appeal and to dismiss the petition for condoning delay in representing the appeal. 9. In this context it becomes necessary to have a look at Rule 24 of Consumer Protection Rules, 2005 which reads as follows: - _--_ - “24. Appeals before the State Commission. - (1) The memorandum of appeal may be filed by the appellant or his authorised agent to the State Commission in person or shall be sent by registered post or courier addressed to the Registrar and Secretary of the State Commission. The appellant or his authorised agent may conduct the case. - (2) Every memorandum of appeal shall be written legibly, preferably type-written and shall set forth concisely under distinct heads the grounds of appeal. - **(3) Every memorandum of appeal shall be accompanied by a certified copy of the order of the** W.P.(C).No.8689 of 2010 6 ## **District Forum appealed against and such other documents as may be required.** (4) The State Commission may entertain an appeal after the expiry of the period of thirty days, if it is satisfied that there was sufficient cause for not filing it within that period. (5) The appellant shall submit three copies of the memorandum of appeal to the State Commission for official purposes with sufficient number of additional copies of the memorandum for service on all the respondents. (6) **No appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent of the amount or rupees twenty five thousand,whichever is less.** (7) On the date of hearing or on any other day to which hearing stands adjourned, it shall be obligatory for the parties or their authorised agents to appear before the State Commission. If the appellant or his authorised agent fails to appear on such date, the State Commission may either decide the appeal on the merits of the case or dismiss it on default. If the respondent or his authorised agent fails to appear on such date, the State Commission shall decide the appeal ex-parte on the merits of the case. (8) The appellant shall not, except by leave of the State Commission, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal but the State Commission, in deciding the appeal, may not confine to the grounds of objection set forth in the memorandum of appeal or taken by leave of the State Commission under these Rules: Provided that the State Commission shall not rest any W.P.(C).No.8689 of 2010 7 decision on any other grounds unless the party who may be affected thereby, has been given, at least an opportunity of being heard. - (9) The State Commission may, on such terms as it may think fit and at any stage, adjourn the hearing of an appeal, but not more than three adjournments shall, ordinarily, be given. - (10) The State Commission shall call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.” (emphasis supplied) 10. Rules therefore provide that the appeal shall be accompanied by a certified copy of the order of the District Forum appealed against and 'such other documents as may be required **.** ' In this case the petitioner did not rely on any other order or document. The certified copy of the order of the District Forum was already enclosed along with the appeal memorandum. In order to see that an appeal is entertained by the State Commission, the only requirement under Rule 24 is the production of certified copy of the order required under clause 3 coupled with the deposit i.e 50% of the amount which the District Forum directed to pay or Rs.25000/-, whichever is less, required under clause 6, along with the memorandum of appeal. Petitioner had sent the appeal by registered post. W.P.(C).No.8689 of 2010 8 11. The National Consumer Dispute Redressal Commission has framed the Consumer Protection Regulations, 2005, under Section 13A of the Consumer Protection Act, 1986, with the approval of the Central Government. Clause (ii) of Regulation 9 which provides for scrutiny of complaint, appeal or revision petitions provides as follows: “If there is any defect in the filing of the complaint, appeal or revision petition, the particulars of such defects shall be recorded and the party or his agents would be informed of the defects asking them for removing the defects within 15 days.” 12. The learned Counsel for the petitioner points out that it was the usual practice that whenever an appeal is sent by post, the commission would intimate the defects, if any, to the party or the counsel by post was done by Ext.P5. Such an intimation as required under the regulations were not received from the Commission. Therefore the the petitioner who sent the appeal in accordance with rules along with the demand drafts of Rs.25,000/- and the certified copy of the order, had every reason to believe that the appeal was filed properly. Moreover there was no reason for noting down any defects at all on the appeal memorandum. If at all the nonproduction of any other document was noted as defect by way of any misinterpretation, it was incumbent on the Commission to intimate those defects to the appellant or his counsel within a reasonable time. It is not seen that the Commission has by way of W.P.(C).No.8689 of 2010 9 any rules of procedure or practice has restricted such intimations by publication in notice board alone, despite Regulation 9(ii). However, as and when the petitioner cured the defect stating that there was no other document relied on, and thereafter filed a petition to condone delay along with the affidavit of the counsel for petitioner, the State Commission ought to have condoned the delay and entertained the appeal, in order to have an effective adjudication of the matter on merits. 13. Commission failed to look into the fact that the alleged delay in re-presentation occurred on mis-interpretation of rules by the staff in the office of the Commission, firstly on the ground that no document was produced along with the appeal or that no memo was filed stating that no documents were relied on, even in the absence of any such rules or regulations or any form of appeal providing for that and secondly by not intimating the defect noted. 14. The rules and regulations which are intended to obviate the difficulties that may be caused to the parties are misinterpreted in such a way defeating the very purpose and intent of the Consumer Protection Act and the establishment of forums under it. Therefore when the appeal memorandum was filed along with the certified copy of the appeal and the deposit, it should have found that there was no irregularity in the appeal submitted by the petitioner and ought to have condoned the delay, if at all a petition was found necessary in these circumstances for that purpose. W.P.(C).No.8689 of 2010 10 15. Petitioner has challenged Rule 24(3) of the Consumer Protection Rules saying that it is vague and inconsistent with the Consumer Protection Act. But I am unable to find any inconsistency in the rule. It cannot also be said that it is vague. Just because the rules were misinterpreted by the staff in the office of the Commission and the Commission failed to look into those aspects consistent with the intend and purpose of the Act while dismissing the petitions for condoning delay in re-presentation, it cannot be said that the rules are vague. As I have already found, Rule 24(3) does not make it mandatory that documents other than certified copy of the order of CDRF should be produced along with the appeal memorandum, when the words and expressions “and such other documents as may be required”. No person with ordinary prudence can insist that there should be one or other document also along with the appeal memorandum, apart from the certified copy, even if he does not want to rely on any document. The provision does not give rise to any ambiguity when the words 'such other documents are qualified by the expressions 'as may be required'. In fact 24(3) enables production of documents relied on, avoiding other procedural formalities for expediting the adjudication. In that view of the matter, there is nothing in Rule 24(3) which runs contrary to the Consumer Protection Act. It is seen that no form of appeal is provided under the rules which insists for production of any memo to the effect that in a case where the appellant does not rely on any W.P.(C).No.8689 of 2010 11 document the appeal memorandum shall be accompanied by such a memo. In fact a memo would be required when a document is produced. Therefore just because the office of the Commission noted certain defects, inconsistent with the object of Consumer Protection Act, it cannot be said that the rule is in any manner inconsistent. 16. Coming to the impugned orders in the I.As, it can be seen that the State Commission which is expected to adjudicate appeals on merit adopted a hyper-technical approach while considering the affidavit sworn to, by a very responsible counsel who appeared for the appellant. The affidavit filed by the counsel for the petitioner itself was an explanation sufficient to condone delay if at all a petition was necessary to condone delay. The Commission should have seen that an effective adjudication on merits was always just and proper rather than avoiding the same on unreasonable grounds adopting technical objections. While accusing the appellant and in effect the counsel , the Commission ought to have looked into the circumstances under which the delay occurred. It should have rectified the errors committed by its office in noting such defects and in not communicating the same. When the Rules and Regulations are issued for facilitating speedy disposal of cases avoiding technical procedural formalities, the Commission has rejected a petition insisting for non-existent procedural formalities, which goes contrary to the very purpose of the establishment of the W.P.(C).No.8689 of 2010 12 institution under the Consumer Protection Act, 1986. 17. Learned counsel for the petitioner relied on the judgment in **Glob Chits and Financiers, Malappuram v. Nediyodath Kunhimoideenkutty** [2014 (4) KHC 321] where this Court after considering similar matter, held that there is no requirement that affidavits in support of interlocutory applications for condoning delay shall be filed by the party himself. That was in which the petitions are to be filed in accordance with the provisions contained in Civil Rules of Practices, 1971 as well as the Limitation Act. In this case the petition was filed before the State Commission which is governed by Consumer Protection Rules, which cannot be expected to be so technical. Under the above circumstances, I quash Ext.P10, P10A, P11 and P11A orders passed by the 3[rd] respondent. The 3[rd] respondent shall entertain the appeal and dispose of the same as expeditiously as possible. Revenue Recovery Proceedings initiated pursuant to the proceedings in C.C.No.42 of 2006 shall be kept in abeyance till the disposal of the appeal. There is no appearance for the complainant. The appellant will appear before the 3[rd] respondent on 5.1.2017. Sd/- ## **P.V.ASHA, JUDGE.** AS