LexRAJEEV HITENDRA PATHAK & OTHERS versus ACHYUT KASHINATH KAREKAR & ANOTHER
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- [2011) 10 S.C.R. 513 RAJEEV HITENDRA PATHAK & OTHERS v. ACHYUT KASHINATH KAREKAR & ANOTHER (Civil Appeal No.4307 of 2007) .AUGUST 19, 2011 [DALVEER BHANDARI, DR. MUKUNDAKAM SHARMA AND ANIL R. DAVE, JJ.] CONSUMER PROTECTION ACT, 1986: Sections 12, 13 and 14 - Power of review and to set aside ex parte orders - Held: District Consumer Forums and State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have A B c not been expressly given by the statute cannot be exercised. 0 Section 22 (as amended in 2002) read with ss. 12, 13 and 14 ands. 22-A (as introduced in 2002) - Power and procedure applicable to National Commission and power to set aside ex parte orders - Held: After amendment in s. 22 and introduction of s. 22-A, the power of review or recall has E vested with the National Commission only - The findings of the National Commission holding that the State Commission can review its own orders are set aside - However, the findings of the National Commission holding that the complaint be restored to its original number for hearing in accordance with F law is upheld. The wife of respondent no. 1 (in CA No. 4307 of 2007) died during surgery on 8.10.1997. A complaint was filed alleging deficiency in service and claiming compensation G of Rs. 15,00,0001-. On 9.9.2004, the State Commission dismissed the complaint for want of prosecution. However, on an application by the complainants, the State Commission recalled the order dated 9.9.2004 and 513 H 514 SUPREME COURT REPORTS [2011] 10 S.C.R. A restored the complaint. The appellants filed a revision petition before the National Commission contending that (i) the State Commission did not have power to restore the complaint and (ii) the State Commission erred in restoring the complaint without issuing notice to the B appellants. The National Commission· dismissed the revision petition. The said order gave rise to C.A. No. 4307 of 2007. C.A. No. 8155 of 2001 was filed against the order passed by the National Commission dismissing the complainant's application for setting aside the ex parte c order passed by it. The two-Judge Bench before which the appeals were listed for hearing, noticed the divergent views of the Court on the question of power of the State Commission to review or recall its ex parte order and, consequently, D the appeals were listed before the three-Judge Bench. The main question for consideration before the Court was: "whether the District Cc nsumer Forums and the State Commissions have the power to set aside their E own ex parte orders or in other words have the power to· call or review their own orders?" Disposing of the appeals, the Court HELD: 1.1 On a careful analysis of the provisions of F the Consumer Protection Act, 1986 it is abundantly clear that the Tribunals are creatures of the statute and derive their power from the express provisions of the statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and G power of review and the .powers which have not been expressly given by the statute cannot be exercised. [para H 36) (529-D-E] 1.2 The legislature chose to give the National Commission the power to review its ex parte orders. RAJEEV HITENDRA PATHAK v. ACHYUT 515 KASHINATH KAREKAR Before amendment, against dismissal of any case by the A Commission, the consumer had to rush to this Court. The amendment in s.22 ·and introduction of s. 22-A were done for the convenience of the consumers. [para 37] (529-F] Jyotsana Arvind Kumar Shah & Others v. Bombay 8 ·Hospital Trust (1999) 4 SCC 325 - upheld New India Assurance Co. Ltd. v. R. Srinivasan 2000 (1) SCR 1228 = (2000) 3 sec 242 - overruled - 1.3 In view of the legal position, in Civil Appeal C No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in s. 22 and introduction of s. 22A in the Act in the year 2002, the power of review or recall has vested D with the National Commission only. However, this Court affirms the findings of the National Commis~ion holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law. There has been considerable delay in disposal of the complaint. E Therefore, the State Commission is directed to
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