West Bengal

Dakshin Dinajpur

CC/37/2017

Lutfar Rahaman Chowdhury, S/O- Late Rahimuddin Chowdhury - Complainant(s)

Versus

A.E. & Station Manager, Gangarampur CCC, WBSEDCL - Opp.Party(s)

Debashis Barman

03 Nov 2017

ORDER

The complainant Lutfar Rahaman Chowdhury has filed this petition against the Assistant Engineer & Station Manager and also Division Engineer & Division Manager of West Bengal State Electricity Distribution Co. Ltd. Gangarampur and Balurghat respectively.

 

At para 15 of the complaint the complainant had stated that he had lodged the same complaint vide CC No.23/2017, which was dismissed due to non-appearance of the complainant and had further filed a petition for restoration on 19.6.2017 but, the complainant had shown no good cause for the non-appearance.

 

The question which arises for consideration is whether the second complaint is maintainable in law upon the same cause of action.

 

Ld. Lawyer appearing for the complainant has pleaded for the maintainability of the case and has relied on a case reported in AIR 2000 Supreme Court 941 (New India Assurance Co. Ltd. vs. R. Srinivasan).

 

The OP, though has not referred to any ruling but opposed the maintainability within ambit of the CP Act, 1986.

 

In New India Assurance Company’s case (Supra), it is held by the Apex Court that the second complaint is maintainable when the former complaint is dismissed in default for non-appearance without entering into the merits of the case.

 

But, in the case of Jyotsana Arvind Kumar Shah vs. Bombay Hospital Trust, (1999) 4 SCC 325, it was held by the Apex Court that the second complaint on the same cause of action is not maintainable before the District Consumer Forum or State Commission, because this Fora do not have any jurisdiction to review or recall their order.

 

As the Jyotsana’s case was not referred to the Bench of the Apex Court in New India Assurance Company’s case the decision of the Apex Court which appears to be contradictory to each other was referred to a 3^rd Bench and the said Hon’ble Bench held in the case of Rajeev Hitendra Pathak & Ors. vs. Achyut Kashinath Karekar & Anr. decided on 19.8.2011 that the law pronounced in New India Assurance Company’s case is not a good law and that the District Consumer Forum / State Commission cannot review / recall the order once passed by them in as much as there is no statutory sanction in this regard.

 

            In the context of the legal position as discussed above, the contention of the Ld. Lawyer for the complainant that a 2^nd complaint on the same cause of action is maintainable appears to have no merit at all and the ruling referred to the Forum by him i.e. New India Assurance Company’s case is of no avail to him. Coming to the facts of the present case, it is found that the instant 2^nd complaint is filed by the complainant on the same cause of action of the 1^st complaint. His restoration petition has also been rejected after consideration as being not maintainable in law. Now, if the complaint is entertained it certainly tantamounts to reviewing or recalling the order of dismissal passed in the former case. But, the Forum has no such power to review or recall its own order and as such the 2^nd complaint deserves to be dismissed.

 

 

 

            Hence,

                                                O R D E R E D

            That the complaint case be and the same is dismissed on contest for being not maintainable in law.

 

            Let a plain copy of this order be supplied to the parties concerned forthwith free of cost.