DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

Date            :         09.05.2024

Present        :         Complainant in person

Original file No.255/2018 has been received. Heard further.

The complainant has filed the present application under Order 9 Rule 4 CPC for restoration of the present case along with the prayer of condonation of delay in filing the application.

Brief facts as stated by the complainant in the complaint are that the matter was pending adjudication before this Commission on 13.09.2023 on which date the Commission has dismissed the complaint, for non-prosecution and complainant submit that he did not have the knowledge of the case pending on 06.09.2022 and 20.03.2023 and 13.09.2023 as his counsel was not correctly updating the pending dates of hearing and also the complainant has changed his address so there was no question of information served in any case being sent by the Commission thereby informing the complainant.  The non-appearance of the complainant is neither intentional nor deliberate but only due to reasons as explained above and complainant has a good case on merits and therefore the Order dated 13.09.2023 be set aside and complaint be restored to original number.   It is further stated that the complainant would be more careful in pursuing the matter in future and complainant also came to know that his previous counsel and his wife were suffering from ailment for some duration and were even admitted in Hospital and now as the previous counsel has informed him to engage some other counsel and accordingly it is prayed that delay in filing the present application be condoned and order dated 13.09.2023 be set aside. 

The Commission on the very first date of hearing had put an enquiry qua the power of this Commission w.r.t. to restoration of the complaint whereafter complainant sought time to search some law points.  He accordingly has relied upon the judgment New India Assurance Co. Ltd. V/s R. Srinivasan. Perused. The issue involved in this judgment was that whether in view of the dismissal of the first complaint filed by respondent a second complaint on the same facts and cause of action would lie before the Commission or not and it was ultimately held:

The only question raised before us by the learned counsel for the appellant is that in view of the dismissal of the first complaint filed by the respondent, a second complaint on the same facts and cause of action would not lie and it ought to have been dismissed as not maintainable. It is contended that the second complaint was filed in respect of the same vehicle and for the same amount and against the same party from which damages were claimed earlier, and once the complaint was dismissed though for default, a second complaint would not lie, specially as the application for restoration was also rejected by the State Commission.

In the instant case, the vital fact of there being an insurance cover in favour of the respondent is not disputed. The loss suffered by the respondent is not disputed and the claim of the respondent is also not questioned. The only point urged before the State Commission as also before the National Commission and, for that matter, before us is that on account of the first complaint having been dismissed in default and the complaint having not been restored, the second complaint would not lie. The interest of justice, in our opinion, cannot be defeated by this rule of technicality. The rules of procedure. as has been laid down by this Court a number of times, are intended to serve the ends of justice and not to defeat the dispensation of justice. The respondent had suffered loss which was squarely covered by the Policy of Insurance granted by the appellant. Since his claim is not being questioned before us on merits and is being sought to be defeated on the technical plea referred to above, we are not prepared to interfere with the orders passed by the District Forum, the State Com-mission and the National Commission, particularly as it is stated before us that the whole of the claims amount has already been paid to the respon-dent.

Therefore, this judgment as relied upon by counsel for complainant does not say anything w.r.t. the power of the Commission and is not assisting the complainant.  The counsel for complainant/complainant in person has also relied upon another judgment i.e. Mr. Reju Thomas vs The National Insurance Co. Limited and Para 9 reads as under:

The question considered by the Apex Court in New India Assurance Company Limited Vs. Sreenivasan (supra) as is clear from paragraph 5 of the judgment was whether in view of dismissal of the first complaint filed by the respondent therein, a second complaint on the same facts and cause of action would lie and whether it ought to have been dismissed as not maintainable. Their Lordships considered the power of Consumer Redressal Forum under Section 13 and held that powers which are available to a civil Court under Code of Civil Procedure are made available to District Forum in respect of matters enumerated in sub section 4 of Section 13 and provisions of Order IX are not made applicable. Their Lordships then held:

" 10). We have already indicated above that the Code of Civil Procedure has been applied to the proceedings under the Consumer Protection Act only to a limited extent. If the intention of the legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer Protection Act, it would have clearly provided in the Act that the provisions of Order 9 will also be applicable to the proceedings before the District Forum or the State Commission or, for that matter, before the National Commission. If the legislature itself did not apply the rule of prohibition contained in Order 9 Rule 9(1), it will be difficult for the courts to extend that provision to the proceedings under the Act."

And ultimately it was held

It is relying on this paragraph learned counsel appearing for petitioner argued that the Consumer Redressal Forum has the power to restore complaint which was dismissed for non appearance of the complainant. The learned counsel pointed out that taking note of the earlier decision in Jyotsana Aravindkumar Shah's case where a contrary view was taken, a subsequent Bench of the Apex Court in Rajeev Hitendra Pathan v. Achyut Kashinath Karekar (2007 (7) SCC 667) has referred the question to a larger Bench and therefore it is to be found that Consumer Redressal Forum has the power to restore a complaint which was dismissed for default. In Rajeev Hitendra Pathan's case (supra) taking note of paragraph 18 of the judgment in New India Assurance case (supra) it was held: "In the latter case i.e. New India Assurance case reference was not made to the earlier decision in Jyotsana case. Further the effect of the amendment to the Act in 2003 whereby Section 22A was introduced has the effect of conferment of power of restoration on the National Commission, but not to the State Commission. In view of the divergence of views expressed by coordinate Benches, we refer the matter to a larger Bench to consider the question whether the State Commission has the power to recall the ex parte order. Records be placed before the Hon'ble Chief Justice of India for appropriate orders." Hence it cannot be said that Apex Court has held that District Forum has jurisdiction to restore a complaint dismissed for default. The learned counsel appearing for the petitioner relied on the decision of a learned Single Judge of this Court and submitted that it was held that District Forum has the power to set aside the exparte order. In St. Joseph's Hospital v. Jimmy (2001 (2) KLT 514) the learned Single Judge also held that power to set aside the exparte order under Order IX was not given to the District Forum. True, relying on New India Assurance case it was observed that District Forum has inherent power to restore the complaint dismissed for default. But that was not the question decided in the said case. The National Consumer Disputes Redressal Commission in Harish Chandra v. The New India Assurance Co. Ltd. (2008 (2) CPR 249 (NC) also held that Section 17 of the Consumer Protection Act does not empower a State Commission to review or recall its own. 

Keeping in view these facts this Commission has enquired from the complainant who himself is an advocate that he may file other complaint, keeping in view law, as cited by himself, but the complainant submits that he would rely on the same facts and his application for restoration be disposed off.  Keeping in view all such facts, the Commission is of the opinion that since there is no power vested with this Commission for restoration of this Complaint, the application of the complainant is dismissed.

This Commission is not adverting much to the reasonable cause for non-appearance of the complainant, nor any opinion is being referred w.r.t. his changed address  or w.r.t. delay in filing the complaint, as this Commission has no jurisdiction/power under Consumer Protection Act to dispose off the application on merit and therefore application of the complainant is dismissed for the reason that this Commission has not been vested with any power for restoration the complaint which has been dismissed for non-prosecution. 

Copy of the order be supplied / sent to the complainant/parties free of cost as per rules.

File be consigned to Record Room. 

Announced on 09.05.2024.