BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

I.A.170/2017

in   

C.C.No:365/2015

ORDER DATED: 15.05.2018

Complainant:

(by Adv. T.K. Ananda Padmanabhan)

Opposite parties:

(by Adv. K.S. Gopinathan Nair)

This C.C having been heard on 16.04.2018, the Forum on 15.05.2018 delivered the following:

ORDER

SRI. P. SUDHIR, PRESIDENT:

This I.A. filed by the opposite party to hear the question of maintainability on the ground that the complainant had filed this complaint for refunding an amount of Rs.2,20,000/- with 18% per annum to recover an amount of Rs.5,00,000/- as compensation and Rs.1,00,000/- as cost.  Complainant has claimed an amount of Rs.8,00,000/- in total contending that the opposite parties had violated the terms of work agreement executed between opposite parties and complainant.  The complainant had filed a civil case as O.S.No.126 of 2015 before the Honourable Subordinate Judges Court, Trivandrum against opposite parties for refunding an amount of Rs.2,20,000/- with 12% interest and Rs.10,00,000/- as damages on the basis of cause of action allegedly arisen for filing the complainant before Honourable Consumer Disputes Redressal Forum, Trivandrum.  It is the settled position of the law that complainant cannot pursue remedy in a civil court as well as a forum constituted under Consumer Protection Act, 1986 simultaneously.  This is a case wherein full evidence is to be recorded by a civil court for the disposal of the suit.  In such a situation, the Forum should not entertain the complaint with respect to the same cause of action.  The matter in dispute is subjudice before a Honourable Civil Court and the Forum cannot entertain any claim for compensation in respect of the identical subject matter.  Complainant cannot take a chance by initiating parallel proceedings.  This complaint is nothing but a gross abuse of the Consumer Protection Act.

Complainant filed objection stating that the suit numbered O.S.126 of 2015 pending consideration before Honourable Subordinate Judges Court, Trivandrum was filed for damages due to violation of statutory requirement owing to breach of contract and for recovering the amount due from the complainant herein.  The above complaint is filed claiming compensation for deficiency in service.  Hence both the proceedings are not mutually destructive and can therefore run concurrently.  By reason of the provisions of section 3 of the Consumer Protection Act, 1986, it is evident that remedies provided in the 1986 Act are in addition to and not in derogation of those provided under other laws and that the said Act supplements and supplants the jurisdiction of the Civil Court or other statutory authorities.  Even in those cases where the proceedings under Consumer Protection Act and Civil Court are substantially similar, it had been held that the proceedings can simultaneously go on.

Heard both sides, perused.  The subject matter of the case and the subject matter in O.S. 126 of 2015 before the Honourable Subordinate Judges Court, Trivandrum is same.  In both cases the complainant/plaintiff prays refund of advance amount of Rs.2,20,000/- as per agreement.  The case being settlement of accounts and need lengthy evidence and proceedings and as per the decision produced by the petitioner/opposite party in II (2015) CPJ 117 (NC) Kalyanpur Cold Storage Vs. New India Assurance Company and others National Commission rely on the ruling Hanuman Prasad Vs. The New India Assurance Co. Ltd., I (1994) CPJ (NC), it was held that “when a case is pending in a court in which full evidence is to be recorded, the Forums constituted under the Consumer Protection Act, 1986, should not entertain the complaint with respect to the cause of action when the matter was thus subjudice before ordinary Civil Court of the land, the Commission cannot and will not entertain any claim for compensation in respect of the identical subject matter”.  In V.P. Somasekhar Vs. The Secretary, APMC Yard, III (1999) CPJ 134 it was held that “proceedings before the Forum under the Act cannot be equated to the proceedings before regular Civil Court and litigants cannot take a chance by initiating parallel proceedings”.  In Oswal Fine Arts Vs. HMT., 1991 CPC 43 (NC) the commission held that the important principle that when a matter is
subjudice before the ordinary civil court of the land, the Consumer Commission cannot and will not entertain any claim for compensation in respect of the same subject matter.

So we are of the opinion that to avoid plea of duplicating of judgements on same relief by two different Fora/Civil Court we allow the I.A. and dismiss the complaint as not maintainable.

          In the result, I.A. allowed and complaint dismissed as not maintainable.

SL