ORDER
(Passed on 06.11.2012)
Per Mr S M Shembole, Hon’ble Presiding Member
This appeal is directed against the judgement & order dtd.20.06.2007 passed by District Consumer Forum, Amravati, dismissing the application for condonation of delay, which was caused in filing the restoration application for restoration of Consumer Complaint bearing No.CC/03/40 which was dismissed in default vide order dtd.19.09.2006.
Brief facts giving rise to this appeal are that:-
1. According to the appellants / complainants deceased Bashir, who is the husband of complainant No.1 and father of complainants No.2 to 5, had obtained Life Insurance Money Back Policy from the respondent. On 06.10.2001 he paid premium of Rs.1,756/- and obtained receipt. Further on 11.10.2001 an amount of Rs.24/- towards extra premium was also recovered from him. However, policy was not issued before his death i.e. before 05.11.2001. After his death his legal heirs - complainants claimed the amount of said insurance policy with interest and further compensation at Rs.25,000/-, alleging deficiency in service on the part of o.p / respondent. However, their claim came to be repudiated by the o.p / respondent on the ground that there was no concluded contract as the insured died before accepting the policy.
2. Therefore, the complainants / appellants filed Consumer Complaint bearing No.CC/03/40 claiming amount of Life Insurance Money Back Policy
3. The complaint is resisted by the respondent / o.p. by their Written Version, contending inter alia that the appellants / complainants are not entitled to claim the amount of insurance policy as the contract was not concluded because the insured died before accepting and issuing the policy. It is submitted to dismiss the complaint.
4. Thereafter, when the matter was fixed for final hearing the complainants as well as their counsel remained absent and therefore, complaint came to be dismissed in default on 19.09.2006.
3. Thereafter, the appellants’ counsel received the copy of order on 29.11.2006 and filed restoration application bearing No.MA/07/4 alongwith delay condonation application. The delay condonation application was filed alongwith medical certificate. The application was resisted by the respondent / o.p denying the medical certificate.
4. On hearing both the sides, the Forum dismissed the delay condonation application vide order dtd.20.06.2007.
5. Feeling aggrieved by the same order, the applicants / complainants preferred this appeal.
6. We heard counsel for both the sides, perused the copy of impugned judgement & order and copies of complaint dismissal order, medical certificate and the Written Notes of Argument submitted by the Ld. Counsel for both the sides.
7. It is submitted by Smt A Deshpande Ld. Counsel for the appellants that though the complainants were interested to proceed with the complaint the Forum wrongly dismissed the complaint in default at the stage of filing Written Notes of Argument and rejoinder. It is submitted that though the complainants were ready to file rejoinder, they could not file it as complainant No.1 was ailing, etc. It is further submitted that when the respondent / o.p had filed its Written Version the Forum ought to have decided the matter on merit instead of dismissing the complaint in default. According to Smt Deshpande, Ld. Counsel for the appellants as per the provisions of Sec.13(2)(c) of CPA, the Forum should have decided the complaint on merit on the basis of averments made in the complaint and Written Notes of Argument.
8. But we find no force in the submission of Adv. Smt Deshpande for the appellants, because when appellants had not filed rejoinder or affidavit evidences the Forum has rightly dismissed the complaint in default. As per the provisions of Sec. 13(2) (c) of CPA the Forum has its own discretion either to dismiss the complaint in default or decide it on merit at the stage of hearing in the event of absence of complainants. In the present case, from the undisputed facts, it is obvious that the complaint was not fixed for final hearing when it is dismissed but it was for filing the rejoinder and Written Notes of Argument by the complainants. Therefore, there could be no question of deciding the complaint on merit. Thus it is obvious that the Forum has rightly dismissed the complaint in default.
9. Moreover, as far as order of dismissal of delay condonation application is concerned, on perusal of copy of application for condonation of delay and copy of order we find that the Forum has rightly dismissed the delay condonation application, holding that the medical certificate is not genuine. Moreover, apart from the medical certificate, the Forum has rightly held that in the application complainants have not given any explanation as to why the applicants No. 2 to 5 have not filed the restoration application in time. Therefore, we find no infirmity or illegality in the impugned order, rejecting the delay condonation application.
10. Further, we may point it out here that when the Forum has dismissed the complaint in default, it has no jurisdiction to restore the same as per the provisions of Sec. 22(A) of CPA 1986, except National Commission, no other Forum or Commission has jurisdiction to set aside, restore or review its own order. It is also recently held by Hon’ble Apex Court in the case of Jajeev Hitendra Pathak & Ors. Vs. Achut Kashinath Karekar & Ors. reported in 2012(2) Mh.LJ–1.
Therefore, though this fact is not considered by the Forum while dismissing the delay condonation application as well as application for restoration of complaint it has rightly dismissed the application for delay condonation application as well as application for restoration of complaint.
11. Apart from the above facts Mr Aurangabadkar, Ld. Counsel for the respondent / o.p. submitted that the present appeal itself is not maintainable as the appellants have challenged two orders in this appeal i.e. order dismissing the complaint in default and subsequent order dismissing the application for delay condonation. He also submitted that if the applicants / appellants are aggrieved by the order of dismissal of complaint in default they could have filed the appeal immediately instead of filing an application for restoration of complaint before the Forum.
12. We find much force in this submission. Firstly, because the appeal, challenging the order of dismissing the complaint in default is hopelessly barred by limitation and therefore, same cannot be considered now, that too alongwith appeal challenging subsequent order dismissing the application for condonation of delay in filing the application of restoration of complaint. Adv. Smt Deshpande for the appellants also could not explain as to how the appeal against both the orders is maintainable. Therefore, we have no hesitation to accept the arguments advanced by the Ld. Counsel for the respondent.
13. For the foregoing reasons, the appeal deserves to be dismissed.
Hence, the following order:-
ORDER
i. Appeal is dismissed.
ii. No order as to cost.
iii. Having regard to the peculiar facts of the case, we direct the parties to bear their own cost.
iv. Copy of this order be supplied to the parties.
