DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
M.A. 159/2018
C. C. NO- 531/2016
Date of Filing: Date of Disposal:
07.06.2018 06.08.2018
Complainant :- Sanjit Kumar Sen, S/o Late Harendra Kumar Sen,
Prantik, Purba Bankim Pally, Madhyamgram,
P.S.-Madhyagram, North 24 Parganas,
Kolkata-700 129, West Bengal.
=Vs=
Opposite Parties:- 1. Manager Resources,
Alchemist Infra Reality Limited,
SCO No-52-53 (1st Floor), Sector-9/D,
Near HDFC Bank, Chandigarh, Pin-160017.
2. Regional Manager,
Alchemist Infra Reality Limited,
15, Ganesh Chandra Avenue (4th Floor),
P.S.-Hare Street, Kolkata-700 013.
3. Branch Manager, Alchemist Infra Reality Limited,
Promod Das Gupta Sarani, Hizalpukur, Habra,
P.S.-Habra, North 24 Parganas, Pin-743271,
West Bengal.
P R E S E N T :- Sri. Bankim Chandra Chattopadhyay………..…..President.
:- Smt. Silpi Majumder ………………………Member.
Order No- 14
This order is arising out of the MA being no-159/2018 filed by the Complainants in the CC no-531/2016 praying for substitution of the name of the Complainant, since deceased, in the cause title of the complaint by his legal heirs.
In the application it is stated by the Complainants that during pendency of this complaint the Complainant Sanjit Kumar Sen died on 03.10.2017 leaving behind his wife and one daughter as his legal heirs and representatives. In view of such fact the name of Sanjit Kumar Sen is required to be substituted by the names of the wife and the daughter of the deceased. According to the Complainants being a bonafide prayer, the same should be allowed, unless their interest will be seriously prejudiced.
Cont…………….2
:2:
Be it mentioned that before filing of this application the same was send down at the addresses of the OPs. From the track reports it is evident that the OPs have received the same, but did not bother to contest this application either orally or by filing written objection. We took up the application for hearing and its disposal in absence of the OPs.
We have perused the application praying for substitution of the name of the Complainant, since deceased by his legal heirs. On being asked the Ld. Counsel for the Complainants has stated that admittedly within 90 days from the date of death of Sanjit Kumar Sen this application is not filed. The death certificate has also not been annexed. The Ld. Counsel for the Complainants has argued that the Ld. Forum is empowered to allow such application when it is not moved within 90 days from the date of death any parties included in the proceedings. In this respect the Ld. Counsel for the Complainant has relied on the judgment passed by the Hon’ble SCDRC, Uttar Pradesh, Lucknow, reported in 2000(2) CPJ 550. We have carefully perused the said judgment and it is seen by us that the Hon’ble SCDRC was pleased to rely on the judgment passed by the Hon’ble NCDRC in the case of M/s. Cosmopolitan Hospital & Others vs. Vasantha P. Nair & Others, reported in Vol-I (1992) CPJ 302. In the judgment passed by the Hon’ble SCDRC it is mentioned that ‘no doubt there is no express provision in the Consumer Protection Act for substituting the legal representatives or heirs of a deceased party, but it does not mean that the SCDRC does not possess any authentic powers to implead a heir or legal representative of a party who has died mid-way. If a cause of action survives and the suit or proceeding can be continued by his heir or legal representative, then he can be permitted to continue the proceedings by substituting his name in place of deceased party. There is no specific bar held in adopting this course of action. We have to be guided by the principles of natural justice and the objective with which the Consumer Protection Act has been passed is to be kept in consideration and that objective cannot be achieved if a pending litigation is terminated mid-way on the death of a party.’
In the relied case it was argued that the complaint shall be deemed to have been abetted as the substitution application has not been moved by the legal representative or heir within the period of limitation allowed for filing such applications under Article 120 of the Limitation Act. The Hon’ble SCDRC has been pleased to hold that ‘in the present case the Limitation Act does not apply to the proceedings under this Act after amendment is made in the year 1983. Moreover there is no period prescribed for moving such an application under the Consumer Protection Act. Provisions of Limitation Act cannot be imported in these proceedings unless they have been specifically applied.
Cont…………….3
:3:
We have to go by the principles of natural justice and this Act, being for protection of the consumers, the SCDRC cannot direct for dismissal of the application for substitution on the ground that the suit stands abetted because the application for substitution was not moved within the limitation as prescribed under the Limitation Act.’
The Complainant has also placed reliance on the judgment passed by the Hon’ble NCDRC in the case of M/s. Cosmopolitan Hospital & Others vs. Smt. Vasantha P. Nair & Others, reported in Vol-I (1992) CPJ 302, wherein Their Lordships have held that the legal representative of a decease, by operation of law, gets clothed with the rights, status, personalities of the deceased for the purpose of enforcing the cause of action which has devolved on him.
Having regard to the abovementioned Rulings we are of the opinion that the application filed by the Complainants should be allowed.
Hence it is ordered that the MA being no-159/2018 is hereby allowed without any cost. The Complainants are directed to submit amended complaint showing substitution of their names in the cause title of the petition of complaint.
Fix 24.01.2019 for filing the amended complaint by the substituted Complainants without any fail.
Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.
Member President
Dictated & Corrected by
