(Per Shri P.N.Kashalkar, Hon’ble Presiding Judicial Member)

(1)               This is a second complaint filed by the complainant.  Earlier he had filed a complaint bearing No.196/1990 and said complaint was pending on our file and it was dismissed for default on 08/02/2011 as the complainant was not present on that day.   The complainant did not prefer any appeal or revision against the dismissal order passed by this Commission, but this second complaint has been filed involving similar facts and cause of action.  In our opinion, second complaint is not tenable and only course open to the complainant is to approach National Commission, New Delhi by filing revision against the order passed by this Commission and get the order set aside.  Adv.Vidyarthi for the opponent relied upon the decision of the Apex Court in the matter – Rajeev Hitendrea Phathak & ors. Vs. Ahyut Kashinath Karekar & anr.- IV (2011) CPJ 35 (SC) –and submitted that this Commission is a creature of statute and have no powers to recall or review.  In the said judgement, it is clearly observed in para 38 that the decision of Jyotsana’s case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co.Ltd. is untenable and cannot be sustained.  In the instant case, the counsel for the complainant has relied upon the decision in the matter – New India Assurance Co.Ltd. Vs. R. Srinivasan – AIR 2000 Supreme Court 941 – which is not tenable and cannot be sustained according to apex court.  The decision in the matter of -Rajeev Hitendrea Phathak & ors. Vs. Ahyut Kashinath Karekar & anr.- IV (2011) CPJ 35 (SC)  is of three judges’ bench and the decision in the matter - New India Assurance Co.Ltd. Vs. R. Srinivasan – AIR 2000 Supreme Court 941 is of two judges’ bench.  Under the circumstances, larger bench has decided that the judgement reported as per AIR 2000 Supreme Court 941 is untenable and not sustained.  Under the circumstances, ruling laid down by Supreme Court in the matter of New India Assurance Co.Ltd. Vs. R. Srinivasan – AIR 2000 Supreme Court 941 is not tenable by law though it is relied by Mr.Hartalkar, advocate for the complainant in this case.  Supreme Court in the matter of New India Assurance Co.Ltd. Vs. R. Srinivasan – AIR 2000 Supreme Court 941 - laid down that after first complaint was dismissed in default and was not barred by limitation, second complaint can be filed.  But this ruling is held to be not sustainable in law by the larger bench of the Supreme Court.  Therefore, we cannot act upon the ruling reported in AIR 2000 Supreme Court 941 - New India Assurance Co.Ltd. Vs. R. Srinivasan.  Under the circumstances, the contention of Mr.Hartalkar, advocate for the complainant that second complaint can be filed if first complaint has been dismissed for default cannot be acted upon.  Therefore, we are not inclined to admit the complaint and hence it is liable to be dismissed at the admission stage itself.

Pronounced on 29^th August, 2012.