BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
C.C.NO. 69 OF 2005 OF THE DISTRICT FORUM-KHAMMAM
Between
Totireddy Indira Devi s/o late Brahmmiah,
Age 47 years, Occ;House hold, R/o H.No. 5-60/1,
Near Siddi Rameshwera Kirana General Stores,
Deepthi Srinagar Colony, Madinaguda,
Hydearabad-5000 050
Appellant/complaint
A N D
1. The United India Insurance Co.,Ltd rep.by its
Chairman & Managing Director, Registered & Head Office,
24, Whites Road, Chennai-600 014.
2. The Regional Manager, United India Insurance Co.Ltd,
United India Towers, Post Box No. 1020, 33-5-817 & 818,
Basheerbagh, Hydeabad-500 029.
3. The Senior Divisional Manager,
Divisional Office, United India Insurance Co.Ltd,
Opp: Bus stand, Kothagudem,
Khammam District -507101.
Respondents/opposite parties
Counsel for the Appellant Sri G.L.Narasimha Rao
Counsel for the Respondent Sri E.Venugopal Reddy
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
TUESDAY THE TWENTY THIRD DAY OF NOVEMBER
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The complainant is the appellant. The complainant has filed the appeal challenging the order of the District Forum whereby her complaint was dismissed under Section 12(3) of the Consumer Protection Act.
2. The facts of the case are that the appellant is the wife of Brahmiah who during his life time was on employment with Sponge Iron India Ltd. The employer of the appellant’s husband obtained insurance policy for coverage of risk of its employees who included the husband of the appellant. The appellant’s husband met with a motor vehicle accident on 26th August,2003 and he died on 29th August, 2003 while undergoing treatment in Nizam’s Institute of Medical Sciences, Hyderabad. After the death of her husband, the appellant lodged claim for a sum of Rs.4,34,664/-and her claim was repudiated on the premise that the appellant’s husband was under the influence of alcohol at the time of accident.
3. The respondents resisted the claim contending that basing on the Exception no.5(b) of the Group Insurance Policy, the Insurance Company had repudiated the claim of the appellant as the insured was under the influence of alcohol at the time of the accident. The appellant approached the Insurance Ombudsman who passed award, based on the NIMS report, against the appellant. The complaint is not maintainable under Section 11 of C.P.C. The matter involves complicated questions of law and facts. There is no deficiency in service on the part of the respondents.
4. The appellant had filed copies of Insurance Policy dated 07-04-2003, Death Certificate dated 15-09-2003, Report of Post Mortem Examination dated 29th August, 2003 and the Award dated 9-08-2004 passed by the Insurance Ombudsman. The respondents had not filed any documents.
5. The District Forum has passed the order on 16th October,2007 that the respondents were heard and since there was no representation for the appellant, the complaint was rejected under Section 12(3) of the Consumer Protection Act.
6. The appellant had filed application in I.A.No.757 of 2007 for restoration of the complaint. The District Forum had dismissed the application by its order dated 2-01-2008 on the premise that on most of the dates of hearing both parties were absent and the appellant was continuously absent for seven times as also that the order rejecting the complaint is the dismissal order and it has no power to set aside its order in view of the decision of the Hon’ble Supreme Court in New India Assurance Company Ltd vs Ramanujan reported in I(2000)CPJ19(SC) and the order of the Tamil Nadu State Commission in J.J.Ramesh vs Chairman, Tamil Nadu Housing Board, Madras.
7. The appellant has filed the appeal contending that the District Forum had not considered that no notice was issued to her before rejecting the complaint and had not taken notice of her counsel being engaged in the Court of the III Additional Judge when the matter was called in the District Forum.
8. The point for consideration is whether the order of the District Forum suffers from any infirmity of misappreciation of fact or law?
9. The District Forum has passed the order rejecting the complaint without sating any reason or ground in support of the finding that the complaint was to be rejected. The complaint was registered after hearing the appellant and notice was issued to the respondents who entered their appearance and filed written version. The complaint can be rejected in regard to its maintainability at the stage of admission where it does not disclose any cause of action or where it appears to have been barred by any law in the light of the statement made therein. The learned District Forum failed to maintain distinction between rejection and dismissal of complaint. The order of the District Forum is not proper as it has not recorded any specific finding. The District Forum has tried to uphold the legality of the order of rejection by equating it with the order of dismissal of the complaint. The 12th paragraph of the order in I.A.No. 757 of 2007 read as under:
The contention of the learned counsel for the petitioner that when once the complainant is numbered, question of rejection of complaint u/s 12(3) of Consumer Protection Act does not arise is correct. Even though the impugned order shows that the complaint was rejected u/s12(3) of the Consumer Protection Act virtually it is an order of dismissal of the complaint for default u/s 13(2)(c) of Consumer Protection Act. Therefore, the order in question must be understood as dismissal of the complaint, even though the word rejected is used.
10. The order of rejection was deemed as the order of dismissal of the complaint; the District Forum has proceeded to dispose of the application on the premise that it has no power to restore the complaint dismissed for default. The District Forum has heard the counsel for the respondents who had not filed any documents or affidavit in support of their case. On the other hand, there are documents placed on record on the side of the appellant. Therefore, the impugned order ought to have been passed on merits taking into consideration of the pleadings and the documents.
11. The contention of the learned counsel for the appellant that the District Forum has not issued notice to the appellant before passing the order is devoid of substance. The principles of natural justice can not be stretched to the extent of obligating the District Forum to issue notice to the complainant before passing an order of dismissal for default. The appellant had been absent on several dates of hearing and it is pertinent to note that the appellant was absent continuously absent for seven times and the appellant despite having been absent over a period of one year, chooses to find fault with the procedure adopted in passing the impugned order on the premise that no notice was issued to her before the order was passed. Section 13(2)(c) of the Consumer Protection Act mandates by implication the presence of the complainant on each and every date of hearing else the District Forum clothed with the power to dismiss the complaint for default can dismiss the complaint for non prosecution. The appellant had not evinced interest in prosecuting the complaint and she has been very careless in staying away from attending the District Forum on the dates of hearing to adduce evidence to prove her case. However, for the reasons mentioned above and to give opportunity to the parties to project their case based on evidence, we are inclined to remand the matter for denova enquiry to the District Forum. We are not expressing our opinion on the merits of the case. The parties are at liberty to file documents and affidavits and proceed to establish their respective pleas.
12. In the result, the appeal is allowed. The order of the District Forum is set aside. The matter is remanded to the District Forum for denova enquiry. The parties shall appear before the District Forum on 6-12-2010 without insisting on issuing of notice by the District Forum. The District Forum shall dispose of the matter within one month from the date of receipt of the record as the matter pertains to 2005. In the circumstances of the case, there shall be no order as to costs.
MEMBER
MEMBER
Dt.23.11.2010
KMK*
