CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.173/2019
MRS. BABI TANWAR
W/O SHRI RISHI BHAGWAN TANWAR
R/O HOUSE NO. 9, VPO BAMNOLI,
SECTOR 28, DWARKA PHASE II,
DELHI- 110045 …..COMPLAINANT
Vs.
M/S TATA AIG GENERAL INSURANCE CO. LTD.
THROUGH ITS
MANAGING DIRECTOR
LOTUS TOWERS, 1ST FLOOR,
COMMUNITY CENTRE,
NEW FRIENDS COLONY,
NEW DELHI-110025…..RESPONDENT
Date of Institution-01.08.2019
Date of Order- 02.03.2022.
O R D E R
MONIKA A SRIVASTAVA– President
The complainant has instituted the present complaint on 01.08.2019 on the same cause of action on which a previous complaint bearing no. CC 07/2013 was filed. The previous complaint came to be dismissed for non-prosecution on 30.08.2017.
For reasons best known to the Complainant, the complainant in the present complaint i.e CC No. 173/2019 has filed an application for restoration of the CC bearing no. 07/2013 along with another application under section 5 of Limitation Act 1963 seeking condonation of delay in filing application for restoration. It is to be noted that the present complaint is filed about two years after the dismissal of the previous complaint (CC no. 07/2013) and the application for restoration is moved after about 4.5 years after dismissal of the previous complaint.
The complainant has relied upon the Judgment of Hon’ble Supreme Court in the matter of New India Assurance Co Ltd vs R. Srinivasan AIR 2000 SC 941 and St Joseph Hospital vs Jimmy P K AIR 2001 Ker 316 to canvass a point that a second complaint is maintainable when the first complaint was dismissed in default as against dismissed on merits.
The repealed Consumer Protection Act 1986 did not confer the power of restoration of complaints dismissed in default to the District Forum, however, Section 40 of the Consumer Protection Act 2019 (hereinafter referred to as CP Act) has granted power to the District Forum to review its order, which may include the power to restore the complaint dismissed in default. Section 40 of CP Act 2019 is reproduced hereinbelow:
40. The District Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order.
There is no doubt that under the Consumer Protection Act 2019, the Commission has the power to restore a complaint which was dismissed in default however it is a fundamental principle of law that such an application must be filed in the proceedings wherein the dismissal order was passed. Karnataka High Court in the matter of D. Sangya Naik vs Department of Telecom ILR 2005 Kar 1874 has held that
Therefore, it is a rule of estoppel, which finds a statutory recognition in order IX Rule 8 CPC, which prevents the party from filing a suit on the same cause of action, if the earlier suit is dismissed for non-appearance. This Rule is based on sound public policy. The principle underlying this provision is that a litigant who comes to Court with a cause should agitate the matter with due diligence and take a decision on merits, so that a finality is reached. Otherwise, there would not be any finality, and the opposite party could be harassed endlessly, by allowing the proceedings to be dismissed for non-prosecution and re-agitate the matter time and again at his convenience and leisure. Then this judicial process would become an instrument of oppression rather than a means to resolve disputes in a civilized way.
In the present case application for restoration of CC no. 07/2013 has been filed in CC no. 173/2019 which this Commission does not have the power to restore.
Hon’ble Supreme Court in the matter of New India Assurance Co Ltd, while holding the consumer courts have the power to entertain the subsequent complaint if the previous complaint has been dismissed in default and restoration application is also rejected, has cautioned against the abuse of the provision of restoration. The relevant extract of the SC judgment is reproduced hereinbelow
We cannot also lose sight of the fact that a complainant may harass a party by repeatedly filing the complaint against him. He may file a complaint, draw the opposite party to the State or National Commission and then have the complaint dismissed for default. He may repeat the exercise again only to harass the defendant. This practice, or to put it a little sternly, these tactics would be intolerable for any authority under the Act. In such a situation, the District Forum or the State or National Commission would not be helpless and it would be open to them to dismiss the fresh complaint on the ground of abuse of the process available under the Act. They can, in that situation, legitimately invoke the principles of Order 9, Rule 9, C.P.C.
This Commission is therefore of the view that present application for restoration of CC no. 07/2013 is dismissed for being not filed in the appropriate proceedings. The present complaint is dismissed being an abuse of the process of court.
Copy of order be sent to the parties and thereafter file be consigned to record room.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA A SRIVASTAVA)
MEMBER MEMBER PRESIDENT
