Date of filing: 05.7.2017                                                                 Date of disposal: 20.7.2017

Complainant:               Sri Ajay Mallik, S/o. Late Kalipada Mallik, 1/28, Shri Nagar Pally, Benachiry, PO: Durgapur, District: Burdwan, PIN – 713 213.

-V E R S U S-

Opposite Party:            The General Manager, Maruti Suzuki Swg Car World Durgapur, (A Unit of Sainath Autolinks Pvt. Ltd.), at Benachity, Durgapur – 13, NH – 2, G. T. Road, Faridpur, District: Burdwan (W.B.).

Present:      Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:      Ld. Advocate, Subhas Roy & Abhijit Ganguly.

Order No. 04, Dated: 20.7.2017

Ld. Counsel for the complainant is present. Today is fixed for admission hearing. We take up the record for admission hearing. At the time of admission of this complaint our notice has been attracted to the paragraph No. 17 from where it is evident that on earlier occasion the same complainant has filed a separate complaint which was dismissed for default due to non-appearance of the complainant. The ld. Counsel for the complainant has filed a certified copy of the said order passed by this ld. Forum in the C.C. No. 02/2017, dated 31.5.2017 from where it is evident that 31.5.2017 was fixed for showing cause by the  complainant as to why the case shall not be dismissed for default. The OP filed hazira but none was appeared from the side of the complainant. Cause had not been shown by the complainant in compliance of the order No. 7, dated 12.5.2017. On scrutiny of the record it was found that no evidence had yet been adduced from the side of the complainant. In the above premises there was no alternative but to dismiss the complaint stating as follows:

“that the Consumer Complaint being No. 02/2017 be and the same is dismissed for default without any cost”

In respect of such dismissal the ld. Counsel for the complainant has submitted that he has approached before the CA & FBP, Durgapur R.O. for mediation of his grievance wherein the Ops were also present. Verbal assurance was given by the Ops that the Ops will redress his grievance and based on their verbal assurance the complainant did not take any step to be present on 31.5.2017 to contest the complaint. According to the complainant as the Ops have misled and cheated him in this manner, hence he has no liability for dismissal of the complaint. Moreover, he had no knowledge that the Ops were present on 31.5.2017 before this ld. Forum. It is further submitted by the complainant as the Ops have defrauded the material fact and cheated him in such a fraudulent manner, hence cause of action arose separately on 31.5.2017. According to the complainant as this complaint has been filed by him based on different cause of action, the complaint is well maintainable before this ld. Forum. According to the complainant this complaint is liable to be admitted.

We have carefully heard the argument as advanced by the ld. Counsel for the complainant. In our view as to whether he was cheated by the Ops or not, the Ops have defrauded him or not, the same cannot be a separate cause of action to file a second complaint, wherein there is no provision to file a second complaint in the C.P. Act, 1986. It is the settled legal position that if any complaint filed on the self-same cause of action, that is barred by the principle of Res Judicata. Therefore, as this complaint has been filed by the complainant on the self-same cause of action and stating the same fact, hence this complaint is barred by Res Judicata.

In this respect we are to mention one judgment passed by the Hon’ble NCDRC in the Revision Petition No. 1767/2006 in the case of Maruti Udyog Ltd. VS K.V. Krishnam Raju & Anr., dated 08.10.2010, whereby Their Lordships have held that “the second complaint would be barred by the principles of Res Judicata and the provisions of Order II Rule 2 sub-rule 2 of the C.P. Act”. Having regard to the said judgment we are not in a position to admit this complaint.

The ld. Counsel for the complainant has relied on two judgments in support of his contention i.e. Mr. Reju Thomas VS National Insurance Co. Ltd. decided by the Hon’ble High Court, Kerala at Ernakulum in the WP (c) No. 37468/2004 (I) decided on 04.8.2008 from where it is evident that the Hon’ble High Court has been pleased to held that “the Consumer Redressal Forum has power to restore a complaint which was dismissed for default”. The ld. Counsel for the complainant has relied on another judgment passed by the Hon’ble Supreme Court in the case of New India Assurance Co. Ltd. Vs. R. Srinivasan in the Appeal (civil) 11439 of 1996, dated 28.02.2000. We have perused the said judgment as relied on by the ld. Counsel for the complainant. In respect of those two judgments passed by Their Lordships we are to mention that the judgment passed by the larger Bench of the Hon’ble Supreme Court in the case of Rajeev Hitendra Pathak and Ors. VS Achyut Kashinath Karekar & anr. in Civil Appeal No. 4307/2007 with No. 8155/2011 decided on 19.8.2011 reported in (2011) 9 SCC 541 wherein Their Lordships have held in the paragraph No. 34 which runs as follows:

34.  …………………….On a careful analysis of the provisions of Act it is abundantly clear that the tribunals are creatures of the statute and derive their power from the expressed provisions of the statute. The District Forums and State Commissions have not given any power to set aside ex parte orders and powers which have not been expressly given by the statute cannot be exercised.

In the paragraph No. 36 of the said judgment Their Lordships have been pleased to hold as follows:

36.  ……………. In our considered opinion, the decision in Jyotsna’s case (supra) laid down the correct law and the view taken in the later, decision of this court in New India Assurance Co. Ltd.  (supra) are untenable and not sustained.

Having regard to the abovementioned dictum of the Hon’ble Supreme Court and Law of this Land we are to say that as Their Lordships have held that the decision passed in the New India Assurance Co. Ltd. is untenable and unsustainable, hence we cannot give any cognizance to the ruling as relied on by the ld. Counsel for the complainant as mentioned above.

In respect of the ruling on which the complainant has placed reliance i.e. the order passed by the Hon’ble High Court, Kerala, we are of the opinion that the said order was passed in the year 2008, but the larger Bench of the Hon’ble Supreme Court has been pleased to pass the order in the year 2011. Hence after passing the said judgment by the Hon’ble Supreme Court, through which law has been decided, the ruling of the Hon’ble High Court, Kerala has no application in this case.

The ld. Counsel for the complainant has submitted that this ld. Forum has discretionary power by which the complaint can be admitted. But after discussion of the above-mentioned law it is clear to all of us that this District Forum has no authority to recall or review its own order. Hence, the complaint cannot be admitted being not maintainable. Accordingly, it is

O r d e r e d

that the Consumer Complaint being No. 115/2017 is hereby dismissed without being admitted. There is no order as to cost.

Let plain copy of this order be supplied to the complainant free of cost as per provisions of law.

             Dictated and corrected by me.                                                               

                  (Silpi Majumder)

                         Member

                DCDRF, Burdwan

                                                      (Pankaj Kumar Sinha)                        (Silpi Majumder)

                                                                 Member                                          Member   

                                                          DCDRF, Burdwan                          DCDRF, Burdwan