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2000(2) Supreme 70
SUPREME COURT OF INDIA
(From National Consumer Dispute Redressal Commission, New Delhi)
S. Saghir Ahmad & D.P. Wadhwa, JJ.
New India Assurance Co. Ltd. -Appellant
versus
R. Srinivasan -Respondent
Civil Appeal No. 11439 of 1996
Decided on 28-2-2000
Counsel for the Parties :
For the Appellant : P.K. Seth, Ms. Sheetal Sharma, Sudhir Kumar Gupta, R.K. Gupta, Advocates.
For the Respondent : R. Sundaravaradan, R. Ayam Perumal, Advocate.
Held : The Code of Civil Procedure has been applied to the proceedings under the Consumer Protection Act only to a limited extent. If the intention of the Legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer Protection Act, it would have clearly provided in the Act that the provisions of Order 9 will also be applicable to the proceedings before the District Forum or the State Commission or, for that matter, before the National Commission. If the Legislature itself did not apply the rule of prohibition contained in Order 9, Rule 9(1), it will be difficult for the Courts to extend that provision to the proceedings under the Act. (Para 9)
Rules framed by the Tamil Nadu Government Under the Consumer Protection Act do not provide that if a complaint is dismissed in default by the District Forum under Rule 4(8) or by the State Commission under Rule 8(8) of the Rules, a second complaint would not lie. Thus, there is no provision parallel to the provision contained in Order 9, Rule 9(1) CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9, Rule 8, a second suit on the same cause of action would not lie. That being so, the rule of prohibition contained in Order 9, Rule 9(1) CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was not decided on merits and was dismissed in default of non-appearance of the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default. (Para 14)
Every court or judicial body or authority, which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. Where a case is called up for hearing and the party is not present, the court or the judicial or quasi-judicial body is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter, of judicial or quasi-judicial body. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint for non-prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant. (Para 16)
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 CPC. (Para 17)
JUDGMENT
S. Saghir Ahmad, J.-Respondent, who was the owner of vehicle No. TN-67-1931, approached the State Consumer Disputes Redressal Commission, Madras (the State Commission , for short) against the appellant in respect of the damage caused to his vehicle, which was insured with the appellant. The claim for damages for Rs. 1,47,141.70p. was filed some time in October, 1992. On February 8, 1993, the complaint was dismissed in default. Two days later, namely on 10.2.1993, the respondent filed an application for restoration of the complaint, but the application was dismissed by the State Commission and the complaint was not restored.
2. In April, 1993, respondent filed a fresh complaint against the appellant, but this complaint was filed with the District Consumer Disputes Redressal Forum, Kamarajar, Srivilliputhur, (the District Forum for short) in respect of the aforesaid vehicle, for the same amount, viz. for Rs. 1,47,141.70p.
3. The claim was opposed by the appellant, who filed a written statement pleading, inter alia, that it had already settled the insurance claim of the respondent for a sum of Rs. 62,811/- after scrutiny of the relevant papers and the survey report. This amount was offered to the respondent, who declined to receive the claim compensation and, therefore, in the particular circumstances of the case, there was no deficiency in service and the appellant was not liable to pay any damages under the Act nor could a claim be filed against the Insurance Company. It was further pleaded that in view of the fact that a similar complaint instituted by the respondent before the State Commission was dismissed in default and the Commission had also refused to restore it, a fresh complaint on the same cause of action was not maintainable.
4. The District Forum, by its order dated 19.12.1994, allowed the claim of the respondent for a sum of Rs. 1,47,141.70p. together with interest at the rate of 18 per cent from 26.11.1991. This order was challenged by the appellant before the State Commission, Madras, on the ground, inter alia, that a second complaint could not be legally instituted by the respondent as the first complaint, which was dismissed for default, was not restored. The State Commission, however, dismissed the appeal by its judgment dated 12.6.1995. The appellant, thereafter, filed a Revision before the National Consumer Disputes Redressal Commission, New Delhi, which was dismissed on 27.2.1996.
5. The only question raised before us by the learned counsel for the appellant is that in view of the dismissal of the first complaint filed by the respondent, a second complaint on the same facts and cause of action would not lie and it ought to have been dismissed as not maintainable. It is contended that the second complaint was filed in respect of the same vehicle and for the same amount and against the same party from which damages were claimed earlier, and once the complaint was dismissed, though for default, a second complaint would not lie, specifically as the application for restoration was also rejected by the State Commission.
6. Learned counsel for the respondent has, on the contrary, contended that by contending that a second complaint was not maintainable as the first complaint had been dismissed in default, the appellant was merely trying to invoke the rule of prohibition contained in Order 9 Rule 9 CPC which is not applicable to the proceedings under the Consumer Protection Act. It is also contended that while the first complaint was filed against the Branch Manager, New India Assurance Company Limited, Sattur, the second complaint was filed against the Divisional Manager and Regional Manager, as the Branch Manager had no right or power to settle claims of the value of Rs. 1 lakh and above, which jurisdiction was vested only in the Divisional Manager and the Regional Manager. It is contended that in view of there being new opposite parties, the dismissal of the first complaint for default would not
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