IMPORTANT POINT
When a complaint has been dismissed in default, clearly no issue between parties has been adjudicated and question of res judicata does not arise.

ORDER

Prem Narain, Presiding Member—This petitioner M/s. Nitin Printers has challenged the order dated 25.10.2016 of the State Consumer Disputes Redressal Commission, Uttar Pradesh (in short ‘the State Commission’) passed in First Appeal No.2715/2012 by way of present revision petition.

2. Brief facts of the case are that the complainant/petitioner herein is running a cloth shop under the name and style of M/s. Nitin Printers. For the said shop, complainant took a loan of Rs.2 lakhs from the SBI, Pilakhua, Dist. Ghaziabad and also took an Insurance Policy, through SBI, for the said shop from OP-1/respondent no.1 herein with following details.

Policy no. 2001/7501225

Policy period 30.01.2002 to 01.08.2002

Total sum insured Rs. 3.50 lakhs

3. On 08.02.2002 in the midnight, theft has taken place in the insured shop and the complainant has suffered the loss to the tune of Rs.2,78,403/-. On 13.02.2002, FIR has been lodged and the matter was reported to the bank. On 20.02.2002, police has submitted its final investigation report, which has been accepted by the Magistrate. On 26.09.2002, the OP/respondent has sent a letter to the complainant approving the claim amount of Rs.41,377/-. The complainant has initially filed a CC/197/2003 which has been dismissed in default on 25.04.2004 and the application seeking restoration of the complaint was also dismissed vide order dated 07.08.2006. Thereafter, the complainant has filed another CC/253/2012 before the District Forum Ghaziabad against the OPs seeking direction against the OP-1 to pay Rs.2,78,403 with interest @ 18% p.a. w.e.f. 08.02.2002 in favour of SBI + restraining the bank from initiating any recovery proceedings against the complainant + award of Rs.10,000/- for mental agony and legal costs. The consumer complaint was allowed vide its order dated 10.10.2012.

4. Aggrieved with the above order of the District Forum, the opposite party/respondent filed an appeal before the State Commission, which was allowed vide its order dated 25.10.2016.

5. Hence the present revision petition.

6. Heard the learned counsel for the petitioner as well as for respondent no.1. Respondent no.2 was proceeded ex-parte vide order dated 27.09.2018.

7. Learned counsel for the petitioner stated that State Commission has treated the second complaint as review before the District Forum and have relied upon the judgment of the Hon’ble Supreme Court in Rajiv Hitendra Pathak & ors. Vs. Achyut Kashinath Karekar & anr., Civil Appeal No.4307 of 2007, decided on 19.08.2011. The fact is that the first complaint was dismissed in default on 25.4.2004. The complainant filed a restoration before the District Forum and the same was also dismissed on 07.08.2006, therefore, the complainant filed the second complaint on 17.08.2006. The earlier number given to the complaint was 213 of 2006, however, the complaint was renumbered as complaint no.253 of 2012. The District Forum directed the opposite party Insurance Company to pay an amount of Rs.2,25,000/- instead of Rs.2,78,403/- along with interest @8% p.a. along with a sum of Rs.1000/- as litigation cost. The same shall be paid by the Insurance Company within a period of 30 days. The State Commission has not relied upon the judgment of the Hon’ble Supreme Court in Indian Machinery Company Vs. Ansal Housing & Construction Ltd., Civil Appeal No.557 of 2016, decided on 27.01.2016. In this judgment the Hon’ble Supreme Court has clearly held that a second complaint where the first complaint has been dismissed in default, is maintainable and Order IX Rule 1 CPC is not applicable in the cases under Consumer Protection Act, 1986. The Hon’ble Supreme Court in its another judgment “New India Assurance Co. Ltd. Vs. R.Srinivasan, Appeal (Civil) 11439 of 1996, decided on 28.2.2000 has also held that second complaint may be maintainable in case the first complaint has been dismissed as the substantive complaint cannot be denied on technicality. The State Commission has relied on the judgme