H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA

Appeal No. 118/2008.

Date of Decision 10.04.2009.

Sh. Sanjay Sood S/o Sh. Janki Dass Sood

C/o Monal Travel, Manali, Tehsil Manali, Distt. Kullu,

HP (Owner of Vehicle No. HP-01-8531)

……..Appellant.

Versus



New India Assurance Co. Ltd., through its Branch Manager

Branch Office at Kullu, Tehsil & Distt. Kullu, HP.

…….Respondent.

Hon’ble Mr. Justice Arun Kumar Goel, President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether Approved for reporting? No.



For the Appellant. Mr. Devinder Sharma, Advocate vice counsel

Mr. Vivek Negi, Advocate.



For the Respondent. Mr. Ratish Sharma, Advocate.





O R D E R:



Justice Arun Kumar Goel (Retd.) President (Oral)



Appellant is aggrieved from the order of the District Forum Kullu, in Consumer Complaint No. 76/2005 passed on 5.4.2006. By means of impugned order, complaint has been dismissed solely on the ground that earlier Complaint No. 70/2004 was filed which was dismissed in default of appearance. While dismissing the complaint out of which this appeal has arisen, it has been observed by the District Forum below, that the said complaint is liable to be dismissed because of the earlier complaint having been dismissed in default when the case was listed for rejoinder and producing evidence by the appellant on 11.7.2005. It has further been observed by the District Forum below, that there was no necessity to enter into controversy on merits.

2. Another salient feature of this case is, that reference has also been made to a decision of the Hon’ble Supreme Court in the case of New India Assurance Company Ltd. Vs. R. Srinivasan (2000) NCJ (SC) 396, in which it was held that the bar of Sub rule 1 of Rule 9 of order 9 of the Code of Civil Procedure is not applicable to a complaint under Consumer Protection Act, 1986 and in the event of earlier complaint having been dismissed in default, fresh complaint was maintainable, only thing that was required to be shown is the circumstances leading to the previous complaint being dismissed in default.

3. It is by now well settled by the National Commission as well as by the Hon’ble Supreme Court, that the rules of procedures as well as rules of evidence are not applicable to proceedings under the Consumer Protection Act, 1986, save and except to the extent those have been specifically made applicable under the Consumer Protection Act, 1986 itself.

4. That being the position and in the face of the above decision of the Hon’ble Supreme Court, we are of the view that District Forum below was in error while dismissing the complaint purely on the ground that earlier complaint was dismissed for default of appearance when it was listed for rejoinder and filing of evidence by the appellant. In these circumstances we are of the view that the impugned order is liable to be set aside. Ordered accordingly. District Forum below is directed to restore complaint No 76/2005 to its original number and date with a further direction to it to dispose of the same on the basis of the material/evidence that is there on record or may be produced by the parties before it. Appeal is allowed and the order dated 5.4.2006, in Consumer Complaint No 76/2005 is hereby quashed and set aside. District Forum below shall now proceed further in the matter without being prejudiced by its earlier order. So far we are concerned, we have expressed no opinion on the merits of controversy involved in this case. Since record is here parties through their learned counsel are directed to appear at Kullu on 27.5.2009. Costs on the parties.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla.

10th April, 2009 (Justice Arun Kumar Goel) Retd.

/K/ President.





(Saroj Sharma)

Member.



(Chander Shekher Sharma)

Member.