State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027



S.C. CASE NO. FA/08/497

DATE OF FILING: 29.12.2008

DATE OF FINAL ORDER: 30.03.2009


APPELLANT


Smt. Sushila Pal

W/o Late Santi Kr. Pal

Vill.- Pursunda, P.O. – Paigara, P.S. – Khairasole

Dist. - Birbhum



RESPONDENTS



1) Manager

Golden Trust Financial Services

16, R.N. Mukherjee Road

Kolkata – 700 001

2) Divisional Manager

New India Assurance Co. Ltd.

Madhusudan Apartment, 2nd floor

P-18, Dobson Lane

Howrah – 711 101, W.B.



BEFORE : HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT

MEMBER : MR. A.K. RAY

FOR THE APPELLANT : Mr. U.C. Jha, Advocate

FOR THE RESPONDENTS : Mr. B. Mondal, Advocate (No.1)





: O R D E R :


HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT



This appeal was filed against the order dated 18.11.2008 passed by District Consumer Disputes Redressal Forum, Birbhum in C.F. Case No.CC/40/0/2008 whereby the complaint was rejected at the stage of admission.

Facts relevant for the disposal of the present appeal are that the complainant filed C.F. Case No.08 of 2008 which was dismissed for default. On the self same cause of action the present complaint was filed. When the complaint came up for admission hearing by the Forum below, the fate of the earlier complaint was taken notice of and the records thereof were called for and were consulted. It was noticed from the said record that on 17.6.08 though the complainant filed lawyer’s hazira but was found absent on calls as none on behalf of the complainant was found present. The case was fixed on 15.7.08 for hearing and on that date also though hazira was filed by the complainant but none was found present on calls. The complainant was asked to showcause by 18.8.08 as to why the case shall not be dismissed. On the next date also though OP2 took steps his Ld. Lawyer was present but due to local holiday of the local Bar the complainant did not take any steps and none was found present for hearing on calls. The District Forum was not closed and it was not holiday for the Forum but still the Forum instead of dismissing the case gave another opportunity to the complainant to showcause by 08.9.08 as to why the case shall not be dismissed for default. On 08.9.08 though the complainant filed a showcause but that did not relate to 15.7.08 and none was present for the complainant. Considering the above factual aspects and also the law decided by Delhi State Commission and another matter by the Apex Court, the Forum dismissed the present complaint.

Mr. Jha, the Ld. Advocate for the Appellant contended that it is true that the earlier complaint was dismissed for default but in such case of dismissal on default of an earlier proceeding, the complainant does not get debarred from filing a fresh complaint on same cause of action. Mr. Jha contends that conduct of the complainant in the earlier complaint is not required to be considered as the complainant did not file any application for restoration of the earlier complaint nor the matter was considered by an Appellate Forum against dismissal for default.

The Ld. Advocate for the Respondent No.1 argued. None appeared on behalf of the Respondent No.2.

Therefore, the only point for our consideration is as to whether a second complaint can be entertained by a Forum when admittedly on same cause of action an earlier complaint between some parties had been dismissed for default. In our opinion the conduct of the complainant in the earlier proceeding is not at all relevant. Only thing to be considered is whether second complaint is maintainable in such facts. Law has been decided in the case of New India Assurance Co. Ltd-Vs-R. Srinivasan reported in 2000(3) SCC 242 wherefrom it appears that in such factual backgrounds second complaint is maintainable. The relevant observation in the said judgment is as follows:

“This Rule is in identical terms with Sub-rule (8) of Rule 4 and Sub-rule (8) of Rule 8. Under this Sub-rule, the appeal filed before the State Commission against the order of the District Forum, can be dismissed in default or the State Commission may in its discretion dispose it of on merits. Similar power has been given to the National Commission under Rule 15(6) of the Rules made by the Central Government under Section 30(1) of the Act. These Rules 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.”

As regards observation made in paragraph 17 of the said judgment we find that the same applies in appropriate situation when complainant repeatedly files complaints allowing earlier are to be dismissed for default only to harass the Opposite Party. In the present facts the same does not apply.

Therefore, the impugned order cannot stand and the same is set aside. The appeal is, therefore, allowed and there will be no order as to costs.







(A.K. Ray) (Justice A. Chakrabarti)

MEMBER PRESIDENT