State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027


S.C. CASE NO-FA/08/324





DATE OF FILING :21.8.08 DATE OF FINAL ORDER:6.3.09



APPELLANTS/COMPLAINANTS :

1. Md. Latifur Rahaman.

Son of Late Md. Yusuf resident of

Vill- Jharbari, PO- Jharbari,

P.S- Goalpokhar, District- Uttar Dinajpur.





RESPONDENTS/O.P.S : :

1. Branch Manager, National Insurance Co. Ltd.

Raiganj Branch , Mohanbati, PO& P.S- Raiganj ,

District- Uttar Dinajpur.





BEFORE : HONBLE JUSTICE :

MEMBER : Shri. A.K. Ray.

MEMBER : Shri. P.K. Chattopadhyay.



FOR THE PETITIONER / APPELLANT : Shri A. Bhattacharyya,Shri Dilip Paul ( Advocates)

FOR THE RESPONDENT / O.P.S. : Shri S. N. Dutta (Advocate)








Shri A.K. Ray., Member,





The appeal arises out the order dated 23.7.2008 passed by the Dist Forum , Uttar Dinajpur, in case no 53 of 2007 . The Ld. Forum ordered the Petitioner to approach the State Commission to seek his appropriate relief as the Forum below had no jurisdiction to grant him the relief prayed for. The case was disposed of accordingly.



2. Being aggrieved by the aforesaid order the Complainant who is the Appellant before us has preferred the instant appeal manly on the grounds that the Forum below visualized the complaint from a wrong angle and dismissed the same without appreciating the disputes as well as the evidence of record involved in the matter. The Forum ought to have held the C.P. Act and the rules framed there under are beneficial legislation and to be interpreted for the benefit of the complaint . It ought to have considered that the rules of procedure are formulated to serve the ends of justice and not to annul the administrative justice. The first complaint was dismissed in default without looking into the merits of the case. The Forum completely erred in law by applying the rule of prohibition contained in the code of civil procedure although the code can only to be extended for limited purpose. W.B Consumer Protection Rules, 1987 do not prohibit a second complaint for the same cause of action and for the same relief if the first complaint is dismissed for default. The Forum erred in law by holding that the rule of prohibition contained in the code of Civil Procedure can be presumed in absence of any provisions in the Act or rules for the consumer.



3. The case of the Complainant in short was that he purchased two cross –breed female buffalos with the financial assistance of Raiganj Co-operative Rural Development Bank Ltd. taking a loan of Rs. 32000/- @ Rs. 16,000/- for each buffalo. Buffalos were insured with the OP namely National Insurance Company Ltd, Raiganj Branch for the period from 25.11.03 to 24.11.04 . Both the buffalos were marked by the OP with eartag vide no 52386 and 52378 against the insured amount of Rs. 16,000/- for each buffalo. On 11.9.04 the buffalo bearing eartag no 52386 died and post mortem (P.M) was done by Dr. Fida Hossain and according to his report the buffalo died of Cardio Vascular failure. After the death of the buffalo the Complainant claimed for the insured money from the OP through the Bank on 11.10.04 for the death buffalo . The Complainant also made G.D before the Goalpukur P.S for loss of the ear tag .His claimed was repudiated on 5.7.05 by the OP through a letter wherein he was informed that his claim had been treated as no claim for non surrender of ear tag of the dead buffalo . Thereafter the Complainant sent a lawyer’s letter stating the facts with a request to pay the sum assured but the OP refused to pay. Hence, the case before the Forum below.

4. The Complainant had initially filed case no 36 of 2006 on 21.8.06 and he appointed Mr. Dilip Pal,Advocate to conduct the case against the OP. According to the process and procedure different dates were fixed and ultimately 8.6.07 was fixed for hearing of the case. The case was dismissed for default for non appearance of the Petitioner. Initially, 20.6.07 was the date fixed for appearance but the said date was struck off and 5.6.07 was written and thereafter 8.6.07 was fixed for hearing. But neither the Complainant nor his Advocate knew that the date of the case was fixed on 5.6.07 instead of 26.6.07. Hence, he has filed the present case seeking his relief.



5. The OP National Insurance Company Ltd contested the case by filing a written version contending that the case was not maintainable in its present form and law as the Complainant had filed another case with the same claim being no 36 of 2006 which was dismissed on 8.6.07. The Complainant informed the OP of the death of the animal after a lapse of 37 days which was a gross violation of the conditions of the insurance policy. He failed to produce the ear tag .This was violation of the additional policy condition no 11 as “ no tag no claim” . The case was initially fixed for hearing on 31.5.07. The next date was fixed on 5.6.07 for hearing. On that date neither the Petitioner nor his Advocate was present. As no body turned up on the next date fixed on 8.6.07, case no 35 of 2006 was dismissed by the Forum below. The Forum was of the opinion that as the case was dismissed after hearing in part , the Petitioner cannot refile the same for the same cause of action and his remedy lies in preferring the appeal before the appropriate Forum. The instant case being no 53 of 2007 was filed by the Complainant on the self same subject on 16.10.07 against the same OP.



6. In his written notes of argument filed before us on 7.11.08 the Appellant stated amongst others that he had initially filed a complaint case being no 36 of 2006 before the Forum below against the Respondent Insurance Company seeking certain relief’s for non payment of the insured amount by the Respondent. The said first complaint was dismissed in default on 8.6.07 for non appearance of both the parties. He filed another complaint vide no 53 of 2007 against the same Respondent praying for the same relief. Reasons for his absence on 8.6.07 was explained by him. Regarding Insurance cover of the buffalo of the Appellant there was no dispute. Admittedly, the Appellant suffered financial loss which was covered by the policy of Insurance granted by the Respondent. A point of law arose while disposing of his second complaint by the Forum below in respect of filing of a second complaint/ fresh complaint on the self same facts and cause of action against the same Respondent . The Forum below relied of a judgement of the Apex Court although it was not mentioned and discussed in the judgement as to how no Redressal Forum can proceed either under order no 9 rule 9 or order 9 rule 12 of the CPC according to the Complainant /Appellant . The ratio of this decision was not at all applicable in the present context. The Appellant relied on a decision of the Hon’ble Supreme Court in New India Insurance Company Ltd vs R. Srinivasan . It was held that the “the fact that case was not decided on merits and dismissed in default for 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 for default.” The Complainant further contended that the C.P Act and the Rules being beneficial legislation are intended to be enacted for dispensing justice for the aggrieved consumer from the unscrupulous traders. The provisions thereof should be construed liberally for the protection of consumers as well as in the interest of justice. The procedure of the CPC is not applicable to the proceedings under the CP Act save and except the procedure which has been envisaged u/s 13,14 read with 30 of the CP Act and the rules framed thereunder. The procedures are formulated to serve the ends of justice and not to annul the administration of justice. Moreover, in view of sub-rule 8 of rule 5 of W.B Consumer Protection rules, 1987 , which does not debar the Dist Forum for entering the second complaint/ fresh complaint on the same fact and cause of action and against the same Respondent , if the first complaint is dismissed in default for non appearance of the Complaint.

The Ld. Forum below enjoyed the inherent power and jurisdiction to entertain the second complaint/ fresh complaint on the same fact and cause of action against the same Respondent .



7. The Respondent Insurance Company in its written notes of argument filed before us on 7.11.08 averred inter alia that the Appellant previously filed one case before the Forum below being case no 36 of 2006 which was dismissed on 8.6.07 for default. Another case being no 53 of 2007 was again filed for the same cause of action by the Appellant which was also dismissed after hearing in part. When the earlier case had been dismissed by the Forum below , the only remedy for the Appellant was to prefer an appeal; but the Appellant instead of preferring an appeal filed the second case being no 53 of 2007 before the Forum which was rightly dismissed with reasons. The animal was insured with the Respondent ; but the Appellant informed the death of the animal after lapse of 37 days and it was a clear violation of the Insurance policy. Post mortem examination report of the insured animal was held after lapse of many days without information to the Respondent. This could be fabricated or manufactured by the Appellant for the purpose of his illegal gain. This was also a violation of the policy conditions.



8. We have heard both the sides and have perused the impugned order of the Forum below. There is no doubt regarding insurance of the animal ( Buffalo ). It has been held by the Apex Court in New India Assurance Company Ltd –vs- R. Srinivasan reported in (2000) 3 Supreme Court 242 that “section 13 of the Consumer Protection Act , 1986 shows that powers which are available to a civil court under CPC have also been made available to the District Forum in respect of matters enumerated in Section 13(4) . The provisions of Order 9 have not been made applicable to the proceedings under the Consumer Protection Act. If the intention of the legislature was to apply the provisions of Order 9 also to the proceedings under the said 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. Therefore , the courts cannot extend the rule of prohibition contained in Order 9 Rule 9 (1) to the proceedings under the Consumer Protection Act. ( paras 8 to 10)



Therefore , the rule of prohibition contained in Order 9 Rule 9 (I) 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. ( Paras 11,15 and 16)”



9. In view of aforesaid decision of the Hon’ble Supreme Court we have to interfere with the impugned order passed by the Dist Forum below. The appeal thus succeeds.



10. It is ordered that the appeal be allowed on contest without cost. The impugned order of the Forum below be set aside . The Forum below is to hear and decide the case on merit as per law.