H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.

R.P. No. 04 of 2009

Decided on 20.3.2009.



National Insurance Company Ltd.,

Divisional Office Himland Hotel,

Circular Road, Shimla-1, through its

Assistant Manager.

.....Petitioner.

Versus



1. Ram Gopal Satan }

2. Krishan Gopal Satan } Sons of Sh. Adad Ram Satan

3. Hari Gopal Satan }



All residents of Village Prem Nagar, Post Office

Koku Nala, Tehsil Kotkhai, District Shimla. H.P.

….Respondents.

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Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting ?



For the Petitioner. Mr. Jagdish Thakur, Advocate.

For the Respondents. Mr. Rakesh Dhaulta, Advocate

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ORDER.



Justice Arun Kumar Goel (Retd.) President.



1. We have heard learned counsel for the parties and have also examined the record. Petitioner-Insurance Company was set ex-parte. And the application for setting aside ex-parte proceedings against it, was rejected by District Forum below on the basis of the decision of Hon’ble Supreme Court in the case of Jyotsana Arvind Kumar Shah and Ors. Versus Bombay Hospital Trust, III (1999) CPJ 1 (SC), as well as of this Commission decision in Revision Petition No. 61/2007 dated 24.4.2008, in the case of United India Insurance Company Ltd. Versus Raj Krishan Sharma.


2. It appears that when Revision Petition No. 61/2007 came up for consideration, subsequent decision of Hon’ble Supreme Court in the case of New India Assurance Co. Ltd. Versus R. Srinivasan, supra was not brought to our notice, situation in this Revision is converse to the one that has before the Hon’ble Supreme Court.



3. We are also alive to the situation that looking to the two totally divergent decisions of Hon’ble Supreme Court in the above referred cases, the matter has been referred to a larger bench as per order in Rajeev Hitendra Pathan and Others Versus Achyut Kashinath Karekar and Another (2007) 7 Supreme Court Cases 667.



4. Petitioner was set ex-parte on 20.10.2008, and application for recall of this order was filed within 30 days of this order. From the facts detailed in the application, we are satisfied that absence on 20.10.2008 of the petitioner was beyond its control. As such this order needs to be set aside. Ordered accordingly.



5. Judicial discipline and propriety demands that where two decisions are given by co-ordinate benches, then the later needs to be followed. That being the position, we are of the view that order dated 3.1.2009 needs to be set aside. Ordered accordingly.



6. For the reasons set out hereinabove and as a result of it, while allowing this Revision Petition, order dated 3.1.2009, passed by District Forum, Shimla is set aside and as a consequence of it, the application filed by the petitioner to set aside the ex-parte order of 20.10.2008, is also allowed and the petitioner is relegated to the stage prior to the passing of the ex-parte order dated 20.10.2008. What flows from this is that the petitioner shall now file the reply to the complaint of the respondent, and the parties through their learned counsel are directed to appear before the District Forum below on 6.4.2009, the date already fixed.





7. Learned counsel for the parties have undertaken to collect the copy of this order free of cost from the Court Secretary as per Rules. No costs. Record be sent well before the date fixed





(Justice Arun Kumar Goel) Retd.

President



(Saroj Sharma)

Member



(Chander Shekhar Sharma)

Member