IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 21st day of July, 2018
Filed on 15.09.2017
Present
1. Sri.E.M. Muhammed Ibrahim , BA,LLM (President)
2. Smt. Jasmine D (Member)
in
CC/No.250/2017
Between
Complainant:- Opposite party:-
Smt.Anitha 1. The Zonal Manager,
W/o Santhosh Kumar LIC of India
Veliyil House, Zonal office,
Komana, Ambalappuzha, LIC Building 153,
Alappuzha. Annasalai PB No.2450,
(By Adv.Sajila.S) Chennai – 600002
2. The Divisional Manager,
(Claims), Divisional office,
Jeevan Prakash, PB No.609,
Nagapadam,
Kottayam- 686001
3. The Branch Manager,
LIC office, Ambalappuzha,
Alappuzha.
(By Adv.P.K. Mathew for opposite
parties 1,2,&3)
ORDER
SRI.E.M. MUHAMMED IBRAHIM.B.A.LLM (PRESIDENT)
The above case has been filed under section 12 of the Consumer Protection Act against 3 opposite parties claiming the amount due under Jeevan Saral Policy number 392074639 to the petitioner and also compensation Rs.1,00,000/-.
1. The respondent resisted the case by filing a detailed version contenting interalia that the complaint is not maintainable as it is hit by order IX rule 9 Civil Procedure Code. According to the opposite parties the very same complainant had filed a complaint for the very same reliefs as CC 379/2015 before this forum and the said complaint was dismissed for default on 31-12-2015 and hence another complaint of the same nature will not stand at all. It is further contented that the complaint is barred by limitation. In view of the above contentions raised in the written version, the learned counsel for the opposite party prays to hear the question of maintainability as a preliminary issue. Hence the following point has been raised for consideration as a preliminary issue:-
(a) Whether the complaint is not maintainable.
2. The point:-
Order IX rule 9 Civil Procedure Code stipulates that where a suit is wholly or partly dismissal against the plaintiff by default under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action but he has apply for an order to set the dismissal aside. However in view of section 13(4) of the Consumer Protection Act, it is clear that while trying the complaint, the provision under order IX rule 9 is not made applicable. The provision under Civil Procedure Code enumerated under that Sec.13 (4) of the Consumer Protection Act. alone are applicable. In the circumstances we are of the view that the principle under Order IX rule 9 Civil Procedure Code that dismissal of the complaint for default bars a fresh complaint is not applicable to the Consumer Disputes Redressal Forum especially when there is no express bar in the Consumer Protection Act. which is a self contained code by itself and contains the principle and procedures to be adopted in the trial of a consumer complaint.
3. The next aspects to be considered is whether the complaint is hopelessly barred by limitation as contended by the opposite party. Section 24 of the Consumer Protection Act provides that, the District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
4. It is further to be pointed out that there is no averments in the complaint regarding the cause of action or whether the complaint has been filed within the prescribed period or after the period of limitation. The reason for the delay in filing the complaint also not stated in the complaint. It is true that 2 documents have been proceed as Jatha No. 1 & 2 along with the complaint. The second document filed as Jatha 2 is a letter intimating the reputation of claim by the opposite party. The said letter is dated 30-03-2014 which is the starting date of cause of action for filing the complaint. The complaint ought to have been filed on or before 30-03-2016. But the present complaint is admittedly filed on 11-09-2016. Which is 2 years and 5 and odd months after accruing the cause of action. But there is no prayer for the condonation of delay in the complaint nor filed any separate petition for the same. In view of the dictum laid down by the Hon’ble Supreme Court in Haryana Urban Development Authority Vs. Sood reported in 2006 (1) S.C.C 164 it is clear that if the fact that the complaint is filed after the period of limitation and the reason for delay in filing the complaint after the expiry of period of limitation is not explained and there is no prayer to condone that delay either in the original complaint or in a separate petition the complaint is barred by limitation. In view of the above dictum the present complaint is barred by limitation and the same is only to be dismissed as not maintainable. The points answered accordingly.
As this complaint is hopelessly barred by limitation, the same is not maintainable. In the result complaint stands dismissed as it is barred by limitation.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 21st day of July, 2018.
Sd/-Sri.E.M. Muhammed Ibrahim (President)
Sd/-Smt. Jasmine.D. (Member)
Appendix:-
Evidence of the complainant:- Nil
Evidence of the opposite parties :- Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- Sa/-
Compared by:-
