Case: New India Assurance Co. Ltd Vs. R. Srinivasan

Respondent, who was the owner of vehicle No.approached the State consumer disputes Redressal Commission, Madras [the `State commission, for short] against the appellant in respect of the damage caused to his vehicle, which was insured with the appellant. the claim for damages for Rs. 1,47,141.70 was filed some time in October, 1992. On February 8, 1993, the complaint was dismissed in default. two days later, namely, on 10.2.1993, the respondent filed an application for restoration of the complaint, but the application was dismissed by the State commission and the complaint was not restored.2. In April, 1993, respondent filed a fresh complaint against the appellant, but this complaint was filed with the District consumer disputes Redressal Forum, Kamarajar, Srivilliputhur,, [the `District Forum, for short] in respect of the aforesaid vehicle, for the same amount, viz. for Rs. 1,47,141.70.3. The claim was opposed by the appellant, who filed a written statement pleading, inter alia, that it had already settled the insurance claim of the respondent for a sum of Rs. 62,811after scrutiny of the relevant papers and the survey report. this amount was offered to the respondent, who declined to receive the claim compensation and, therefore, in the particular circumstances of the case, there was no deficiency in service and the appellant was not liable to pay any damages under the Act nor could a claim be filed against the Insurance company. It was further pleaded that in view of the fact that a similar complaint instituted by the respondent before the State commission was dismissed in default and the commission had also refused to restore it, a fresh complaint on the same cause of action was not maintainable.4. The District Forum, by its order dated 19.12.1994, allowed the claim of the respondent for a sum of Rs. 1,47,141.70 together with interest at the rate of 18 per cent from 26.11.1991. This order was challenged by the appellant before the State Commission, Madras, on the ground, inter alia, that a second complaint could not be legally instituted by the respondent as the first complaint, which was dismissed for default, was not restored. the State Commission, however, dismissed the appeal by its judgment dated 12.6.1995. The appellant, thereafter, filed a Revision before the National Consumer Disputes Redressal Commission, New Delhi, which was dismissed on 27.2.1996.

Court's reasoning:
10. We have already indicated above that the Code of Civil Procedure has been applied to the proceedings under the consumer Protection Act only to a limited extent. If the intention of the Legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer Protection 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 the matter, before the national Commission. If the Legislature itself did not apply the rule of prohibition contained in Order 9, Rule 9(1), it will be difficult for the Courts to extend that provision to the proceedings under the Act.This Rule is in identical terms with(8) of Rule 4 and(8) of rule 8. Under thisthe 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 ofof 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.We only intend to invoke the spirit of the principle behind the above dictum in support of our view that every court or judicial body or authority which has a duty to decide a lis between two parties, inherently possesses the power to dismiss a case in default. where a case is called up for hearing and the party is not present, the court or the judicial orbody is under no obligation to keep the matter pending before it or to pursue the matter on behalf of the complainant who had instituted the proceedings. That is not the function of the court or, for that matter, of judicial orbody. In the absence of the complainant, therefore, the court will be well within its jurisdiction to dismiss the complaint forso also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for theof the complainant.19. We cannot also lose sight of the fact that a complainant may harass a party by repeatedly filing the complaint against him. He may file a complaint, draw the opposite party to the State or National commission and then have the complaint dismissed for default. He may repeat the exercise again only to harass the defendant. this practice, or to put it a little sternly, these tactics would be intolerable for any authority under the Act. In such a situation, the District Forum or the State or National Commission would not be helpless and it would be open to them to dismiss the fresh complaint on the ground of abuse of the process available under the Act. They can, in that situation, legitimately invoke the principles of Order 8 Rule 9 C.P.C.20. In the instant case, the vital fact of there being an insurance cover in favour of the respondent is not disputed. the loss suffered by the respondent is not disputed and the claim of the respondent is also not questioned. the only point urged before the State Commission as also before the National Commission and, for the matter, before us is that on account of the first complaint having been dismissed in default and the complaint having not been restored, the second complaint would not lie. The interest of justice, in our opinion, cannot be defeated by this rule of technically. The rules of procedure, as has been laid down by this court a number of times are intended to serve the ends of justice and not to defeat the dispensation of justice. the respondent had suffered loss which was squarely covered by the Policy of Insurance granted by the appellant. Since his claim is not being questioned before us on merits and is being sought to be defeated on the technical plea referred to above. We are not prepared to interfere with the orders passed by the District Forum, the State Commission and the National Commission, particularly as it is stated before us that the whole of the claim amount has already been paid to the respondent.