State Consumer Disputes Redressal Commission
Sri Sankar Paul vs B. B. Eye Foundation on 1 July, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/119/2015 1. Sri Sankar Paul S/o Late Barun Chandra Paul, 54, Khagendra Sen Road, P.O.& P.S. Kasba, Kolkata-700 042. ...........Complainant(s) Versus 1. B. B. Eye Foundation Sukhsagar, 1A, 1J,1K, 2C/1, 2D/1, 2/5, Sarat Bose Road, Minto Park, Kolkata -20. 2. Dr. Partha Biswas, C/o B.B. Eye Foundation Sukhsagar, 2/5, Sarat Bose Road, Minto Park, Kolkata -20. 3. Dr. Krishnendu Nandy, C/o B.B. Eye Foundation Sukhsagar, 2/5, Sarat Bose Road, Minto Park, Kolkata -20. 4. Dr. Rupak Kanti Biswas, C/o B.B. Eye Foundation Sukhsagar, 2/5, Sarat Bose Road, Minto Park, Kolkata -20. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Complainant: Ms. Sarbari Datta , Advocate For the Opp. Party: Mr. Bibhas Mondal, Advocate Mr. Prabir Basu, Advocate Mr. Barun Prasad, Advocate Mr. Barun Prasad, Advocate ORDER
01/07/16 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This order relates to hearing on MA 316 of 2016 filed by the OP challenging the maintainability of the complaint case.
It is submitted by the Learned Counsel for the Misc. Applicant that the Complainant earlier filed another complaint case bearing no.CC 52 of 2015 and it was dismissed for want of pecuniary jurisdiction. It is contended that the Complainant instead of filing the complaint before the higher Forum, filed fresh complaint reducing the valuation of the complaint. It is contended that in the present complaint the Complainant suppressed the material fact of filing earlier case bearing no.CC 52 of 2015. It is submitted that on the same cause of action filing of fresh complaint is barred.
The Learned Counsel for the Complainant has submitted that the earlier case was not decided on merits and the principle of constructive res judicata is not applicable. It is submitted that the Complainant filed the earlier case mentioning the own valuation and could not apprehend that it would exceed the pecuniary jurisdiction of this Commission. It is contended that the issue in the earlier case was not decided on merits and, as such, the filing of fresh complaint reducing the value of the complaint cannot be said to be barred by law.
We have heard the submission made by both sides and perused the papers on record. It appears that the earlier complaint case no.CC 52 of 2015 was filed by the Complainant and this Commission vide order dated 23/02/15 dismissed the complaint at the stage of admission holding that the relief of Rs.1 crore was prayed for and the value of services as mentioned in the complaint was Rs.1,43,991/-. Under such circumstances, it was held that this Commission had no pecuniary jurisdiction to entertain the complaint and it was dismissed being not admitted with liberty to the Complainant to file the complaint before the appropriate Forum. Thereafter the Complainant has filed the instant complaint bearing no.CC 119 of 2015 reducing the valuation of complaint to Rs.90 lakh apart from the medical expenses of Rs.1,43,991/-.
Evidently, the cause of action in both the cases is the same. The Learned Counsel for the Misc. Applicant has referred to the decision reported in 2016 (1) CPR 127 (NC) [Pritpal Kaur vs. Rajasthan Housing Board] wherein it has been held that the Petitioner cannot file second complaint on same cause of action. In the decision reported in 2007 (2) CPR 224 (NC) [Madanlal Agarwal vs. The Branch Manager, United Bank of India & Anr.] it has been held that second consumer complaint on same cause of action would not be maintainable. Both the complaints with the same facts remain the same although in the second complaint the valuation has been reduced so as to bring it within the jurisdiction of this Commission. Since cause of action remains the same in both the complaints, we are of the view relying on the decisions referred to above that the present complaint being the second one is not maintainable.
MA 316 of 2016 is allowed. The petition of complaint is dismissed. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER