State Consumer Disputes Redressal Commission
Nirmal Saini & Ors. vs The Oriental Ins. Co. Ltd. & Anr. on 31 January, 2013
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Misc. Appl. No.112 of 2013
In
First Appeal No.672 of 2008.
Date of Institution: 21.01.2013.
Date of Decision: 31.01.2013.
Nirmal Saini & Ors. Versus The Oriental Ins. Co. Ltd. & Anr.
Misc. Application under order IX Rule 4 read
with section 151 CPC for setting aside the
order dated 20.11.2012 vide which First
Appeal no.672 of 2008 was dismissed in
default by this Commission.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Jasbir Singh Gill, Member.
Present:-
For the applicants : Ms Harmanpreet Kaur, Advocate. INDERJIT KAUSHIK, PRESIDING MEMBER:-
Smt. Nirmal Saini & Ors, applicants (hereinafter called as 'the applicants) have filed this application for restoration of the appeal dismissed in default vide order dated 20.11.2012 by this Commission.
2. It was submitted by the applicants that the above noted appeal was listed before the Commission on 20.11.2012 and the same was dismissed in default due to non-availability of the counsel for the applicants. The brief of the case was misplaced in the office of the counsel for the applicants at the time of renovation work going on in the office in the year 2011 during Dushehra Vacations. Thereafter, the counsel for the applicants could not note down the next date and missed the above case on each and every date, having no knowledge about the pendency of the appeal. The brief of the case is still untraceable. The counsel for the applicants came to Misc. Appl. No.112 of 2013 2 In First Appeal No.672 of 2008 know about the case only when the order dated 20.11.2012 , dismissing the appeal for want of prosecution, was handed over to the counsel by applicant no.3 Arvind Saini, who received the copy of the order on 21st December, 2012. It was due to above said unavoidable circumstances that the counsel for the applicants could not appear in the case and the same was dismissed in default. It was prayed that the application may be allowed and the appeal may kindly be restored and decided on merits.
3. We have gone through the pleadings of the application, heard the counsel for the applicants and have gone through the record as well as the case law.
4. The Hon'ble Supreme Court in its latest decision in case "Rajeev Hitendra Pathak & Ors. Vs Achyut Kashinath Karekar & Anr.", 2011 (4) RCR (Civil)-175 settled the law, by observing in para-38 as follows:-
"In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained".
5. The Hon'ble Supreme Court in para-39, while disposing the said Civil Appeal No.4307 of 2007, observed as follows:-
"In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section-22 and introduction of Section 22A in the Act in the year 2002 by which, the power of review or recall has vested with the National Commission only".
6. In view of the above discussion, the application filed by the applicants for setting aside the order dated 20.11.2012 passed by this Misc. Appl. No.112 of 2013 3 In First Appeal No.672 of 2008 Commission in F.A. No.672 of 2008 is without any merit and the same is dismissed. No order as to costs.
(Inderjit Kaushik) Presiding Member (Jasbir Singh Gill) Member January 31, 2013.
(Gurmeet S)