State Consumer Disputes Redressal Commission
Surinder Kaur Through Lrs. vs Md India Health Insurance,Tpa Pvt. Ltd. ... on 7 October, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.643 of 2022
Date of institution : 01.08.2022
Date of decision : 07.10.2022
Surinder Kaur through L.Rs. namely;
1) Chetanpreet Singh S/o Late Sh. Manmohan Singh;
2) Rashminder Singh S/o Late Sh. Manmohan Singh;
3) Kanwalpreet Kaur D/o Sh. Harminder Singh;
Residents of House No.110, Sector 27-A, Chandigarh.
....Appellants/Complainants
Versus
1. M.D. India Health Insurance, TPA Private Limited:
Project Office Address:
Maxpro Info Park, D-38, 1st Floor, Industrial Area, Phase-1,
Mohali, Punjab-160056.
Head Office Address:
S. No.46/1, E-Space, A-2, Building 4th Floor, Pune Nagar Road,
Vadgaonsheri, Pune-411014.
2. Oriental Insurance Company, A-25/27, Asaf Ali Road, New Delhi.
....Respondents/Opposite Parties
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 16.08.2021 whereby CC No.1159
of 2019 was dismissed for want of
prosecution and order dated 18.02.2022
whereby the application for restoration of
the complaint was dismissed by the District
Consumer Disputes Redressal Commission,
S. A. S. Nagar (Mohali).
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member.
First Appeal No.643 of 2022 2
1) Whether Reporters of the Newspapers
may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported
in the Digest? Yes/No
Present:-
For the appellants : Sh. Kamal Deep Sehra, Advocate
For respondent No.2 : Sh. Banni Thomas, Advocate.
JUSTICE DAYA CHAUDHARY, PRESIDENT
Mr. Banni Thomas, Advocate has filed Power of Attorney on behalf of respondent No.2.
2. Appellant/complainant Late Smt. Surinder Kaur through her LRs has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 against the against the order dated 16.08.2021 (Annexure A-2) whereby the CC No.1159 of 2019 was dismissed for want of prosecution and order dated 18.02.2022 (Annexure A-5) whereby the application for restoration of the complaint was dismissed by the District Consumer Disputes Redressal Commission, S.A.S. Nagar, Mohali (in short, "the District Commission").
3. It would be apposite to mention here that hereinafter the parties will be referred, as have been arrayed before the District Commission.
4. Briefly, the facts of the case, which are necessary to be mentioned for disposal of the present appeal, are that the appellant/complainant Smt. Surinder Kaur (since deceased) filed the consumer complaint for reimbursement of medical claim of ₹5,33,107/- First Appeal No.643 of 2022 3 . During the pendency of said complaint, the complainant Surinder Kaur expired on 14.08.2019 and on filing an application for bringing on record her LRs before the District Commission, LRs of the complainant were ordered to be brought on record vide order 09.10.2019.
5. Neither the LRs of the complainant nor their counsel appeared before the District Commission on the date of hearing i.e. 16.08.2021 and the complaint was dismissed vide order dated 16.08.2021 for want of prosecution as wrong date was noted by them.
6. Thereafter, an applicant was moved for restoration of the complaint, which was also dismissed vide order dated 18.02.2022 on the ground that the District Commission was not having power to recall its own order.
7. Both the orders dated 18.02.2022 and 16.08.2021 are subject matter of challenge in the present appeal.
8. Mr. Kamal Deep Sehra, learned counsel for the appellants submits that the District Commission has dismissed the complaint for want of prosecution vide order dated 16.08.2021 even when the quorum of the District Commission was not complete and as such said order is bad in law and thereafter the application for restoration of the complaint has also been dismissed vide order dated 18.02.2022 by relying upon the judgment dated 21.10.2021 passed in First Appeal No.366 of 2021 titled as 'Nipun Sharma v. GLC Member Cooperative House Building Society Ltd.' but the said judgment was not applicable. First Appeal No.643 of 2022 4
9. Learned counsel further submits that the non-appearance of the appellants before the District Commission was neither intentional nor willful but it was due to bonafide reasons and the appellants could not appear on the date fixed. Learned counsel further submits that a wrong finding has been recorded that the appellants were not putting their appearance before the District Commission, whereas the appellants were present on each and every date, except 16.08.2021. All the zimni orders have been annexed with the appeal as Annexure A-3 (colly.). Learned counsel further submits that by keeping in view the interest of justice, one more opportunity be granted to the appellants/complainants to pursue the complaint.
10. Mr. Bani Thomas, learned counsel for respondent No.2 has opposed the submissions made by learned counsel for the appellants but has not disputed the zimni orders passed by the District Commission.
11. Heard the arguments of learned counsel for both the parties. We have also carefully perused both the orders dated 16.08.2021 and 18.02.2022 passed by the District Commission and all other documents available on the file.
12. Admittedly, the complainant Surinder Kaur died on 14.08.2019 during the pendency of the complaint before the District Commission and an application was filed on 09.10.2019 for impleading/bringing on record her LRs, which was allowed on the First Appeal No.643 of 2022 5 same day. Thereafter, the complaint was dismissed for want of prosecution by the District Commission vide order dated 16.08.2021 on the ground that the LRs of the complainant were not appearing before it.
13. On perusal of the zimni orders (Annexure A-3), it is clear that the order dated 16.08.2021 passed by the District Commission is contrary to facts. The relevant zimni orders passed on various dates by the District Commission are relevant, which are reproduced as under:
"09.10.2019:
An application for impleading legal heirs of the deceased complainant filed. That application is supported by death certificate of Surinder kaur complainant. That death took place on 14.08.2019 i.e. after filing of the complaint. Even copy of the will produced. That application for impleading LRs of the complainant deserves to be allowed and the same is hereby allowed. Amended title of the compliant by mentioning the LRs of the complainant be submitted on 25.10.2019. .............
25.10.2019 Coram is incomplete. Amended title not filed. Put up for 06.11.2019 for filing amended title.
........
For the Sh. Chetanpreet Singh
Complainant: LR of the complainant in
person.
For the Opp.
Party:
Dated : 06 Nov 2019
Order
Sh.Chetanpreet Singh has filed amended title along with amended complaint. Copies not supplied. Copies be supplied within 7 days with the ahlmad of this Forum.
Heard. Grievance of the complainant is that despite original complainant Ms. Surinder kaur ( now deceased) was a pensioner covered by the Health Insurance Scheme but despite that reimbursement of the medical bills of Rs. 5,33,107/- not done by the Ops. However on 31.05.2018 offer for paying Rs. 2,44,466/- made and as such cause of First Appeal No.643 of 2022 6 action accrued to the complainant on such decision on 31.05.2018. Claim has not been paid till date. Consumer dispute exists. This Forum has territorial and pecuniary jurisdiction Complaint is within limitation. Complaint admitted subject to just exceptions. Notice to OPs be issued for 30.01.2020.
G.K.Dhir President Natasha Chopra Member For the Complainant:
For the Opp. Party:
Dated : 30 Jan 2020 Order Put up for further proceeding for 20.05.2020.
Inderjeet
Presiding Member
Ms. Natasha Chopra
Member
For the None
Complainant:
For the Opp.
Party:
Dated : 20 May 2020
Order
None appeared for the parties perhaps due to spread of COVID-
19. In case parties want to file more affidavit and documents, then those be filed on 24.07.2020.
Inderjeet Presiding Member Ms. Natasha Chopra Member For the Present: None for the Complainant: complainant.
For the Opp. Sh. Vishal Ahuja, cl for
Party: OP Nos. 1 to 3
Dated : 24 Jul 2020
Order
Coram is incomplete. At the request of counsel for OP Nos.1 to 3, adjourned to 12.10.2020 for submission of more affidavits and documents by the parties.
First Appeal No.643 of 2022 7
Natasha Chopra Presiding Member Present:
Dated : 12 Oct 2020 Order Due to heavy spread of pandemic COVID-19 in District Mohali, case adjourned to 15.01.2021 for the same purpose already fixed for.
Dated : 15 Jan 2021 Order File taken up today as on 12.10.2020 work was suspended due to COVID and advocates were duly informed. Ld. President of this Commission is away to District Consumer Disputes Redressal Commission, Ropar for performing his duty there. As such the case is adjourned to 06.04.2021 for the same purpose already fixed for. Long date is given as there is huge pendency of cases in this Commission.
Bench Clerk
15.01.2021
Present: ......for the
None for the complainant
Complainant
Sh. Vishal Ahuja, cl for Op ......for the Opp.
Nos.1 to 3 Party
Dated : 06 Apr 2021
Order
Coram is incomplete as ld. President is availing quarantine leave due to his daughter being positive case of COVID-19. Adjourned to 16.08.2021 for submission of documents by the parties .
Kanwaljeet Singh Presiding Member Present: ......for the None for the complainant Complainant Sh. Vishal Ahuja, cl for OP ......for the Opp.
Nos. 1 to 3 Party
Dated : 16 Aug 2021
Order
It is brought to my notice that the complainant Surinder Kaur had died on 14.08.2019. An application for impleading legal heirs of the deceased was filed on 09.10.2019 which was allowed on the same date . It is important to mention here that after that LRs of the deceased complainant are not appearing in this Commission even when the coram was also complete. Today also, there is no one to represent the LRs of First Appeal No.643 of 2022 8 the deceased. In such a situation where the complainant has expired, I feel that no purpose will be served to continue with the present complaint. The complaint is, therefore, dismissed for want of prosecution. Be consigned to the record room.
Sanjiv Dutt Sharma President
14. On perusal of said zimni orders as reproduced above, it is evident that the application for impleading LRs of the complainant (deceased) was allowed by the District Commission vide order dated 09.10.2019. Thereafter, the case was fixed for 25.10.2019 for filing amended title of the complaint. On 25.10.2019, the quorum of the District Commission was incomplete and the case was adjourned to 06.11.2019. On said date, the amended title along with amended complaint was filed and a detailed order was passed. Even it was mentioned that the District Commission was having the territorial and pecuniary jurisdiction for filing the complaint within the period of limitation. The notice to the opposite parties was issued for 30.01.2020. On 30.01.2020, the case was simply adjourned to 20.05.2020 and on that date, none appeared for both the parties due to pandemic of COVID-19 and the case was adjourned for 24.07.2020. On that day also, the quorum of the District Commission was not complete and on request of counsel for the opposite parties, the case was adjourned to 12.10.2020. Even on that day i.e. 12.10.2020, the case was adjourned due to pandemic of COVID-19 to 15.01.2021. On 15.01.2021, the work was suspended due to COVID-19 and thereafter the case was adjourned for 06.04.2021. Even on that day also, the First Appeal No.643 of 2022 9 quorum of the District Commission was not complete and the President was availing quarantine leave due to his daughter being positive due to Corona Virus and the case was adjourned to 16.08.2021. On 16.08.2021, it was observed by the District Commission that an application for impleading LRs of the complainant was filed on 09.10.2019, which was allowed on the same day. The complaint was dismissed for want of prosecution on the ground that no one was present to represent the LRs of the deceased complainant. Further it was mentioned that in such situation, when the complainant had expired and no purpose would be served to continue with the complaint.
15. The order dated 16.08.2021 passed by the District Commission appears to be contrary to facts and evidence on record and it was passed without any application of mind.
16. Perusal of said zimni orders shows that on a number of occasions, either the quorum of the District Commission was not complete or the case was simply adjourned due to pandemic of COVID-19. The complaint was dismissed for want of prosecution without seeing the earlier orders. It was mentioned in said order that the LRs of the complainant were not appearing and there was no one to represent the LRs of the deceased and the complainant had expired, whereas the application for bringing on record was already filed on 09.10.2019. It was further mentioned that since the First Appeal No.643 of 2022 10 complainant had expired, no purpose would be served to continue with the complaint.
17. The LRs of the complainant were already brought on record vide order dated 09.10.2019. The observation of the District Commission that no purpose would be served to continue with the complaint is liable to be deprecated. On the five dates prior to order dated 16.08.2021, the case was adjourned due to the fact that the quorum was not complete or the case was adjourned due to pandemic of COVID-19. In such a situation, how the entire burden can be put upon the LRs of the complainant for non-appearance. The LRs of the complainants had been appearing on the dates of most of the hearings except 16.08.2021. Even otherwise, the order dated 16.08.2021 was passed by the President when the quorum of the District Commission was not complete.
18. The application filed by the appellants for restoration of the complaint was also dismissed vide order dated 18.02.2022 on the ground that the District Commission was having no power to recall its orders by relying upon the judgment of case of Nipun Sharma's case (supra). However, it is relevant to mention that in Nipun Sharma's case (supra), the District Commission had set aside its order dated 01.09.2021, vide which the application filed by the opposite party for setting aside the ex parte order dated 30.03.2021 was allowed and said order was set in the appeal before this Commission. First Appeal No.643 of 2022 11
19. In the present case, the complaint was adjourned on a number of dates only due to pandemic of COVID-19 and the quorum was incomplete. Even the quorum of the District Commission was not complete while passing the order dated 16.08.2021 and the application was dismissed. Furthermore, the Hon'ble Supreme Court of India, vide order dated 10.01.2022 passed in M.A. No.21 of 2022 in M.A. No.665 of 2021 in Suo Motu Writ Petition (Civil) No.3 of 2020 has specifically taken judicial notice, which is reproduced as under:
"We also take judicial notice of the fact that the steep rise in COVID-19 Virus cases is not limited to Delhi alone but it has engulfed the entire nation. The extraordinary situation caused by the sudden and second outburst of COVID-19 Virus, thus, requires extraordinary measures to minimize the hardship of litigant-public in all the States."
20. The Hon'ble Supreme Court had restored its order dated 20.03.2020 passed in Suo Motu Writ Petition (Civil) No.3 of 2020 by observing as under:
"This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.First Appeal No.643 of 2022 12
This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction."
21. Therefore, in view of aforesaid directions passed by the Hon'ble Supreme Court, since the litigants were exempted from appearing before the Courts/Tribunals personally, so District Commission was also not supposed to pass any adverse order on the ground of non-appearance of the appellants/complainants on 16.08.2021. While dismissing the complaint in default, the District Commission has ignored the mandatory directions issued by the Hon'ble Supreme Court in the aforesaid cases, keeping in view the pandemic of COVID-19.
22. Moreover, it is a settled proposition of law as held in a number of judgments that a party, who claims to have a substantial right, which requires adjudication by a Court of Law, should not be denied the opportunity of hearing on hyper-technical grounds. The Act has been enacted for better protection of the interest of the consumers and the interest of justice also requires that the consumer disputes should be decided on merits and the dismissal of the complaints for want or prosecution should be avoided. The Hon'ble Supreme Court of India in judgment of case "Vareed Jacob v. Sosamma Geevarghese and others" 2004(6)-SCC-378, has held as follows:
"if the suit is dismissed for default without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored."First Appeal No.643 of 2022 13
23. In view of the above judgment of the Apex Court, when the case has been dismissed for want of prosecution without any reference to the ancillary orders passed earlier, the interim orders are revived as and when the case is restored.
24. It is also settled principle of law that the complaint should be decided on merits instead of raising technical objections. The procedure is in the handmaid of justice, which is meant for advancement of the interest of the Consumer and it is meant to advance its cause and not to obstruct the same. The procedural rule, therefore, has to be liberally construed and the Courts are not to take into consideration the strict interpretation, whereby technicality may tend to triumph over justice, as has been held in case of State of Punjab & Another Vs. Shamlal Murari & Another" AIR 1976-SC- 1177.
25. In view of the facts and reasons mentioned above, the impugned orders passed by the District Commission are liable to be set aside and by restoring the complaint, one more opportunity is required to be given to the complainants to pursue the complaint.
26. Accordingly, the appeal is allowed and the impugned orders dated 16.08.2021 and 18.02.2022 passed by the District Commission are hereby set aside. The application filed by the appellants/complainants for restoration of the complaint is First Appeal No.643 of 2022 14 allowed. The case is remanded to the District Commission with the direction to restore the Consumer Complaint on its original number and status. The District Commission shall decide the complaint on merits, in accordance with law and procedure.
27. The appellants and respondent No.2 are directed to appear before the District Commission on 03.11.2022.
28. Since the main case has been disposed of, so all the pending Miscellaneous Applications, if any, are accordingly disposed of.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER October 07, 2022.
(Gurmeet S)