State Consumer Disputes Redressal Commission
Jai Dev Singh vs World Wide India Wood Co. Ltd. on 4 November, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1066 of 2015
Date of institution : 24.09.2015
Date of decision : 04.11.2015
Jai Dev Singh Siag son of Assa Ram Siag, r/o Vill. Jhhumian Wali,
Tehsil Fazilka.
....Appellant/Complainant
Versus
World Wide India Wood Co. Pvt. Ltd., Agro Forestry Division, SCO
39F, City Centre, near Bus Stand, Hoshiarpur, Pb., through its
Managing Director.
....Respondent/Opposite Party
First Appeal against the order dated
18.08.2015 of the District Consumer
Disputes Redressal Forum, Hoshiarpur.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Vinod Kumar Gupta, Member
Present:-
For the appellant : Shri Munish Goel, Advocate
JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by the
appellant/complainant against the order dated 18.08.2015 passed by District Consumer Disputes Redressal Forum, Hoshiarpur (in short, "District Forum"), vide which the complaint filed by him, under Section 12 of the Consumer Protection Act, 1986, was dismissed for want of prosecution.
First Appeal No.1066 of 2015 2
2. The facts, relevant for the disposal of the present appeal, are that the complainant sent the complaint to the District Forum, through post, and was received by it on 22.07.2015. Thereafter, notice was issued to him, through registered post, for 18.08.2015 for appearance. On that date, he did not appear before the District Forum and after waiting for whole of the day, the complaint was dismissed for want of prosecution at 4.00 P.M.
3. It has been submitted by the learned counsel for the complainant that the complaint should not have been dismissed for want of prosecution, on account of the non-appearance of the complainant, and the District Forum was required to send a notice to him and as provided by Section 28-A of the Consumer Protection Act, 1986 (in short, "the Act"), should have adjourned the complaint for more than 30 days for awaiting the return of that notice. By referring to Section 12 (3) of the Act, he submitted that without giving an opportunity to the complainant, the District Forum should not have dismissed the complaint and such an opportunity could have been given only after giving a notice to him. He has also submitted that there is no provision for filing the second complaint and the complainant will suffer an irreparable loss, in case the complaint is not restored. According to him, the law laid down by the Hon'ble Supreme Court in New India Assurance Company Limited Vs. R. Srinivasan [AIR 2000 (SC) 941] regarding the filing of the second complaint has been held to be not good law, in the subsequent judgment reported in 2011 (9) SCC-541 Rajeev Hitendra Pathak & Ors. Vs. Achyut Kashinath Karekar & Others.
First Appeal No.1066 of 2015 3
4. The complaint was sent by the complainant to the District Forum, by post. There is no provision in the Act or the rules and regulations framed thereunder or the regulations made by the Hon'ble National Commission that the complaints can be sent to the District Forum, by post. Section 12 of the Act clearly lays down that the complaint was to be filed before the District Forum. Regulation 7 of the Consumer Protection Regulations, 2005, deals with the institution of complaints, appeals and revision petitions and it also provides that the complaint is to be filed before the District Forum in three sets and has to be accompanied by the documents as are necessary to prove the claim made in the complaint. As per Rule 8 of Consumer Protection (Punjab) Rules, 1987, the Memorandum of Appeal may be presented by the appellant or his authorized agent to the State Commission, in person, or sent by registered post, addressed to the State Commission. That is the permissible provision made for filing the appeals, but there is no permissible provision regarding the complaints. Therefore, the complainant was required to file the complaint in person before the District Forum, or he could have appointed some representative for filing the same. The same could not have been sent by post.
5. When the complaint was taken up for hearing, notice was issued to the complainant, through registered post, for 18.08.2015 for appearance, along with the proof of the purchase of the Popular trees, as mentioned in the complaint. The registered letter, so sent to him, was received back undelivered, with the report that he was residing at Abohar and not at the address given in the complaint. He First Appeal No.1066 of 2015 4 did not appear on the date fixed and the complaint was dismissed in default for want of prosecution. Section 12 (3) was not applicable at that stage, as the District Forum had not rejected the complaint on merits and had dismissed the same for want of prosecution. We do not find any illegality or infirmity in the order passed by the District Forum.
6. We are well aware of the preamble of the Act, according to which the Act was enacted for the better protection of the interest of the consumers. The prayer of the complainant is for restoration of the complaint. We are of the opinion, as will be clear from the subsequent discussion, that in the present case, the second complaint is very much competent; as the first complaint has been dismissed for want of prosecution.
7. One of the questions before the Hon'ble Supreme Court in R. Srinivasan's case (supra) was, whether on account of the first complaint having been dismissed in default and the same having not been restored, the second complaint would not lie? It was held therein that the interest of justice cannot be defeated by this rule of technicality. The rules of procedure, as has been laid down by that Court a number of times, are intended to serve the ends of justice and not to defeat the dispensation of justice. No doubt, in the subsequent judgment (Achyut Kashinath Karekar & Others) (supra), it was held by the Hon'ble Supreme Court that the decision of that Court in R. Srinivasan's case was untenable and cannot be sustained. At the same time, it was held that the decision in Jyotsana's case laid down the correct law. The law, so mentioned, First Appeal No.1066 of 2015 5 was only regarding the power of the District Forums, State Commissions to set aside their own ex parte orders, or in other words, to have the power to recall or review their own orders.
8. This very matter has drawn the attention of the Hon'ble National Commission very recently in M/s. ABBE Associates Vs. Paradise Heights Chs Ltd. & Others (2015) (2) CLT 325. Both the above said judgments of the Hon'ble Supreme Court were duly discussed by the Hon'ble National Commission and thereafter, it was held that the issue before the Hon'ble Supreme Court in Rajeev Hitendra Pathak's case (supra) was, whether or not the District Forum/State Commission has powers to recall/review its own order and it was in that regard that it overruled the judgment in the matter of R. Srinivasan (supra) and that in Rajeev Hitendra Pathak's case, the Hon'ble Supreme Court had not considered the issue, whether or not after the dismissal in default of the complaint, the second complaint on the same cause of action is maintainable? It was held as under:-
"Restoration of complaint and filing of second complaint are two different concepts. In the case of restoration of a complaint, date of filing of complaint for computing limitation shall relate back to date on which the complaint was filed and it would not be date of restoration of complaint. However, in the case of second complaint, for the purpose of limitation, the date of filing of earlier complaint is not relevant. Thus, in our view, when there is First Appeal No.1066 of 2015 6 no bar provided in the Act or the rules framed thereunder for filing the second complaint after dismissal of complaint in default, there is no reason to deny the complainant to file the fresh complaint provided it is within limitation and is not barred by the principle of resjudicata."
It becomes very much clear from this judgment that where the first complaint is dismissed in default for want of prosecution and not on merits, the second complaint on the same cause of action is very much competent, provided the same is filed within limitation. Thus, the complainant has the remedy to file second complaint before the District Forum, by following the procedure, as laid down in the Act, Rules and Regulations. The appeal is dismissed with these observations.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER November 04, 2015.
(Gurmeet S)