State Consumer Disputes Redressal Commission
Kulwinder Singh vs Toyota Kirloskar Motor Pvt. Ltd on 1 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.52 of 2014
Date of institution : 13.03.2014
Date of decision : 01.04.2014
KULWINDER SINGH SON OF SH. AJIT SINGH BHATIA,
PRESENTLY PROPRIETOR OF M/S M.H. TRADING CO., HEAD
OFFICE AT 84, BAZAR HARCHARAN DASS, TAHLI SAHIB,
AMRITSAR.
.......COMPLAINANT
VERSUS
1. TOYOTA KIRLOSKAR MOTOR PVT. LTD., PLOT NO.24, 10TH
FLOOR, CANBERRA BLOCK, VITTAL MALLYA ROAD,
BANGALORE-560 001; THROUGH ITS MANAGING
DIRECTOR.
2. CAPITAL VEHICLES SALES PVT. LTD., 15 A,
INSTITUTIONAL AREA, IFFCO CHOWK, SECTOR 18,
GURGAON-122 006; THROUGH ITS GENERAL
MANAGER/MANAGING DIRECTOR/OFFICER INCHARGE.
3. CASTLE TOYOTA MOTORS, G.T. ROAD, AMRITSAR,
DISTRICT AMRITSAR; THROUGH ITS OFFICER
INCHARGE.
......OPPOSITE PARTIES
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
Consumer Complaint No.52 of 2014. 2Present:-
For the complainant : Shri Updip Singh, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
This is the second complaint filed by the complainant on the same cause of action under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"). He himself mentioned in para no.11 of the complaint that earlier Complaint No.106 of 2012 on similar facts and on the same cause of action was dismissed by this Commission for want of prosecution on 25.9.2012. This complaint has been filed after the expiry of the period of two years and is accompanied by an application for condoning that delay. Before this complaint be permitted to proceed with, it is to be determined whether second complaint on the same cause of action is maintainable or not?
2. It was submitted by the learned counsel for the complainant that the second complaint on the same cause of action is very much maintainable before this Commission in view of the law laid down by the Hon'ble Supreme Court in "New India Assurance Co. Ltd. v. R. Srinivasan" [(2000) 3 Supreme Court Cases-242] and "Ranvir Singh vs. State of Haryana & Anr." [2009 AIR Supreme Court Weekly-6169]; which, according to him, were followed by this Commission itself in FA No.577 of 2010 and it was held that the second complaint, after the first had been dismissed in default was competent before the Fora under the Act.
3. We have carefully gone through the judgments so relied upon by the learned counsel for the complainant and the law on the Consumer Complaint No.52 of 2014. 3 subject. It may be pointed out in the beginning itself that in Ranvir Singh's case (supra) the question before the Hon'ble Supreme Court was whether the second Criminal Complaint under the Code of Criminal Procedure, under given circumstances, was competent before the Criminal Court. The ratio of that ruling cannot be applied in the present case, as the provisions of the Code of Criminal Procedure are not applicable to the proceedings under the Act.
4. The copy of the order dated 25.9.2013, vide which the previous complaint of the complainant was dismissed, has been annexed with the complaint as Annexure C-7. A perusal thereof shows that the complaint filed by the complainant was adjourned thrice for his evidence but neither he himself appeared nor produced evidence on those dates and thereafter the complaint was dismissed for want of prosecution.
5. Rule 4.8 of the Punjab Consumer Protection Rules, 1987 provides for that eventuality and the same is reproduced below:-
"4.8 If during the proceedings conducted under section 13, the District Forum fixes a date for hearing of the parties, it shall be obligatory on the complainant and opposite party or its authorized agent to appear before the District Forum on such date of hearing or any other date to which hearing could be adjourned. Where the complainant or his authorized agent fails to appear before the District Forum on such day, the District Forum may in its discretion either dismiss the complaint Consumer Complaint No.52 of 2014. 4 for default or decide it on merit. Where the opposite party or its authorized agent fails to appear on the day of hearing, the District Forum may decide the complaint ex parte."
According to Section 18 of the Act, the provisions of Section 12, 13 and 14 and the Rules made thereunder are applicable for the disposal of the complaints by the State Commission with such modifications as may be necessary. Thus, the above said Rule was applicable to the proceedings before this State Commission while dealing with the Consumer Complaints. According to Section 24 of the Act, every order passed by this Commission was to be final if no appeal had been preferred against that order. According to Section 19 of the Act, appeal was competent against the above said order before the Hon'ble National Commission. Admittedly no such appeal was filed.
6. While dealing with the powers of the Fora under the Act as quasi-judicial bodies, it was held by the Hon'ble Supreme Court in para no.18 of R. Srinivasan's case (supra) as under:-
"18. 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 or quasi-judicial Consumer Complaint No.52 of 2014. 5 body 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 or quasi-judicial body. In the absence of the complainant, therefore, the Court will be well within its jurisdiction to dismiss the complaint for non- prosecution. So also, it would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant."
7. While dealing with the question whether it was permissible to file a second complaint when the first had been dismissed in default of non-appearance, the question was answered in the affirmative and it was held as under:-
"The fact that the case not decided on merits and was dismissed in default of non-appearance of 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."
8. It also dealt with the eventuality of the complainant filing the complaints repeatedly in order to harass the opposite party. The Consumer Complaint No.52 of 2014. 6 following observations were made in para no.19 of the aforesaid judgment:-
"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 9, Rule 9, C.P.C."
9. In "Rajeev Hitendra Pathak & Others v. Achyut Kashinath Karekar & Another" 2011(4)CLT 527 the main question which came up before the Full Bench of the Hon'ble Supreme Court was whether District Consumer Forums and the State Commissions have the powers to set aside their own orders or in other words have the powers to review/recall their own orders? In that case the appellants relied upon the judgment in the case of Jyotsana Arvind Kumar Shah and others v. Bombay Hospital Trust [1999(4) SCC 325] in Consumer Complaint No.52 of 2014. 7 which the Hon'ble Supreme Court had held that the State Commission did not have the power to review or recall its ex parte order. It came to the notice of the Full Bench that the contrary view was taken in R. Srinivasan's case (supra), in which it was held that the State Commission could review or recall its ex parte order. It was held by the Full Bench that the decision in Jyotsana Arvind Kumar Shah's case (supra) laid down the correct law and the view taken in the later decision in R. Srinivasan's case (supra) was untenable and cannot be sustained. Therefore, on the basis of the judgment relied upon by the learned counsel for the complainant (R. Srinivasan's case) it cannot be held that the second complaint on the same cause of action is maintainable. The entertaining of the complaint will amount to recalling of the order, vide which the first complaint was dismissed for want of prosecution. Recently the same question cropped up before the Hon'ble National Commission in "ANSAL HOUSING AND CONSTRUCTION LTD. v. INDIAN MACHINERY COMPANY" III(2013) CPJ 304 (NC). In that case the first complaint was dismissed for non-appearance. It was held that the filing of second complaint on the same facts and circumstances has not been provided as per the established legal provisions.
10. In view of our above discussion, we conclude that the second complaint is not maintainable and, as such, the complainant cannot be permitted to proceed with the same and the same is hereby dismissed without prejudice to his rights to avail of the proper remedy under the Act.
Consumer Complaint No.52 of 2014. 8
11. The arguments in this case were heard on 25.3.2014 and the order was reserved. Now, the order be communicated to the parties.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) April 01 , 2014 MEMBER Bansal