State Consumer Disputes Redressal Commission
Sushil Kumar Sahu vs The Oriental Insurance Co. Ltd. on 9 January, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Miscellaneous Application No.2016/10
Instituted on : 13.12.2016
Sushil Kumar Sahu, S/o Shri Dhanushlal Sahu,
Aged about 47 years,
R/o : Village - Khara, Police Station - Rengakhar,
Tehsil - Bodla, District Kabirdham / Kawardha ... Applicant
Vs.
The Oriental Insurance Company Limited,
Through : Divisional Manager,
Divisional Office No.2, Sai Nagar, Jail Road,
Raipur, Tehsil and District Raipur (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
MISS HEENA THAKKAR, MEMBER
SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Rastogi, for the applicant.
ORDER
Dated : 09/01/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This is an application filed by the applicant (complainant) under Order 41 Rule 19 CPC for restoration of Appeal No.FA/2016/497 on it's original number by recalling or reviewing the order of dismissal, passed by this Commission on 29.11.2016 On that day the appeal of the applicant (complainant) was dismissed in default.
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2. Shri R.K. Rastogi, learned counsel appearing for the applicant (complainant) has argued that the above appeal was fixed for motion haring on 14.09.2016 and on that date it was admitted and this Commission has ordered for issuance of notice to the respondent (O.P.) and the next date was fixed as 10.11.2016. The counsel for the applicant (complainant) was busy in another work, therefore, he directed the applicant (complainant) to appear personally before this Commission. The applicant (complainant) is residence of Kawardha District, therefore, he appeared before this Commission on 10.11.2016 at about 1.30 P.M. by that time the hearing of the matters are completed. He inquired about the date of the case form the concerned clerk of this Commission and noted the next date of hearing i.e. 29.12.2016 and informed regarding the date of hearing of the case to his counsel. The counsel for the applicant (complainant) noted the above date in his file. The counsel for the applicant (complainant) appeared before this Commission on 07.12.2016 in the case of Bajaj Allianz General Insurance Company Limited Vs. H.N. Kanher, and he came to office of this Commission for knowing about the status of the case, then he came to know that the appeal has been dismissed in default by this Commission on 29.11.2016. The non-appearance of the applicant (complainant) and his counsel on 29.11.2016 before this Commission, is bonafide, therefore, the application may be allowed and the appeal No.FA/2016/497 be restored in its original number.
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3. In the Consumer Protection Act, 1986, the State Commission and District Forums, have not vested with any power to review, recall their earlier orders and to restore the appeal/complaint.
4. In Rajeev Hitendra Pathak & Others v. Achyut Kashinth Karekar, IV (2011) CPJ 35 (SC) = 2011 (9) SCC 541, Hon'ble Supreme Court observed thus :
"35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned Counsel for the parties.
36. On carefully analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex-parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far 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 of recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law."
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5. In the case of Bastar Jila Upbhokta Sanrakshan Samiti & Anr. vs. General Manager, District Trade and Industries Centre, Jagdalpur, 2012 (3) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"14. It is settled law (vide Rajeev Hitendra Pathak & Others v. Achyut Kashinath Karekar & Another), (2011) 9 SCC 541 that neither a State Commission nor a District Forum has, under the provisions of the Act, the power to review or recall/modify any order passed by it. Thus, the District Forum has rightly dismissed the application filed by the complainant seeking restoration of her complaint dismissed earlier for non-prosecution. The State Commission has also correctly dismissed the appeal against that order."
6. In Manager, Hinduja Leyland Finance Ltd. Vs. Motilal Swain, 2014 (4) CPR 199 (NC), Hon'ble National Commission has observed thus :-
"5. After disposing Revision Petition, Learned State Commission had no authority to review its order in the light of judgment of Hon'ble Apex Court in Rajeev Hitendra Pathak VS. Achyut Kashinath Karekar 2012 (1) CPR 78 (SC)".
7. In Director Versentile Plantation Limited Vs. Sant Ram Agrahari and Anr. 2016 (3) CPR 253 (NC), Hon'ble National Commission has observed that "State Commission cannot review its order."
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8. Looking to the above judgments of Hon'ble Supreme Court and Hon'ble National Commission, it is clear that the State Commission, does not enjoy any power of reviewing its earlier orders or recalling them.
9. Therefore, this Commission has no jurisdiction to restore the appeal No.FA/2016/497 on its original number, which was dismissed in default on 29.11.2016. The present application filed by the applicant (complainant) under Order 41 Rule 19 CPC, for restoration of the appeal No.FA/2016/497, is not maintainable and is liable to be dismissed.
10. Thus, the application filed by the applicant (complainant) under Order 41 Rule 19 CPC, for restoration of the appeal No.FA/2016/497 on it's original number, is dismissed, as not maintainable. (Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 09 /01/2017 09 /01/2017 09 /01/2017 09/01/2017