National Consumer Disputes Redressal
Uddalak vs 1. The Electricity Supply Co. Ltd. on 15 May, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 401 of 2008 (From the Order dated 26.10.2007 in Appeal No. 2163 of 2007 of the State Consumer Disputes Redressal Commission, Karnataka) Uddalak S/O Ganapat Rao Kokashi, R/o 63/A, Vijayanagar, Hubli-580 032 Karnataka .. Petitioner VERSUS 1. The Electricity Supply Co. Ltd. (Earlier called as KEB/KPTCL) Kaveri Bhavan, Bangalore-560 009 2. The Chief Engineer (Ele) Hubli Electricity Supply Co. Ltd. Corporate Office Travelers Bungalow Rd. Hubli-580 022 3. The Suptding. Engineer (Ele.) HESCOM (North Division), Ghantikeri, Hubli-580 022 4. The Asstt. Ex. Engineer (Ele.) O & M Division, HESCOM, Old Hubli, Hubli-580 022 5. The Asstt. Ex. Engineer (Ele.) O & M, Rural Sub-Division, HESCOM, Tabibland, HUBLI-580 022 .. Respondents BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioner : Mr. S.K. Sharma, Advocate For the Respondents : N E M O PRONOUNCED ON : 15.05.2012 O R D E R
ASHOK BHAN, J., PRESIDENT Petitioner/Complainant has filed this Revision Petition against the judgment and order dated 26.10.07 passed by the State Consumer Disputes Redressal Commission, Karnataka (in short, the State Commission) in appeal no. 2163/07 whereby the State Commission has dismissed the appeal upholding the order of the District Forum dismissing the complaint filed by the Petitioner.
FACTS:-
Complainant/Petitioner was the owner of the land bearing Survey No. 98B/7 situated at Katnoor Village of Hubli Taluka. He developed the land for the purposes of plantation, horticulture and garden under the name and style of Naga Farm. Petitioner dug the bore wells in the said land to get better yield and applied for electric connection to the Respondent No.1 for lifting the water from the said bore wells. Respondent No.1 installed the transformer in the land of the Petitioner to supply electricity to the borewells. It was alleged that the electric transformer was over-loaded and very often tripped causing short circuits, sparks etc. That due to poor-maintenance, the transformer got short circuited on 3.11.2000 and there was a spark with bust sound. High tension wires caused extensive damage to the two bore wells as well as other electric equipments installed in the land as a result of which Petitioner suffered loss to the tune of Rs.50,000/-. That on 15.0-3.2001 again the electric transformer got short-circuited and heavy fire burst out due to which thousands of standing fruit trees and other plants were destroyed. Petitioner served a legal notice on the Respondents to shift the said transformer to some other place and to pay compensation of Rs.4,99,999/- on account of loss suffered by him. However, the Respondents did not respond to the legal notice.
Complainant, being aggrieved, filed the complaint before the District Forum on 15.05.02 seeking compensation for the loss suffered by him. Complaint was dismissed on 31.03.04 for non-prosecution in default of appearance. On 28.04.04, Petitioner filed an application seeking restoration which was dismissed on 05.04.05. Thereafter, Petitioner filed a second application for restoration which was also dismissed. Instead of filing an appeal before the State Commission or a revision petition before this Commission seeking recall of the order dismissing the complaint for non-prosecution, Petitioner filed a second complaint on 6.11.06 on the same cause of action.
Respondent Nos.1, 2 and 5, on being served, put in appearance and filed their written submissions taking the preliminary objection that the complaint was hopelessly barred by limitation and the second complaint was not maintainable. On merits it was submitted that the transformer was properly maintained at all the times and there was no overloading, tripping or short circuiting.
Respondent Nos. 2 & 4 remained unrepresented before the District Forum and ordered to be proceeded ex-parte.
District Forum dismissed the complaint as barred by limitation as well as on merits holding that the Petitioner has failed to establish that there was any negligence on the part of the Respondents in maintaining the transformer.
Petitioner, being aggrieved, filed an appeal before the State Commission.
State Commission dismissed the appeal by observing thus:-
This appeal is by the complainant challenging the order dated 18.09.2007 passed by the District Forum, Dharwad in complaint No.317/2006 dismissing his complaint on the ground of delay.
From the impugned order it is seen that the complainant has filed one complaint in the year 2002. That came to be dismissed for non-prosecution by the District Forum. Thereafter, a Miscellaneous Petition was filed. The same was also dismissed for non-prosecution. Thereafter the complainant filed the present complaint in the year 2006.
From the impugned order it is seen that the complainant himself is not diligent in prosecuting the proceedings.
Therefore, we find no reason to entertain this appeal. In the result, we pass the following:-
Appeal is dismissed.
Petitioner, being aggrieved, has filed the present Revision Petition.
Learned Counsel appearing for the Petitioner relying upon the judgment of the Supreme Court in New India Assurance Co. Ltd. Vs. R. Srinivasan (2000) 3 SCC 242 contends that since provisions of Order 9 Rule 9 CPC were not applicable to the proceedings under the Consumer Protection Act, the second complaint filed by the Petitioner was maintainable.
It is true that in the said judgment, Honble Supreme Court has held that if the complaint is not decided on merits and is dismissed in default of non-appearance then the second complaint can be filed explaining as to why the earlier complaint could not be prosecuted. However, in para 19 of the said judgment, the Honble Supreme Court has observed as under:-
19. We cannot also lose sight of the fact that a complainant may harass a party by repeatedly filing a 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 not 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 CPC.
In the present case, the earlier complaint filed by the Petitioner was dismissed for non-prosecution on 31.03.04. Application seeking restoration was also dismissed for non-prosecution. Petitioner thereafter filed second application seeking restoration which was also dismissed.
Petitioner did not file any appeal before the State Commission or revision petition before this Commission seeking recall of the order dismissing the complaint for non-prosecution.
Instead of filing appeal or revision petition, the Petitioner filed the second complaint before the District Forum on the same cause of action. Petitioner has not explained as to why the earlier complaint could not be prosecuted. In the absence of such explanation, the second complaint filed was abuse of process available under the Act. The same was not maintainable and is liable to be dismissed on this sold ground.
Second complaint filed in the year 2006 was clearly barred by time. Cause of action has arisen to the Petitioner on 16.01.01. The first complaint was filed on 15.05.02 which was within limitation. The second complaint was filed on 6.11.06 after a lapse of five years of the arising of the cause of action.
Supreme Court of India in the case of State Bank of India Vs. B. S. Agricultural Industries (I) (2009) 5 SCC 121 while interpreting Section 24A of the Consumer Protection Act 1986 has held that the provision is peremptory in nature and requires consumer fora to see whether the complaint has been filed within two years from the date of arising of cause of action; that the expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period or not; that the consumer fora as a matter of law are required to deal with the complaint on merits only if the complaint has been filed within two years from the date of arising of cause of action. Para-8 of the aforesaid judgment reads as under :
It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
Faced with this situation, counsel for the Petitioner contends that the cause of action was continuous but he failed to explain as to how the cause of action was continuous. He submitted that the Petitioner filed the application for restoration which was dismissed. Petitioner again filed the second application for restoration which was dismissed on 3.05.05.
Since he was pursuing his remedy to get the earlier complaint restored the cause of action was continuous.
We do not find any substance in the submission made by the counsel for the Petitioner. Second application filed by the Petitioner seeking restoration was dismissed on 3.05.05. The second complaint was filed on 6.11.06 after a lapse of 1 years of the dismissal of the second application for restoration. No explanation for the period in between has been given. Repeated filing of applications seeking restoration or their dismissal would not extend the period of limitation for filing the complaint.
We agree with the view taken by the State Commission that the Petitioner was not inclined to prosecute the proceedings. The second complaint filed by the Petitioner was barred by limitation as well as the broad principle of res judicata.
For the reasons stated above, we do not find any merit in the Revision Petition and dismiss the same with no order as to costs.
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(ASHOK BHAN J.) PRESIDENT . . . . . . . . . . . . . . . .
(VINEETA RAI) MEMBER Yd/