ANIL KUMAR BHOLA vs NEW INDIA ASSURANCE CO.LTD

BRIEF facts giving rise to this appeal are that Anil Kumar Bhola, hereinafter referred to as the complainant, claimed Rs. 29,267.75 ps. on the basis of a mediclaim insurance policy from the New India Assurance Company. The claim was repudiated. He filed a complaint dated 9.11.92 before the District Forum-1. Notice was issued to the opposite party, Insurance Company, and ultimately the case was fixed for hearing on 28.6.93. The complainant failed to appear and the complaint was dismissed for default in the presence of Counsel for the O.P. The complainant made an application for restoration and the reason given for his absence was that he could not appear in time due to mechanical failure of the brakes of his car and when ultimately he reached the Forum, the case had already been dismissed. The said application was, however, dismissed by order dated 10.6.94. By the same order the District Forum dismissed 86 other applications for restoration of complaints dismissed for default. Ag-grieved by the order, the complainant has preferred this appeal. We have heard Miss Sapna Singh, Advocate for the appellant and Miss Lalita Bajaj, Advocate for the respondent.

THE main question arising in this appeal is whether the District Forum had power to restore a complaint dismissed for default when sufficient cause for the absence of the complainant has been made out. This question stands settled by our decision dated 28.11.95 in appeal D.D.A. v. B.K. Malhotra, No. A-605/94. It has been settled that the District Forum does have power to restore a complaint dismissed for default if sufficient cause for the absence of the complainant is shown to the satisfaction of the District Forum. The next contention of Miss Bajaj is that on the advice of the District Forum, the complainant instituted another complaint on 4.4.93 which was registered as Complaint No. 3005/93. That other complaint was itself dismissed for default by order dated 2.8.95 by D.F.-I. It was further submitted that this significant fact had been concealed and the present appeal deserved to be dismissed, on the short ground that the appellant had not come before this Commission with clean hands. It was also contended that dismissal of the other Complaint No. 3005/93 operated to bar the present appeal. A perusal of the order of dismissal of Complaint No. 3005/93 by order of 2.8.95 shows that the order of dismissal was passed in the absence of both the parties. The dismissal, does not therefore, operate as a bar to the filing of this appeal. It may be recapitulated that the order of dismissal for default in the original complaint was passed in the presence of Counsel for the opposite party. That being so, the only course which was necessary, was to have the order of dismissal set aside and a fresh complaint was not maintainable. It appears that on receiving better advice at a later stage, the complainant did not prosecute the second complaint which did not appear to be maintainable. It has already been pointed out that dismissal of the second complaint did not operate as a bar to the present appeal. We do not propose to non-suit the appeal on the ground of concealment of any material fact, in the facts and circumstances of the present appeal for the simple reason that in the context the non-mention of the institution of second complaint according to the advice of the District Forum did not amount to concealment of any material fact. The order of dismissal for default of the later complaint could not, however, be mentioned in the appeal which was filed long before the order of dismissal. While the present appeal was filed on 13.10.94, the order of dismissal was passed on 2.8.95.

For these reasons the appeal is allowed. The application for restoration stands restored. District Forum-I shall dispose of the application on merits according to law. For the purpose the parties, through their Counsel, are directed to appear before District Forum-I on 19.3.96 for further proceedings. A copy of this order be communicated to both the parties as well as District Forum-I Appeal allowed.