NEW INDIA ASSURANCE COMPANY LTD. vs Neelam Kumar Jain

IN this revision petition, filed under Section 21(b) of Consumer Protection Act, 1986 (for short, ''Act'') by the Petitioner/Opposite Party, there is challenge to order dated 28.7.2014, passed by the State Commission vide which appeal of the petitioner, was dismissed for non -prosecution Brief facts are that Respondent/Complainant, filed a consumer complaint against the petitioner over arbitrary repudiation of his claim of Rs. 15,70,498 in respect of damage caused to the goods in godown due to sewerage and water collection in the godown consequent upon heavy rains on 25th and 26th August, 2010.

THE District Forum allowed the complaint and directed the petitioner to pay a sum of Rs. 14,60,640 being the loss as assessed by its surveyor with interest @ 9% p.a. from the date of denial till payment in the Court. The Forum also awarded a compensation of Rs. 2,00,000 for deficiency leading to harassment, mental agony and also awarded Rs. 50,000 for litigation expenses. Being aggrieved, petitioner filed an appeal, which was ultimately dismissed by the State Commission.

HENCE , this revision petition.

WE have heard the learned Counsel for the parties and gone through the record. In the grounds of revision, petitioner has taken a plea that party should not be made to suffer for the fault of its Counsel. It was purely a case of difficult circumstances, beyond the control of the petitioner. Further, on 26.4.2014 wife of Mr. Vivek Sharma, Advocate who was conducting this case before the State Commission, fell seriously ill and was admitted in hospital. As such, the then Counsel could not appear before the State Commission.

ON the other hand, it has been submitted by learned Counsel for the respondent, that it is not the first time that appeal of the petitioner was dismissed. It is the second occasion, when appeal of the petitioner has been dismissed. Though earlier, it was restored but it shows that petitioner is a habitual defaulter. Hence, no ground is made out for restoration of the same.

THE impugned order passed by the State Commission is reproduced as under: "28.7.2014

FA -264/13

Present: None for the Appellant

Ms. Nupur Sehgal, Counsel for the Respondent

Counsel for the respondent submits that the appellant failed to supply her copy of the appeal. Cost of Rs. 5,000 has also not been paid to her.

Appellant has absented himself from the proceedings. He also not complied with the order dated 29th April, 2014. Under the circumstances, the appeal is dismissed for non -prosecution."

It is an admitted fact that an award was passed against the petitioner in January, 2013. Thereafter, petitioner -company has been pursuing its appeal in a very callous and careless manner. It is an admitted fact, that earlier also the appeal of the petitioner was dismissed by the State Commission due to non -appearance of its Counsel on 25.9.2013. However, revision filed against that order was allowed and appeal was restored.

THE main ground on which restoration has been sought is, that the wife of previous Counsel was admitted in the hospital on the date when appeal was dismissed in default. Though, it may be a bona fide ground, but no documents in this regard has been placed on record. Moreover, there is also no explanation as to why none of the officials of the petitioner''s company was present before the State Commission on that day though it is having a full -fledged legal department.

BE that as it may, in order to have a decision on merits, since petitioner itself is delaying the matter, it is a fit case where heavy costs should be imposed so that petitioner may not take the Consumer Fora for granted. Accordingly, in the interest of justice, present revision petition is allowed and the impugned order is set aside. Consequently, the appeal stand restored, subject to the payment of Rs. 50,000 (Rupees fifty thousand only) as cost. Petitioner shall remit the cost directly to the respondent by way of demand draft in its name within four weeks from today. In case, petitioner fails to comply the above directions within the prescribed period, then revision petition shall stand dismissed automatically without any further order. Both parties are directed to appear before the State Commission on 25.11.2014.

THE State Commission shall make an endeavour to dispose of the appeal preferably, within a period of one year from the date of receipt of copy of this order.

THE revision petition stands disposed of accordingly. Dasti to both parties.