Nitu Singh vs Oriental Insurance Company Ltd. & Anr

This revision is directed against the concurrent findings of the Fora below vide which consumer complaint filed by the petitioner complainant has been dismissed as barred by limitation.

Shorn off unnecessary details, the facts relevant for the disposal of the revision petition are that petitioner who purchased the insured vehicle from the original owner Virender Sharma during the subsistence of insurance policy, being aggrieved of repudiation of her insurance claim filed a consumer complaint being CC No. 651 of 2012 before the District Forum Chandigarh. Undisputedly, the consumer complaint was filed within the limitation of two years as provided under section 24A of the Consumer Protection Act, from the date of repudiation of claim.

The consumer complaint was dismissed by the District Forum for non prosecution on 16.07.2013. The petitioner, moved an application for restoration of complaint explaining that counsel for the petitioner could not appear on hearing dated 16.07.2013 as he had gone for Amarnath Yatra. However, on 29.07.2013 in view of the judgment of Supreme Court in the matter of Rajeev Hitendra Pathak & Ors. v. Achyut Kashinath Karkar & Anr. 2011 (9) SCC 541, wherein it is held that District Forum and State Commission has no power to review their own order, counsel for the complainant withdrew the application. Thereafter, fresh consumer complaint on same cause of action was filed by the complainant on 07.08.2013. The complaint was resisted by the opposite party on merits. A preliminary objection was also taken that the complaint is barred by limitation.

The District Forum after hearing the arguments on preliminary objection came to the conclusion that complaint was filed after the expiry of period of limitation of two years and accordingly dismissed the complaint as barred by limitation.

Being aggrieved of the order of the District Forum, the petitioner complainant preferred an appeal and the State Commission vide impugned order concurred with the finding of the District Forum and dismissed the appeal. This had led to the filing of the revision petition.

Before adverting to the submission of the parties, it would be useful to have a look on Section 24A, which deals with the limitation period for filing of consumer complaint. The said provision is reproduced as under: " 24A . Limitation period. - (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."

On reading of the above, it is clear that period of limitation for filing a consumer complaint is two years from the date on which the cause of action has arisen. Sub section 2 of Section 24 A provides that the complaint filed after the expiry of limitation can be entertained provided the Fora concerned is satisfied that the complainant had sufficient cause for not filing the complaint within the prescribed period and reasons thereof are also required to be given.

Learned counsel for the petitioner in the light of the aforesaid provision of law has contended that both the Fora below have failed to appreciate that the petitioner complainant was prevented by a sufficient cause in filing subsequent consumer complaint after the expiry of two years from the date of filing of complaint and, therefore, the impugned orders cannot be sustained.

Learned counsel for the respondent on the contrary has argued in support of the impugned order. It is contended that Fora below have rightly dismissed the complaint as barred by limitation because the complaint was filed after the expiry of two years from the date of cause of action because there was no sufficient reason for entertaining the complaint after the expiry of period of limitation, particularly when no application of condonation of delay was filed.

We have considered the rival contentions and perused the record. On perusal of Section 24A (2) reproduced above, it is clear that the consumer forum in its discretion can entertain a consumer complaint filed after the expiry of two years limitation if the complainant had sufficient cause for not filing the complaint within the period of limitation. There is nothing in the above provision that filing of application of condonation of delay is a condition precedent for the consumer forum to look into the aspect of sufficient cause, which prevented the complainant for filing the consumer complaint within the requisite period of limitation. In the instant case, looking into the history of litigation between the parties, it is clear that initially consumer complaint was filed by the complainant well within the period of limitation. Unfortunately, the said consumer complaint came to be dismissed for non prosecution on 16.07.2013 because the counsel for the petitioner failed to put in appearance on the said date as he had gone for Amarnath Yatra. For the aforesaid fault of the counsel, we do not find it proper to punish the complainant. It may be noted that application for restoration of complaint was filed within few days but the complainant had to withdraw that application in view of the judgment of the Supreme Court in the matter of Rajeev Hitendra Pathak (supra). After withdrawal of application of restoration, the complainant filed the subject complaint within 10 days on 07.08.2013. From the aforesaid sequence of events, it is evident that complainant was althrough vigilant to pursue his rights and his original complaint case be dismissed because of failure of the advocate to appear and for this reason, filing of the present complaint was delayed and it had to be filed after the expiry of period of limitation. In view of the aforesaid circumstances, we are convinced that there is a sufficient cause not within the control of the complainant, which prevented her from filing the complaint within the period of two years limitation as provided under sub section (1) of Section 24.

Therefore, in our considered view, the Fora below ought to have considered the history of the case and entertain the complaint on merits instead of dismissing the same as barred by limitation.

Learned counsel for the opposite party has contended that otherwise also, undisputedly, earlier complaint filed by the complainant on the same facts and cause of action was dismissed in default. Therefore, fresh complaint on same cause of action could not be entertained in view of Order 9, Rule 8 CPC.

We do not find merit in the above contention. Similar issue came up before the Supreme Court in the matter of New India Assurance Co. Ltd. v. R Srinivasan, AIR 2000 SC 941 wherein State Commission held that even after the first complaint filed by the consumer is dismissed in default, the second complaint on same facts and cause of action is not barred. It was observed that prohibition on defaulting plaintiff against filing of fresh suit contained in Order 9, Rule 8 CPC is not applicable to the consumer forums. The relevant observations of the Supreme Court are reproduced as under:

" We may point out that Section 14(3) of the Act which provides as under :-

"14(3). Subject to the foregoing provisions, the procedure relating to the conduct of the meetings of the District Forum, its sittings and other matters shall be such as may be prescribed by the State Government."

clearly contemplates that the procedure relating to the sittings of the District Forum and "Other Matters" shall be such as is prescribed by the State Government. 12. Sub-section (2) of Section 30 of the Act provides as under :

"30(2). The State Government may, by notification, make rules for carrying out the provisions contained in clause (b) of sub-section (2) and sub-section (4) of section 7 , sub - section (8) of section 10 , clause (c) of sub-section (1) of section 13 , sub - section (3) of section 14 , section 15 and sub-section (2) of section 16 ."

In exercise of the powers conferred by Sub-section (2) of Section 30 , quoted above, the State Government of Tamil Nadu made the Tamil Nadu Consumer Protection Rules, 1988. Sub-rule (8) of Rule 4 provides as under: "(8) If during the proceedings conducted under section 13 , the District Forums fixes a date for hearing of the parties, it shall be obligatory on the complainant and opposite party or its authorised 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 authorised agent fails to appear before the District Forum on such day, the District Forum may in its discretion either dismiss the complaint for default or decide it on merit. Where the opposite party or its authorised agent fails to appear on the day of hearing the District Forum may decide the complaint ex parte."

Similarly, Sub - rule (8) of Rule 8, relating to the procedure before the State Commission, provides as under : "(8) If during the proceedings conducted under section 13 , State Commission fixes a date for hearing of the parties, it shall be obligatory on the complainant and opposite party or his authorised agent to appear before the State Commission on such date of hearing or any other date to which hearing could be adjourned. Where the complainant or his authorised agent fails to appear before the State Commission on such day, the State Commission may in its discretion either dismiss the complaint for default or decide it on merits. Where the opposite party or its authorised agent fails to appear on the day of hearing, the State Commission may decide the complaint ex parte."

Both the above Rules, namely, Sub - rule (8) of Rule 4 and Sub - rule (8) of Rule 8, relate to the original proceedings instituted either before the District Forum or before the State Commission. Sub - rule (6) of Rule 9 provides as under : "(6) On the date of hearing or any other day to which hearing may be adjourned, it shall be obligatory for the parties or their authorised agents to appear before the State Commission. If appellant or his authorised agent fails to appear on such date, the State Commission may, in its discretion, either dismiss the appeal or decide it on the merit of the case. If the respondent or his authorised agent fails to appear on such date, the State Commission shall proceed ex parte and shall decide the appeal ex parte on merits of the case."

This Rule is in identical terms with Sub - rule (8) of Rule 4 and Sub - rule (8) of Rule 8. Under this Sub - rule, the appeal filed before the State Commission against the order of the District Forum, can be dismissed in default or the State Commission may in its discretion dispose it of on merits. Similar power has been given to the National Commission under Rule 15(6) of the Rules made by the Central Government under Section 30(1) of the Act. These Rules do not provide that if a complaint is dismissed in default by the District Forum under Rule 4(8) or by the State Commission under Rule 8(8) of the Rules, a second complaint would not lie. Thus, there is no provision parallel to the provision contained in Order 9. Rule 9(1) CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9, Rule 8 , a second suit on the same cause of action would not lie. That being so, the rule of prohibition contained in Order 9, Rule 9 (1) CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was 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 com - plaint could not be pursued and was dismissed in default."

In view of the discussion above, we condone the delay in filing of the revision petition beyond limitation, set aside the impugned order and remand the matter back to the District Forum to decide the consumer complaint on merits after giving opportunity to both the parties. Parties to appear before the District Forum on 26.04.2016. Revision Petition allowed.