SHRI VIRENDER BHANDARI vs Oriental Insurance Co.Ltd

THE only but very important question of law that arises in this appeal is whether the complaint dismissed by the District Forum in default can be restored.

IN the complaint, the complainant/appellant "hereinafter referred to an appellant" has filed a complaint before the learned District Forum, Shimla seeking directions to the opposite party/Oriental INsurance Company "hereinafter referred to as respondent" for payment of a sum of Rs. 95,000/- for the loss suffered to his truck TDV-Truck registered as HPS-1249 Model, 1974, which was insured with the respondent. The complaint was listed before the District Forum on 17.3.93, when the learned Counsel for the complainant, failed to appear before the learned District Forum and therefore the complaint was dismissed in default. The application filed by the complainant for restoration of his complaint was also dismissed by the District Forum on 14.1.1994, on the grounds that there is no provision in Consumer Protection Act, 1986 "hereinafter referred to an Act" for restoration of a case dismisses in default and an application for restoration of the same is an exercise in futility. Against the order of dismissal of the application for restoration of his complaint dated 14.1.1994, the present appeal has been preferred.

This precise question arose for consideration before the Haryana State Consumer Disputes Redressal Commission, Chandigarh in a case Satender Yadav v. Somko Automobiles & Another, II (1994) CPJ 170 Volume II. Haryana State Consumer Disputes Redressal Commission also examined the ratio laid down by the National Commission in a case General Manager Telecom v. Jayanti Lal Hem Chand Gandhi, III (1993) CPJ 273 (NC) and observed as follows : "It would be somewhat manifest from the above, that the twin ratio of the case upon which it turned in favour of the petitioner was the bar of limitation and the dismissal of the appeal considering the merits. The passing observation that in the Act there was no pro vision for restoration of accused dismissed in default was in no way neither the ratio of the said case nor was any such issue even remotely raised before the National Commission for a considered decision. It necessarily follows therefore that G.M. Telecom, Rajkot v. Jayanti Lal Hem Chand Gandhi, can not be read as a binding precedent or warrant for the proposition that in no circumstances a list before the redressal agencies dismissed on default can be restored."

WE are in broad agreement with the observations of the Haryana State Consumer Disputes Redressal Commission and therefore the District Forum was in error in relying upon the aforesaid judgment, General Manager Talecom, Rajkot v. Jayanti Lai Hem Chand Gandhi (supra) for the proposition that the complaint dismissed in default cannot be restored. Rule 11 of the Himachal Pradesh State Consumer Protection rules framed under the Act, no doubt provide for dismissal of complaint in default but there is no provision either in the Act or Rule framed under the Act for restoration of the complaint. Can it be said that the redressal agencies are barred from restoring a case if dismissed in default even when impeccable reasons for doing so are manifest. In our considered view merely there is no specific provision in the Act and Rules for restoration of complaint, there is no bar against the redressal agencies to devise their own procedure consistent with natural justice, equity and good conscience and these agencies are within right to devise their own procedure. In the absence of a provision, the Civil Court or tribunal exercising quasi-judicial power has inherent power to re-call and restore the complaint so long as it does not become functus officio with a view to preventing any miscarriage of justice. In the case of Satender Yadav v. Somko Automobiles and Another (supra), the Haryana State Consumer Disputes Redressal Commission has held in paragraph-12 with which we are in complete agreement: "Equally one must come back to the hallowed principles of natural justice which must inevitably come into play in the absence of embodied rules. It is in adage of the law that no litigant shall suffer because of the act of a Court. It is somewhat elementary that some time for the most unavoidable or impeachable person a litigant or his counsel may fail to appear before the redressal agencies on the appointed day. The rules framed under the Act give express power for dismissing a case in default which inevitably is done in the absence of the defaulting party. Can it possibly be said that even if such party appears and shows the most convincing and impeccable reason for its non-appearance the redressal agencies would be helpless in the (sic.) or to repeat the words of Lord Dennis that they must fold their hands and deny redress where it is patently due. We do not think so. Indeed we are inclined to the view that refusal to restore even when patently good cause is sown would be a patent miscarriage of justice. It is on this larger principle that the detailed procedural provisions in the Civil Procedure Code exist for restoration of a suit or appeal. It is true that those provisions in stricto-sensu are not at all attracted in the consumer jurisdiction. But that is no ground for holding that the spirit, the principle and the purpose underlying them, would not be equally attract for granting redress, in a manifest situation requiring restoration of the list."

THE Haryana State Consumer Commission has further held that "within the quasi jurisdiction field of a consumer dispute a power of restoration has to be necessarily devised as sound procedure even in the absence of an express provision therefor." In a case M/s. Vishal Goods Transport Co. v. M/s. Inter University Press (P) Ltd., II (1995) CPJ 163=1995 (1) CPR 115, this very question was considered by the State Consumer Disputes Redressal Commission, New Delhi. It was held : "FORA under the Act have trapping of Civil Court and exercise quasi-judicial powers - They have inherent powers to recall orders dismissing complaint in default or proceeding expert if sufficient cause is shown."

We are therefore, of the firm view that the District Forum exercise quasi-judicial powers and have the trapping of Civil Court, have inherent powers to recall the order of dismissal in default if sufficient cause is shown for nonappearance by the complainant on the date when the complaint was dismissed with a view to preventing any miscarriage of justice.

IN the light of what is discussed above, the judgment of the District Forum is set aside and the District Forum is directed to reconsider the application given by the complainant for restoring of his complaint and in case sufficient cause is shown for non-appearance by the complainant on the date when the complaint was dismissed, the District Forum should restore the complaint and decide the matter on merits in accordance with law. Order set aside.