NEW INDIA ASSURANCE CO. LTD. versus R. SRINIVASAN

Citation: [2000] 1 S.C.R. 1228 · Decided: 28-02-2000 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Dismissed

Judgment (excerpt)

A 
NEW INDIA ASSURANCE CO. LTD. 
v. 
R. SRINIVASAN 
FEBRUARY 28, 2000 
B 
[S. SAGHIR AHMAD AND D.P. WADHWA, JJ.) 
Consumer Protection Act, 1986: Sections 13, 14(3) and 30(2). 
Tamil Nadu Consumer Protection Rules, 1988: Rules 4(8), 8(8), 9(6). 
C 
Code of Civil Procedure, 1908 : Order 9. 
Consumer Protection-Consumer-Dismissal of complaint for 
default-Dismissal of application for restoration of complaint-Filing of fresh 
complaint-Pennissibility of-fnsured-Filing of complaint before State Com-
D mission-Claim for damages in respect of insured vehicle-Complaint dis-
missed for default-Application for restoration of complaint also 
dismissed-Fresh complaint filed before District Forum-Held valid-Order 
9, Rule 9( 1) of Civil Procedure Code-Held inapplicable to the proceedings 
under the Consumer Protection Act. 
E 
Court-Judicial or quasi-judicial body-Power to dismiss complaint for 
no1t-prosecution-Power to restore complaint Oil good cause being shown. 
Rules of procedure-Object of-fnterest of justice should not be 
defeated by Rule of Technicality. 
F 
A complaint filed by the respondent before the State Consumer 
Disputes Redressal Commission, Madras, claiming damages in respect of 
the damage caused to his vehicle insured with the appellant-company was 
dismissed in default. An application filed for restoration of the complaint 
was also dismissed. Thereafter, the respondent filed a fresh complaint with 
the District Consumer Disputes Redressal Forum which allowed the 
G respondent's claim. The appellant-company challenged this order before 
the State Commission, on the ground, inter alia, that a second complaint 
could not be legally instituted by the respondent as the first complaint, 
which was dismissed for default, was not restored. However, the State 
Commission dismissed the appeal. A revision preferred by the Insurance 
H Company before the National Consumer Disputes Redressal Commission 
1228 
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i 
NEW INDIAASSURANCE CO. v. R. SRINIVASAN 
1229 
was also dismissed. In appeal to this Court on the question whether the A 
dismissal of the first complaint for default would operate as a bar to the 
entertainment of the second complaint : 
Dismissing the appeal, this Court 
HELD : 1. Rule 9(1) of Order 9 of Civil Procedure Code contains a B 
prohibition that if a suit is dismissed in default or the plaintiff under 
Order 9, Rule 8, a second suit on the same cause of action would not lie. 
under the Tamil Nadu Consumer Protection Rules, 1988. However, there 
is no provision parallel to the provision contained in Order 9 of Civil 
Procedure Code. That being so, the rule of prohibition contained in Order C 
9, ~ule 9(1) Civil Procedure Code 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 complaint 
could not be pursued which was dismissed in default. [1236-C-E] 
D 
2. A reading of Section 13 of the Consumer Protection Act, 1986 will 
show that powers which are available to a civil court under the Code of 
Civil Procedure have also been made available to the District Forum in 
respect of matters enumerated in sub-section (4) of Section 13. However, E 
the .provisions of Order 9 have not been made applicable to the proceed-
ings, under the Consumer Protection Act. Thus, the Code of Civil Proce-
dure has been applied to the proceedings under the Consumer Protection 
Act only to a limited extent. If the intention of the Legislature was to apply 
the provisions of Order 9 also to the proceedings under the Consumer 
Protection Act, it would have clearly provided in the Act that the provisions 
of Order 9 will also be applicable to the proceedings before the District 
Forum or the State Commission or, for that matter, before, the National 
Commission. If the Legislature itself did not apply the rule of prohibition 
contained in Order 9, Rule 9(1), it will be difficult for the Courts to extend 
that provision to the proceedings under the Act. [1233-E-F; 1234-B·D] 
3. Every court or judicial body or authority, which has a duty to 
decide a Iis between two parties, inherently possesses the power to dismiss 
a case in default. Where a case is called up for hearing and the party is 
F 
G 
not present, the court or the judicial or quasi-judicial b

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