TMI Blog2000 (2) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... istrict Forum', for short) in respect of the aforesaid vehicle, for the same amount, viz. for ₹ 1,47,141.70 p. The claim was opposed by the appellant, who filed a written statement pleading, inter alia, that it had already settled the insurance claim of the respondent for a sum of ₹ 62,811 after scrutiny of the relevant papers and the survey report. This amount was offered to the respondent, who declined to receive the claim compensation and, therefore, in the particular circumstances of the case, there was no deficiency in service and the appellant was not liable to pay any damages under the Act nor could a claim be filed against the Insurance Company. It was further pleaded that in view of the fact that a similar complaint instituted by the respondent before the State Commission was dismissed in default and the Commission had also refused to restore it, a fresh complaint on the same cause of action was not maintainable. The District Forum, by its order dated 19.12.1994, allowed the claim of the respondent for a sum of ₹ 1,47,141.70 p. together with interest at the rate of 18 per cent from 26.11.1991. This order was challenged by the appellant before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vested in a Civil Court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely : (i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath; (ii) the discovery and production of any document or other material object producible as evidence: (iii) the reception of evidence on affidavits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; (v) issuing of any commission for the examination of any witness; and (vi) any other matter which may be prescribed. The above 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. The provisions of Order 9 have not been made applicable to the proceedings under the Consumer Protection Act. Order 9 deals with appearance of parties and consequence of non-appearance. It is provided by Rule 2 of Order 9 that if the plaintiff was found to have not taken any step for service upon the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication, make rules for carrying out the provisions contained in clause (b) of sub-section (2) and sub- section (4) of section 7, sub-section (3) 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 parts. Similarly, Sub-rule (8) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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 pursumed and was dismissed in default. But that is not the end of the matter. Mahmood, J. in his dissenting judgment in the Full Bench case of Nursing Das v. Mongol Dubey Ors., ILR 5 Allahabad 163, observed : The Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle, prohibitions cannot be presumed, and in the present case, therefore, it rests upon the defendants to show that the suit in the form in which it has been brought is prohibited by the rules of procedure applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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