- (1.) THIS appeal has been filed against the judgment and order dated 20.2.95 whereby the complaint was dismissed. In short, the facts of the case are that complainant Sh. Ram Dayal Semwal has booked articles worth Rs. 65,784/ - through truck No. UP 08 -2036. There was an accident on 20.1.93. The truck fell into Khad and it is said that the goods of the complainant were damaged. The complainant demanded compensation which was refused. Then, he filed complaint No. 141193 which was dismissed n default. Then, he filed another complaint which was dismissed on 20.2.95, as not maintainable.
(2.) ON facts, the judgment is not correct because under the provisions of the Consumer Protection Act as also pronounced by the Hon'ble Supreme Court in 2000 (1) CPJ 19, New India Assurance Co. Ltd. v. R. Srinivasan, when the first complaint dismissed in default and that has not been restored, second complaint would lie. Therefore, the complaint could not have been dismissed as non maintainable.
(3.) HOWEVER , the complaint was not maintainable on another ground and that is the complainant here is a third party vis -a -vis Insurance Company. There are specific provisions under Motor Vehicle Act for compensation in these type of cases. The complaint therefore, could have been filed under the provisions of Motor Accident Act. 4. The accident took place on 26.1.93. Now under provision of Motor Vehicle Act, there is no provisions for any limitation and now even after a decade, a complaint under the said Act can be filed without any consideration of limitation. However, there is no wilful delay on the part of the complainant because he has been regularly pressing his remedy and his complaint is not to be defeated on the ground of delay. He is also at liberty to file a petition under the Carriers Act if it is maintainable. But definitely in view of the pecific provisions of the Motor Vehicle Act, a complaint before the Consumer Protection Act on the facts in issue, is not maintainable. It is, therefore, while setting aside the order dated 20.2.95 passed by the learned Forum, the complaint itself is dismissed as not maintainable, with a right to the complainant to file his complaint in the competent court tribunal of jurisdiction in accordance with law. ORDER The order passed by the District Furum on 20.2.95 is hereby set aside. The complaint, itself, is dismissed as not maiotainable with a right to the complainant to file his complaint in the competent court of tribunal of jurisdiction in accordance with law.;