Litigant Should Not Be Made To Suffer Because Of Advocate's Fault In Withdrawing Complaint By Mistake : Supreme Court

In a case relating to insurance claim, the Supreme Court observed that a litigant should not be made to suffer because of a fault of the counsel.  that only due to the fault of counsel, a party should not be made to suffer. 

The bench comprising Justices JK Maheshwari and Justice KV Vishwanathan was hearing a plea against NCDRC judgment which denied insurance claim.

In this case, NCDRC had previously held that since the complaint was withdrawn, no fresh complaint could’ve been filed, as it was barred under Order XXIII Rule (1) (4) of the Code of Civil Procedure1 (CPC)

Before the district forum, the counsel had submitted “I, Surender Kumar Gulia, Advocate, state that I do not want to proceed with my case. It may be dismissed. The district forum disposed of the claim recording his statement of withdrawal.

The claimant filed a fresh complaint and stated that the withdrawal was made by mistake by his counsel.

The court observed that “The said complaint was withdrawn by the advocate of the complainant on the pretext of the case being prolonged by the advocate of the Insurance Company, without having express instructions for withdrawal of the said complaint. However, for the fault of the advocate, the complainant cannot be made to suffer”.

Thus, the complaint cannot be thrown out on the threshold of Order XXIII Rule (1)(4) CPC and in the peculiar facts, it requires consideration on merits, observed the Court.

BACKGROUND OF THE CASE

The appellant was the owner of a truck having a valid insurance policy for 8,40,000 from 2008 to 2009. On 26th June 2008, the appellant’s vehicle was stolen when the driver left the key on and got off the vehicle to enquire about a person. He filed an FIR and intimated the respondent about the theft to claim insurance. He filed a complaint before the district forum which awarded him 75% of the assured sum on a nonstandard basis. State commission affirmed the same. But NCDRC rejected his claim. Aggrieved by the same, he approached the Supreme Court.

Also Read - 'Breach Of Condition Must Be Fundamental To Deny Insurance Claim Altogether': Supreme Court Directs Insurer To Award 75% Claim In Vehicle Theft Case

Case title: Ashok Kumar v. New India Assurance Co Ltd

Case No: Civil Appeal No. 4758 OF 2023

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