PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          This appeal has been filed by the Appellant against order dated 13.06.2013 passed by State Commission in Complaint Case No. CC/09/119- Smt. Sheela R. Ohri  VS. Bajaj Allianz General Insurance Company Ltd.; by which complaint was dismissed.

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Brief facts of the case are that Complainant/Appellant, Prop. of Emarsso International, doing business of manufacture and export of readymade garments got its workshop/factory insured from Opposite Party- Respondent for a period of one year from 22/02/2006 to 21.02.2007.  On 23.4.2006, on account of fire due to short circuit, Complainant sustained loss of Rs. 24,60,975/-.  Complainant submitted claim before the Opposite Party alongwith all the document, but, Opposite Party closed the file on the ground of not filing necessary documents and Complainant did not substantiate loss.  Alleging deficiency on the part of Opposite Party, Complainant filed complaint before the State Commission.  Opposite Party resisted complaint and justified repudiation as Complainant did not substantiate his claim by documents and prayed for dismissal of complaint.  Learned State Commission after hearing both the parties dismissed complaint against which this appeal has been filed.

        Heard Learned Counsel for the parties finally at admission stage and perused record.

        Learned Counsel for Appellant submitted that Learned State Commission committed error in dismissing complaint on technical grounds though affidavit and documents were already on record, hence, appeal  be allowed  and  impugned order be

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set aside and the matter may be remanded back to Learned State Commission to decide complaint after considering affidavit and all the documents.  On the other hand, Learned Counsel for Respondent submitted that order passed by Learned State Commission is in accordance with law and, hence, appeal be dismissed.  Learned State Commission while dismissing complaint observed in para 11 & 12 as under:-

“(11)    More important is the reply dated 14/7/2006 given by the Complainant to the surveyor. It refers to a very pertinent fact that the surveyor asked for details on the basis of which the Chartered Accountant prepared the statement of loss and to which the Complainant submitted that it was not possible for them to provide the basis on which the details were worked out by the Chartered Accountant.  If it is so, the surveyor vis-à-vis the Insurance Company cannot be blamed for not accepting the assessment made by the Chartered Accountant of the alleged loss.  There is no independent evidence adduced on behalf of the Complainant to show as to what was the actual stock which was burnt and the value thereof.  Mere producing documents or referring them in the so-called affidavit of the Complainant is not sufficient to hold that these documents were proved and tendered in evidence.  No doubt, the degree of proof in a consumer complaint may not be very high but, atleast there should be some proof to infer genuineness of the documents and the contents thereof.

(12)     Copy of audit report for the financial year ending 31/3/2005 is also produced but without any supporting affidavit.  That report is also not relevant to establish the actual stock which was stored on the second floor of factory where the fire broke out.  Copies of the invoices which are unattested cannot be said to have been tendered in evidence.  They are also not relevant to establish the fact of actual stock which was burnt in the event of fire in question.  Same is the case in respect of copies of the Stock Statement Register.”

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Learned Counsel for Appellant submitted that Learned State Commission should not have dismissed complaint on technical grounds and has placed reliance on judgment of Hon’ble Apex Court in Criminal Appeal Nos. 1191-1194 of 2005- Malay Kumar Ganguly  VS. Dr. Sukumar Mukherjee and Others WITH Civil Appeal No. 1727 of 2007- Dr. Kunal Saha  VS. Dr. Sukumar Mukherjee and Others; in which it was observed as under:-

“FOR PURPOSES OF PROCEEDINGS BEFORE THE NATIONAL COMMISSION-  The said exhibits, however, are admissible before the consumer court. This Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami& V.P. Temple,(2003) 8 SCC 752, at page 763 :

"... Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an  49 exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there;  and  secondly, in  the event of  finding of  the

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court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."

Section 22 of the Consumer Protection Act, 1986 provides that Sections 12, 13 and 14 thereof and the rules made thereunder for disposal of the complaints by the District Forum, shall with such modification as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission. Section 12 of the 1986 Act provides  50for the manner in which the complaint shall be made. Section 13 prescribes the procedure on admission of the complaint. Sub-section (3) thereof reads:-

"(3) No proceedings complying with the procedure laid down in sub-sections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with."

Apart from the procedures laid down in Section 12 and 13 as also the Rules made under the Act, the Commission is not bound by any other prescribed procedure. The provisions of the Indian Evidence Act are not applicable. The Commission is merely to comply with the principles of natural justice, save and except the ones laid down under sub-section (4) of Section 13 of the 1986 Act.

The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the Civil Court but yet it can not be called a civil court. [ See Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. [1950 SCR 459] and Nahar Industries Ltd. v. Hong Kong & Shanghai Banking Corporation etc. (Civil Appeal arising out of SLP (C) No. 24715 of 2008 etc decided on 29th July, 2009)].”

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He also placed reliance on judgment of this Commission in FA No. 478 of 2005- S.P. Aggarwal  VS. The Sanjay Gandhi Post Graduate Institute decided on 31.03.2010; in which in para 7,  it was observed as under:-

“7.        Learned counsel for the appellant would assail the impugned order and findings of the State Commission as erroneous on the ground that it is not based on correct and proper appreciation of the facts and circumstances, evidence and material produced on record. In this connection, his first submission is that the State Commission has erroneously discarded the affidavit of the complainant on a mere technical ground that the said affidavit was not in conformity with the provisions of Order XIX CPC, which could not be strictly applied to the proceedings under the provisions of Consumer Protection Act, 1986. We see merit in this contention because the proceedings under the Consumer Protection Act are required to be dealt with in a summary manner and, therefore, the provisions of the Code of Civil Procedure, except and so far as they have been specifically applied in relation to these proceedings, will have no application. The State Commission has taken a hyper-technical view in rejecting the said affidavit on the ground that it has not been prepared and filed in accordance with the provisions of the Code of Civil Procedure and the 13 annexures filed along with the affidavit are not dealt with in detail in the said affidavit. It is pertinent to note that the annexures filed by the complainant were only the record of treatment and medical reports and possibly no doubt could be raised about the existence or genuineness of the said documents. The affidavit and the documents filed by

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the complainant were entitled to due consideration and the State Commission ought to have taken a view based on the intrinsic value of this relevant and important evidence.”

          Perusal of record reveals that complaint was filed in June, 2009 and affidavit of Complainant in evidence was filed on 28.7.2010 on which there was seal of notary on each page but it did not bear signatures of notary.  Strictly speaking, this is not proper affidavit but it appears that notary, by inadvertence, did not put his signatures on the affidavit.  In the same way, Complainant filed number of documents before State Commission alongwith this affidavit and all the documents contain seal of notary but does not find signatures of notary.

          As documents did not contain signatures of notary, Learned State Commission instead of dismissing complaint on technical grounds should have afforded opportunity to the Complainant subject to cost for filing another set of affidavit alongwith documents duly signed by notary in the light of aforesaid judgments.

          Learned Counsel for Respondent submitted that as Complainant himself was negligent in filing proper affidavit and documents, order passed  by Learned State  Commission is in accordance with law.  No

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doubt, Complainant should have filed proper affidavit and documents, but, it appears that by inadvertence, notary has not put his signatures on the affidavit and documents.  Learned State Commission should have afforded opportunity to remove defects subject to cost and even if, compliance is not made by Complainant, Learned State Commission should have proceeded to decide complaint on merits without considering the affidavit and documents.

          In the present cast, as opportunity was not given to the Complainant to remove defects, I deem it appropriate to give opportunity to the Appellant to file another set of same affidavit and documents duly notarised by notary subject to cost.

          Consequently, appeal filed by the Appellant is allowed and impugned order dated 13.06.2013 passed by Learned State Commission in Complaint Case No. CC/09/119- Smt. Sheela R. Ohri  VS. Bajaj Allianz General Insurance Company Ltd.,  is set aside and matter is remanded back to Learned State Commission to give an opportunity to the Complainant to file duly notarised affidavit alongwith documents subject to depositing Rs. 10,000/- as cost with Legal-Aid Account of the State Commission on or before 18.12.2014 and decide complaint afresh after giving opportunity of being heard to the parties.

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          Parties are directed to appear before the State Commission on 18.12.2014.

          There shall be no order as to costs.

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