No. 4/05.11.2008.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Appellant through Mr. Barun Prasad, the Ld. Advocate and Respondent Nos. 1 & 2 through Mr. N. R. Mukherjee, the Ld. Advocate are present.  Respondent No. 3 is absent on call.  Respondent No. 4 enters appearance by filing Vokalatnama through Mr. P. Banerjee, the Ld. Advocate challenging the order dated 16.06.2008 passed by Siliguri District Consumer Forum in Consumer Case No. 74/S/2007 whereby the complaint was dismissed.  The contention of the Appellant – Consumer is that the judgement impugned cannot stand particularly by reason of the fact that repudiation of his claim has been on a ground which again cannot stand.  Mr. Prasad, the Ld. Advocate for the Appellant advances various argument & on merit but we have considered his contention that the repudiation by order dated 26.11.2006 is on total non-application of mind as it is the consistent case of the Complainant that the original key set was also stolen along with the motorcycle and was not available and, therefore, the claim was lodged.  But the repudiation is on the sole ground that “original key set not able to produce”.

Mr. Mukherjee, the Ld. Advocte appearing for the Insurer contends that the police case having ended on a final report and the Petitioner having not been able to make out a case on merit the complaint is liable to be dismissed and this Commission should not interfere in the appeal.

After considering the above contention we find that repudiation itself is on a ground which shows total non-application of mind.  It is true that the Complainant from the beginning has urged that original key set was lost.  In such circumstances there was no scope for coming to a conclusion that claim cannot be settled for want of original key set.  The Surveyor’s Report also does not show that the original key was available at any stage and, therefore, the aforesaid ground for repudiation shows non-application of mind.  On the aforesaid ground we allow the appeal and set aside the repudiation order containing letter dated 26.11.2006 and in such circumstances we direct the Insurance Co. to reconsider the claim and pass a final order in accordance with law preferably within a period of one month and to communicate the same to the Claimant as early as possible.  We make it clear that we have not decided any other point by either of the party.