KUNDAN KUMAR KUMAI

This is an appeal u/s 41 of the Consumer Protection Act, 2019, preferred against the final order/judgement dated 02/12/2022, in CC/33/2022, passed by the Ld. DCDRC, Raiganj, Uttar Dinajpur.

The Appellant/OP no.2’s case in brief is that, the Respondent/Complainant had purchased a car from Hyundai Motor India Ltd., against payment of Rs.8,57,600/- (Rupees eight lakhs fifty-seven thousand six hundred) only, on 06/08/2021 and after registering the vehicle on 12/08/2021, the registered no. of the vehicle was WB 60X-4747. He had then purchased one Insurance Policy from the Appellant/OP no.2, by paying a premium of Rs.36,086/- (Rupees thirty-six thousand eighty-six) only, being Insurance Policy no.991492123740026313 valid from 06/08/2021 to 05/08/2022 and the liability coverage was from 06/08/2021 to 05/08/2024.

On 30/09/2021, the said vehicle met with a road accident, resulting in the vehicle being damaged and one complaint had been lodged before the Itahar PS, where Itahar PS Case being no.632/2021,u/s 279/338 of the IPC had been started. After releasing the vehicle from the police, the vehicle had been taken to the authorized Service Center named as Ethereal Auto Private Ltd., at Narayanpur NS 34, Jhanjhara Chakimore, Malda. The matter had been informed before the Appellant/OP no.2 and the Appellant/OP no.2 had engaged a panel investigator, for ascertaining the expenses. After paying the repairing charge of Rs.1,84,972/- (Rupees one lakh eighty-four thousand nine hundred seventy-two) only, the vehicle had been discharged from the repairing center. The Respondent/Complainant had claimed the damages by submitting bills, vouchers and other necessary documents relating to the accident. But after receiving the documents, the OPno.2/Appellant disbursed only, Rs.1,18,988/- (Rupees one lakh eighteen thousand nine hundred eighty-eight) only and deducted Rs.65,984/- only without any basis, as a result of which the Respondent/Complainant suffered monetary loss and the resultant mental pain. Thereafter, a complaint had been lodged before the Ld. DCDRC, Raiganj, Uttar Dinajpur with necessary prayers.

The Appellant/OP no.2 failed to submit the written version following which the matter had been decided ex-parte.

After hearing and ongoing through the evidence, provided by the Respondent/Complainant, the Ld. DCDRC, Raiganj, Uttar Dinajpur passed the impugned order directing the Appellant/OP no.2, to pay Rs.65,984/- (Rupees sixty-five thousand nine hundred eighty-four) only, to the Respondent/Complainant within a month from the date of passing of the impugned order, failing which interest @ 6% p.a. would be attracted.

Being aggrieved by the impugned order, the Appellant/OP no.2, preferred the instant appeal on the ground that the Ld. DCDRC, Raiganj, Uttar Dinajpur had erred in law and facts, while passing the impugned order.

                                                                    Decisions with Reasons

Ld. Advocate for the Appellant/OP no.2, at the time of final hearing, had submitted that the Appellant/OP no.2 had been deprived from contesting the Case when their prayer for adjournment had been refused and the impugned order, had been passed without considering the merit. He, therefore, prayed for setting aside the impugned order and allowing the appeal.

The Respondent/Complainant did not appear to contest the appeal following which the appeal was heard ex-parte.

The factum of the accident is not disputed and the only point of dispute is whether the Respondent/Complainant is entitled to the charges of Rs.1,84,972/- (Rupees one lakh eighty-four thousand nine hundred seventy-two) only or not. The Appellant/OP no. 2’s Case is that, the investigator had recommended the charges of Rs.1,18,988/- (Rupees one lakh eighteen thousand nine hundred eighty- eight) only. The Respondent/Complainant had also admitted that the panel investigator had been appointed for ascertaining the charges, but in the impugned order there is no such discussion about the same. Non-compliance of the provisions of section 38(2) (a) of the Consumer Protection Act, 2019 does not mean that the party should be deprived from cross-examination of the witnesses or putting forth arguments. But in the instant Case, the same appears to have been deprived to the Appellant/OP no.2 and therefore this appeal appears to be an apt case to remand the appeal for cross-examination of the Respondent/Complainant’s witness and tendering of argument on behalf of the Appellant/OP no.2 stays. This appeal therefore succeeds in part.

                                                             It is therefore

                                                             ORDERED

The instant appeal be and the same is allowed in part, ex-parte, but without costs.

The impugned order is hereby set aside.

The appeal be remanded to the Ld. DCDRC, Raiganj, Uttar Dinajpur for complying with the directions mentioned in the body of the judgement.

Copy of the order be sent to the parties, free of cost.

Copy of the order be sent to the Ld. DCDRC, Raiganj, Uttar Dinajpur for necessary compliance.

Statutory amount be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC to do the needful.