Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:
(1) This appeal takes an exception to an order dated 23.03.2010 passed in Consumer Complaint No.860/2007 (Krishnath Jyoti Patil V/s The New India Assurance Co.Ltd., Kolhapur Branch, Kolhapur) by the Consumer Disputes Redressal Forum, District Sangli (‘the Forum’ in short).
(2) The deficiency in service is alleged against the Appellant/Opponent Insurance Company (hereinafter referred to as ‘the Insurance Company’ in short) for arbitrarily repudiating the Insurance claim in respect of the damage caused to the vehicle viz. Vehicle No.MH-10/Z 480 in an the accident which took place on 30.01.2006. Insurance claim was repudiated on the ground of breach of terms of the insurance policy since it was found that at the time of accident 14 passengers were traveling in the truck. The Forum addressed itself with the issue as to whether the Insurance Company was guilty for practicing unfair trade practice and answering the said issue in the affirmative proceeded to pass the impugned order awarding compensation of `3,02,540/- and feeling aggrieved thereby the Insurance Company preferred this appeal.
(3) At the time of hearing of the appeal the Respondent and its Counsel preferred to remain absent. Hence, we heard Ld.Advocate appeared for the Appellant. Perused the record.
(4) There is hardly any evidence led by either of the parties on the issue as to whether at the time of accident 14 passengers were really traveling in the goods truck which is involved in the accident. Insurance Company has repudiated the claim simply on the basis of copies of panchanama and F.I.R. which without tendering them in evidence, cannot be relied upon. Repudiation is based on the report of the Surveyor. But his affidavit is also not on record. It could be seen from the impugned order that the provisions of Section 13(4) of the Consumer Protection Act, 1986 are only observed in breach and as such the grievance now made by the Appellant that no proper opportunity in that light was given to both the parties to lead their respective evidence is to be accepted. We find that the Forum addressed itself in the wrong way unfamiliar to the canons of law. It is not the case of unfair trade practice. If at al, it is a case of alleged deficiency in service on the part of the Insurance Company for arbitrarily repudiating the insurance claim. The Forum referred to the decision of National Insurance Co. ltd. V/s. Swaran Singh reported in 2004 ACJ 1 (SC). However, said decision is not applicable to the present case as the same could be relied only in respect of the third party claim and that is not the case here.
(5) We could have settled the dispute in appeal itself had there been a proper evidence. However, for the reasons stated above, since there is no evidence led by either of the parties and since, as now claimed, no proper opportunity is given to both the parties to lead evidence under the provisions of section 13(4) of the Consumer Protection Act, 1986; we find it proper to remand back the matter to the Forum; accepting the submissions of Ld.Counsel for the Appellant in this respect. We hold accordingly and pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) Impugned order dated 20.03.2010 is hereby quashed and set aside. Consumer complaint is remitted back to the Forum in the light of the observations made in the body of the order.
(iii) Both parties are directed to appear before the Forum on 25th June, 2012. If the Respondent/original Complainant remained absent on the date fixed, the Forum shall give intimation of the date fixed to the Complainant.
(iv) In the given circumstances, parties to bear their own costs.
(v) Appeal stands disposed of accordingly.
Pronounced on 17th April, 2012.
