The Case was filed on 15/2/2023 arising out of the judgement of the Ld. Lower Commission (Ld. Jalpaiguri DCDRC) being no. CC/27/2021 wherein the judgement/final order was passed ex-parte by the then President of the Ld. Lower Commission on 29/4/2022 and the then President of the Ld. Lower Commission is now the President Member of the present SCDRC (Siliguri Circuit Bench) where the instant Case has been filed. For the same of natural justice, the Presiding Member who heard the Case in the capacity of the President and passed the impugned order dated 29/4/2022 is not a position to hear the same as the Presiding Member of the SCDRC (Siliguri Circuit Bench). Hence, a request was sent to the Hon’ble President, Kolkata vide this office memo no.44 dated 31/1/2023 to constitute a Single Bench with the undersigned as Presiding Member. The Hon’ble President of the SCDRC Kolkata was kind enough to have accorded permission of the approval to constitute a Single Bench vide his office memo no.232 dated 06/02/2023. Hence the Single Bench was formed with the undersigned as Presiding Member.

Ld. Advocates on behalf of both the parties are present. Ld. Advocate on behalf of the Appellant/Complainant also appeared and contended that the order of the Ld. Lower Commission is yet to be complied with though they are not satisfied with the quantum of amount as mentioned in the order dated 29/4/2022.

He also informed that the Respondent/OP is reluctant to comply with the order of the Ld. Lower Court repudiating the claim due to “violation pf driver clause” and  on “Driver’s Implant” clause though the Respondent/OP could not submit any such clause/bond in black and white on demand. Moreover, it is to be ascertained beyond doubt as to who was driving the said car at the time of the accident since there is claim and counter-claim which are contradictory to each other. However, their appears to be a written statement made by the appellant/ complainant (i.e, Pratik Kalikotey) dated 22.02.2021 (annexure 2) which also appears to be significant.

                                                        Decision with reasons

Ld. Advocate on behalf of the Respondent/OP mentioned that the Ld. Lower Commission passed the final order ex-parte without submission of written objections and hearing their arguments. He also informed that the then Ld. Advocate engaged  on behalf of the respondent/OP in the Ld. Lower Commission could not represent his Case due to his by-pass surgery and other related ailments. But on scrutiny, it appears that no such prescriptions/medical certificates have been submitted in support of his claim. Probably, the Ld. Lower Court was not informed of the serious health condition of the then Ld. Advocate on behalf of the respondent/OP and therefore, the Ld. Lower court conducted the ex-parte hearing probably due to the prolonged absence of the Ld. Advocate on behalf of the respondent/OP   since the Ld. lower court was not probably duly informed of the serious illness of the Ld. advocate of the respondent/ OP and passed the ex-parte judgement to that effect. It was the responsibility/duty of the Respondent/OP (i.e., Insurance Company) to inform the Ld. Court regarding the prolonged and serious illness of the Ld. Advocate engaged on their behalf and to substitute the ailing Advocate by a fresh one to represent their case but they failed to perform their duties and responsibilities.

However, considering the medical emergency and the contention of the Respondent/OP as well as the arguments put forward by the Ld. Advocate on behalf of the Appellant/Complainant, the case record is being re-sent for review to the Ld. Lower Court afresh with the direction to Ld. Advocate on behalf of the Respondent/OP(said Insurance Company) with the direction to submit medical prescriptions/certificates, etc. in the Ld. Lower Commission  of the then Ld. Advocate for the Respondent/OP to corroborate that at that pertinent point of  time, he was seriously ill and under treatment and hospitalized for surgery etc.

Heard and considered the both sides in terms of what has been stated above and for the sake of natural justice, the Case is being sent to the Ld. Lower Commission, Jalpaiguri with the direction to hear the Case de novo with the available records/documents in the file and dispose of this Case within 3 (three) months after   receiving of the records, giving fair chance to both the parties to represent their Case, specially giving the respondent/OP (Insurance Company) a chance to submit WO, if not already submitted,  within one month after receipt of this case record.

                                                    It is, therefore,

                                                     ORDERED

That,  the instant appeal be and the same is allowed on contest, but without cost.

 The impugned order is hereby set aside and the instant matter is sent on remand to the Ld. Lower Commission for compliance with the directions mentioned in the body of the judgment.

Copy of this order be sent to all the concerned parties free of cost.

Copy of this order be sent to the Ld. DCDRC, Jalpaiguri for their kind information and necessary action.

Statutory deposit, if any, to be returned from whom received.

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