Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
This appeal takes an exception to an order per majority dated 04/08/2009 passed in consumer complaint No.315/2006, Mr.Allabax Gulzar Ahmed Kamdar V/s. New India Assurance Co. Ltd., by District Consumer Disputes Redressal Forum, South Mumbai (‘the Forum’ in short).
2. The alleged deficiency in service on the part of Insurance Company pertains to rectifying the terms of the insurance policy, particularly, about the rate of premium. While disposing of the consumer complaint, Hon’ble Members of the Bench of the Forum differed with each others. One member Mr.Chandrakant Badgujar recorded his separate reasoning on 06/12/2008 while the President of the Forum Mrs.Bharati Marfatia recorded her separate dissenting reasoning on 15/12/2008. From the certified copy of the reasoning given by Hon’ble Member Mr.Chandrakant Badgujar, name of Mrs.Deepalaxmi Mhase, as another Member of the Bench is mentioned. She has not recorded any reasoning. However, it appears that the matter was further referred to third Member Mrs.Bhavna Pisal and by the time she passed the order, was In-charge President of the Forum. In fact it has not a reference made also. Whatever, it may be. From the documents on record pertained to the reasoning which collectively formed part of the impugned order, it could be seen that the provisions of Section 14(2-A) of Consumer Protection Act, 1986 are observed only in breach. Once two Members of the Forum dissented, they ought to have formulated the points on which they differed and then the matter would have been referred to the third Member. But, since third Member was not available on the Bench (if Mrs.Deeplaxmi Mhase is not constituted as a Member of the Bench while deciding the matter) as recorded in the reasoning given by Mr.Chandrakant Badgujar, referring to the President of the State Commission for allotting the matter to third member where he was available. If Mrs.Deeplaxmi Mhase was the constituted member of the three members’ Bench, then obviously her reasoning ought to have been recorded and the matter ought to have been decided per majority. Apparently, the procedure prescribed under the law being not followed in either way, it resulted into miscarriage of justice. Therefore, the impugned order cannot be supported.
3. Before parting with the order, we may observe that respondent preferred to remain absent inviting ex-parte proceeding.
4. For the reasons mentioned above, we pass the following order :-
-: ORDER :-
1. Appeal is allowed. The impugned order dated 04/08/2009 is set aside.
2. The matter is remitted back to the Forum in the light of the observations made earlier.
3. The matter be heard afresh since, no more the constituted Members of the then Bench available are now available.
4. On receipt of papers and copy of this order, the Forum shall issue notices to both the parties and hear the arguments afresh and then settle the dispute according to the law.
5. Copy of this order be furnished to the parties as well as to the Forum also.
Pronounced
Dated 6th February 2012.
