Sri Shyamal Gupta, Member

Being aggrieved with the ex-parte Order No. 11 dated 06/03/2017 against the Appellants/OPs, passed by the Ld. District Forum, Jalpaiguri in Complaint Case No. 07/2017, allowing the Complaint, the Appellants/OPs had filed the Appeal u/s 15 of the C P Act, 1986.

The Directions communicated in the impugned Judgment and Order are narrated hereunder.

 “…The complaint case no. 07/17 is allowed ex-parte against the O.Ps with litigation cost of Rs. 5,000/-only.

The O.Ps are also directed to pay the amount of Rs. 50,000/-as compensation for mental agony and pain to the complainant.

The O.Ps (Cholamandalam MS General Insurance Co. Ltd.) are hereby directed to comply with the aforesaid direction and pay the insured value of the vehicle and the compensation amount to the complainant within 30 days from the date of this order, failing which the entire amount will bear 8% interest per annum till realization and the complainant shall be at liberty to realize the entire amount by putting this order into execution in accordance with law.

The complainant is directed to hand over the said vehicle (salvage) to the O.Ps after realization of the above mentioned amounts.”

The brief fact of the Appeal was that the Respondent/Complainant’s vehicle which was under coverage of  Insurance Policy sponsored by the Appellants/OPs for the period from 00.01 hr. of 08/07/2014 to the midnight of 07/07/2015, met with an accident on 07/03/2015 at around 7 PM at Surengolay Garribas, Jaldhaka, Darjeeling. The vehicle sustained severe damage. Most of the passenger sustained major injury. That apart, one girl of 17 years of age died on the spot. A Criminal Case under Jaldhaka P.S Case No. 06/15/G. R. Case No. 118 (15) u/s 279/337/338/304(A)/427 IPC was initiated against the driver of the vehicle.

The Respondent/Complainant intimated the Appellants/OPs about the incident and approached the Appellants/OPs to fulfill their duties to compensate for the loss as per terms and conditions of the policy.

The surveyor engaged by the Appellants/OPs through their letter dated 22/10/2015 expressed their inability to consider the claim on the ground that the incident was reported late to them.

The Respondent/Complainant, being aggrieved with the above mentioned repudiation of the claim, filed the Complaint Case. Impugned Judgment and Order was put under challenge in the instant Appeal.

The Appeal was heard ex-parte against the Respondent/Complainant.

Ld. Advocate appearing on behalf of the Appellants/OPs submitted that there was absolute lack of application of judicial mind on the part of the Ld. District Forum, while passing the impugned Judgment and Order ex-parte. As contended, Ld. District Forum did not allow the Appellants/OPs to file their WV. Their repeated Appeals for filing the WV were not taken cognizance of leading to the deprivation of their rightful claim of an opportunity of being heard. Since the Appeal had merit in favour of the Appellants/OPs, the Ld. Advocate prayed for remanding the case, setting aside the impugned Judgment and Order, to the Ld. District Forum with the direction to hear the Complaint on merit and dispose the same of by passing a reasoned order.

Considered the submission of the Ld. Advocate appearing on behalf of the Appellants/OPs and perused the papers available in the case record. It appeared from the Order No. 6 dated 02/05/2017 that the Respondent/Complainant was allowed to file the amended plaint along with some documents as enclosures on 05/05/2017.

The order dated 05/05/2017 revealed that the date of receipt of the notice by the Appellant/OP No. 2 was recorded as 28/03/2017. The date itself was revealing that the amended complaint with documents as enclosures, ordered for submission on 02/05/2017, was not received by the Appellants/OPs. Our observation gained further strength from the facts that the Appellants/OPs, in their submission before the Ld. Forum, laid emphasis on supplying the documents early to them by the Respondent/Complainant who was found absent without taking step for compliance of the order dated 02/05/2017.

The Respondent/Complainant, however, appeared latter at 1.50 PM, presumably, after departure of the Appellants/OPs and submitted the amended plaint with documents which was ordered to be kept in the record to be delivered on 16/05/17 being the next date of hearing.

Order dated 16/05/2017 revealed further that the amended plaint along with documents was handed over to the Ld. Advocate appearing on behalf of the Appellants/OPs. Since the WV was to be prepared based on the amended plaint with its annexure, the statutory period for filing WV should have been counted from 16/05/2017, the date of handing over the amended plaint to the Appellants/OPs.

Ld. district Forum, in its subsequent order dated 06/06/2017, refused to accept the WV disallowing the Appellants/OPs to submit the same and fixing 08/06/2017 for final hearing of the case. The subsequent application for revisiting the earlier direction of not allowing the filing of WV by the Appellants/OPs was further rejected on 08/06/2017 and the case was finally heard on the same day.

It appeared from our above observation that the Ld. District Forum made a material irregularity in not allowing the Appellants/OPs to file the WV based on the amended memorandum of the complaint with documents as enclosures which was submitted on 16/05/2017 and passing as well an order after hearing hastily the complaint on 08/06/2017 which was only two days after the order debarring the Appellants/OPs for filing WV was passed.

Above being the facts and circumstances, we are of the considered view that interest of the Respondent/Complainant has been prejudiced. We, therefore, are inclined to pass an order for remanding the case to the Ld. District Forum.

 Hence, ordered that the Appeal be and the same stands allowed in part. The case be remanded to the Ld. District Forum with the direction to accept the WV of the Appellants/OPs and conclude the hearing on merit on observance of due formalities. Impugned Judgment and Order stands set aside. No order as to costs.