Tripura

StateCommission

F.A 34/2014

National Insurance Co.Ltd - Complainant(s)

Versus

Smt. Mangalsree Kalai & Others. - Opp.Party(s)

Mr.S.Kar Bhowmik,Adv

06 Jul 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.F.A-34/2014

 

National Insurance Co.Ltd.

Represented by its Divisional Manager,

Agartala Division, 42, Akhaura Road,

P.O-H.P.O. Agartala, P.S-West Agartala.

District-West Tripura, Pin-799001.

                                     ….    ….    ….    ….    Appellant.

                   Vs

1.Smt. Mangalsree Kalai @ Kanti Kalai,

W/O Late Nalindra Kalai, Dhelakong,

P.S-Killa, District Gomati, Tripura.

 

2.The Golden Trust Financial Services,

18^th R.N.Mukharjee Road,(To be represented

By its Branch Manager), Agartala Branch,

Laxminarayan Bari Road, Agartala, Tripura West.

                                    ….    ….    ….    ….    Respondents.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

               

              MR. NARAYAN CH. SHARMA,

             MEMBER,

              STATE COMMISSION.

 

For the Appellant    :      Mr.S.Kar Bhowmik,Adv.

          For the respondents   :   None appears.

                                             

Date of Hearing         :     20.06.2015.

Date of delivery of Judgment  :

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 10.11.2014 by the appellant-National Insurance Company Ltd. under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and order dated 16.09.2014 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-06 of 2014 whereby the Ld. District Forum allowed the complaint filed under Section 12 of the C.P.Act, 1986 and directed the O.P. No.2, the appellant herein to pay the sum assured for Rs.5,00,000/- and also Rs.10,000/- for mental agony and harassment caused to her together with Rs.2,000/- as cost of litigation with a further direction to pay the said amount to the complainant within a period of 30 days from the date of judgment, failing which the amount of compensation shall carry interest @ 9% p.a. till the payment is made.        

2. The case of the appellant as narrated in the memo of appeal, in brief, is that the respondent No.1-Mangalsree Kalai as complainant filed the complaint under Section 12 of the C.P.Act, 1986 before the Ld. District Forum against the O.P. No.(1). National Insurance Co.Ltd., Division No.III, Kolkata, (2). The Divisional Manager, National Insurance Co.Ltd., Agartala Divisional Office, (3). Golden Trust Financial Services, Agartala Branch, (4). Branch Manager, Golden Trust Financial Services, Agartala Office and No.(5) Senior Divisional Manager, National Insurance Co.Ltd.,Division-III, over a consumer dispute alleging negligence and deficiency in service on the part of the O.Ps.                                                   
3. It has been alleged in the memo of appeal that the husband of the complainant namely Late Nalindra Kalai was murdered by miscreants on 24.06.2011 and during the lifetime of her husband he obtained one Janata Personal Accident Insurance Policy vide policy No.1000300/47/01/9600022/03/96/30106 on 23.06.2003 covering the period from 23.06.2003 to 22.06.2018 and the sum assured under the said policy was Rs.5,00,000/- with accidental death coverage and the said policy was issued by the O.P. No.3 and 4 as the corporate agent of the O.P.-National Insurance Co.Ltd. and the policy was issued to the deceased insured on payment of full premium.
4. It has also been alleged that after the death of the said Nalindra Kalai, the complainant being the widow and nominee of the deceased preferred claim application before the O.P. No.4 for payment of the assured sum as per terms of the insurance policy and the O.P. No.4 advised her to contact with the National Insurance Co.Ltd. for settlement of the claim and accordingly, she submitted her claim with relevant documents to the O.P. No.2 and 4, but having received no response from them, she issued two letters on 21.09.2012 and 04.01.2013 requesting the Insurance Company to settle the claim at an early date as she had been suffering from acute financial crisis, but it yielded no result.
5. It has also been alleged in the memo of appeal that the conduct of the O.P. No.1,2 and 5 falls within the ambit of negligence and deficiency in service for which the complainant lodged the complaint seeking redress before the Ld. District Forum.
6. It has also been alleged that the O.Ps contested the case by filing separate written objection. According to the O.P. No.3 and 4, they were the corporate agent of National Insurance Company Ltd. which exclusively reserves the right and authority to entertain, process and settle the claim preferred by the complainant.
7. The National Insurance Co.Ltd. in the written objection averred that the Insurance Company treated the claim of the complainant as ‘No Claim’ because the policy does not cover the claim of the complainant as per clause 5 of the policy condition which stipulates that “the company shall not be liable to pay compensation in respect of death, injury or disablement of the insured (a) from intentional self injury, suicide or attempted suicide, (b) whilst under influence of intoxicating liquor or drug etc.”
8. It has also been alleged in the memo of appeal that the Ld. District Forum considering the pleadings of the parties and the evidences passed the impugned judgment and thereby being aggrieved and dissatisfied with the impugned judgment, the appellant National Insurance Co.Ltd. has preferred the instant appeal on the grounds that the Ld. Forum failed to appreciate that the claim was not covered as per clause 5 of the insurance policy, that the Ld. Forum failed to appreciate that both her son and husband were in intoxication when the incident occurred as narrated in the FIR, that the Ld. Forum failed to appreciate that the strict law of evidence as per Indian Evidence Act is not applicable in a proceeding before the Consumer Forum and thereby ignored the plea of the insurance company, that the Ld. Forum failed to appreciate that the P.M. report as submitted was not complete as it does not include the report of viscera examination, that the Ld. Forum failed to appreciate the case of the insurance company and passed the impugned judgment erroneously which cannot be sustained in the eye of law and therefore, the O.P.-National Insurance Co.Ltd. being the appellant has preferred the instant appeal challenging the legality, propriety and justifiability of the impugned judgment with a prayer for setting aside the same.                 

Points for consideration.

9.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in passing the impugned judgment and (2) whether the judgment under challenge in this appeal should be set aside as prayed for by the appellant-Insurance Company.       

                         Decision with Reasons.

10.  Both the points are taken up together for the sake of convenience and brevity.
11. At the outset we find it appropriate to mention that the respondent No.1-complainant, in spite of service of notice, never appeared in this appeal. The respondent No.2 on receipt of the notice appeared in this appeal through its learned Advocate who also ultimately did not participate in the final hearing of the appeal.
12. The learned counsel Mr.S.Kar Bhowmik appearing for the appellant-National Insurance Co.Ltd. and assailing the findings of the Ld. District Forum given in the impugned judgment submitted that the appellant as the O.P. No.1,2 and 5 filed the photo copy of the deposition of the present respondent-complainant and also the photo copy of the depositions of five other witnesses deposed by them in connection with the Session case being ST 45 (ST/U) of 2012 which along with some other documents were marked as Exhibit B series. He also submitted that the said Session case was initiated on account of the death of one Nalindra Kalai, the deceased husband of the present respondent No.1 Mangalsree Kalai @ Kanti Kalai. He also submitted that admittedly, the said Nalindra Kalai during his lifetime obtained a Janata Personal Accident Insurance Policy for an Assured Sum of Rs.5,00,000/- through the O.P. No.3 and 4, the respondent No.2 herein, the Corporate agent of the National Insurance Co.Ltd. covering the period from 23.06.2003 to 22.06.2018. He also submitted that the present respondent No.1 Mangalsree Kalai lodged the F.I.R for the death of her husband Nalindra Kalai alleging that in the night of 24.06.2011 at about 9.00 p.m. in her house her husband Nalindra Kalai and her son Sambhumani Kalai being drunken condition started quarreling over family problems and in course of that altercation, her son Sambhumani Kalai hit her husband on the left side of the abdomen in her verandah with a sharp-cut Dao causing stab-injury and as a result, her husband sustained serious bleeding injury and when her husband was taking by the villagers towards the hospital, on the way her husband succumbed to his injury.      
13. The learned counsel for the appellant submitted that as per F.I.R lodged by the present respondent No.1-complainant, her husband Nalindra Kalai at the relevant time was in drunken condition and as per proviso to Section 2(b) of the terms and conditions of insurance policy, the Insurance Company shall not be liable under the policy to make any payment of compensation in respect of death, injury or disablement of the insured from whilst under the influence of intoxicating liquor or drug. He also submitted that the F.I.R makes it clear that the insured Nalindra Kalai was in intoxicated condition under the influence of liquor at the relevant time. He also submitted that the depositions of the five witnesses including the present respondent No.1 Magalsree Kalai deposed in connection with the said Sessions case have made it clear that the insured Nalindra Kalai under the influence of liquor fell down on a standing Dao kept in the verandah causing stab-injury resulting to the death of the insured Nalindra Kalai. He also submitted that as per terms and conditions of the insurance policy, as the deceased Nalindra Kalai under the influence of intoxicating liquor and being failed to control himself fell on a standing sharp-cut Dao causing serious stab-injury resulting to his death, the Insurance Company rightly repudiated the claim of the complainant.      
14. The learned counsel for the appellant also submitted referring to the para-21 of the decision of a case of the Hon’ble Jammu & Kashmir High Court reported in 2000 Legal Eagle (J&K) 210 that in the adjudication of the consumer disputes, Technical Rules of evidence will not apply and in the proceeding before the Consumer Forums, mere preponderance of probabilities may constitute adequate basis of the decision. He also submitted referring to para-8 of the decision of a case of the Hon’ble Supreme Court of India reported in 2010 Legal Eagle (SC) 155 that the complaints before the Consumer Fora are tried summarily and the Evidence Act in term does not apply. He also submitted that when it is settled principle of law that the strict provision of the Indian Evidence Act are not applicable to a proceeding before the Consumer Fora, but the Ld. District Forum by the impugned judgment erroneously has held that in view of the law enunciated in Section 33 of the Evidence Act, the evidence given by those witnesses in the Sessions case cannot be admitted in evidence as those witnesses have not been produced by the Insurance Company in the District Forum for establishing that the depositions of those witnesses are admissible in evidence in the instant case.     
15. He also submitted that the Ld. District Forum passed the impugned judgment following the provision of Section 33 of the Indian Evidence Act strictly which is not permissible under the C.P.Act, and also in view of the principle of law enunciated in the two decisions referred to above and thereby the impugned judgment has become unsustainable in the eye of law and therefore, it is liable to be set aside.
16. We have gone through the pleadings of the parties, the evidences both oral and documentary, the impugned judgment and the memo of appeal. We have also considered the submission of the learned counsel for the appellant and also gone through the two decisions referred before us. Going through the same, we find certain admitted facts. Admittedly, the deceased Nalindra Kalai during his lifetime obtained a Janata Personal Accident Insurance Policy vide policy No. 1000300/47/01/9600022/03/96/30106 on 23.06.2003 covering the period from 23.06.2003 to 22.06.2018. It is also admitted fact that the said policy was for an Assured Sum of Rs.5,00,000/- with accidental death coverage. It is also admitted fact that the O.P. No.3 and 4 acted only as the corporate agent of the O.P.-National Insurance Co.Ltd., the appellant herein. It is also admitted fact that the complainant Mangalsree Kalai is the nominee of the insured Nalindra Kalai in respect of the said policy. It is also admitted fact that the insured Nalindra Kalai died on 24.06.2011/25.06.2011 i.e. within the insurance coverage period. It is also admitted fact that over the death of said Nalindra Kalai, Killa P.S. case No.24 dated 25.06.2011 under Section 302 of the Indian Panel Code was started against Sambhumani Kalai, the son of the complainant Mangalsree Kalai and the deceased Nalindra Kalai. It is also admitted fact that the police after the completion the investigation submitted the charge-sheet against said Sambhumani Kalai in connection with the said Killa P.S. case.  
17. It is also admitted fact that the present complainant Mangalsree Kalai deposed in the said Sessions case as P.W.1 on 18.02.2013. It is also admitted fact that the five other witnesses examined in the said Sessions case from the side of the prosecution have not been examined in the District Forum in connection with the complaint lodged by the claimant Mangalsree Kalai. It is also admitted fact that the said Sessions case was between the state and the accused Sambhumani Kalai. It is also admitted fact that the National Insurance Co.Ltd. was not a party to the said Sessions case. It is also admitted fact that the Sambhumani Kalai is not a party to the complaint case being C.C.06/2014. It transpires that the said Sessions case arising out of Killa P.S. case No.24 dated 25.06.2011 under Section 302 of the I.P.C. was initiated on the basis of a complaint (F.I.R) lodged at the instance of the present complainant-Mangalsree Kalai.
18. It transpires that the present complainant Mangalsree Kalai who was the de facto-complainant of the said Killa P.S. case has been examined in the instant case as P.W.1. Going through the depositions of five witnesses, excluding the investigating officer examined in connection with the said Sessions case, it appears that they deposed in such a manner so that the accused Sambhumani kalai is acquitted of that Sessions case. From the deposition of those witnesses (P.W.1 to P.W.5), it also transpires that as per their depositions, Sambhumani Kalai was not present on the spot, rather the deceased Nalindra Kalai by way of consuming liquor fell on a Dao and sustained serious stab-injury resulting to his death.
19. The appellant-National Insurance Co.Ltd. has produced the depositions of those witnesses examined in the Sessions case to the present case with a view to establish that the insured Nalindra Kalai under the influence of liquor and being unable to control himself fell on a sharp-cut Dao causing stab-injury resulting to his death and also to justify the repudiation of the claim of the complainant on the ground that the insured, as per terms of the insurance policy, died under the influence of intoxicating liquor, and as such the Insurance Company is not liable to pay any compensation for the death of the insured.
20. It transpires that the Ld. District Forum held that the depositions of those witnesses are not admissible in evidence in the instant case due to the non-fulfilment of the conditions provided for applicability of the provision of law embodied under Section 33 of the Indian Evidence Act. It is the contention of the learned counsel for the appellant that in a consumer proceeding, the Indian Evidence Act in terms is not applicable and the Consumer Forum has to decide the case on the basis of mere preponderance of probabilities disregarding the Technical Rules of evidence.
21. In view of the above position, we find it appropriate to reproduce the provision of Section 33 of the Indian Evidence Act which is as follows :-

          S.33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.- Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

          Provided-

          That the proceeding was between the same parties or their representatives in interest;

          That the adverse party in the first proceeding had the right and opportunity to cross-examine;

          That the questions in issue were substantially the same in the first as in the second proceeding.

          Explanation- A Criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

22. The appellant-O.P. produced the depositions of the P.W.1 to P.W.6 of the Sessions case in the instant case for the purpose of proving as to what was the cause of death of the insured Nalindra Kalai. The depositions of witnesses of the earlier proceeding are relevant and admissible in the subsequent proceeding if the conditions prescribed in Section 33 of the Indian Evidence Act are fulfilled. One of the conditions is that the earlier proceeding must be between the same parties or their representatives in interest, but in the instant case, we find that neither the National Insurance Company nor Golden Trust Financial Services was a party to the earlier proceeding i.e. the said Sessions case. At the same time Sambhumani Kalai who was an accused in the Sessions case is not a party to the instant case. So, it is found that the first condition for application of Section 33 of the Evidence Act is found unfulfilled.
23. On perusal of Section 33, it is evident that the depositions of witnesses of a proceeding are relevant for the purpose of proving a fact in the subsequent proceeding if those witnesses are dead or cannot be found, or are incapable of giving evidence, or are kept out of the way by the adverse party, or if their presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. In the instant case, only the P.W.1 Mangalsree Kalai examined in the Sessions case has been examined in the instant case as P.W.1. The rest witnesses examined in that Session case have not been produced in the instant case and as such, the depositions of those witnesses are found inadmissible in the instant case.
24. It is true that the complainant Mangalsree Kalai who lodged the complaint under Section 12 of the C.P.Act registered as C.C.06/2014 was the defacto-complainant of the earlier police case. It is also true that the issue in the Sessions case and the issue of the instant complaint case were not substantially the same. In the earlier Sessions case, there involved the question whether the accused Sambhmani Kalai was the murderer of his father deceased Nalindra Kalai, but in the instant claim case, the issue is whether the complainant as nominee of insured deceased Nalindra Kalai is entitled to get compensation from the National Insurance Co.Ltd. on account of death of her insured husband Nalindra Kalai as a result of sustaining stab-injury. The further point at issue in the instant case is as to whether at the relevant time the insured Nalindra Kalai was under the influence of liquor or not. So, the second condition i.e. the issue in both the proceedings, not being substantially the same, has not been fulfilled.
25. Admittedly, Mangalsree Kalai is an illiterate lady. This Mangalsree Kalai as P.W.1 deposed in the Sessions case to the effect that on 24.06.2011 her husband kept a Dao in the Verandah for manufacturing Dupkathi and under the influence of liquor he fell on that Dao and sustained injury on the left side of the stomach and on the way to hospital he succumbed to his injury. She also deposed that at that time her husband and herself were only present and her son was staying by the side of their house. She also deposed that Purna Mohan Kalai was not known to her and she has not submitted any FIR and put her L.T.I.. From the photo copy of the FIR (Ext. B series), it appears that the same bears L.T.I. of one Mangalsree Kalai and the scribe was one Purna Mohan Kalai. That F.I.R discloses that Nalindra Kalai and Sambhumani Kalai over the family problems being drunken started altercating and in course of altercation the said Sambhumani Kalai hit his father Nalindra Kalai with a sharp-cut Dao on the left side of his abdomen causing serious stab-injury resulting to his death. From the said F.I.R, we find that there is no endorsement to the effect that the contents of the F.I.R was written as per statement of the Mangalsree Kalai and after the writing of the same it was read over and explained to her by Purna Mohan kalai (scribe). Therefore, it is clear that Mangalsree Kalai denied regarding the filing of any F.I.R by her. But this complainant as P.W.1 stated in her cross-examination in the instant case that she lodged an F.I.R with the police and the case has been ended in a charge-sheet and she gave evidence in the said criminal case.
26. It is settled principle of law that the deposition of a witness made in any proceeding may be used in any subsequent proceeding for the purpose of contradicting that witness in the subsequent proceeding, but going through the deposition of the complainant as P.W.1, we find that this P.W.1 has not been contradicted by the learned counsel for the Insurance Company while she came in witness-box to depose in the District Forum. The reason of it as we find that the complainant Mangalsree Kalai has been examined in the instant case on 14.07.2014, but the O.P.-Insurance Company submitted the deposition of Mangalsree Kalai of that Sessions case in the District Forum only on 16.08.2014. It means while Mangalsree Kalai has been examined in the District Forum, the Insurance Company was not armed with the deposition of Mangalsree Kalai made by her in the Sessions case. It is palpable that the O.P.-appellant-Insurance Company has missed the opportunity to contradict the P.W.1 with her earlier deposition as mentioned above.
27. It transpires that regarding the cause of death of Nalindra Kalai, the F.I.R indicates in one manner, but the deposition of said Mangalsree Kalai in the Session case regarding the cause of death of her husband indicates in other manner. It appears that in spite of such deviation from the F.I.R, she has not been contradicted by the contents of the F.I.R after declaring her hostile in the said Sessions case. Be that as it may, it has been well established that the conditions for applicability of Section 33 of the Indian Evidence Act have not been fulfilled and as such, we are of the view that the Ld. District Forum rightly held that the depositions of the witnesses made in the Sessions case cannot be admitted in evidence to bring the matter within the ambit of Section 33 of the Evidence Act.
28. It is the contention of the learned counsel for the appellant that as per decisions of the two reported cases referred by him, the Evidence Act as per terms does not apply in the consumer case and therefore, the finding of the Ld. District Forum holding the depositions of the witnesses of the Sessions case inadmissible in evidence in the instant case following the provision of law under Section 33 of the Evidence Act is erroneous. Then question arises under what provision of law the depositions of the witnesses including the complainant Mangalsree Kalai can be taken into consideration as admissible evidence in the instant case. In this regard, the learned counsel for the appellant could not give any satisfactory explanation for taking the depositions of those witnesses as admissible evidence in the instant case. The deposition of the P.W.2 to P.W.6 of the Sessions case in the absence of those witnesses cannot be accepted as admissible evidence. There remains only the deposition of P.W.1 Mangalsree Kalai examined in that Sessions case, but considering the contradictory statements of the complainant made in the F.I.R, in her deposition as P.W.1 in that Session case and also her deposition made in the instant claim case (C.C.06/2014), nothing can be presumed and accepted conclusively even as an admission of the complainant concerning the cause of death of Nalindra Kalai and also as to how the insured Nalindra Kalai sustained such stab-injury resulting to his death. In that circumstance, we also find no legally acceptable ground to use the deposition of the complainant as P.W.1 made in the Session case in the instant case. Not only so, the present complainant as P.W.1 has not been contradicted with her alleged deposition made in the said Session case as P.W.1. That being the position, we are unable to accept to act on the basis of the earlier deposition of the complainant as an admission of the complainant regarding the cause of death of Nalindra Kalai as submitted by the learned counsel for the appellant. From the above, we are of the view that the Ld. District Forum rightly held that the depositions of the witnesses made in the Sessions case are not admissible in evidence legally.
29. The principle issue involved is as to whether the deceased insured Nalindra Kalai was under the influence of liquor at the time of his death or not.
30. In the District Forum two witnesses have been examined from the side of the respondent No.1-complainant and on the other hand, the appellant-Insurance Company examined its administrative officer as O.P.W.1. Going through the deposition of P.W.1 (complainant) and O.P.W.1, we find nothing to arrive at any conclusion if the insured Nalindra Kalai at the relevant time was under the influence of liquor. The complainant has examined her son-in-law Niranjan kalai as P.W.2 who categorically stated in his cross-examination that his father-in-law died being assaulted by his brother-in-law and at the time of incident his brother-in-law (Sambhumani Kalai) was in a state of intoxication. He further asserted in his cross-examination that his father-in-law (Nalindra Kalai) would never take liquor. This evidence of P.W.2 stands unrebutted.  Admittedly, the P.M. examination was hold over the dead body of Nalindra Kalai. From the P.M. examination report (Ext.8) it transpires that there is no whisper in four corners of the said report if any alcoholic smell or any sign of consuming liquor was found in the dead body of Nalindra Kalai. Of course, there is no indication if viscera of Nalindra Kalai was examined. The P.M. examination report may be considered as conclusive medical evidence if the deceased was under the influence of liquor at the time of his or her death. In view of the P.M. report, it is not possible to draw any presumption on the basis of the allegation made by the Insurance Company to the effect that at the time of death the insured Nalindra Kalai was under the influence of liquor.    
31. We find it appropriate to quote the relevant portion of the reported judgment as cited by the learned counsel for the appellant. It has been held in the relevant portion of para-21 of the judgment reported in 2000 Legal Eagle (J&K) 210 which is as follows :-

          21. …………………………………. In proceedings before the Consumer Forums mere preponderance of probabilities may constitute adequate basis of the decision. The theory of preponderance of possibilities suggests that a fact can be said to be proved when the Court either believes that it exists or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact will act on the supposition that it exists if on weighing the various probabilities he finds that the preponderance is in favour of existence of a particular fact. Within the wide range of probabilities, the Court has often a difficult choice to make, but it is this choice which determines where the preponderance of probabilities lies. Preponderance of evidence, in fact, means that evidence which satisfies the conscience and carries conviction to an intelligent mind. The Forums constituted under the Act for redress of the grievances of the consumers are not fettered or bound by the technical rules of evidence contained in the Indian Evidence Act. The rigour of the rules of evidence contained in the Evidence Act is not applicable to proceedings before the consumer Forums constituted under the Act. What is required is that they must conduct themselves in accordance with the principles of justice, equity and good conscience. They must follow the procedure laid down in S.11 of the Act. If that is done, such proceedings cannot be called in question in any Court on the ground that the principles of natural justice have not been complied with (sub-sec,(3) of S.11.). The Act thus lays down the procedure which, keeping in view the summary nature of the proceedings before the forums, would amount to sufficient compliance with the requirements of the principles of natural justice. This interpretation is in consonance with the scheme and object of the Act which has been enacted to enable consumers to obtain redress through procedures that are expeditious, fair, inexpensive and accessible. Any other interpretation will frustrate the very purpose of the Act.                

32.     The relevant portion of para-8 of the judgment reported in 2010 Legal Eagle (SC) 155 is as follows :-

          8.……………………………………….. Before the District Forum, on behalf of the respondent No.1, it was argued that the complaint sought to prove Yashoda Hospital record without following the provisions of Section 61, 64, 74 and 75 of Evidence Act. The Forum overruled th objection, and in our view rightly, that complaints before consumer are tried summarily and Evidence Act in terms does not apply. This Court held in the case of Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and others reported in (2009)9 SCC 221 that provisions of Evidence Act are not applicable and the Fora under the Act are to follow principles of natural justice.

33. There is no dispute regarding the applicability of the proposition of the principle of law laid down by the Hon’ble Jammu & Kashmir High Court and the Hon’ble Supreme Court of India. Following the same we are also in agreement with the said proposition of law that the complaint before the Consumer Fora is tried summarily and the strict provision of law of the Indian Evidence Act does not apply in the proceeding before the Consumer Fora and in the proceeding before the Consumer Fora and mere preponderance of probabilities may constitute adequate basis of the decision. In the instant case, it has been mentioned that the depositions of the P.W.2 to P.W.6 deposed in the Sessions case are not admissible in evidence as the conditions required to be fulfilled under Section 33 of the Indian Evidence Act have not been satisfied. For using the statement i.e. the deposition of a witness in any judicial proceeding as an admission, that statement i.e. the deposition requires to be read over to that witness in any subsequent proceeding, even without adopting the strict provision of law provided under Section 33 of the Evidence Act. Even from the standpoint of natural justice, we are of the view that without confronting the earlier deposition of a particular witness regarding the existence of a fact made in any judicial proceeding cannot be accepted as an admission of that witness concerning that fact in any subsequent proceeding. So, it is well-established that such repudiation of the claim of the complainant is nothing, but an act of negligence and deficiency in providing proper service on the part of the Insurance Company, appellant herein for which the complainant-respondent No.1 deserves to be compensated by the appellant.
34. The complainant Mangalsree Kalai, the wife of the deceased insured has been examined as P.W.1 in the District Forum. It has already been mentioned that in spite of getting the chance to confront the complainant (P.W.1) with her earlier statement made in the Sessions case, the appellant-O.P. No.1,2 and 5 failed to confront her concerning her alleged statement regarding the cause of death of her husband, deceased Nalindra Kalai. The natural justice also demands that it was incumbent on the part of the Insurance Company to confront P.W.1 with her earlier statement regarding the cause of death of her husband deposed by her in the Sessions case. The appellant Insurance Company could not adduce any cogent and reliable evidence for proving that the insured Nalindra Kalai at the time of his death was under the influence of intoxicating liquor or drug. Not only so, no such probabilities have been established by the Insurance Company for drawing up a presumption that the insured Nalindra Kalai was under the influence of liquor at the time of his death.   So, having no iota of evidence, we are unable to arrive at the conclusion even following the principle of preponderance of probabilities that the deceased insured Nalindra kalai at the time of his death was under the influence of liquor. That being the position, we are of the view that the principle of law laid down in the two reported cases referred by the learned counsel for the appellant-Insurance Company is found not helpful to the appellant. Therefore, we are also of the view that the repudiation of the claim of the complainant by the appellant Insurance Company is found improper and unjustified.
35. We have gone through the impugned judgment and on perusal of the same, we are of the view that the Ld. District Forum considered all aspects of the case and ultimately arrived at the right conclusion and accordingly, passed the impugned judgment which, according to us, calls for no interference by this Commission. Therefore, the impugned judgment is liable to be affirmed and the appeal is also liable to be dismissed.     
36. In the result, the appeal fails with cost. The impugned judgment dated 16.09.2014 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C.06/2014 is hereby affirmed.
37. The appellant-National Insurance Co.Ltd. is directed to deposit an amount of Rs.5000/- as cost of appeal in the Legal Aid Account of this Commission by way of Demand Draft within 30 days from the date of delivery of the judgment, failing which this amount will carry interest @ 9% p.a. from the date of judgment till the payment is made.

       

    

      MEMBER                            MEMBER                                 PRESIDENT

             State Commission                State Commission                        State Commission

                      Tripura.                               Tripura                                         Tripura