No. 5/12.05.2010

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Appellant is present through Ld. Advocate Mr. S. Nayak, the Ld. Advocate along with Mr. S. K. Chakraborty, the Ld. Advocate.  Mr. S. K. Das, the Ld. Advocate files Vokalatnama for the sole Respondent today.  Heard Mr. Nayak, the Ld. Advocate for the Appellant and Mr. Das, the Ld. Advocate for the Respondent – Complainant.  It appears that the original complaint was decided finally by the Forum by its order dated 22.04.2008 wherein the named Surveyor was directed to reassess the damaged dumper in question with further appropriate directions.  It also appears from the records that the said Sri Ashok Basu, Surveyor opined that there is no scope to reassess the loss and nothing more could be added in this regard.  In the circumstance when the matter was brought before the Forum in execution case, the Executing Forum by impugned order appointed another named Surveyor in place of Sri Ashok Basu directing the new Surveyor to reassess the damage of the dumper in question. 

Mr. Nayak contended that impugned order cannot stand as the Forum in execution case could not alter the original order and appoint a named Surveyor.  Mr. Das appearing for the Complainant – Respondent contends in view of the situation arising by reason of conduct of Sri Ashok Basu, earlier named Surveyor, the order passed naming another Surveyor is perfectly alright and is in the interest of justice.

Considering the aforesaid contentions we are of the opinion that in view of the situation developed by reason of earlier named Surveyor Sri Ashok Basu not complying with the direction of the Forum, some other arrangement has to be made.  But we do not find it proper for the Forum to appoint another named Surveyor for the purpose of order passed in the original proceeding having since attained finality.  As we are of the opinion that order of the Forum in the original proceeding has reached finality but the Surveyor named therein having not complied with the direction of the Forum, the Insurance Company should appoint another Surveyor exercising their right under the statute.  In the circumstance the impugned order stands modified only to the extent that the reassessment of the damaged dumper in question is to be made by a Surveyor to be appointed by the Insurance Company in accordance with law.  Appeal is allowed to the aforesaid extent.