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.102 dated 28/2/2023 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.480 dated 27/3/2023. Hence the Single Bench was formed with the undersigned as Presiding Member.

Ld. Advocates on behalf both the parties are present. Ld. Advocate on behalf of the Appellant/OP mentioned that the Ld. Lower Commission passed the final order ex-parte without giving a chance of a written objection and hearing their arguments. He also informed that the then Ld. Advocate on behalf of the Appellant/OP could not represent his Case in the Ld. Lower Commission 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 duly informed of the serious health condition of the then Ld. Advocate on behalf of the Appellant/OP and therefore they heard the arguments of Ld. advocate of the Respondent/Complainant (Sri. Pratik Kalicotey)  and passed the ex-parte judgement to that effect. It was contended by the Ld. Advocate on behalf of the Appellant/ OP that, the health condition of the then Ld. Advocate engaged by the Appellant/OP (Insurance Company) in the Ld. Lower Commission was so serious, that he was admitted in RN Tagore Hospital in Kolkata and was hospitalized there for a long period due to his by pass surgery and other related elements.

Ld. advocate on behalf of the Respondent/Complainant argued that, they are not satisfied with quantum amount regarding repair cost etc. of the vehicle of question. Moreover, the order of the Ld. Lower Commission dated 29/04/2022 is yet to be complied with by the Appellant/ OP till date.

Ld. Advocate on behalf of the Appellant/OP argued that, they came to this Higher Forum, because the ex-parte judgment was passed by Ld. Lower Commission. Moreover, the claim could not be complied with due to the “ violation of driver clause” and “driver implant clause”.

                                          Decision With Reasons

However, considering the serious illness of the then Ld. Advocate on behalf of the Appellant/OP and in view of medical emergency, and the contention of the Appellant/OP is considered for re-sending/reviewing the case afresh by the Ld. Lower Commission, with the direction to submit medical prescriptions/certificates etc. in the Ld. Lower DCDRC, Jalpaiguri, that the then Ld. Advocate for the Appellant/OP was seriously ill and hospitalized for treatment and was under gone  by pass surgery of the heart in RN Tagore hospital Kolkata and other related ailments, but the Ld. Lower Commission was not informed of this prolonged serious illness of the then ld. advocate on behalf of the Appellant/OP. Therefore, the ld. Lower Commission passed the ex-parte order dated 19/04/2022 due to the prolonged absence of the Ld. the then Advocate. On behalf of the Appellant/OP.   The Ld. Advocate on behalf of the Respondent/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 of the Ld. Lower Commission (Jalpaiguri).

Heard and considered the both sides in length. 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 appellant/OP (Insurance Company) a chance to submit WO within one month, if not already submitted, 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.