No. 6/19.03.2009.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Appellant through Mr. Saikat Mali, the Ld. Advocate along with Mr. Aloke Mukherjee, the Ld. Advocate and Respondent in person are present.  Application for condonation of delay is taken up for consideration.  It appears that the delay has occurred under circumstances beyond the control of the Appellant and there is no willful laches or negligence on the part of the Appellant.  In the circumstances the application is allowed.  The delay in preferring the appeal is condoned.  Delay being condoned we take up the matter for admissibility of the appeal.  Heard the Ld. Advocate.  Perused the impugned judgement, memo of appeal and other relevant documents.  Considered.  Let the appeal be admitted and registered.  As the Respondent is already served and present in person and is agreeable to hearing of the appeal, appeal is taken up for final hearing.

This appeal was filed against the impugned judgement dated 11.07.2008 passed by the C.D.R.F. North 24 Pgs. in D.F. Case No. 70/2006 whereby complaint was allowed and compensation was directed to be paid by the O.Ps to the Complainant.  Mr. Mukherjee, the Ld. Advocate for the Appellant contended that in the present case the Complainant has failed to prove his case by adducing any evidence whatsoever and, therefore, findings of the Forum below not being based on any evidence, is liable to be struck off and the Complainant having failed to prove his case, the complaint is liable to be dismissed.

The sole Respondent – Complainant appearing in person argued that the he has filed number of documents, copies whereof have been produced before us but both parties agreed that no evidence on Affidavit or oral evidence on Dock were adduced.

We have considered the respective contentions.  It appears that the facts required to be proved were that the articles were sent with due care and upon detection of damage the complaint to be made to the Courier Company as also to the Bank concerned as the allegedly lost articles included Debit Card and the PIN Number.  It appears that some documents have been produced to show the Accounts Statement in the Bank showing withdrawal of money during relevant point of time as also making complaint to the Courier Company.  But we do not find any document whatsoever which indicates that any complaint was made to the Bank by the recipient of the article sent by Courier, so that the misuse of the Debit Card could be stopped at the earliest.  In any event this can be proved on evidence as may be adduced by the parties.  But admittedly no evidence was taken by the Forum below and decision has been arrived at without taking any evidence.  In the circumstances we are of the opinion that the matter should be decided upon granting opportunity to the parties to adduce evidence and thereafter upon deciding the matter in accordance with law.  In above view of the findings the appeal is allowed.  The impugned judgement is set aside and the Forum below is directed to proceed with the matter and to decide the same in accordance with law after granting opportunities to the parties concerned to adduce evidence.

Copy of the order may be sent to the Forum below.