This appeal under section 15 of CP Act, 1986 relates to the final order passed by Ld. DCDRF, Siliguri in CC No. 80 /S/2017. The fact of the case in brief is that one Shyamal Ch. Dey and his wife Smt. Sabita Dey took a house building loan from Dena Bank to construct a dwelling house for their own at Siliguri in the year 2006. At the time of securing the loan, Shyamal Ch. Dey has purchased a standard policy of the Oriental insurance company private limited on 16/8/2006, by making a payment of rupees 12203 premium and risk coverage was settled for the peri od between 16/8/2006 and 15/8/2026. On  25/4/2015, the building was suffered a damage due to earth quake and the damage was assessed at the instance of Shyamal Ch. Dey, through Freelance Consultancy who assessed the damage to the tune of rupees 3,39,000. The said Shyamal Ch. Dey submitted report of surveyor and documents along with his claim application before the insurance company for settlement of payment of the damage sustained by him. The Insurance company has repudiated the claim and for that reason Shyamal Ch. Dey has filed the instant consumer complaint. The Consumer Complainant was registered before the Ld. D.C.D.R.F., Siliguri and it was admitted on its own merit and the notice of the case was issued upon the insurance company. The insurance company that is the appellants, had appeared before the Ld. Forum on 7/11/17 and prayed for adjournment for filing WV. Thereafter on 21/12/2017, the appellant’s again submitted a prayer for time to file WV but the Ld. Forum has rejected the adjournment petition on the ground that the statutory period of filing WV was already over and as such Ld. Forum has placed the case for ex-parte hearing on 7/2/2018. So the appellant/s as Opposite party to this case could not contest the case and the matter was heard ex-parte on 21/2/2018 and judgment and final order was delivered on 21/2/2018 against the appellants. Being aggrieved with this order, this appeal follows on the ground that the order of Ld. Forum was full of errors and defective as because one of the joint owner of the said house, Sabita Dey and the lender of the house building loan that is the Dena Bank were not party to the case and as such the order of Ld. Forum is liable to be set aside.

The appeal was admitted and the respondent Shyamal Ch. Dey was issued notice. Respondent Shyamal Ch. Dey after receiving the notice, had contested appeal through Ld. Advocate Sanjib Kumar Dey. The appeal was heard in presence of Ld. Advocate of both sides.

Decision with Reasons

Admitted position is that Dena Bank has financed the construction of the building owned by Shyamal Ch. Dey and his wife Smt. Sabita Dey. At the time of securing loan amount, the building was mortgaged to the Dena Bank and the building was covered with insurance to the insurer, i.e. oriental insurance company limited that is appellant of this case by making premium amount in due time.

Thereafter due to earth quake, the building was damaged and for repairment of the said damage, the insured that is Shyamal Ch. Dey has approached the freelance consultant of Siliguri for making assessment of exact loss and amount of exact damage. The report was obtained on 9/6/2015. The Complainant Shyamal Ch. Dey by this time on 7/5/2015 intimated the appellant company about the said damage of his building assessed by himself  and he mentioned his loss about three lakh approximately. On 14/1/2016, the insurance company/appellant ‘s surveyor, Abhijit Banerjee had asked the complainant Shyamal Ch. Dey to submit documents regarding his claim. On 21/9/2016, the complainant had produced the necessary documents before the assessor A Banarjee.

At the time of hearing of the argument, Ld. Advocate of the appellant submits that the building in question is  jointly owned by Shyamal Ch. Dey and  his wife so his wife is a necessary party and beyond her presence no proper adjudication could be done and without impleading her, in this consumer complainant, the Consumer Complaint becomes defective and any order passed in favour of the complainant with the said defective consumer complainant is liable to be set aside.

He further argued that Dena bank had financed house building loan. So Dena Bank is also a necessary party. Ld. Advocate of the respondent. Countered this argument to the score that the policy was purchased by Shyamal Ch. Dey and Bank statement shows that Shyamal Ch. Dey has made payment the premium of the policy personally and he is the insurer person to this insurance transaction and as such his wife was not a necessary party but proper party only.

Second argument is that Dena Bank had only provided loan amount and Dena Bank have no connection with the realisation of damage due to earth quake.

So Dena Bank is also not a necessary party. After going through the arguments, regarding defect of parties as pointed out by the appellant, this commission come to a conclusion that Smt. Sabita Dey is not the insured in the alleged insurance policy and Dena Bank has no  connection with the instant Consumer Disputes. So from this point of view, the final order of ld. Forum does not suffer from any error. Now the question is whether any assessment of damage only at the instance of the insured is acceptable or not. Here in this case, assessor appointed by the complainant/respondent has furnished the assessment report on 9/6/2015 while the insurance company/appellant through surveyor appointed by the company sent a notice to the respondent  dated 14/1/2016. The complainant respondent furnish the relevant documents after nine months that is on 21/9/2016. The surveyor appointed by the appellant company prepared the assessment report dated 16/7/2016 and the consumer complaint was registered before the Ld. Forum in the year 2017. Perhaps the complainant/respondent was not aggred with the amount of damage assessed by the surveyor A Banerjee.

It is a fact that the appellant company has got ample opportunity to file Wv within the statutory period that is within 45 days from the date of receiving the notice of the case. But due to some reasons the appellant company could not file the WV in due time and as such the Ld. Forum has rightly observed that the appellant company has lost the opportunity to dispute the consumer complainant and placed the matter for hearing ex-parte. According to sub-clause (ii) of Clause B of Sub Section 2 of Section 13 of the Consumer Protection Act, 1986, the Forum can hear any consumer dispute ex-parte on the basis of evidence brought to its notice by complainant where the Opposite party omits or fails to take any action to represent his case within time given by the Forum.

Here in this case, receiving the notice, the appellant company has secured its appearance before Ld. Forum on 7/1/2017.

Thereafter, they were intended to file the WV and for that reason, the appellant company prayed for adjournment before the Ld. Forum and the said adjournment prayer was granted on that date. The insurance company as OP no. 1 and 2 could not appear before the Ld. Forum on two consecutive dates. On 21/12/2017, again the Insurance Company/appellant filed an adjournment petition and Ld. Forum has rejected said petition and placed the matter for ex-parte hearing. Here in this case, the insurance Company had appeared and intended to contest the case but they were debarred for participating in argument and hearing of the case as because they could not submit the WV in due time. The Forum can hear the ex-parte where the OP does not take any action to contest the case. Here Insurance Company could not file the WV but cannot be said, they have not taken any action to contest the case or to read the case of the insurance company before Ld. Forum.

So, Ld. Forum had the occasion to give opportunity to the insurance Company to participate in the argument stage before adjudicating the dispute and it is not the intention of the legislation to debar any contesting authority to participate in an adjudication process of the consumer dispute.

Therefore, the Commission find it necessary to interfere with the order of ld. Forum so that the insurance company may get opportunity to place an argument before the Ld. Forum for passing effective order over the alleged consumer dispute. The admitted document that the report of surveyor A Banerjee appointed by the appellant company shall have to be considered by the Ld. Forum along with other documents already furnished by the complainant at the time of passing the fresh final order over the consumer dispute.

As a result, the appeal succeeds,

Hence it is,

ORDERED,

That the appeal be and same is hereby allowed on contest without imposing any cost. The order of Ld. DCDRF, Siliguri dated 21/2/2018 in CC no. 80/S/2017 is hereby set aside.

Ld. DCDRF, Siliguri is hereby requested to fix a date for hearing argument afresh and shall deliver a Final Order on hearing the arguments of both sides and on perusal of documents already furnished by the respondent and to be furnished by the appellant preferably within two months since the receiving of the order of this Commission.

Let a copy of this order be supplied to the parties` of appeal.

The order be communicated to the Ld. DCDRF Siliguri through e-mail.