S. Majumder, Member.

This appeal has been directed against the judgment passed by the District Forum, 24-Parganas, (South), on 06.05.2008, in its case no-29/2008, wherein the Ld. Forum below has allowed the complaint exparte and directed the OPs to pay compensation of Rs.1,00,000/- to the Complainant due to negligence in providing medical treatment to the wife of the Complainant within 45 days from the date of the judgment, failing which the Complainant would be at liberty to recover the amount through the Executing Court by filing execution case.

Being dissatisfied by the above-mentioned judgment the OP-2-Appellant has preferred the present appeal before this Commission contending that the Appellant for the first time on 25.07.2008 came to know through a letter that an execution case being no- 60/2008, has been initiated before the Executing Court 24-Parganas (South) by Sri. Swapan Halder. The Appellant was directed to appear on 23.07.2008 before the Executing Court. It has been stated by the Appellant that the office of the Executing Forum on 22.07.2008 posted the said letter and he received the letter on 25.07.2008. After receiving the same he came to learn that a decree has been passed against him on 06.05.2008. Thereafter without wasting time he took steps for preferring an appeal against the said judgment. The Ld. Counsel for the Appellant has submitted that the Ld. Forum has observed that the noticed returned before the Forum below with the remark ‘Not Claimed’ and Forum below has drawn the presumption the same as deem service. But the Appellant was not at all associated with the Life Care Nursing Home at that relevant period. Moreover at that period the said Nursing Home remained closed as criminal proceeding was drawn up against the same. Due to such closure the Appellant was not in a position to receive the notice from the District Forum through the Nursing Home and hence it was returned as ‘Not claimed’. It has been submitted by the Ld. Counsel for the Appellant that as he did not get any opportunity to file written version and evidence due to his absence, he has prayed for remand the case back to the Forum below to enable him to adduce w/v and evidence on affidavit. The Appellant has contended that there were no intentional laches in respect of his absence before the Forum below, as he did not receive the notice and according to him the exparte judgment passed by the Forum below is liable to be set aside and has prayed for remand the case back to the Forum below for hearing afresh.

After going through the material on record we have noticed that another appeal has been filed by the Respondent-2 bearing no- FA/2008/364 against the same judgment passed by the Forum below. In the said appeal the Appellant (Respondent no-2) herein filing an affidavit has submitted that the Complainant has initiated criminal case against the Nursing Home and in connection of the said case some untoward incident was cropped up on 07.08.2007 and due to this reason the Nursing Home was closed from 08.08.2007 to 03.09.2007. The Complainant has not filed any objection against this affidavit. At the very outset it is seen by us that the complaint was heard by the Forum below exparte and due to closure of the Nursing Home the present Appellant was not in a position to receive the notice and as no one has claimed the notice it was returned as ‘Not Claimed’. As the Appellant did not get any opportunity to contest the case by filing w/v, evidence etc. we are inclined to give one chance to the Appellant to appear before the Ld. Forum below for contesting the complaint. We know that for adjudication of any complaint evidence, cross-examination is mandatory as per the C.P. Act, 1986. In this respect we may mention to the judgment passed by the Hon’ble National Commission, reported in 2008 (1), CPR 1 (NC), where Their Lordships have held that disposing of the complaint simply on pleadings without directing the parties to file evidence by way of affidavits is illegal on the face of it. Undisputedly, in the instant case, the Appellant due to his absence has failed to lead evidence in support of respective contentions. Moreover without adducing evidence, both the parties obviously did not get an opportunity to prove their respective case, in view of which, we are unable to sustain the order passed by the District Forum, which is set aside and the case is remanded back to the Forum below to give an opportunity to both the parties to lead evidence by way of affidavits as also permit cross-examination, if so requested. After completion of all the necessary steps, the District Forum shall hear the case on merit and dispose it of preferably within a period of three months from the date of receipt of this order. Thus the appeal be allowed on contest and the case is sent back to the Forum below on remand. The office is directed to send down the copy of this order to the Ld. District Forum as well as to the recorded Advocates of both the sides forthwith free of cost.