State Consumer Disputes Redressal Commission
Sh.Pawan Kumar Goel vs Oriental Insurance Company Limited, on 24 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 84 of 2014 Date of Institution : 05.03.2014 Date of Decision : 24/04/2014 Sh.Pawan Kumar Goel s/o Sh.K.L.Goel, Director of M/s Worldwide Herblife Pvt. Ltd., having Office at Plot No.B-09, Industrial Focal Point, Derabassi (Pb.). Appellant/complainant V e r s u s Oriental Insurance Company Limited, through its Manager, Regional Office at SCO 109-110-111, Surendra Building, Sector 17-D, Chandigarh. ....Respondent/Opposite Party Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Satish Chowdhary, Advocate for the appellant.
Sh. G.S. Ahluwalia, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 08.01.2014, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that the complainant availed of the Marine Cargo-Open Insurance Policy, Annexure C-1, from the Opposite Party, for the sum assured, to the tune of Rs.10 lacs, valid for the period from 05.10.2011 to the midnight of 04.10.2012, on payment of premium of 5,516/-. It was stated that the limit of the said Policy was got extended upto 3 crores, for the period from 31.08.2012 to 04.10.2012, vide Annexure C-2, on payment of premium to the Opposite Party, to the tune of 1366/-. It was further stated that the complainant had declared the goods, under open cover and value thereof was to the tune of Rs.24,31,680/-. It was further stated that, unfortunately, while unloading bags, the complainant observed that the total consignments were damaged, with rain water, and lot of fungal growth had taken place. Accordingly, the complainant intimated the Opposite Party, which appointed a Surveyor. The Surveyor duly inspected the goods, and assessed loss. It was further stated that vide letter dated 17.10.2012, the Opposite Party, intimated the complainant that the claim was pending for submission of certain documents. Accordingly, the complainant supplied the required documents, on 22.10.2012, to the Opposite Party.
3. However, the Opposite Party, vide letter dated 10.06.2013, intimated the complainant that the sum insured had exhausted, as on the date of loss. It was further stated that, on the other hand, the Opposite Party, had already issued the Policy, upon receipt of declaration (Ann.C-5 (colly.))., from the side of the complainant. It was further stated that repudiation of the genuine claim of the complainant, vide letter dated 10.06.2013, was illegal and arbitrary. It was further stated that legal notice dated 20.05.2013, was also served upon the Opposite Party, to redress the grievance of the complainant, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to pay the claim amount of Rs.8,42,030/-, alongwith interest @18% P.A.; compensation, to the tune of Rs.2 lacs, for deficiency, in rendering service; and cost of litigation, to the tune of Rs.33,000/-.
4. Despite service, none put in appearance, on behalf of the Opposite Party, as a result whereof, it was proceeded against exparte, by the District Forum, vide order dated 19.12.2013.
5. The complainant led evidence, in support of his case.
6. After hearing the Counsel for the complainant, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant/complainant, submitted that, no opportunity was granted, to the complainant, to lead evidence, in the District Forum. He further submitted that, on the basis of the documents, placed on the record, the District Forum, wrongly came to the conclusion, that, at the time, the loss occurred, the complainant had already exhausted his limit. He further submitted that the complainant declared the value of the goods, to the tune of Rs.24,31,680/-, against which, cover note was issued by the Opposite Party, vide Certificate No.231110/21/2012/107/0020, under the limit availed of by him. He further submitted that only after verifying the extent of limit, the aforesaid cover note of the goods, to the tune of Rs.24,31,680/-, was issued, by the Opposite Party. He further submitted that, merely on the basis of the repudiation letter, the District Forum was wrong in coming to the conclusion, that the complainant had already exhausted his limit under the Policy. He further submitted that for proper determination of this question, the complainant was required to be afforded an opportunity to lead evidence, in that regard, but since, he was not afforded the same (opportunity), he was condemned unheard. He further submitted that the order of the District Forum, thus, being illegal and invalid, is liable to be set aside, and the case deserves to be remanded back to it (District Forum), for fresh decision.
10. On the other hand, the Counsel for the respondent, submitted that the respondent, which was the Opposite Party, in the District Forum, was not duly served. He further submitted that certain significant questions, were involved in the complaint, which require proper adjudication. He further submitted that proper adjudication of the matter, could only be made, after the respondent/Opposite Party, is afforded an opportunity, to file written version and lead evidence.
11. The crucial question, that falls for consideration, is, as to whether, proper opportunity was given to the appellant/complainant, to lead his evidence, or not. The answer to this question is, in the negative, as would be discussed hereunder. It is evident, from the record of the District Forum, that the Consumer Complaint was admitted on 12.11.2013, and notice was sent for the service of the Opposite Party, for 19.12.2013. On 19.12.2013, the District Forum, recorded that Oriental Insurance Company Limited i.e. Opposite Party, had not appeared, despite service, through Registered A.D. Cover, and accordingly, it was proceeded against exparte. Thereafter, the case was fixed for exparte arguments, for 01.01.2014. In the order dated 19.12.2013, it was not recorded by the District Forum, as to whether, the complainant was granted an opportunity, to lead evidence, if any. There is also, nothing, in the order dated 19.12.2013, that the complainant made a statement that he did not want to lead any further evidence, and the documents, already attached with the complaint, alongwith the affidavit, be read. Had such a statement been made by the complainant, the matter would have been different. Since, significant questions, arise for decision, as to whether, the complainant submitted the requisite documents, to the Opposite Party, with regard to the goods shipped from time to time, during the currency of the Policy; whether, at the time, the loss was reported, the limit under the cover had already exhausted; whether, at the time of issuance of cover of the value of goods of Rs.24,31,680/-, the Opposite Party verified the factum that limit under the Policy had already exhausted or not, and then issued the same; and whether, the claim of the complainant was illegally and arbitrarily repudiated by the Opposite Party. It is the settled principle of law, that every lis should normally be decided, on merits, after affording due opportunity to the parties, to lead their evidence, than by resorting to hyper-technicalities. In the interest of justice, in our considered opinion, it is a fit case, in which the appeal should be accepted, and the case should be remanded back, for fresh decision.
12. Since this Commission has come to the conclusion that the case deserves to be remanded back, for fresh decision, after affording an opportunity to the parties, to lead evidence, the order dated 19.12.2013, vide which the Opposite Party was proceeded against exparte, is also required to be set aside. It is only after setting aside of the exparte order dated 19.12.2013, that the Opposite Party/respondent shall become legally entitled to lead evidence. The Consumer Protection Act is a beneficial legislation, and the main object of the Consumer Foras is to provide speedy and inexpensive redressal of the grievance of the consumers. Thus, the Consumer Foras are not required to resort to hyper-technicalities, at the cost of substantial justice. With a view to meet the ends of justice, the order dated 19.12.2013, also deserves to be set aside.
13. For the reasons recorded above, the appeal is accepted, with no order as to costs. The impugned order is set aside. Consequently, the order dated 19.12.2013, vide which the Opposite Party was proceeded against exparte, is also set aside. The case is remanded back to the District Forum, with a direction to afford an opportunity, to the appellant/complainant, to lead further evidence, if any; allow the respondent/Opposite Party, to submit its written version, and furnish evidence, by way of affidavit(s); afford an opportunity to the appellant/complainant, to file rejoinder and furnish rebuttal evidence, if permitted by law, and thereafter, decide the complaint afresh, on merits, in accordance with law.
14. The parties are directed to appear, before District Forum (I) on 30.04.2014 at 10.30 A.M., for further proceedings.
15. The District Forum record, alongwith a certified copy of the order, be sent back to it, immediately, so as to reach there, well before the date and time fixed i.e. 30.04.2014 at 10.30 A.M.
16. Certified copies of this order, be sent to the parties, free of charge.
17. The file be consigned to Record Room, after completion Pronounced.
24/04/2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg