State Consumer Disputes Redressal Commission
1. M/S Kalitara Foods Private Ltd. ... vs The Divisional Manager, Oriental ... on 23 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, TRIPURA Appeal No.F.A-02/2014 1. M/S Kalitara Foods Private Ltd. (Candi Division) Prop. Sri Amar Pal, Jogendranagar near Railway Station, Rentous Colony road, P.S-East Agartala, West Tripura District. 2. The aforesaid Private Company is to be Represented through its General Manager, Sri Amar Pal, S/O Sri Monmohan Pal of Santipara, P.S-East Agartala, West Tripura. . . . . Appellants. Vs The Divisional Manager, Oriental Insurance Company Ltd. Divisional office at Agartala, 44/2 Central Road, P.S-East Agartala, West Tripura District. . . . . Respondent. PRESENT : HONBLE MR.JUSTICE S.BAIDYA, PRESIDENT, STATE COMMISSION MR.H.CHAKRABORTY,IAS (Retd), MEMBER, STATE COMMISSION. For the appellants : Mr.T.K.Modak,Adv. For the Respondent : Date of Hearing/Judgment : 23.04.2014. J U D G M E N T(ORAL)
S.Baidya,J , This appeal filed on 17.01.2014 by the appellant-petitioners under section 15 of the C.P.Act, 1986 is directed against the order dated 18.12.2013 passed by the Ld. District Forum, West Tripura, Agartala in complaint case No.C.C-96/2013 whereby the Ld. District Forum by the impugned order dismissed the complaint case for non-prosecution as the complainant failed to appear on that date fixed for hearing the complaint case exparte.
2The case of the appellants as narrated in the memo of appeal, in brief, is that the appellant-petitioner No-1 is the registered private company named M/S Kalitara Foods Private Ltd. and the petitioner No-2 is the General Manager of the petitioner No-1.
3. It has also been stated that the said private company has its Candi division and the same was duly insured with the respondent, Divisional Manager, Oriental Insurance Co.Ltd. vide policy No-322700/48/2013/382 and when the policy was in force, at that time on 30.12.2012 an incident of burglary and house breaking at night has been committed by the unknown miscreants in the Candi division of the petitioner No-1 for which the claimant petitioners had incurred a loss of Rs.1,00,000/- (approximate) and after the said incident the petitioner-appellants in writing informed the matter to the respondent and on the basis of the said claim the respondent-Oriental Insurance Co.Ltd. opened a claim file.
4. It has also been stated that after lodging the complaint the respondent appointed a surveyor who visited the premises of the appellants and told that the amount claimed is genuine and he will propose the insurance authority to accept the proposal of the appellants.
5. It has also been stated that after lapse of seven months from the date of submission of the claim the appellant was informed by the O.P. by a letter stating that as per the policy conditions the risk is covered for burglary and house breaking and as per survey report the miscreants was/were entered in the premises by a gap of your factory wall and roof. There was space in between wall and roof and the gap was 1.5 feet to 3 feet. It seems that gap is a big one and it is very much easy to enter and exit from the premises by this gap.
6. It has also been stated that for the aforesaid reason the O.P. closed the claim-file of the petitioner treating it No claim and accordingly informed the appellant-petitioners on 25.07.2013 and hence the appellants being the petitioners filed the complaint petition in the District Forum under section 12 of the C.P.Act claiming reliefs mentioned therein.
7. It has also been stated that in spite of service of notice, the respondent-O.P. did not turn up with their written objection against the complaint petition and for that reason the case has been posted on 18.12.2013 for exparte hearing.
8. It has also been stated that on 18.12.2013 the petitioner failed to appear either personally or through their lawyer because of sudden illness of his old aged father and then the Ld. District Forum dismissed the complaint case for non-prosecution.
9. That being aggrieved by and dissatisfied with the dismissal order passed by the Ld. District Forum the present appellant-petitioners have preferred the instant appeal praying for setting aside the impugned order dated 18.12.2013 with a direction to proceed with the complaint petition of the petitioners as it was before the date of dismissal on the grounds that the appellant No-2 could not appear before the Ld. District Forum personally or through his lawyer because on that date he was very much engaged with his old aged father for his ailments and also on the ground if the complaint case is not restored and the impugned order is not set aside, a bonafide consumer will deprive of his legal claim through the process of law and he will be prejudiced seriously which cannot be compensated in terms of money and hence the instant appeal has been filed.
Points for consideration.
10. The points for consideration are (1) whether the appellant-petitioners willfully failed to appear before the Ld. District Forum on the material date and (2) whether the impugned order should be set aside providing an opportunity to agitate the grievance before the Ld. District Forum.
Decision with Reasons.
11. Both points are taken up together for the sake of convenience and brevity.
12. At the very outset it is necessary to mention that in spite of proper service of notice, the respondent did not turn up to counter the claim of the appellants sought for in the memo of appeal.
13. The learned advocate for the appellant submits that this respondent who was the O.P. in the District Forum in C.C. 96/2013 also did not turn up to contest the complaint petition by filing any written objection, in spite of service of notice upon it. He also submits that when the O.P. did not turn up in the District Forum, the said complaint case was fixed for hearing exparte on 18.12.2013, but due to the engagement of the present appellant-petitioner No-2 for the medical treatment of his ailing old aged father, he could not appear on that date before the Ld. District Forum either personally or through his learned advocate and as a result, the Ld. District Forum was pleased to dismiss the complaint case for non-prosecution.
14. He also submits that the Consumer Protection Act is a beneficial legislation in order to protect the interest of the consumers. He also submits that considering the first date of hearing of the complaint case exparte, the Ld. District Forum should give another chance to the appellant-petitioners for ends of justice. He also submits that if the impugned order is not set aside and the complaint case is not restored, the appellant-petitioners will be highly prejudiced for not getting a chance to agitate his legal claim against the respondent-O.P. in the District Forum. He also submits that the sudden illness of the old aged father of the appellant No-2 was a situation which was not foreseen and was beyond the control of the appellant-petitioner No-2. Finally he submits that an opportunity may be given to the appellants by way of setting aside the impugned order so that the appellants may not be deprived of getting his legal claim fulfilled by way of adducing evidence in support of the claim made out in the complaint petition.
15. We have gone through the impugned order wherefrom it is found that the impugned order was passed on the very first day of hearing of the complaint case exparte. It also appears that in spite of service of notice, the respondent did not turn up, in the said complaint case by way of filing written objection. Even in this appeal also the respondent-O.P. Oriental Insurance Co.Ltd. did not turn up in spite of service of notice properly upon it. It also appears to us after hearing the learned advocate for the appellants that under compelling circumstances the appellant-petitioners could not appear before the Ld. District Forum on the very first day of hearing of the complaint case exparte. In that view of the matter, it appears to us that an opportunity should be given to the appellants to adduce evidence to reddress his grievances as made out in the complaint petition. That being our considered view, we are inclined to allow the appeal by way of setting aside the impugned order dated 18.12.2013 passed in complaint case being C.C. 96 of 2013.
16. As the impugned order is going to be set aside, we are giving the following directions :-
(a). The complaint case is going back on remand.
(b). The Ld. District Forum shall cause the service of notice fresh upon the O.P.-Oriental Insurance Co.Ltd. providing an opportunity to file the written objection in the said complaint case.
. The Ld. District Forum shall provide opportunities to the parties to adduce evidences.
(d). The Ld. District Forum shall dispose of the case according to law as early as possible.
(e). The appellant-petitioners will appear before the Ld. District Forum, West Tripura, Agartala on 07.05.2014.
17. In the result, the appeal is allowed. The impugned order dated 18.12.2013 passed in C.C.96/2013 stands set aside. The order fixing the complaint case being C.C. 96 of 2013 for hearing exparte also stands set aside. There is no order as to costs.
18. The record of C.C.96 of 2013 of the Ld.District Forum has not been called for.
19. Let a copy of this judgment be sent to the Ld. District Forum forthwith for information and taking necessary action for disposal of the case according to law in the light of the observation made in the body of the judgment.
MEMBER PRESIDENT State Commission State Commission Tripura Tripura