Justice B.C. Kandpal, President (Oral):
1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 02.07.2013 passed by the District Forum, Udham Singh Nagar in consumer complaint No. 87 of 2009. By the order impugned, the District Forum has ex-parte allowed the consumer complaint against the appellant – opposite party No. 1 and directed the appellant to settle the claim of respondent Nos. 1 to 5 – complainants within a period of one month and to pay the claim amount to respondent Nos. 1 to 5 together with interest @7% p.a. from the date of lodging of the claim till payment and also to pay Rs.4,000/- towards mental agony and litigation expenses.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant No. 1 is a partnership firm and complainant Nos. 2 to 5 are the partners of the said firm. The complainant No. 1 purchased an insurance policy from the appellant – The New India Assurance Company Limited in respect of the building and boundary of the factory premises for insured sum of Rs.20,00,000/-. The said policy was valid for the period from 14.08.2008 to 13.08.2009. It was alleged that due to heavy rains in the night of 19.08.2008, the boundary wall of the factory premises, valuing Rs.1,29,000/- fell down. The complainants lodged the claim with the insurance company, which was not settled by the insurance company and, therefore, alleging deficiency in service on the part of the opposite parties, the complainants filed a consumer complaint before the District Forum, Udham Singh Nagar.
3. The District Forum issued notice to the appellant, but the appellant did not appear before the District Forum and, as such, the District Forum proceeded the consumer complaint ex-parte against the appellant and decided the same against the appellant per order dated 28.08.2010, which was challenged by the appellant before this Commission by filing First Appeal No. 417 of 2010. The said appeal was allowed by this Commission vide order dated 08.04.2013 and the appellant was directed to file the written statement before the District Forum by 15.05.2013 positively. However, the appellant did not appear before the District Forum and did not file the written statement in the case and, as such, the District Forum vide order dated 15.05.2013 proceeded the consumer complaint ex-parte against the appellant and decided the same vide impugned order dated 02.07.2013 in the above terms. Aggrieved by the said order, the appellant – insurance company has filed this appeal.
4. We have heard learned counsel for the parties and have also perused the record. It appears from the impugned judgment and order that before the District Forum, the consumer complaint proceeded ex-parte against the appellant. The appellant did not file any written statement before the District Forum against the consumer complaint filed by the complainants. It is a settled principle of law that all the parties involved in the matter in question should get proper opportunity of being heard.
5. We have noticed that the appellant could not file written statement before the District Forum and the District Forum did not give opportunity to the appellant for adducing evidence on affidavit and disposed of the consumer complaint merely on the basis of the pleadings of the complainants only, which is contrary to the principle of natural justice. The Hon’ble Apex Court in the case of Topline Shoes Ltd. Vs. Corporation Bank; II (2002) CPJ 7 (SC), has observed that 'it is for the Forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time frame to file reply, as a guideline, and then to exercise its discretion as best it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind the principle of natural justice as well.'
6. In view of the Hon’ble Apex Court’s decision, we are unable to sustain the order passed by the District Forum and set aside the same.
7. The Hon’ble National Commission in the case of Mathura Mahto Mistry Vs. Bindeshwar Jha (Dr.) and another; I (2008) CPJ 109 (NC), has 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. The Hon’ble National Commission in the aforesaid judgment has also held that '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 and also permit cross-examination through questionnaire and reply and only after completion of all the necessary procedure as per law, 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.'
8. Thus, we feel it just and proper to remand the case to the District Forum for decision afresh in accordance with law. The appellant shall file its written statement before the District Forum on or before 02.06.2014 positively and thereafter the District Forum shall afford a reasonable opportunity to the parties to adduce evidence in support of their case. The District Forum shall take all sort of endeavour to decide the consumer complaint as early as possible and preferably within a period of 45 days’ from the date of filing the written statement by the appellant.
9. With the aforesaid observations, the appeal is allowed. Impugned judgment and order dated 02.07.2013 passed by the District Forum is set aside and the case is remanded back to the District Forum for decision afresh in accordance with law. The appellant is
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directed to file its written statement before the District Forum on or before 02.06.2014 positively and thereafter the District Forum shall grant reasonable opportunity to the parties to adduce evidence in support of their case. The District Forum is further directed to decide the consumer complaint expeditiously and preferably within a period of 45 days’ from the date of filing the written statement by the appellant. It is made clear that the District Forum shall not grant any adjournment to the appellant seeking time for filing the written statement. Copy of the order be sent to the District Forum, Udham Singh Nagar immediately. No order as to costs.