S.C. CASE NO.: FA/2009/34 DATE-12.08.2009

DATE OF FILING: -21.01.2009

APPELLANT : 1. The New India Assurance Company Limited,
4, Mangoe Lane, 2nd Floor, Kolkata-700 001.

2. The Senior Divisional Manager,
The New India Assurance Company Limited.
KRO, 4, Mangoe Lane, Kolkata-700 001.


RESPONDENTS : 1. Sri. Prasanta Kumar Bhattacharya,
S/o Sri. Gopal Chandra Bhattacharya,
Vill & P.O.-Talit (Talit Rail Gate), P.S.- Burdwan,
Dist-Burdwan, Pin-713 141.

2. Golden Trust Financial Services,
16, R.N. Mukherjee Road, Kolkata-700 001.


BEFORE: HON’BLE JUSTICE : Sri. Aloke Chakrabarti, PRESIDENT.
MEMBER : Sri. A.K. Ray.
. MEMBER : Smt. Silpi Majumder.

FOR THE APPELLANT : Sri. N.R. Mukherjee, Advocate.
FOR THE RESPONDENTS 1. : Sri. Rajesh Biswas, Advocate.
2. Sri. Bibhas Mondal, Advocate.

-ORDER-

S. Majumder, Member.

This appeal has been preferred by the OP-1-Insurance Company being aggrieved by the judgment passed by the District Forum, Kolkata, Unit-II, on 07.08.2008, in its case no-149/2007, wherein the Forum below has allowed the complaint on contest against the OP-3 and exparte against the OP-2 and 3 without any cost. The OP-1 and 2 were directed to pay the policy money of Rs.4,00,000/- to the Complainant towards medical expenditure under the said policy and the Forum below has awarded a compensation in favour of the Complainant for a sum of Rs.5,000/- due to harassment and mental agony caused by the OP-1 and 2. The OPs were directed to the above-mentioned amount within one month from the date of passing the judgment to the Complainant, failing which the Complainant would be at liberty to put the decree into execution through the District Forum.

During hearing both parties have submitted that before the Ld. District Forum no evidence on affidavit was filed by either party and filling questions and replies on affidavit by both the parties did not arise. Both parties have prayed for remand of the case back to the District Forum for the purpose of getting opportunity for filing evidence on affidavit on their behalf. The settled proposition of law is that granting opportunity to all the parties filing evidence is mandatory for adjudication of any complaint. 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 affidavit is illegal on the face of it. Upon hearing of the argument advanced by both the parties we are of the opinion that without adducing evidence, the parties obviously did not get an opportunity to prove their respective case and 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 affidavit as also permit cross-examination by questionnaire and reply, 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.

(S. Majumder) (A.K. Ray) (Justice. A. Chakrabarti)
MEMBER MEMBER PRESIDENT