H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA-9.

F.A. No. 354 of 2008

Decided on 18.8.2009.



United India Insurance Company Limited,

Through its Divisional Manager,

Shimla Division, Cart Road, Timber House,

Shimla-171001. ....Appellant.

Versus



Ms. Shanti Thakur

W/o Sh. Rattan Thakur,

R/o Village Kanena, P.O. A.G.Offic,

District Shimla, H.P. …..Respondents.

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Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting ?



For the Appellant. Mr. Harish Bahl, Advocate.

For the Respondens. Mr. Peeyush Verma, Advocate.

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ORDER



Justice Arun Kumar Goel (Retd.) President.



1. This appeal is filed by the Insurance Company against the order dated 16.9.2008, passed by District Forum, Shimla in Complaint No. 352/2007. While allowing the complaint, appellant has been directed to pay Rs. 2,00,000/- alongwith interest at the rate of 9% per annum w.e.f. 10.10.2007, the date of filing of the complaint till making the full payment, as well as cost of Rs. 1,500/-.



2. A perusal of the day-to-day order sheet of the complaint file shows that appellant put an appearance on 21.2.2008, time was allowed to it upto 19.3.2008 for filing reply. When needful was not done on this date, time for filing reply was extended till 8.5.2008. Even on this date reply was not filed and case was adjournd to 1.7.2008 for filing reply, subject to payment of Rs. 500/- as cost. When the matter came up on 1.7.2008, neither the cost was tendered nor reply was filed. Thus as a result of it prayer to extend the time for filing reply was closed.



3. In these circumstances while closing the right to file reply by the appellant, case was ordered to be listed for evidence of the respondent on 1.8.2008, when arguments were heard and vide impugned order complaint was allowed as above noted.



4. Complaint file shows that M.A.No. 59/2008 was filed on 10.9.2008, i.e before pronouncement of order by District Forum below and it was ordered to be listed on 16.9.2008, the date already fixed. Order passed on this application on 16.9.2008 reads as under :-



“ The present application under order 9 Rule 4 & Section 151 CPC has been moved on behalf of the applicant-OP for recalling the order dated 1.9.2008. The present application has been presented before this Forum on 10.9.2008 as is evident from the date of presentation. Since, the order has already been dictated and announced today, as such the present application has become infructuous and as such disposed of accordingly.”



5. We are of the view that District Forum below should have first dealt with M.A.No. 59/2008, before having passed the final order. More especially while rejecting the application, it is mentioned in the said order that application was presented before the Forum below on 10.9.2008. Application was accompanied by the reply and the evidence that was intended to be produced in support of defence by the appellant, discretion was with the District Forum below to have disposed of the application either way. But it was improper to have rejected the same, despite the fact that it was filed on 10.9.2008, i.e. much before the date of passing the impugned order.



6. Faced with this situation based on facts contained in the complaint, Mr. Verma made an attempt to support the impugned order, by submitting that it was duty of the learned counsel for the appellant to have brought the fact of filing of M.A.No. 59/2008 with proposed reply and evidence before passing of the impugned order. That having not been done, no fault can be found in the order under challenge. Ordinarily this should have been done by the learned counsel for the appellant who had filed the application alongwith reply and evidence. But that does not mean that the District Forum below was not to look into it before passing of the impugned order. We leave this matter here only without saying further anything.



7. In view of the aforesaid facts, and without having dealt with the contentions of learned counsel for the parties urged in support of this appeal,

we allow this appeal and set aside the order of District Forum below passed in Complaint No. 352/2007, on 16.9.2008 and remand the complaint to District Forum below for disposal in accordance with law after taking note of the reply as well as evidence by the respondent. In case any party wants to file further evidence, it will be at liberty to approach District Forum below who will consider such a prayer and then pass appropriate order, without being influenced by its earlier order. Appellant shall pay Rs. 6,000/- as costs.



8. At this stage Sh. Verma, learned counsel for the respondent stated at the bar that 50% of this amount may be ordered to be paid to Shimla Consumer Courts Bar Association for purchase of books, and remaining 50% be ordered to be deposited by the appellant with the Legal Aid Fund of this Commission. This statement is accepted and ordered accordingly. Sh. Bahl at this stage submitted that out of total amount deposited in this appeal, sum of Rs. 3,000/- may be ordered to be paid to the Shimla Consumer Courts Bar Association, and Rs. 3,000/- may be released to the Legal Aid Fund of this Commission and the balance sum with entire up-to-date interest on the total deposited amount be ordered to be remitted to the appellant. Mr. Verma did not oppose this prayer, which is allowed. Since record is here, parties through their learned counsel are directed to appear before District Forum, Shimla on 14.9.2009.



9. Office will ensure that the file is sent well before the date fixed.

10. All interim orders passed from time to time shall stand vacated forthwith.

11. Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules.


(Justice Arun Kumar Goel)Retd.

President





(Saroj Sharma)

Member





(Chander Shekher Sharma)

Member

Suneera

18.8.2009