This appeal filed on 19.09.2014 by the appellant-complainant Biplab Majumder under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and order dated 20.08.2014 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-114 of 2013 whereby the Ld. District Forum dismissed the complaint with no cost.
The case of the petitioner as narrated in the memo of appeal, in brief, is that the appellant-complainant entered into a motor package policy bearing No-130900/31/12/01/00000116 for a sum of Rs.1,90,000/- with the respondent United Insurance Co.Ltd., the O.P.-respondent herein which was valid with effect from 09.04.2012 to 08.04.2013 for his vehicle bearing No-TR-o1-W-0490 (Maruti Omni), covering the risk of accident. It has also been stated that on 04.06.2012 the said vehicle of the appellant met with an accident at south Manikbhandar on way from Ambassa to Kamalpur and as a result, various parts of the vehicle were badly damaged and on the next date of accident i.e. on 05.06.2012 the appellant intimated the matter to the respondent Insurance Company and claimed for compensation as per insurance policy against any loss or damage to the vehicle caused by accident etc.
It has also been stated in the memo of appeal that the respondent-Insurance Company requested the appellant to get his vehicle repaired at his own cost and thereafter, to submit the bill of the same for getting the compensation and accordingly, after getting the vehicle released from the court which was seized by the I.O. during the time of investigation, he handed over it to S.B. Automobiles & Servicing Centre, Siddhi Ashram, Agartala, West Tripura for its servicing and repairing and in the said repairing center, the complainant paid Rs.82,540/- vide voucher dated 13.06.2012 towards the repairing charge of the vehicle and after receiving the voucher dated 01.08.2012 he submitted the same to the Divisional Manager of the respondent-Insurance Company. It has also been stated that although the accident happened during the coverage period, but in spite of repeated approach, the respondent denied to pay any sort of compensation to the appellant and for that the appellant being aggrieved filed the complaint before the Ld. District Forum, but the Ld. District Forum dismissed the complaint for default and thereafter the appellant filed a fresh complaint before the Ld. Forum which has been contested by the respondent. It has also been stated that the Ld. Forum considering the pleadings of the parties and evidences passed the impugned judgment dismissing the complaint illegally and arbitrarily and thereby being aggrieved and dissatisfied with the impugned judgment the appellant has preferred the instant appeal on the grounds that the Ld. Forum ought to consider that Abhijit Debnath is his distant relative (brother) and in view of such relationship he handed over the vehicle to him on request, that Ld. Forum also failed to consider that the appellant did not use the vehicle for hire or reward and therefore, the appellant is very much entitled to get his compensation for the damages of his vehicle from the respondent-Insurance Company and hence, the appellant has preferred the instant appeal praying for setting aside the impugned judgment.
It transpires from the record that during the pendency of the appeal, the appellant submitted an application under Order 41 Rule 27 of the C.P.C. for allowing him to adduce additional evidence which is a copy of affidavit sworn by Sri Abhijit Debnath, copy of which has been served upon the learned counsel for the respondent. It further appears that due to the appellant’s absence either in person or through his learned counsel for two consecutive dates on submission of the learned counsel for the respondent, the appeal was taken up for disposal on merit and accordingly, the learned counsel for the respondent was heard on merit and the record was reserved for judgment. It further appears that thereafter, the learned counsel for the appellant appeared and submitted two applications, copy of which have been served upon the learned counsel for the respondent, making a prayer not to deliver the judgment with a further prayer for giving an opportunity to him to participate in the hearing of the appeal afresh as he was outside Agartala and consequently, no step was taken from the side of the appellant seeking adjournment of hearing the appeal. It further appears that after hearing the learned counsels of both sides, it was decided by this Commission to allow the prayer of the appellant and thereafter, the appeal has been fixed for hearing afresh along the application under Order 41 Rule 27 of the C.P.C. and as such the appeal has been heard afresh along with the said application filed under Order 41 Rule 27 of the C.P.C. praying for adducing additional evidence.
Points for consideration.
5. The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in dismissing the complaint by the impugned judgment and (2) whether it is a fit case where prayer of the appellant for adducing additional evidence can be allowed and (3) whether the judgment under challenge can be sustained in the eye of law.
Decision with Reasons.
All the three points are taken up together for the sake of convenience and brevity.
Admittedly, the vehicle bearing No-TR-01-W-0490 (Maruti Omni) in question was a private non-commercial car. It is also admitted fact that the said vehicle was under insurance coverage of the United India Insurance Co.Ltd. under the private car package policy No-130900/31/12/01/00000116. It is also admitted fact that the said car met with an accident at South Manik Bhandar on the way to Kamalpur from Ambassa and as a result, the said vehicle was badly damaged.
It is the case of the complainant-appellant that one Abhijit Debnath is his brother by relation and on his request and out of love and affection, he handed over his car to Abhijit Debnath for going to Kamalpur from Ambassa without any fare or reward. On the other hand, it is the case of the respondent-Insurance Company that the complainant handed over his non-commercial private car to the said Abhijit Debnath for hire or reward as the said Abhijit Debnath was not the relative of the complainant Biplab Majumdar.
Admittedly, the car in question being a non-commercial vehicle cannot be used by the complainant for commercial purpose by way of allowing the other to use the said vehicle on hire or rent basis. So, the moot point is as to whether the said Abhijit Debnath is a distant relative of the complainant and whether the complainant handed over his car to said Abhijit Debnath on account of love and affection and without any rent basis.
The learned counsel for the appellant submitted that although the respondent denied and disputed the relationship between Abhijit Debnath and the complainant and also handing over the car to said Abhijit Debnath by the complainant without any fare or rent basis and out of love and affection which has been specifically denied by the complainant in his examination-in-chief on affidavit and asserted that Abhijit Debnath being his distant relative was handed over the car by him for going to Kamalpur from Ambassa without any fare or reward. He also submitted that till the completion of the evidence on the side of the complainant, the respondent-O.P. never filed any document or paper disputing and denying the relationship of the complainant with the said Abhijit Debnath and handing over the car to Abhijit Debnath by the complainant out of love and affection without any fare or reward, He also submitted that it is only after the closure of the evidence from the side of the complainant, the respondent-O.P. Insurance Company submitted an investigation report for establishing that on investigation it has come to light that Abhijit Debnath took that car from the complainant for hire or reward.
The learned counsel for the complainant-appellant referring to a decision of Hon’ble Gauhati High Court reported in (2011)5 Gauhati Law reports 23 between Nepal Das and others, petitioners Versus Aditi Deory and others, respondents submitted that if a fact is to be substantiated by a documentary evidence, then, the document must be filed at the initial stage to show that the claim is not unfounded, for example, when title to a property is claimed by way of purchase, sale deed is a document, which has to be annexed to the plaint to show that the claims, made in the plaint, regarding title, are proposed to be proved by documentary evidence. He also submitted that in view of the above principle of law, the documents are required to be filed at an early stage so that the court can ascertain the dispute, which it has to be decided. He further submitted that if a plaintiff or defendant does not, while presenting the plaint or the written statement, as the case may be, produce the documents, on which he sues or bases his claim, as well as the documents, which he relies upon as a basis of evidence to support his case in the plaint or written statement, as the case may be, he debars himself from producing such a document at the time of settlement of issues. He also submitted that the law requires that all the documents must be filed before the commencement of the trial of the case.
The learned counsel for the appellant then submitted that it is the case of the insurance company that Abhijit Debnath took the vehicle from the complainant for travelling on rent basis or fare basis and insurance company also denied the existence of any relationship between the said Abhijit Debnath and the complainant. He also submitted that this allegation of the O.P.-respondent that Abhijit Debnath took the vehicle for hire or reward has been denied by the complainant in his examination-in-chief and till that time, no document was submitted to prove the case of the O.P.-respondent made out in the written objection. He also submitted that thereafter, the O.P.-respondent produced the investigation report for proving the case made out in the written objection. He also submitted that although Ld. District Forum observed that even assuming that the investigation report of the O.P.W 2 (Investigator), ext. A is not admissible in evidence, but in spite of that, the Ld. District Forum held that the complainant did not produce the said Abhijit Debnath, a vital witness before the Forum and as the assertion of the complainant to the effect that Abhijit Debnath is his distant relative who took the vehicle from the complainant out of love and affection and without any reward or fare, has not been substantiated for non-examination of said Abhijit Debnath as a witness from the side of the complainant and accordingly, dismissed the complaint by the impugned judgment. He then submitted that the allegation of the O.P.-respondent is that the complainant used his vehicle for commercial purpose and that allegation must be proved by the O.P. and as the investigation report was not taken for consideration by the Ld. Forum not being admissible at the stage when it was presented before the Forum, the Ld. Forum ought to believe the case of the complainant. He also submitted that if the alleged investigation report is excluded from the consideration of the Ld. Forum, there remains only mere plea in the written objection and in the absence of any evidence there is nothing to hold that the said plea has been substantiated. He further submitted that the Ld. Forum did not consider this aspect of the case and erroneously dismissed the case of the complainant on the ground that the complainant failed to examine the said Abhijit Debnath as a witness.
The learned counsel for the complainant-appellant also submitted that the Consumer Protection Act, 1986 is a beneficial legislation for the consumers and the Consumer Fora should not be so much technical and strict as per Evidence Act while considering the cases of the consumers. He then submitted that in order to remove any sort of doubt which may arise in the mind of this Commission, the appellant has filed an application under Order 41 Rule 27 of the C.P.C. along with an affidavit sworn by the said Abhijit Debnath with a prayer for adducing further/additional evidence of said Abhijit Debnath. He also submitted that if this authority allows the appellant-complainant to examine the said Abhijit Debnath as a witness by way of sending the case on remand to the Ld. Forum, none will be prejudiced thereby.
On the other hand, the learned counsel for the respondent-insurance company submitted that the Ld. Forum in the impugned judgment at page-7 in Para-11 held that with regards to the production of the documents, the Forum is to follow the procedure laid down in order 8 Rule IA of the C.P.C. in view of the provision enunciated in Section 13(4)(ii) of the C.P.Act, 1986. In this regard, he submitted that against that findings of the Ld. District Forum, the respondent-insurance company has a good ground to prefer an appeal, but as the complaint filed by the complainant has been dismissed ultimately by the impugned judgment, the Insurance Company decided not to prefer any appeal against the above mentioned findings given in the impugned judgment.
The learned counsel for the respondent-O.P. also submitted that the filing of an application under Order 41 Rule 27 of the C.P.C. by the appellant is nothing, but to fill up a lacuna pointed out in the impugned judgment by the Ld. Forum. He also submitted that point arises as to whether the appellant can be given an opportunity to fill up that lacuna in this appeal. He then submitted that the appellant did not assign any specific reason in the application under Order 41 Rule 27 of the C.P.C. as to why he failed to examine the said Abhijit Debnath as a witness before the Ld. District Forum when it is the case of the complainant that Abhijit Debnath is his distant relative and he took the vehicle of the complainant out of love and affection for travelling from Ambassa to Kamalpur without any rent or fare. He also submitted that the appellant-complainant has made out no ground in the said application for sending the case on remand to the Ld. District Forum for providing him an opportunity to examine the said Abhijit Debnath as a witness. He then submitted that in view of the above position, the appellant and the application filed by the appellant under Order 41 Rule 27 of the C.P.C. should be dismissed outright.
From the submissions of the learned counsels of both sides and going through the record containing materials, we are of the view that it is true that Abhijit Debnath is a vital witness to the present case. Order 41 Rule 27(1)(b) of the C.P.C. provides, if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. Going through the materials, we are of the opinion that practically the disputed point involved in the case has not been decided conclusively and finally and in such a case, for proper adjudication of the matter in dispute the code of civil procedure empowers the appellate court to allow further evidence to be adduced by way of providing an opportunity through the examination of any witness or through production of any documentary evidence. When the question of examination of a new witness arises from one side, the other side is legally entitled to cross-examine that witness to test the veracity of his deposition made in examination-in-chief on affidavit. In that case, the court of original jurisdiction is the proper court to do the same for passing a judgment afresh. Accordingly, having a justifiable ground the application of the appellant-complainant filed under Order 41 Rule 27 of the C.P.C. is liable to be allowed.
In view of the above facts and circumstances, we are sending the case back on remand to the Ld. District Forum, West Tripura, Agartala with certain directions which are as follows :-
Both the parties are directed to appear before the Ld. District Forum, West Tripura, Agartala on 09.02.2015 for getting the case fixed to the next date to be pronounced by the Ld. District Forum.
The appellant-complainant is directed to produce the witness Abhijit Debnath before the Ld. District Forum for his examination as per law on the first day of fixing the case for further evidence.
The Ld. District Forum shall hear and dispose of the case within two months from the date of receipt of the record and pass the judgment afresh on the basis of the evidences already on record and also on the basis of the evidence to be adduced before it after remand.
18. We have made it clear that this Commission has not entered into the merit of this appeal and decided nothing finally on merit.
19. As the case is going back on remand, the impugned judgment is hereby set aside and the appeal is allowed in the manner mentioned above, but without any cost.
20. Let a copy of this judgment along with the record of the Ld. Forum being case No-C.C.114/2013 be transmitted to the Ld. District Forum forthwith for information and taking necessary action as directed.
MEMBER PRESIDENT
State Commission State Commission
Tripura Tripura
[HON'BLE MR. JUSTICE Subal Baidya]
PRESIDENT
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