DEBASIS BHATTACHARYA,J - (1.) THIS appeal emanates out of the Order dated 25.11.2013, passed by the learned District Forum, Kolkata, Unit -II in C.C. No. 175/2012, by which the complaint case has been dismissed on contest. Being aggrieved by and dissatisfied with the said order, the Complainant thereof has preferred this appeal. Complainant's case, briefly narrated, is that at the time of unloading an inward consignment from Jaipur on 18.9.2006, it was noticed that out of the 945 tins containing mustard oil, 278 No. tins were received in leakage/damage condition. So, immediately, due intimation was conveyed to the Insurance Company and then they deputed a Surveyor to assess the loss.
(2.) The said Surveyor conducted survey on the very same day, i.e., on 18.9.2006 at about 9 p.m. The said Surveyor assessed the loss at Rs. 1,23,593 without taking into account the freight charges of Rs. 9,549 in respect of 278 Nos. tins. The Complainant lodged a claim with the OP Insurance Company on 21.3.2007. However, the latter, vide its letter dated 4.5.2007, informed the Complainant about its inability to entertain the claim. Although the Complainant petitioned before the Insurance Company, it did not yield any positive result. So, the instant case. Case of the OP Nos. 1 to 3, in brief, is that after receiving intimation from the Complainant, they deputed a Surveyor for inspection of the damaged goods. When the said Surveyor reached the godown of the Complainant, it was noticed that all the tins were unloaded and stacked inside the godown in spite of instruction of the said Surveyor to unload the oil in his presence only. As per investigator report, 278 tins were produced in damaged condition. As per the opinion of the Surveyor, such a huge quantity of stock cannot be damaged due to jerking and jolt during transit. Further, the Complainant did not give any opportunity to inspect the damaged tins before unloading the oil, which is a violation of condition of the Marine Insurance Policy. As such, the OP Insurance Company quite justifiably repudiated the claim. Vide its impugned order, the learned District Forum dismissed the instant complaint case on contest against the OPs, without any cost.
(3.) WE are to consider in this appeal whether the impugned order suffers from any kind of infirmity, or not. Decision with reasons Learned Advocate for the Appellant has submitted that because of inordinate delay without any fruitful result, it decided to withdraw the case from the Hon'ble High Court, Calcutta and on their prayer, the Hon'ble Court, dismissed the case. The learned District Forum, by its Order No. 2 dated 9.7.2012 condoned the delay with the finding that cause shown was sufficient and there was a prima facie case of consumer dispute and the Consumer Protection Act is a benevolent legislation and, therefore, admitted the complaint after hearing the Appellant However, the learned District Forum vide its impugned order declared the said order of an earlier bench illegal without appreciating the fact that condonation of delay is a juridical discretion and hearing of the OP is optional. Section 24A of the Consumer Protection Act stipulates that the Fora would record its reasons for condoning the delay. It is the well settled position of law that Fora should not consider a survey report unless the same is filed without an affidavit. However, the learned District Forum dismissed the case relying upon the surveyor report though it was not submitted under affidavit and thereby the Appellant did not get any opportunity to cross -examine the said Surveyor. It is not a fact that they did not render due assistance to the Surveyor. The Surveyor prepared an adverse report without appreciating the fact that Kalakar Street is a 'no parking zone' and the local police compelled them to unload the goods immediately. If the Surveyor so desired, he could have made contact with the police and impressed upon them not to harass the Appellant till due inspection was carried out. But, quite conspicuously, not only he refrained from getting in touch with the police despite having full knowledge that the police was creating immense pressure on the Appellant to shift the vehicle from there, but he also did not bother to inspect the vehicle soon after getting information from the Insurance Company. The learned District Forum, out of complete misconception, came to an erroneous conclusion and, as such, for ends of justice, the impugned order be set aside. In support of his contention, the learned Advocate has referred to a decision of the Hon'ble Supreme Court reported in : IV (2011) CPJ 9 (SC) and two decisions of the Hon'ble National Commission, reported in, 2012 (1) CPR 386 (NC) and in R.P. No. 2318/2012.;