IMPORTANT POINT
Notice or AD Card if not received within a period of 30 days notice would be deemed to have been served.

ORDER

Heard the learned counsel for the parties.

2. Learned counsel for the appellant states that they have been proceeded ex-parte before the State Commission, though they were not served. The State Commission has assumed the service on the basis of the fact that neither the notice nor the AD card was received back within a period of one month. Presumption of service is not correct and the appellant must get the opportunity to contest the case. The State Commission has not accepted the report of the surveyor where the assessment of loss has been stated to be Rs.13,50,754/- whereas the State Commission has granted the total amount of IDV of the vehicle for Rs.13,50,000/-. Over and above this amount, parking charges has also been allowed to be paid. Learned counsel states that in a matter of insurance claim, the surveyor is supposed to deduct 50% of the rubber parts and similar deductions are to be made as per the terms of the policy. Thus, there is no question to pay the total IDV in the present case. Learned counsel for the appellant has further stated that the insurance company is ready to pay the amount as assessed by the surveyor and the same was offered to the complainant. However, the complainant did not accept the same.

3. On the other hand, the learned counsel for the respondent/ complainant states that the insurance company was served and knowingly they did not appear before the State Commission. The State Commission has clearly recorded that they were proceeded ex parte vide order dated 30.10.2019. In this order, the State Commission has recorded that neither the notice nor the AD card has come back within one month and even the tracking report shows the service on the opposite party, therefore, the notice has been treated as served by the State Commission. As none appeared on behalf of the insurance company, therefore, the order has been passed ex parte against the insurance company. Complainant had filed the copy of the surveyor’s report before the State Commission however, the State Commission has not accepted the report of the surveyor on the basis of the argument advanced by the complainant before the State Commission. The State Commission has thus rightly allowed the insurance claim of the complainant.

4. We have carefully considered the arguments advanced by the learned counsel for the parties and have examined the material on record. This Commission has been taking a view that presumption of service of notice in the case where substantial amount is involved, should not be resorted to and actual service should be insisted even though there is a legal provision under section 28 of the Consumer Protection Act, 1986 that if the notice or the AD card is not received within a period of 30 days, notice would be deemed to have been served and order in this regard may be passed by the forum, but in practice, keeping in view various instances of loss of posts, this Commission is insisting on physical service and the actual service report. There seems to be no reason why the insurance company should not appear even after receiving the notice. The insurance company has stated in the revision petition that none of their offices has received any notice issued from the State Commission and it is supported by an affidavit filed by the insurance company. In these circumstances, we are of the view that the insurance company did not get any chance to defend the complaint and therefore, they may be afforded this opportunity now.

5. As the insurance company has agreed to pay the amount of Rs.13,50,754/- as assessed by the surveyor to the complainant, we deem it appropriate to allow this amount to be paid by the insurance company to the complainant, however, the matter may be finally decided by the State Commission based on the contentions of the complainant as well as of the opposite party.

6. Based on the above discussion, we partly allow the appeal no.246 of 2020 and the insurance company is first directed to pay Rs.13,50,754/-