State Consumer Disputes Redressal Commission
Mohinder Singh vs The Branch Manager, National Insurance ... on 30 March, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.739 of 2007.
Date of Institution: 28.05.2007.
Date of Decision: 30.03.2012.
Mohinder Singh son of Sh. Dharam Singh, resident of Village Narainpur, P.O.
Hara, Tehsil Dhar Kalan, District Gurdaspur (Pb.)
.....Appellant.
Versus
1. The Branch Manager, National Insurance Company Limited, Dhangu
Road, Pathankot, District Gurdaspur (Pb.).
2. National Insurance Company Limited, through its Divisional Manager,
Pathankot (Pb.).
3. The Manager, The Pathankot Primary Co-operative Agricultural
Development Bank Limited, Pathankot (Pb.).
...Respondents.
First Appeal against the order dated
03.04.2007 of the District Consumer
Disputes Redressal Forum, Gurdaspur.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. Arvind Kashyap, Advocate.
For the respondents : None.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Sh. Mohinder Singh, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 03.04.2007 passed by the learned District Consumer Disputes Redressal Forum, Gurdaspur (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents, making averments that in order to earn his livelihood and for self employment, he started digging and constructing ponds in his land, by obtaining loan from respondent no.3, to the tune of Rs.4.00 lacs in the year First Appeal No.739 of 2007 2 1998. The said loan was repayable with interest and it was insisted that the fish ponds should be insured. The appellant has undergone a course of fish farming and he is well conversant with the fish farming. The fish seed was purchased by the appellant from National Fish Seed Farm, Kathua (J & K) regularly from the year 1999, when the ponds were made operational and he continued to purchase the seeds from the said farm till date. To comply with the conditions of the respondent no.3-bank, the appellant got insured the fish and paid hefty sum as insurance premium. The fish seed was insured with respondent no.1 for Rs.4.00 lacs only vide cover note dated 26.07.2001 valid upto 25.07.2002 against payment of Rs.18,480/- as premium.
3. On account of unprecedented rain in the early morning on 15.05.2002, two ponds of the appellant were washed away along with the fish in ditches. The appellant went to the ponds and tried his level best to check the washing away of the ponds and saved the fish by stacking bundle of grass and hay stacks used as fodder for the milk cattles, but the current of the water was so strong that the same could not be blocked. The information of this incident was given to respondent no.1 as well as to respondent no.3 immediately.
4. Respondent no.1 appointed O.N.E.-S.A. Investigation and Consulting Agency, Abrol Nagar, Pathankot, whose representative visited the area and saw the seed from the distance and did not go down to the spot, as he was in hurry and left the spot after taking the photographs from the distance. Thereafter, all the formalities were completed and documents were submitted to respondent no.1, but the claim was not settled, whereas the appellant has to pay interest to respondent no.3 bank from where the loan was taken. This amounts to deficiency in service on the part of respondent no.1. Respondent no.1 repudiated the claim on 22.04.2004. It was prayed that respondents no.1 & 2 be directed to pay to the appellant the insurance claim for which the fish/fish ponds were insured, along with interest @ 12% p.a. from the date of loss till the date of payment and Rs.10,000/- as First Appeal No.739 of 2007 3 compensation and Rs.5,000/- as litigation expenses and respondent no.3 be restrained from recovering the loan amount till the decision of the complaint.
5. In the reply filed on behalf of respondents no.1 & 2, preliminary objections regarding locus standi, cause of action, time barred were taken. It was further pleaded that the appellant owes a huge amount to the bank which he could not pay and now, the appellant has cooked up a false story and lodged a false claim and filed the false complaint, which is liable to be dismissed. There is no deficiency in service on the part of the respondent company and the claim was rightly repudiated vide letter dated 20.04.2004.
6. The respondent company on receipt of information on 16.05.2002, immediately appointed M/s S.A. Investigating Agencies for investigation of the claim and for spot verification of the loss. The said investigator visited the spot of loss at village Narainpur and took 10 coloured photographs in the presence of the appellant and observed that at the time of spot verification, there were no traces of any fish and the story of the cloud burst was concocted. In fact, there was no damage at all. No record was produced. The pond was half full and was having stagnant water and the photographs revealed fungus and mass which further proves that there was no flood in the pond, as alleged by the appellant. There were no traces of dead fish or skelton remains and the heavy quantity of fish, as claimed, cannot be consumed overnight and the claim was found to be fraudulent and the same was repudiated.
7. On merits, it was admitted that the fish seed was purchased by the appellant regularly from National Fish Seed Farm, Kathua (J & K) since 1999 and the ponds were made operational and he continued to purchase the seed from the said farm till date. The plea of appointment of investigator was repeated. Other pleas as taken in preliminary objections were also repeated and denying other allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
First Appeal No.739 of 2007 4
8. In the reply filed on behalf of respondent no.3, it was admitted that the appellant has obtained a loan of Rs.4,30,000/- from the answering respondent and not Rs.4,00,000/-. No premium was charged from the appellant and he himself was getting the fish insured and the entire story has been concocted. Denying allegations of the complaint, it was prayed that the complaint may be dismissed.
9. Parties led evidence in support of their respective contentions by way of affidavits and documents.
10. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the appellant has not produced any document about the fish raring. The complaint cannot be accepted relying upon a receipt of fish seed amounting to Rs.21,000/- purchased on 25.06.1999, 26.06.1999 and 27.07.1999. There is no evidence to prove the fish farming. Loan was granted on 10.11.1998 and the bank has not asked for the insurance and there is no reason as to what prompted the appellant to go in for insurance on 26.07.2001 without any letter to that effect from the bank, and dismissed the complaint.
11. Aggrieved by the impugned order dated 03.04.2007, the appellant has come up in appeal.
12. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant.
13. Neither the counsel for respondents nor anybody else on behalf of the respondents appeared at the time of arguments.
14. The case of the appellant is that he took loan from respondent no.3, to the tune of Rs.4.00 lacs for fish keeping and constructed pond for the same. The said fish were insured. The appellant has placed on file the loan ledger issued by respondent no.3, insurance cover Ex.C-6 as per which, the fish were insured for a sum of Rs.4.00 lacs. As per certificate Ex.C-7, the First Appeal No.739 of 2007 5 appellant purchased fish seed on 25.06.1999, 26.06.1999 and 26.07.1999 from National Fish Seed Farm, Kathua (J & K). Ex.C-8 is the application given to Sarpanch of Gram Panchayat, Narainpur, mentioning that due to heavy rain, the both ponds of the appellant were flooded and all the fish in it were taken away by the stream of the water and the Sarpanch certified that the said version is correct. Ex.C-9 is the similar application given by the appellant to Nambardar. Vide Ex.C-10, the investigator asked the appellant to submit the proof of purchase of fish/breeding of fish which were washed away. Ex.C-11 is the another request. Ex.C-12 is also the request for supplying the same. Vide Ex.C-13, the respondent insurance company requested the appellant to supply the complete material within 15 days. Vide Ex.C-14, the respondent insurance company asked the appellant to clarify the matter, as the loss reported appeared to be cooked up story, with the impression to grab undue compensation. Ex.C-15 is the copy of legal notice. Vide Ex.C-16, the claim was repudiated. Ex.C-17 is the proposal form for 'Inland Fresh Water Fish Insurance' and the same was confirmed by the Fisheries Officer, Pathankot. Ex.C-18 is the certificate of the respondent bank regarding the advancement of the loan.
15. The plea of the appellant is that the fish seed/fish breed were washed away due to heavy rain but except the oral evidence, there is nothing on record to prove that there was heavy rain. The appellant kept on depositing the installments even after 15.05.2002 when the entire fish was washed away, as is clear from Ex.R-2. The respondent insurance company appointed the investigator and the investigator gave the report that there was no trace of any fish and there was no cloudburst. There were no traces of dead fish or skelton remains of the fish. The appellant along with the appeal, filed the rainfall data for the month of May, 2002 and tried to bring home the point that on 15.05.2002, there was rainfall in Shahpurkandi (SPK), to the extent of 19.8 mm. The appellant belongs to village Narainpur, P.O. Hara,Tehsil Dhar Kalan, District Gurdaspur, but it is nowhere mentioned that First Appeal No.739 of 2007 6 the village of the appellant namely Narainpur falls within the area of Shahpurkandi and, as such, even this document relied upon by the appellant in the appeal, cannot be linked in any manner with his village and the rainfall. It is also not possible that the fish seed, which as per Ex.C-8 were numbering 1,05,000, will be washed away in toto and there will be no traces of fish seed/fish breed, at all, at the spot. No evidence of fish raring is on record and the appellant has failed to prove that the entire fish seed/fish breed was washed away. The order of the District Forum is legal and valid and warrants no interference.
16. Accordingly, the appeal is dismissed and the impugned order dated 03.04.2007 under appeal passed by the District Forum is affirmed and upheld. No order as to costs.
17. The arguments in this appeal were heard on 27.3.2012 and the order was reserved. Now the order be communicated to the parties.
18. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member March 30, 2012.
(Gurmeet S)