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State Consumer Disputes Redressal Commission

New India Assurance Co. Ltd vs Hardev Singh on 30 November, 2007

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
                         DEHRA DUN

                    FIRST APPEAL NO. 150 / 2006

Branch Manager, The New India Assurance Co. Ltd., New Tehri
through Divisional Office, The New India Assurance Co. Ltd.
Astley Hall, Dehradun
                                                          ......Appellant
                                 Versus

1.    Sh. Hardev Singh S/o Sh. Chain Singh
      R/o Village Bigradi, Patti Banaal,
      Tehsil Barkot, District Uttarkashi

2.    State Bank of India
      Gadoli, District Uttarkashi
      through its Branch Manager
                                                         .....Respondents

Sh. M.N. Mishra, Learned Counsel for the Appellant
Sh. Shardul Negi, Learned Counsel for Respondent No. 1
Sh. S. Parasar, Learned Counsel for Respondent No. 2

Coram: Hon'ble Justice Irshad Hussain, President
       C.C. Pant,                      Member

Dated: 30/11/2007

                               ORDER

(Per: C.C. Pant, Member):

This appeal is directed against the order dated 15.06.2006 passed by the District Consumer Forum, Uttarkashi in Consumer Complaint No. 05 of 2005, titled Hardev Singh Vs. The New India Assurance Co. Ltd. and another. By its order, the District Forum has directed the appellant - insurer to pay the complainant the insured sum of Rs. 25,000/- together with simple interest @6%p.a. from the date of death of the mule, i.e., 13.08.2004 till actual payment, Rs. 2,500/- as cost of litigation and Rs. 2,000/- as compensation.

2. In brief, the facts of the case leading to filing of the consumer complaint are that the complainant took loan from State Bank of India, Gadoli, District Uttarkashi and purchased two mules against the loan amount for earning his livelihood. He got these mules insured with the insurance company for a risk of Rs. 25,000/- each. As per practice, for the easy identification of the insured mules, insurer provided identification tags bearing unique tag numbers and these tags were pierced into the ears of the mules. In the event of death of the insured animal, that part of the ear is amputated, which is pierced with the identification tag and the same is submitted with claim papers and other documents to the insurer. In complainant's case, one of the insured mule, having identification tag No. NIA-321901/164 died on 13.08.2004 due to fatal injuries caused as a result of mule's fall from hillock. The insurer was informed of the mule's death through the financing bank on 14.08.2004. The complainant got the dead mule medically examined by veterinary doctor in the presence of the Head and Deputy Head of Gram Panchayat, who has confirmed in the postmortem report that the death was due to fatal injuries. The ear of the mule having identification tag was amputated and the same was submitted to the insurer.

3. The insurer also got conducted a spot survey through its duly appointed investigator. On 22.10.2004, the complainant was informed by the financing bank that his claim has been repudiated by the insurer. Upon this, the complainant filed Consumer Complaint No. 05 of 2005 before the District Consumer Forum, Uttarkashi and requested that the insurer be directed to pay him the insured sum of Rs. 25,000/- together with interest @9% p.a. from the date of mule's death, Rs. 3,000/- as cost of litigation and Rs. 2,000/- as compensation.

4. We have heard the learned counsel for the parties and have carefully perused the relevant material on record.

5. Learned counsel for the appellant argued that the dead mule was not the insured one because the complainant has himself admitted this fact. The learned counsel in support of his contention placed reliance on the following lines of the complainant's statement given before the insurer's investigator:

"------------------------ nks lky igys _.k ysdj nks [kPpj [kjhnh ftlesa ls ,d fxjdj yaxM+h gks xbZ Fkh ftldks cspdj eSa nwljh [kPpj [kjhn yk;k gwWa tks vkt fnukad 24-08-2004 rd thfor ekStwn gSaA ftldks eSa rhu ekg igys xzke MkMk xkWao ls Jh xksfoUn ls [kjhn dj yk;k gwWa mldh fxjdj e`R;q gks x;hA nwljh [kPpj dks VSx ugha yxk gqvkA"

6. Certainly, the statement, as quoted above, has some contradiction in itself, but there appears some inconsistency also, which could not be clarified by the learned counsel as well. For example, the complainant's statement was recorded by one "Amin Singh S/o Sri ......................" who, in the absence of father's name and address, is not identifiable. There is no witness in whose presence, the statement was recorded. The most important point is that the complainant had given his statement on 24.08.2004 (............. aaj dinaak 24.08.2004 tak jeevit maujud hai .............), while the investigation was conducted on 26.08.2004. This inconsistency could not be explained by the learned counsel.

7. In our view, the complainant appears to be an illiterate person and the person who has recorded the statement cannot be said to be a well literate person, as is evident from his handwriting and the language used in the statement recorded. If there was any ambiguity in the statement, it was the duty of the investigator to get it clarified from the complainant. The complainant has stated that the mule purchased against the sale proceeds of the lame mule was still alive. Moreover, the veterinary doctor's report clearly indicates that the insured mule had died because the same was identifiable on the basis of the tag pierced into mule's ear. Dead mule's ear was amputated by the veterinary doctor himself. As such, we are not satisfied with the investigator's report because of its inconsistency and incompleteness. The District Forum has discussed the facts of the case in detail and we are in agreement with the conclusion derived by the District Forum. The District Forum has awarded the insured sum of Rs. 25,000/-. Learned counsel for the appellant referred to Horse / Pony / Mule / Donkey Insurance Scheme (Paper Nos. 42 - 43) and placed reliance on clause No. 10(c)(ii) and argued that the District Forum was not justified in awarding the entire assured sum of Rs. 25,000/-. Clause No. 10(c)(ii) of the scheme says that the insurer shall indemnify the insured to the extent of 80% of the sum insured in case of death claims. In view of this clause, the complainant was entitled to only 80% of the insured sum, i.e., Rs. 20,000/-. The District Forum has awarded interest @6%p.a. from the date of death of the mule, which is fully justified. The District Forum has further awarded compensation of Rs. 2,000/-. It is settled preposition of law that both interest and compensation cannot be awarded, therefore, the order awarding compensation is liable to be quashed. The District Forum has also awarded cost of Rs. 2,500/-, which in peculiar facts and circumstances of the case can be held to be fully justified.

8. As a result, the order of the District Forum is to be modified as aforesaid and the appeal is to be allowed partly.

9. Appeal is partly allowed. Order dated 15.06.2006 of the District Forum is modified to the extent that the appellant shall pay to the complainant a sum of Rs. 20,000/- together with interest @6%p.a. from 13.08.2004 till actual payment and Rs. 2,500/- as cost awarded by the District Forum. Cost of the appeal made easy.

            (C.C. PANT)            (JUSTICE IRSHAD HUSSAIN)