State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Birender Singh Alias Barinder Singh on 7 August, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.416 of 2014
Date of institution : 09.04.2014
Date of decision : 07.08.2015
The National Insurance Company Ltd., through its Manager, having
Branch Office at Phase-V, at SAS Nagar, Mohali, through Regional
Office-I, National Insurance Co. Ltd., SCO 332-334, Sector 34-A,
Chandigarh.
....Appellant/Opposite Party
Versus
Birender Singh alias Barinder Singh S/o Jagdish Singh, R/o Village
Simbla Majra, Tehsil Kharar, District Mohali.
....Respondent/Complainant
First Appeal against the order dated
26.02.2014 of the District Consumer
Disputes Redressal Forum, S.A.S. Nagar,
Mohali.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Vinod Kumar Gupta, Member
Present:-
For the appellant : Shri S.S. Sidhu, Advocate
For the respondent : Shri Birender Singh alias
Barinder Singh, in person
JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by the appellant/opposite party against the order dated 26.02.2014 passed by District Consumer Disputes Redressal Forum, S.A.S. Nagar, Mohali (in short, "District Forum"), vide which the complaint filed by Birender Singh alias Barinder Singh, respondent/complainant, under Section First Appeal No.416 of 2014 2 12 of the Consumer Protection Act, 1986, was allowed and it was directed to pay Rs.50,000/- as per the Insurance Policy; Rs.10,000/-, as compensation for the harassment and mental agony suffered by him; and Rs.5,000/-, as litigation costs.
2. As per the allegations, made in the complaint, the agent of the opposite party; namely, Balram Kaushal, approached the complainant regarding the insurance of his cows. The Health Certificate pertaining to the cows was got prepared from Dr. Y.P.S. Mehta; in which the description thereof was given. He got insured eight cows with the opposite party, vide Tag Nos.54556 NIC to 54563 NIC, for Rs.50,000/-, each, for the period 04.01.2013 to 03.01.2016. On 01.05.2013, one of the cows bearing Tag No.54556 died and intimation was immediately given to the opposite party, who appointed H.K. Chauhan, Surveyor, who visited the spot on the same day and after his satisfaction, the postmortem on the dead body of the cow was conducted by Dr. Antarpreet Singh Toor, VSP, Civil Veterinary Hospital, Garangan, Tehsil Kharar, District Mohali. As per the evaluation report of that doctor, the cow was insured with the opposite party for Rs.50,000/- and after its death, he was entitled to receive that amount. He approached the opposite party and asked it to pay the above said amount and it refused to pay that amount, on the ground that the cow was not insured with it, as per the report of the surveyor. That report of the surveyor is contrary to the Postmortem Report; in which it was mentioned that Tag No.54556 was affixed on the ear of the cow. Thus, the opposite party is deficient in service; as a result of which he suffered mental agony First Appeal No.416 of 2014 3 and harassment and for the same, he is entitled to Rs.35,000/-, as compensation, Rs.12,000/-, as counsel fee, besides the sum assured of Rs.50,000/-. He prayed for the issuance of directions to it for the payment of Rs.97,000/-, along with interest at the rate of 18% per annum.
3. In the written reply, the opposite party did not dispute that the complainant insured eight cows with ear Tag Nos.54556 to 54563 for Rs.50,000/-, each, with it. It admitted that H.K. Chohan was deputed by it, who submitted his Investigation Report. It also admitted that the claim made by the complainant was repudiated. While denying the other allegations made in the complaint, it averred that the cows were insured under "Rural Sector Business Cattle Insurance" and the ear Tags used at that time were of plastic material. The terms and conditions of the policy were duly conveyed to the complainant. Dr. H.K. Chauhan, Investigator was on its panel and in the report, it was reported by him that there was total mismatch between the physical identification of the live cow, as mentioned in the health certificate, with the dead cow on a number of issues, like colour etc. He also reported that though the tag was found intact, but the male portion thereof was not pertaining to it and rather was of Vanson Milking Machines Company and that the same did not match with the actual ear tag. It was only thereafter that the competent authority, after considering all the aspects of the matter and application of mind, came to the conclusion that the claim of the complainant was not genuine and, accordingly, the same was repudiated, vide letter dated 25.09.2013. The complainant has First Appeal No.416 of 2014 4 manipulated and perpetuated a fraud upon it, by bringing in some other documents/material, in order to justify his ingenuine claim. The complaint has not been supported by a detailed affidavit. The matter involves complicated questions of law and fact, which cannot be decided in summary manner and, as such, the complainant is liable to be relegated to the Civil Court. They prayed for the dismissal of the complaint, with exemplary costs.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide aforesaid order.
5. We have heard learned counsel for the appellant and respondent in person and have carefully gone through the records of the case.
6. It has been submitted by the learned counsel for the opposite party that the District Forum committed an illegality, by recording findings in favour of the complainant, by totally ignoring the evidence produced by the opposite party that the ear tag found on the ear of the dead cow had been tampered with and that the description of that cow was totally different from the description, as entered in the Health Certificate; which was produced at the time of issuance of the Insurance Policy. The complainant miserably failed to prove that the dead cow was insured by him with the opposite party and he manipulated the things, in order to get the claim. Therefore, the order passed by the District Forum cannot be sustained and is liable to be set aside. While making those First Appeal No.416 of 2014 5 submissions, he referred to the report of the investigator Ex.OP-2 and placed heavy reliance on that report.
7. On the other hand, it was submitted by the respondent, in person, that he produced truthful evidence before the District Forum that the cow, which had died, was actually insured with the opposite party, vide ear Tag No.54556. That evidence consisted of his own affidavit and the documents, including the Health Certificate Ex.C-1 and Postmortem Report Ex.C-3. The opposite party manipulated to have a false report from its own investigator and on the basis of that report, the cogent and convincing evidence produced by him could not be ignored. Correct findings were recorded in his favour by the District Forum and there is no ground for upsetting those well reasoned findings.
8. The complainant, in support of the allegations made in the complaint, proved on record his affidavit Ex.CW-1/A. To rebut that affidavit, the opposite party proved on record the affidavit of R.K. Jain, Branch Manager, Ex.OP-1/2. That affidavit is just the written reply filed by the opposite party, which has been given the form of an affidavit. The same cannot be termed as an affidavit in the eyes of law. Thus, the affidavit of the complainant has remained unrebutted.
9. The complainant proved on record the Health Certificate, issued by the Veterinary Surgeon, Ex.C-1, in respect of the cows; which were got insured by him with the opposite party, vide Insurance Policy Ex.C-2. As per the Insurance Policy, the cows were provided the ear Tag Nos.54556 NIC to 54563 NIC. Four of those Tag Nos. are mentioned in the Health Certificate. According to the First Appeal No.416 of 2014 6 complainant, it was the cow bearing Tag No.54556, which had died. The Postmortem Examination on that cow was conducted by Dr. Antarpreet Singh, VSP, Civil Veterinary Hospital, Garangan and that Postmortem Report was proved on the record as Ex.C-3. In that report, the ear Tag number is mentioned and the doctor found that ear tag on the right ear. In addition to that, he gave the description of the cow as under:-
"Blackish brown & white, dehorned, star on forehead, legs white."
This description totally reconciles with the description, as given in Health Certificate Ex.C-1 in respect of the cow, having the said ear tag number.
10. To rebut all this evidence and to show that the dead cow was not the same, which was having ear Tag No.54556 and was different from the cow, which was so got insured, the opposite party proved on record the report of Dr. H.K. Chauhan, Investigator Ex.OP-2. The affidavit of that investigator was proved as Ex.OP-1/1. He deposed about the said report in his affidavit. In the report, he mentioned that though the tag was found intact on the left ear of the cow, but the male portion thereof was not of NIC, but was of the tag supplied by M/s Vansun Milking Machines. He had taken that ear tag into possession and was formed part of the report, but was never produced before the District Forum, in order to ascertain the correctness of the fact, so stated in his report. He also mentioned in his report that the body colour of the cow was brown and white First Appeal No.416 of 2014 7 patched, colour of the legs was brownish udder and was white and dark brownish patched. Thus, he tried to assert in his report that the description of the cow was different from the description as given in the Health Certificate. He also mentioned in his report that he had taken the photographs and those photographs are mentioned in enclosures at the bottom. Those photographs were the best proof in support of the assertions made by him in his report regarding the description of the cow, but the same were withheld by the opposite party and were never proved along with report. For the same, adverse inference is to be drawn against it. It is the case of the opposite party itself that this investigator was on its panel and, as such, he can be said to be an interested witness. The doctor, who conducted the Postmortem Examination on the dead body of the cow and gave Postmortem Report Ex.C-3, was totally an independent person and more reliance is to be placed on his report, as compared to the report of this investigator. The contents of the Postmortem Report leave no doubt that the cow had ear Tag No.54556 intact on the right ear and the same description was given in the report, as given in the Health Certificate. In view of this discussion, we conclude that the District Forum recorded the correct findings and there is no ground for upsetting the same. There is no merit in this appeal and the same is hereby dismissed.
11. The appellant had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another sum of Rs.7,500/- vide receipt dated 21.10.2014 in compliance of the order dated 14.05.2014. Both these sums, along with interest which has accrued First Appeal No.416 of 2014 8 thereon, if any, shall be remitted by the registry to the respondent/ complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER August 07, 2015 (Gurmeet S)