State Consumer Disputes Redressal Commission
Dr. C. Jayakumar vs Umaiba Habeeb on 17 September, 2011
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/219 (Arisen out of Order Dated 23/04/2011 in Case No. CC/05/427 of District Trissur) 1. C.Jayakumar Assistant Professor,College of Veterinary and Animal Sciences,Pookot ...........Appellant(s) Versus 1. Umaiba Habeeb P_ondhayil valappil House,Aroor,Vettilappara
2. The Manager,United India Insurance Co Ltd, Sreekumar Building,South Junction,Chalakkudy Thrissur Kerala 3. Veterinary Surgeon Veterinary Dispensary,Athirapilly,Thrissur Thrissur Kerala 4. The Collector Ayyanthole,Thrissur Thrissur Kerala ...........Respondent(s) BEFORE: SRI.S.CHANDRAMOHAN NAIR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
COMMON JUDGMENT IN
APPEAL Nos. 218/11,219/11,220/11 & 221/11
JUDGMENT DATED: 17-9-11
PRESENT:
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
APPEAL No. 218/11
Dr. C. Jayakumar Assistant Professor, College of Veterinary and Animal Sciences, : APPELLANT Pookot, Wayanad.
(Rep. by Adv. Sri. Shyam Padman) Vs
1. Manjusha Anil Pottayil Thadathil House, Aroor via., Vettilappara P.O.
2. Manager United India Insurance Co. Ltd., Sreekumar Building, P.B.No.1, South Junction, Chalakkudy.
3. Veterinary Surgeon Veterinary Dispensary, : RESPONDENTS Athirapilly, Thrissur.
4. Kerala State Represented by District Collector, Ayyanthole, Thrissur.
(Rep. by Adv. Sri. A. Asharaf, (Amicus curiae) APPEAL No. 219/11 Dr. C. Jayakumar Assistant Professor, College of Veterinary and Animal Sciences, : APPELLANT Pookot, Wayanad. (Rep. by Adv. Sri. Shyam Padman) Vs 1. Umaiba Habeeb Pondhayil Valappil House, Aroor via., Vettilappara P.O. 2. Manager United India Insurance Co. Ltd., Sreekumar Building, P.B.No.1, South Junction, Chalakkudy. 3. Veterinary Surgeon Veterinary Dispensary, : RESPONDENTS Athirapilly, Thrissur. 4. Kerala State Represented by District Collector, Ayyanthole, Thrissur. (Rep. by Adv. Sri. A. Asharaf, (Amicus curiae) APPEAL No. 220/11 Dr. C. Jayakumar Assistant Professor, College of Veterinary and Animal Sciences, : APPELLANT Pookot, Wayanad. (Rep. by Adv. Sri. Shyam Padman) Vs 1. Pushpa Mohanan, Pandari House, Aroor via., Vettilappara P.O. 2. Manager United India Insurance Co. Ltd., Sreekumar Building, P.B.No.1, South Junction, Chalakkudy. 3. Veterinary Surgeon Veterinary Dispensary, : RESPONDENTS Athirapilly, Thrissur. 4. Kerala State Represented by District Collector, Ayyanthole, Thrissur. (Rep. by Adv. Sri. A. Asharaf, (Amicus curiae) APPEAL No. 221/11 Dr. C. Jayakumar Assistant Professor, College of Veterinary and Animal Sciences, : APPELLANT Pookot, Wayanad. (Rep. by Adv. Sri. Shyam Padman) Vs 1. Eliakutty Paily Nellissery Menoth House, Aroor via., Vettilappara P.O. 2. Manager United India Insurance Co. Ltd., Sreekumar Building, P.B.No.1, South Junction, Chalakkudy. 3. Veterinary Surgeon Veterinary Dispensary, : RESPONDENTS Athirapilly, Thrissur. 4. Kerala State Represented by District Collector, Ayyanthole, Thrissur. (Rep. by Adv. Sri. A. Asharaf, (Amicus curiae) COMMON JUDGMENT SHRI. S. CHANDRA MOHAN NAIR: MEMBER
The above appeals are preferred by the 2nd opposite party in OP No. 423/05,427/05,428/05 and 429/05 before the CDRF, Thrissur. In all the above Ops, the Forum below has directed the 2nd and 3rd opposite parties to pay different amounts being the value of the deceased goats with compensation of Rs.2,500/- in each case along with cost of Rs.5,00/- with in 2 months on receipt of the order failing which the complaints are entitled for interest @12% per annum for the value of the deceased goats. All the appeals being similar in nature, the same are disposed of by this common order.
2. The gist of the complaint in each case can be re-capitulated as follows. The complainants had insured their goats with the 1st opposite party through the 2nd opposite party who is the appellant here in and that the goat of each complainant died during the insurance period. It is their case that though they had approached the 1st opposite party for the sums insured, the claims were rejected on the ground that at the time of death of the goats there was no valid insurance for the goats. It is further alleged that the 2nd opposite party was instrumental for the insurance of the goats and that the complainants were beneficiaries of the Insurance Policy. Being aggrieved by the repudiation of the insured amounts by the 1st opposite party, the complaints were filed praying for directions to the opposite parties to pay the insured amounts of the goats with 12% interest and compensation of Rs.5,000/- with cost in each case.
3. The opposite parties took the same contention in all the complaints. The 1st opposite party submitted that there was no payment for the policy though there was a policy for the period from 30-1-03 to 29-01-04 and that they received a cheque for Rs.3,696/- on 28-01-03. It is contended that though the cheque was presented for the encashment the same was not honored and though the cheque was presented after revalidation, the same could not be encashed and since no premium amount was received by the company, the policy became abinitio void and prayed for the dismissal of the complaint as against them.
4. The 2nd and 3rd opposite parties in their version contended that the complainants were not consumers, as they do not come under the definition 'Consumer' under the Consumer Protection Act. It was also submitted that 48 goats were insured at a time under the "Janakeeyasuthranam scheme" and that a sum of Rs.3,696/- was paid by the 2nd opposite party vide treasury cheque dated:28-01-03 and that when ever the 1st opposite party demanded for revalidation of the cheque, the 2nd opposite party had done it and there was no deficiency in service on the part of the 2nd and 3rd opposite parties.
5. Before the Forum no oral evidence was adduced by both sides. But on the side of the opposite parties Exts.R1 to R14 were marked. It is based on the finding that at the time of issuing the cheque, the 2nd opposite party ought to have ensured that there was sufficient funds in his account that the Forum below fastened liability on the 2nd and 3rd opposite parties to pay the amounts covered under the impugned order.
6. Heard both sides.
7. The learned counsel for the appellant who is the 2nd opposite party in all the complaints, vehemently argued before us that the order of the Forum below is perse unsustainable on the ground that the order is passed with out appreciation of the evidence adduced by the opposite parties especially when there was no evidence at all on the side of the complainant. It is his very case, that the Forum ought to have found that there was no consumer relationship between the complaint and the 2nd and 3rd opposite parties. It is submitted by him that the 2nd opposite party was discharging his official duties as part of his service in Government. The learned counsel has attacked the order on merits also. It is argued by him that the complainants' goats were insured by the 2nd opposite party by issuing the cheque dated: 28.1.03 and the cheque was dishonored due to extraneous reasons and that the Forum ought to have found that it was not due to insufficient funds in the account of the 2nd opposite party while issuing the cheque that the cheque was not honoured. He has submitted before us that nobody had a case that there was no sufficient amount in the account of the 2nd opposite party at the time of issuing the cheque. Inviting our attention to Ext. R14, the learned counsel submitted before us that on 28-1-03, the opening balance was Rs.5,86,800/- in the account of the 2nd opposite party and that the cheque was issued on 28-1-03 which would show that the cheque was not honored due to paucity of funds. He has also argued that the Forum has passed the order without proper appreciation of the Exts. marked on the side of the opposite parties and hence the order is liable to be set aside.
8. The learned counsel who appeared for the 2nd respondent insurance company submitted that the Forum had rightly held that the 1st opposite party/the 2nd respondent was not at fault in not paying the insured amount to the complainants, as there was no valid policy at the time of death of the goats. He has argued for the dismissal of the appeals as against the 2nd respondent.
9. On behalf of the 1st respondent/ complainant Adv. A. Asharaf who was appointed as amicus curiae, argued before us that the order of the Forum below is a well founded one and is liable to be up held. It is submitted by him that the 2nd opposite party had undertaken to insure the goats of the complainants and ought to have seen that money was paid to the insurance company on time itself and, he cannot be heard to say that the cheque was not encashed and is subsequently revalidated due to reasons not known to him. It is also submitted that the complainants were beneficiaries of the scheme propounded by the government and it was the duty of the appellant who was the implementing officer to see that the scheme was properly carried out. Arguing for the position that the 2nd and 3rd opposite parties are liable to pay the ordered amounts, he prayed for the dismissal of the appeals with compensatory costs to the complainants/respondents.
10. On hearing the counsel for the respective parties, the amicus curiae and also on perusing the records, it is found that the 2nd opposite party/appellant had taken the efforts to insure 48 goats including the goats of the complainants by paying a sum of Rs.3,696/- vide treasury cheque dated 28-1-03. It is also seen that the cheque was revalidated on several occassions on demand by the 1st opposite party since the cheque was not encashed when ever it was presented in the treasury. It is also seen that the cheque was not encashed due to insufficiency of funds. Ext.R10 is the cheque originally issued on 28.01.03. It is seen that the same was revalidated on 28-4-03 and also on so many subsequent occasions. No where it is noted that the cheque was bounced due to insufficiency of funds. More over Ext. R14 is sufficient proof to show that there was sufficient fund in the account of the 2nd opposite party. Hence we are unable to up hold the findings of the Forum below that there was no sufficient funds in the account of the 2nd opposite party at the time of issuing the cheque which amounts to deficiency in service. It is further found that the 1st opposite party/the 2nd respondent had issued a policy and the policy became void due to non receipt of the premium amount. We are unable to find that there was lapse on the part of 2nd opposite party/appellant in not encashing the cheque by the 1st opposite party, the insurance company and hence the 2nd opposite party cannot be mulcted with any liability.
11. The learned counsel has also advanced the contention that there was no consumer relationship between the complainants and the 2nd opposite party. It is argued by him that the 2nd opposite party did not receive any consideration from the complainants for the service rendered by him. It is further argued that the 2nd opposite party was carrying out his functions as implementing officer which was part of his duty as a government employee. The learned counsel advanced the further contention that since no consideration was received by the 2nd opposite party, the complaints ought to have been dismissed on that ground itself by the Forum below. But we find force in the argument of the amicus curiae that the complainants were beneficiaries of the scheme and hence they were consumers and the Forum below had rightly adjudicated the complaints. How ever as no deficiency in service on the part of the 2nd opposite party could be found out, in the given circumstances, the directions as against the 2nd opposite party/appellant in all the above Ops stand vacated.
12. In the result, the appeals are allowed. The directions contained in the order dated 23.4.10 in Ops 423/05,427/05,428/05 and 429/05 are set aside as against the 2nd opposite party/ the appellant here in.
13. In the facts and circumstances of the present appeals, the parties are directed to suffer their respective costs.
The office is directed to return the LCR to the Forum along with a copy of this order.
S. CHANDRA MOHAN NAIR: MEMBER DA [ SRI.S.CHANDRAMOHAN NAIR] PRESIDING MEMBER