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2010(2) CPR 277
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA
Arun Kumar Goel, President; Mrs. Saroj Sharma and Chander Shekhar Sharma, Members
Punjab National Bank, Santoshgarh th. its Branch Manager —Appellant
versus
Ms. Neelam Kumari & Ors. —Respondents
First Appeal No. 313/2007
Decided on 11.12.2009
Counsel for the Parties:
For the Appellant:Mr. G.S. Rathore, Advocate.
For the Respondent No. 1:Mr. Dinesh Chander Sharma, Advocate.
For the Respondent No. 2:Mr. Vijay Sharma, Advocate.
For the Respondent No. 3: Ex-parte.
IMPORTANT POINT
It is not obligatory on part of Bank to date hypothecated article insured.
Headnote:(i) Civil Procedure Code, 1908—Order 41, Rule 27—Additional evidence—Legally, an application for additional evidence can be allowed where Court below has refused to allow such evidence—Other ground to be established is that after due diligence such evidence was not with his knowledge as such could not be produced when order appealed against was passed—Respondent cannot be permitted to fill up lacuna at appellate stage by adducing additional evidence. (Paras 8 and 9)
(ii) Consumer Protection Act, 1986—Sections 2(1)(g), 2(1)(o), 14(1)(d), 15 and 17—Insurance—Veterinary insurance—Death of cow—Liability fastened by Lower Fora on appellant to pay sum insured—Claim of respondent No. 1 not legally sustainable in view of evidence on record—Lower Fora wrongly concluded that there was deficiency of service on part of appellant—It is not obligatory on part of bank to get cows insured for which loan was taken by Respondent No. 1—It is only duty of loanee/consumer to get his animal insured—Second cow was not insured after expiry of insurance policy—It was bounden duty of Respondent No. 1 to have informed bank and insurance company about death of cow—Besides, specification submitted about cow insured not tallied with post-mortem report—Respondent No. 1 not entitled to any insurance amount—Impugned order passed by District Forum set aside—Appeal allowed. (Paras 17 and 21)
III(2008) CPJ 97; I(2009) CPJ 408—Distinguished.
Chander Shekhar Sharma, Member—This appeal is directed against the order of the District Forum, Una, in Consumer Complaint No.87/2004, dated 23.6.2007,whereby said complaint was allowed, directing the appellant to pay a sum of Rs. 20,000/- to respondent No.1 with interest @ 9% per annum from the date of complaint, i.e. 7.6.2004 as well as litigation cost of Rs. 2,000/-.
2. Facts of the case as they emerge from the complaint file are, that respondent No.1 hired the services of the appellant for insurance of two cows and she being beneficiary, got all the requisite formalities completed to the satisfaction of respondent No.3, who is agent of respondent No.2-lnsurance Company, viz., medical examination of the cow by the concerned Veterinary doctor and preparation of their health certificates. Unfortunately, first cow of the complainant died on 4.7.2002. Intimation in this behalf was given to the appellant as well as respondent No.3 so as to enable them to get completed requisite formalities before seeking compensation from respondent No.2. After having completed all the requisite formalities at the level of respondent No.3, appellant presented the claim before the Insurance Company for indemnification of respondent No.1. Respondent No.2-Insurance Company without making any proper enquiry, rejected the claim illegally. It has been further alleged by the respondent No.1 that her second cow also died on 18.11.2002 and the appellant-bank got all the codal formalities completed to the satisfaction of respondent No.3, the agent. Thereafter it was informed that since deceased cow of the respondent No.1 was not insured at the time of its death, hence her claim has been rejected. Allegations in the complaint are also to the effect that respondent No.1 had paid the premium to the appellant out of respondent’s bank account No.123/1/69 and subsequently kept on getting the insurance policies of first and third cow renewed from the bank account of respondent No.1 whereas the appellant failed to discharge its obligation with regard to second cow. As such, the applicant negligently deducted the premium from the account of respondent No.1 by paying premium for the first cow who had already died on 4.7.2002. In this background, complaint was filed against respondent No.2 and present appellant claiming an amount of Rs.20,000/- on account of death of two cows and Rs.5,000/- for mental harassment and agony as well as Rs.5,000/- as litigation cost.
3. When put to notice, appellant and respondent No.2 resisted and contested the complaint. Plea of appellant was that the respondent No.1 had concealed material facts and identification of deceased cow as per claim form and post-mortem report, the tag No. did not tally with the description of the cow insured with respondent No. 1 on the basis of health certificate issued by the Veterinary Officer, Sanoli Mazara on 3.7.2000. As such claim was rightly repudiated and intimation to this effect was also given to the respondent No.1. The other objection raised by respondent No.2 was to the effect that there was violation of Condition No.7 of the policy since the intimation was received by respondent No.1 on 8.7.2002, whereas the insured was duty bound to intimate the Insurance Company within 24 hours of the death of the cow.
4. It was also alleged that Dr. Bikram Singh who was appointed as Investigator by the Insurance Company to investigate the matter had intimated vide his report dated 14.8.2002 that description of the dead cow is not similar to that of insured cow, as such the claim was not genuine since the insured cow as per health certificate dated 3.7.2000 was Sahiwal cow and H.F. having medium sized straight horns, colour brownish black with identification marks of “T.S. Black as on 3.7.2000”, whereas deceased cow was a Jersy and cross having no horns (disbudded) and was of approximately 7 years age on 5.7.2002 and raddish black in colour. Hence, respondent No.1 had prayed for dismissal of the compla
