KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM F.A.289/2009 JUDGMENT DATED: 22.04.2010 PRESENT:- SMT.VALSALA SARANGADHARAN : MEMBER SHRI.M.V.VISWANATHAN : MEMBER SRI.S.CHANDRA MOHAN NAIR : MEMBER M/s.Oriental Insurance Company Ltd., : APPELLANT Elanjikkal Plaza, Kothamangalam, Represented by its Divisional Manager, Divisional Office – II, Thiruvananthapuram. (By Adv.Sri.Varkala A.B.Ravikumar) Vs 1. J.Andavar Das, House No.VI/60, Santhapara.P.O., : RESPONDENTS Cheriyar.P.O.,Idukki District. 2. The Manager, Union Bank of India, Santhapara.P.O., Santhapara, Idukki District. (2nd respondent rep. by Adv.S.Krishnakumar) JUDGMENT SRI.S.CHANDRA MOHAN NAIR : MEMBER By the order dated 29.12.2008 in C.C.48/2008 the CDRF, Idukki has directed the 2nd opposite party to pay to the complainant the policy amount covered under Ext.R4 policy with 12% interest from the date of complaint and cost of Rs.2000/- within one month from the date of receipt of the order, failing which the amount would carry 12% interest per annum from the date of default till payment. It is aggrieved by the said directions the present appeal is filed by the 2nd opposite party before the Commission. 2. The complainant’s case in brief is that he is a blind man and earns a livelihood from the sale of the milk of cow and that on 16.12.2002 the cow was attacked by wild wolves while it was grassing near the Koodampara state. The complainant further submitted that the cow was lost into the forest because of the attack of the wolves and after two months the remains of the cow were found in the estate by the watchers and a Veterinary Doctor had conducted postmortem on the remaining carcass and though the report was filed to the 2nd opposite party and requested for the payment of the insured amount, the same was repudiated. Alleging deficiency of service in the repudiation of the claim, the complaint was filed praying for directions to the opposite parties to pay the insured amount with compensation. 3. In the version filed by the 1st opposite party, it was submitted that the complainant was given a loan of Rs.25,000/- for running a dairy unit consisting of two cows which were duly insured with the 2nd opposite party. It was also submitted that the company had issued an ear tag bearing number 29259/01/C and that it was informed by the complainant that the cow was lost on 16.12.2002. It was further stated that the intimation was given to the Insurance Company, the 2nd opposite party, over phone and vide letter dated 03.01.2003 contending that there was no deficiency of service on the part of the 1st opposite party it was prayed that the complaint was to be dismissed as against them. 4. In the version of the 2nd opposite party the fact of insurance of the cow by the complainant was admitted. But they rejected the claim of the complainant and stated before the Forum that the case put forth by the complainant could not be true. It was also submitted that the claim was rejected for the reason that no intimation was given immediately after the missing of the animal and also that the ear tag was not produced. The 2nd opposite party’s further case is that on an investigation it was made known that the complainant had no milch cow and the story of the loss of the cow due to attack of wild animals is not believable. 5. The evidence consists of the oral testimony of the complainant as PW1 and documents Exts.P1 to P4 on the side of the complainant and on the side of the opposite party DWs 1 and 2 were examined and Exts. R1 to R5 were marked. 6. The learned counsel for the appellant/2nd opposite party vehemently argued before us that the direction of the Forum below to disburse the insured amount with interest and cost cannot be supported as it is passed without proper appreciation of the facts and evidence of the case. He submitted before us that the Forum ought to have appreciated the policy conditions “no tag no claim”, “waiting period 15 days” and in the light of the fact that the complainant had not produced the ear tag the non payment of the insured amount ought to have found justified by the Forum below. It is also his case that the Forum below ought to have appreciated and accepted the testimony of DWs 1 and 2 and ought to have dismissed the complaint with cost. 7. On hearing the learned counsel for the appellant and on perusing the records we find that it is the admitted case of all the parties that the complainant had insured two cows with the 2nd opposite party through the 1st opposite party. It is also found that the 2nd opposite party had repudiated the claim on the ground that the ear tag of the lost cow was not produced. The appellant /2nd opposite party would argue that the case or the story of loss of the cow due to attack of wild animals could not be believed and that as soon as the cow was lost the complainant ought to have intimated the said fact to the appellant. However on an appreciation of the entire facts and circumstances of the case it can be found that Veterinary Surgeon had filed a report which is marked as Ext.P3 and in Ext.P3 report it is stated that the remains of a cow had been examined by him and he has certified that the remains that are available to him could be of a cow that had died on 16.12.2002. The learned counsel for the appellant would argue that the remains that were available before Veterinary Surgeon could not be of the cow that was insured with the appellant and that the ear tag was not produced by the complainant. We are not inclined to accept the said contention of the learned counsel on the ground that the Veterinary Surgeon’s Report was marked as Ext.P3 without any objection and that it would not be impossible to produce the ear tag of the cow that was lost due to the attack of wild wolves in an Estate. It is also to be found that the likelihood of finding out the ear tag is remote in a case where the animal is attacked and eaten away by wild wolves. So it is the impeccable conclusion that the appellant/ opposite party was banking upon a ground that was not under the control of the complainant. Considering all these aspects, we find that the repudiation is unjustifiable and the Forum below has rightly held that the 2nd opposite party/appellant is liable to pay the policy amount of the deceased cow to the complainant as per Ext.R4 policy with 12 % interest from the date of petition with cost. We do not find any cogent ground to interfere with the directions contained in the order of the Forum below. In the result, appeal is dismissed. The order dated 29.12.2008 in C.C.48/2008 of CDRF, Idukki is confirmed. In the nature and circumstance of the present appeal, the parties are directed to suffer their respective cost. S.CHANDRA MOHAN NAIR : MEMBER VALSALA SARANGADHARAN: MEMBER M.V.VISWANATHAN : MEMBER Kb. | 
