IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 23rd day of February 2018
Present: - Sri. E.M.Muhammed Ibrahim,B.A, LL.M. President
Sri. M.Praveen Kumar, Bsc, LL.B, Member
CC.No.117 /2016
Omanakutta Kurup : Complainant
S/o Govinda Kurup
Sankara Vilasam
Kaithakkodu P.O
Pavithreswaram Village
Kottarakkara Taluk
[By Adv.G.Chandrasekhara Pillai]
V/S
Manager : Opposite party
National Insurance Company Ltd.
Branch Office
Uthradom Buildings
Q.S.Road,Pulamon
Kottarakkara P.O
Kottarakkara Taluk
[By Adv. M.Sabu]
ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
This is a case based on a complaint filed under Sec.12 of the Consumer Protection Act by one Omanakutta Kurup against the opposite party claiming insured value and compensation for the death of an insured cow.
The averments in the complaint in short are as follows. The complainant was the owner of the cow worth Rs.65,000/- insured under cattle claim Policy No.570503/47/14/9400000055 with the opposite party company. The animal covered under the policy was tied with standard rope. Complainant was nourishing the animal with proper care and caution. He has taken sufficient and
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due precaution to safeguard the cow. The said cow was not allowed to take food liberally from outside the shed. The other family members of the complainant also used to maintain the cow properly. He never used to let free the cow nor used to give food or water outside the shed. However on 03.05.15 when the complainant went out for collecting grass to the cow, the said cow forcefully broken the rope by which it was tied the cow at the shed and the cow went outside eaten Tapioca leaves from outside which caused the death of the cow. The said act was not due to any negligence lapse or latches on the side of the complainant . However due to the death of the cow the complainant has sustained a loss of Rs.65,000/- and the complainant and his family sustained much metal pain also. Though the complainant approached the opposite party Insurance Company claiming compensation which was denied by the opposite party by stating one reason or other and thereafter on 30.11.15 the complainant sent a Lawyer Notice. The opposite party received the notice and sent a reply on 28.02.2015 prior to the sending of lawyer notice the complainant has intimated the facts to the opposite party by sending letters dated 30.07.15 and 09.09.15. The cow happened to die not due to any negligent act of the complainant and the contention of the opposite party in the reply notice are incorrect. In the circumstances the complainant pray to issue direction to the opposite party to pay Rs.65,000/- as the value of the cow and Rs.20,000/- as compensation and costs of the proceedings.
Though the opposite party entered appearance through Advocate M.Sabu, Punalur, not chosen to file any written version. Therefore my learned predecessor President has set the opposite party exparte and proceeded accordingly.
On 16.03.18 the complainant filed affidavit in lieu of chief examination and got marked Ext.P1 to P8 documents. The learned counsel appearing for the opposite party has not chosen to participate in the trial and cross examine the complainant nor argued on the merit of the case.
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Heard the complainants counsel and perused the records.
The points that arise for consideration are as follows:-
- Whether there is any deficiency of service or unfair trade practice on the side of the opposite party?
- Whether the complainant is entitled to get the value and compensation on account of the death of the insured cow?
- Reliefs and Costs.
Point No.1&2
For avoiding repetition of discussion of materials these two points are considered together. The materials available on record would indicate that the cow belongs to the complainant and insured with the opposite party for Rs.65,000/- died at 5 pm on 3.05.15 due to the intake of Tapioca leaves at the courtyard of the residence of the complainant. According to the complainant the insured cow was properly maintained by him but unfortunately it had broken the rope by which it was tied and eaten tapioca leaves which resulted in the death of the cow. It is also clear from the available materials including Ext.P3 lawyer notice that the fact of death of the insured cow was properly intimated to the opposite party insurance company and conducted post-mortem on the body of the deceased cow and also demanded to pay the claim amount by filing Ext.P7 claim application. But the opposite party has repudiated the claim by sending Ext.P1 notice and Ext.P2 claim repudiation letter stating that the insured cow died due to the non-maintenance of the same in a proper way which is devoid of any merit in the light of the unchallenged evidence tended by the complainant. In view of the materials available on record it is clear that complainant who is the owner of the insured cow has been maintaining the cow to the best of his knowledge and ability and he has exercised due care and proper precaution and safe guard against the loss or danger of the cow. It is
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clear from the available materials that the cow was tied with standard rope and the cow was maintained with proper care and caution and there was no laps or latches or negligence on the part of the complainant who is the owner of the cow in maintaining the same. But in the absence of the complainant at his residence the cow has broken the rope and eaten tapioca leaves and the complainant has no knowledge or deliberation on his part. Therefore the complainant is entitled to make amend the loss caused due to the death of the insured cow. Though the complainant would claim Rs.65,000/- as the value of the insured cow, Ext.P8 copy of the valuation certificate prepared by the Vetinary doctor would indicate that the insured cow which died would be worth Rs.40,000/- only as on the date of death of the same.
In the light of the unchallenged averments in the proof affidavit coupled with Ext.P3 lawyer notice we are satisfied that the complainant has succeeded in establishing that he is entitled to get the value of the dead cow under the insurance policy. But in spite of Ext.P3 lawyer notice the insurance company who is bound to pay the insured amount has not paid the same to the complainant. Hence there is deficiency of service on the part of the opposite party insurance company. It is also clear from the available materials that the unexpected death of the cow has caused much mental pain to the complainants and his family and also caused financial loss as the complainant and his family has been depending up on the income arising out of the milk of the cow which is died. In the circumstances the complainant is also entitled to get compensation from the opposite party insurance company. The points answered accordingly.
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In the result the complaint stands allowed, directing the opposite party to pay Rs.40,000/- being the insured amount on account of the death of the insured cow, Rs.10,000/- as compensation and Rs.3000/- as cost of the proceedings within 45 days from today failing which the complainant is entitled to realise Rs.50,000/- with interest @9% p.a from today onwards along with Rs.3000 being the cost of the proceedings from the opposite party and its assets.
Dictated to the Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 23rd day of February 2018.
E.M.Muhammed Ibrahim:Sd/-
President
M.Praveen Kumar:Sd/-
Member
Forwarded/by Order
Senior Superintendent
I N D E X
Witness Examined for the Complainant : Nil
Documents marked for the complainant
Ext.P1: - Copy of notice dated 30.07.15
Ext.P2:- Copy of notice dated 09.09.15
Ext.P3:- Office copy of Advocate notice dated 30.11.15
Ext.P4:- Reply notice dated 28.12.15
Ext.P5:- Copy of post-mortem report
Ext.P6:- True copy of Animal Description Veterinary Certificate
Ext.P7:- Copy of Description of animal claim
Ext.P8:- Copy of valuation certificate
Witness examined for the opposite party : Nil
Documents marked for the opposite party : Nil
E.M.Muhammed Ibrahim:Sd/-
M.Praveen Kumar:Sd/-
Forwarded/by Order
