BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Wednesday the 10th day of December, 2008
C.C.No. 04/08
Between:
Shaik Pedda Kottam Hussain bee,
W/o. Late S.P.K.5th Kamal Saheb,
R/o. Hanumanthugundam Village,
Kolimigundla Mandal,
Kurnool District. … Complainant
Versus
- Primary Agriculture Co-Operative Society,
Represented by its Secretary ,
Hanumanthugundam,
Kolimingundla Mandal,
Kurnool District.
- India formers,
Fertilizers Co-operative Limited,
Represented by its State Marketing Manager,
State Marketing Office,
D.No.10-5-22, Masab Tank,
Hyderabad.
- IFFICO Tokio General Insurance Company Limited,
Represented by its Divisional Manager,
2nd Floor, Uma Chambers,
Panjagutta,
Hyderabad.
- IFFICO Tokio General Insurance Company Limited,
Represented by its Chief Manager,
Claims, 4th and 5th Floors,
IFFICO Towers, Plot No.3,
Sector 29 Gurgoan – 122001,
Haryana State. . Opposite parties
This complaint is coming on this day for orders in the presence of Sri. M. L. Srinivasa Reddy, , Advocate, for the complainant, and Sri. C.V. Srinivasulu , Advocate for opposite party No.1 and Sri. I.Anantha Rama Sastry, Advocate, for the opposite party No.2 and Sri P. Ramanjaneyulu, Advocate for opposite parties 3 and 4 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.04/08
1. This case of the complainant is filed U/S 12 of C.P.Act seeking direction on the opposite parties to pay to him Rs.80,000/- as damages Rs.10,000/- as compensation for mental agony and Rs.5,000/- as cost alleging that the deceased S.P.K.5 Khamal Saheb – husband of the complainant purchased 20 bags of IFFCO DAP Fertilizer @ Rs.485/- per bag on 17-09-2005 vide bill No.24 from the opposite party No.1 and on account of said purchase of fertilizer was provided with an insurance coverage of Rs.4,000/- per bag by IFFCO TOKIO General Insurance Company Limited ( opposite parties 3 and 4) under an insurance policy styled as Kisan Grammena Bhima Yogana Policy ( Sankat Haran Policy) and consequent to demise of said purchaser in the road accident on 30-1-2006 , the claim was made by the complainant – wife of the said deceased – was not settled by the opposite parties 2 to 4 in spite of submission of claim with all relevant records and legal notice and the said conduct of the opposite parties not only ensured mental agony but also driven the complainant to the forum for redressal.
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite parties caused their appearance into the case through their counsels and contested the case filing written version denying any of their liability to the complainants claim as there by seeking dismissal of the complainant with cost.
3. The written version of the opposite party No.4 , adopted by opposite party No.3 , besides questioning the justness and maintainability of the complainants case requiring the strict proof of complaint averments allege any of the liability of the opposite party No.3 it being the mere branch of opposite party No.4 and not having issued any policy . It pleads ignorance of the relationship in between the complainant and the deceased and purchase of any fertilizer by deceased and the demise of latter in any road accident and any non settlement of claim on its part . It submits that on investigation through its investigator it doubts the sale of fertilizers made by the opposite party No.1 ( Primary Agricultural Co-operative Society , Hanumanthagudem ) as collusive being the entries in stock register and sales register and bill book for not tallying and there being any cogent explanation for such inconsistencies from opposite party No.1 and the claim is fraudulently fabricated one with the connivance of the complainant . It denies the status of agriculturist to the deceased as he was having any land for agriculture and there by any necessity for use of fertilizer . Further it submits that the thumb impression of the deceased on that bill not tallying with his admitted thumb impression and not even the empty bags of fertilizers were placed before the investigator by the complainant . It lastly denies any of deficiency on its part as it has rightly repudiated the claim on 15-11-2007 and intimated the same by the register post and so of any of its liability to complainants claim and there by seeks dismissal of the complainants case with exemplary cost of Rs. 10,000/- in its favour for being sued without proper cause of action.
4. The written version of the opposite party No.1 admits the purchase of 20 bags of fertilizer by dated 17-9-2005 and the demise of deceased an accidental as per records and the opposite parties 2 to 4 are proper persons to settle the claim and it has processed the claim and submitted with all relevant material for consideration of claim , it has any deficiency on its part and thereby any liability to complainants claim and so seeks dismissal of the complainant with cost.
5. The written version of the opposite party No.2 alleging itself as a Multi State Co-Operative Society registered engaged in manufacturing and marketing chemical fertilizers , paying necessary premium to opposite party No.4 obtained an insurance policy viz., Kisan Grammena Bhima Yogana Policy ( Sankat Haran Policy) for the benefit of the farmer who purchases their fertilizers – covering the risk of life or permanent disability submits that the settlement of claim by insurance company ( opposite parties 3 and 4) if supported with cash memo medical attendance certificate , post mortem report , final report and the death certificate and so it has any role to play in said settlement of claim and so there being any of its deficiency and liability seeks dismissal of the complainants case.
6. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A4 and the sworn affidavit of the complainant , the opposite party side has taken reliance on documentary record in Ex.B1 to B6 and sworn affidavit of opposite parties 1, 2 and 4 .
7. Hence, the point for consideration is whether the complainant has made out any deficiency of the opposite parties and there by their liability to the complainants claim .
8. The complainant alleges that her deceased husband purchased 20 bags of IFFCO DAP @ Rs.485/- per bag thus per a total amount of Rs. 9,700/- and places the Ex.A1 – cash bill in proof of the same . It envisages the name of the purchaser SPK. 5 Kamal Saheb son of Husen Saheb of Hanumanthegudem (Village) of Kolimigundla Mandal and his wife Hussainbee as nominee and bears the thumb impression of the purchaser .
9. The Ex.B1 is the terms and conditions of the policy – Sankat Haran ( Kisan Grammena Bhima Yogana Policy) issued by opposite party No.4 and certified by the opposite party No.3 defines insured person as “ any person who purchases any brand of IFFCO fertilizer during the month , as stated in the schedule , through Farmers Service Centers IFFCO or Co-Operative Society . As the purchase of the IFFCO fertilizers mentioned in Ex.A1 was done by the deceased from the Hanumanthagudem Primary Agriculture Co-Operative Credit Society Limited ( opposite party No.1) and no where the opposite parties 3 and 4 are disowning the opposite party No.1 as not entitled to effect sale of IFFCO fertilizers of opposite parties 3 and 4 and no where the definition of “ insured person” occurring in Ex.B1 envisages the purchaser of said fertilizer must be an agriculturist having land , the deceased is satisfying the requirements of “insured person’ as contemplated in Ex.B1 .
10. The opposite parties 3 and 4 allege fraudulency on the part of the opposite party No. 1 in colluding with the complainant and fabricating the case to have wrongful gain and takes mention that its investigator found several inconsistencies in the stock and sale registers etc ., of the opposite party No.1 giving raise to fraudulency in the alleged sale . Except merely filing the Ex.B2 – the so called investigators report dated 11-02-2007 the opposite parties 3 and 4 did not endeavour to substantiate their contentions placing the said inconsistent material found by the investigator and examining him with reference to said report and inconsistent record .
11. There being any evidence from opposite party side exposing the so called inconsistency found in other material papers of Ex.B3 , they are not remaining sufficient to discard the genuineness of Ex.A1. Hence the opposite parties 3 and 4 are remaining not successful in proving the said aspect and there by to doubt prima facie the genuineness of Ex.A1 .
12. The opposite parties 3 and 4 dispute the identity of the purchaser of fertilizers under Ex.A1 alleging the thumb impression of the deceased in Ex.A1 is not tallying with the admitted thumb impression of the deceased in a register sale deed which the complainant furnished due enquiry. The Ex.B5 is the report of hand writing and finger print expert dated 05-07-2008 which says to have made a comparative study of the thumb impression in Ex.A1 with the admitted thumb impression of S.P.K.5 Khamal Saheb taken under Sec.32 A of Registration Act to a registered document executed by Akula Pedda Subbarayaudu in favour of said Pedda Kottam 5th Khamel Saheb son of Hussen Saheb , Resident of Hanumanthagudem (V) . The said report opines the thumb impression in Ex.A1 and the so called specimen thumb impression in the document executed under Sec.32 A Registration Act has not being impressed by the same person and so the thumb impression in Ex.A1 as forged . But the said Ex.B5 is not envisaging the expertise degrees and qualifications of said Mahesh Saxena - author of Ex. B5 - except his academic qualification as B.Sc. LL.B – and as trained and certified by late Sriram Guptha IPS Retired Ex-Director Incharge of State Forensic Science Laboratory including handwriting section and finger print bureau U.P. Government and there by is not envisaging his expertise qualification degrees in said handwriting and finger print field . Nor said author of Ex.B5 being examined in substantiation of the contents of Ex.B5 nor any certificate of said expert was placed to feel that he was adequately trained and experienced in the matters of handwriting and fingerprints to make a comparative study and give an expertise opinion . Hence the conduct opposite parties 3 and 4 in mere filling the Ex.B5 without bothering for its substantiation making the said Ex.B5 unworthy of reliance . When Ex.B5 is not proved as required the opposite parties 3 and 4 are not remaining justified in disowning their liability for the complainant claim arising under Ex.A1 in the terms of Ex.B1 .
13. Therefore , there appears any justifiability in the conduct of the opposite parties 3 and 4 in repudiating the claim of the complainant vide its repudiation in Ex.B4 and there by they are remaining liable for insurance claim of the complainant arising on account of demise of S.P.K.5 Khamal Saheb - husband of the complainant and the purchaser of fertilizers under Ex.A1 being covered under insurance of Ex.B1 policy .
14. The opposite parties 3 and 4 by their deficient conduct of improper repudiation of complainants claim not only ensured mental agony to the complainant but also driven him to the forum for redressal of grievances , they are remaining liable to pay Rs.5,000/- as compensation for mental agony and Rs.2,000/- as cost of the case.
15. As there appears the liability of the opposite parties 3 and 4 only to the complainants claim the case against opposite parties 1 and 2 is dismissed for want of any deficiency of service and proper cause of action .
16. Consequently, the case of the complainant is allowed against the opposite parties 3 and 4 only directing them with joint and several liability to pay to the complainant the insured amount of Rs.80,000/- ( i.e, Rs.4,000/- per each bag fertilizer purchased ) along with Rs.5,000/- and Rs.2,000/- as compensation for mental agony and cost of the case respectively within a month of the receipt of this order. In default the supra stated award shall be payable by the opposite parties 3 and 4 jointly and severally with 12% interest from the date of default till realization .
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 10th day of December, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Xerox copy of fertilizers purchase bill dated 17-09-2005 for Rs.9,700/-.
Ex.A2. Insurance claim form.
Ex.A3. Legal notice dated 29-09-2007 along with 3 postal
acknowledgements and 1 postal receipt.
.
Ex.A4. Reply notice dated 03-12-2007.
List of exhibits marked for the opposite parties:
Ex.B1. Attested copy of SANKAT HARAN policy.
Ex.B2. Investigation report dated 11-02-2007.
Ex.B3. Bunch attested copies of stock register of dealer of OP.
Ex.B4. Repudiation dated 15-11-2007
Ex.B5. Hand with report opinion dated 05-07-2008.
Ex.B6. Xerox copy of photographs and finger printers of seller/
Buyer as per Sec.32 A of Registration Act 1908.
Sd/ Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on
