Andhra Pradesh

Nellore

CC/69/2014

Ponaka Gopal reddy - Complainant(s)

Versus

The Branch Manager,N.D.C.S Bank Limited - Opp.Party(s)

P.VenuGopal

30 Nov 2015

ORDER

                                                             Date of filing       :  20-09-2014

                                                             Date of disposal  :   30-11-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Monday, this the  30th  day of NOVEMBER, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

 

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

                                          C.C.No.69/2014

 

Ponaka Gopal Reddy,

S/o.Subba Reddy,

Hindu, aged 38 years, R/o.Annambaka Vilalge,

Chillakur Madal, SPSR Nellore District.                   …         Complainant

 

                      Vs.

                                                                            

1. The Branch Manager,

N.D.C.S. Bank Limited,

No.2523, Gudur Branch, Gudur,

SPSR Nellore Ditrict.

 

2. The Branch Manager,

Primary Agricultural Co-op. Society,

Chillakur Village and Mandal,

SPSR Nellore Dt.

 

 

3. The Branch Manager,

United India Insurance Co.Ltd.,

24-385-2, Arya Towers, GNT Road,

Dargamitta, Nellore City.                             …            Opposite parties

 

This matter coming on 27-11-2015 before us for final hearing in the presence of Sri P.Venugopal, Advocate for the complainant and opposite parties 1 and 2 appeared as in-person and  Sri P.V.Mallikarjuna Reddy, Advocate for the 3^rd opposite party and  having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

 

        This complaint is filed by the complainant against the opposite parties 1 to 3 directing them to pay a sum of Rs.48,000/- jointly and severally to the complainant  being the policy covered sum assured under policy No.151204/47/12/01/00001267  in respect of the death of she-buffalo bearing ID 12553 along with subsequent interest at 24% p.a., from the date of information till realization; to pay Rs.10,000/- towards his mental agony, pain and suffering and deficiency of service committed by the opposite parties; to grant costs of Rs.5,000/- towards complaint and grant such other relief or reliefs as the Hon’ble Consumer Forum may deemed it fit and proper in the circumstances of the case.

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I(a) It is the case of the complainant that he had obtained a loan from the 2^nd opposite party for purchase of cattle i.e., she buffalos for a sum of Rs.76,000/- under the following particulars of the loan:

 

Orign	Cattle type	I.D.No.	Colour	Sex	Sum assured
CB	2	12553	GMB Black	F	Rs.48,000/-
CB	2	12554	GMB Black	F	Rs.28,000/-

 

    The she-buffalos are insured with the 3^rd opposite party under the policy No.151204/47/12/01/00001267 by receiving premium from the opposite parties 1 and 2 under the said policy.  The said policy amount was deducted by the 2^nd opposite party on the date of loan and sent the same to the 3^rd opposite party by the 2^nd opposite party.  While so, the said she buffalo bearing I.D.No.12553 died on 23-02-2013 which could be valued for a sum of Rs.48,000/-.  Thereby the complainant herein informed the same to the 2^nd opposite party personally and handed over all the concerned papers pertaining to the policy and the loan amount including the veterinary doctor certificate and I.D. ear metal stamp.  But, the opposite parties 1 to 3 so far not granted the policy amount covered under the above said policy.  So, the complainant wandered before the opposite parties office several times regarding the above said matter.  But the opposite parties 1 to 3 on some pretext or the other postponing the same which could not be understood by the complainant on what reason the insured amount was not paid  by the opposite party 1 to 3 to him, even though he had produced all the documents regarding to the death of his she-buffalo.    All his efforts are put to in vain. 

 

(b) It is also further submitted by the complainant in paras-5 and 6 of his complaint at page no.2 that after seeing the evasive attitude of the opposite parties 1 to 3, he got issued a legal notice dated 07-04-2014 calling upon the opposite parties 1 to 3 to arrange the insured amount to him, so as to enable him to repay the loan amount obtained from them.    But, the 1^st and 2^nd opposite parties did not comply or reply with the said notice whereas the 3^rd opposite party had received the said notice and gave a reply with all false and frivolous allegations.    Having been vexed with their attitude, the complainant had constrained to file the complaint before the Hon’ble Forum.  It is the duty caste upon of the opposite parties 1 to 3 to abide by necessary terms and conditions mentioned the said policy and to render service so as to enable the complainant to clear his loan amount and release from the said liability.  Due to the acts of the opposite parties 1 to 3, the complainant is being pressurized to clear the loan amount by the 1^st and 2^nd opposite parties by hook or crook which can be resulted him to drowned into financial crisis. Due to deficiency of service and ulterior motives of the opposite parties and also delay to defraud the complainant sustained physical, mental strain and stress besides investment of amount.  Hence, the complainant is constrained to file the complainant.  He is a consumer within the meaning of Consumer Protection Act, 1986 and claiming damages of Rs.10,000/- from the opposite parties for causing a lot of mental agony and pain apart from to granting of insurance amount covered under aforesaid policy from the 3^rd opposite party.  The opposite party no.2 is controlled by opposite party no.1 and insured with the 3^rd opposite party.  So, all the opposite parties 1 to 3 are liable to pay the claimed amount jointly and severally to the complainant.

 

   There are causes of action to file the complaint as stated in it at para-8 of 3^rd page.  The opposite parties 1 to 3 are within jurisdiction of the Hon’ble Consumer Forum.  The complaint is maintainable against them.  Hence, the complaint.

 

DEFENCE:  The contentions of a letter of the 1^st opposite party:-

   The 1^st opposite party had addressed a letter to the Forum stating that it is a fact that the complainant/petitioner was sanctioned L.T. Loan by 1^st opposite party on the recommendations and documents by Chillakur PAC(2^nd opposite party).  The said loan amount sanctioned was disbursed to the loanee for the purpose of she-buffalos.  The 1^st opposite party had submitted that a demand draft for Rs.3416/- was also issued in favour of the 3^rd opposite party on the same day and the said demand draft was handed over to the CEO of the Society for taking further process.  The first opposite party has nothing to do in sanction of the   insurance amount.  The complainant/petitioner  cannot insist the 1^st opposite party/bank to pay the relief from the bank.  So, the 1^st opposite party may be excluded from the petition. 

 

The contents of the letter of the 2^nd opposite party:

I (a) The complainant had approached the 2^nd opposite party and stated that one of the buffalo was died.  The 2^nd opposite party had received necessary required documents from the individual and forward to the 3^rd opposite party with a request to sanction the claim amount. It is learnt that insurance claim cannot be honoured as the cattle died within fifteen days from the date of insurance.  The said matter was informed to the complainant/petitioner as the 2^nd opposite party/society has to do nothing with the claim expect submitting the proposals.  The 2^nd opposite party is not the sanctioning authority in respect of the claims and the payment of claim received from the complainant/petitioner is at the disposal of the 3^rd opposite party.  The 2^nd opposite party forwarded the proposals of sanctioning of the insured amount to the loanee/complainant, he cannot insist the society/2^nd opposite party to act beyond its dialogues. 

 

The contents of the written version, on behalf of the 3^rd opposite party:

 (a)    The 3^rd opposite party was resisted the complaint by filing written version on 6-8-2015 denying the allegations made by the complainant in the complaint.

(b)   It is true that a cattle/buffalo which was duly insured with the 3^rd opposite party under group Cattle Insurance Policy No.151204/47/12/01/00001267 and the above said policy period commencing from 11-02-2013 to 10-02-2014 and 3rd opposite party has issued the I.D.No.12553 to complainant’s cattle.  The 3^rd opposite party is not aware of that she-buffalo died on 23-02-2013.

 ( c )  It is further submitted by the 3^rd opposite party in paras-4 and 6 at page no.2 that the 3^rd opposite party is not aware of the fact that after the death of buffalo, the complainant had handed over all the concerned papers to the 2^nd and 3^rd opposite parties including doctor certificate and I.D.Ear metal stamp but the complainant has not received any amount from the 3^rd opposite party and at last the complainant got issued legal notice dated       7-4-2014 to the opposite parties to comply the said amount.  The complainant is put to strict proof of the same.

 

(d)   While so, the 3^rd opposite party at the time of issuing the above said policy and also issued I.D.No.12533 and the said tag (metal stamp) along with seal will be attached to the ear or somewhere on the body of the said animal.   As per the investigation, 3^rd opposite party came to know that after issuing policy it is clear on the face of it, the claim cannot be payable for the death of the animal due to decease occurring within 15 days from the date of the commencement of the risk and more over that the claim is not entertained as per the condition no.4 of the policy that “ The insured shall give immediate notice  in writing to the company of any illness or lameness or accident or injury to any animal”, but the complainant has given intimation after three and half months and hence the claim is repudiated and informed to 2^nd opposite party by way of notice under reg.post with ack. due by the 3^rd opposite party letter dated 13-06-2013 and that the claim is already been repudiated.  The 2^nd opposite party had submitted that there was no proof to file by the complainant and there is no documentary evidence filed by him before the Hon’ble Forum and he is liable to pay with exemplary costs of Rs.5,000/- by filing false and frivolous case against the 3^rd opposite party.  It is prayed that Hon’ble Forum may be pleased to dismiss the complaint with exemplary costs with the interests of the justice as otherwise the 3^rd opposite party would be put to immense financial loss.

III.  The complainant had filed an affidavit as PW1 on 23-07-2015 and he had filed the documents which are marked as Exs.A1 to A8 whereas the 3rd opposite party had also filed an affidavit on 22-09-2015 and a memo was filed by  the 2^nd opposite party on 17-08-2015 and filed the documents which are marked as Exs.B1 to B4.  The written arguments of the complainant in this case filed on 28-09-2015 whereas written arguments of the 3^rd opposite party filed on 28-10-2015.  The 1^st and 2^nd opposite parties had not filed their affidavits and 2^nd opposite party alone filed a memo along with documents.

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

          (c) To what relief?

V.  POINTS 1 AND 2 :

 

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint and documents filed herein. It is nothing but repetition of them once again in his complaint.

 

Oral Submissions by the learned counsel for the complainant:

 

         Sri P.Venugopal, the learned counsel for the complainant has vehemently argued that the complaint, affidavit and written arguments may be read as part and parcel of his oral arguments.  He has further argued that the loan was sanctioned on 22-01-2013 by the opposite parties nos.1 and 2.  The insurance amount deducted from the loan amount on the same day by the 1^st and 2^nd opposite parties and sent the same to the insurance company i.e., the 3r opposite party by them.  The said learned counsel for the complainant has further contented that the doctor’s fitness certificate of the buffalo was issued on 20-01-2013 and the she-buffalo was died on     23-2-2013 after one month from the date of the loan.  The opposite parties are liable to pay the amount as shown in the complaint to the complainant.  The complainant has handed over all the required documents to the 2^nd opposite party immediately after the death of the buffalo.   Finally, the said learned counsel for the complainant advanced his oral arguments by saying that the 2^nd opposite party filed the documents which are marked as Exs.B1 to B4 and they revealed that on the date of loan, 2^nd opposite party paid an insurance amount to 3^rd opposite party.  It is prayed that the Hon’ble Forum may be pleased to allow the complaint as prayed for.

 

Oral Submissions by the learned counsel for the opposite parties:

 

      On the other hand, the 1^st and 2^nd opposite parties had filed their reply to the complaint by way of letters addressed to the Forum.  But, Sri P.V.Mallikarjuna Reddy, the learned counsel for 3^rd opposite party has also vehemently argued that the complaint, affidavit and written arguments may be read as part and parcel of his oral arguments.  The contentions of the said leaned counsel for 3^rd opposite party are that at the time of issuing the above said policy issued the I.D.No.12553 and tag along with seal attached to the ear or somewhere on the body of the said cattle.  It is clear on the face of the policy that the claim cannot be payable for the death of the animal due to disease occurring within 15 days from the date of the commencement of risk and moreover the claim is not entertained as per condition no.4, “the insured shall give immediate notice in writing to the company of any illness or lameness or accident or injury to any animal hereby insured”.  Hence,  the claim is repudiated and informed to the 2^nd opposite party by regd.post with ack.due. on 13-06-2013 by the 3^rd opposite party. He has further urged that the claim and damages of the complainant is too excessive without any basis.  He has also cited decisions of Hon’ble Supreme Court and Hon’ble Apex Commission, New Delhi in support of the case of 3^rd opposite party.  Finally, he has also prayed that the Hon’ble Consumer Forum may be pleased to dismiss the complaint with exemplary costs in the interests of justice.      

 

Forum’s Findings and observations

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. Parties led their evidence by way of affidavits and produced their documentary evidence.

 

The concept of Insurance:

 

   Because of uncertainty of human life as well as perils/risks in trade or industry, insurance business had developed and is developing.  The concept of insurance coverage springs from the principle of indemnity.  The insurance company accepts the liability to indemnify the insured for the loss suffered by her/him due to peril against the consideration (premium) received by it.  But in actual practice, the insurer by showing mandatory provisions of rules and regulations framed by them in order to turn down the pleas of insured  while disbursing the valid claims of insured at their convenience.  Foundation of insurance contract is uberrima fides i.e., good faith and not fraud.  Insurer and insured must observe utmost good faith.  The duty of good faith is of a continuing nature.  In case of ambiguity or doubt in terms of the policy it should be interpreted in favour of the insured and against the company – LIC Vs.Rajkumar (1999) 3 SCC 465. While the Forum is excising sovereign function of dispensation of justice, it is worthwhile to remember once that the proceedings before the Consumer Fora are inquisitorial but not adversary.  The orders are required to pass in accordance with justice and equity on the basis of the evidence available on record.  Primarily, the Consumer  Protection Act, 1986 is for the protection of the consumers and matters are required to be decided by having a rationale approach and non-technical one i.e., the mandate of law.  This is made clear in the case of Indian Photographic Co. Ltd. Vs. H.D.Shourie 1999(6) S.C.C.428.  Every case has to be judged on its own facts.

 

       To decide the consumer disputes between the parties, it is necessary to look into details of the policy and sanction of loan by the 1^st opposite party to the complainant and when he obtained the policy for his she-buffalo for which period?  Exs.A6 reveals that cattle insurance policy covers the period of insurance from 11-02-2013 to 10-02-2014.  The premium of Rs.18,838/- of the said policy amount was credited into the account of 3^rd opposite party on       22-01-2013, as per memo filed by the opposite party no.2 (Exs.B1).  Actually buffalo died on 23-02-2013.  After payment of insurance amount by the complainant to 3^rd opposite party, the 3^rd opposite party issued the said policy and as per Exs.B3, the health and valuation certificate was prepared by the veterinary Assistant Surgeon, on behalf of 3^rd opposite party on 20-01-2013.  The date of sanction of loan by 1^st opposite party is on 23-02-2012.  Exs.B1 and B3 documents are show that date of receipt dt.22-01-2013 (Ex.B1); another one is that in the name of 3^rd opposite party, the 1^st opposite party deducted Rs.18,838/- and received it and credited in the account of 3^rd opposite party established the fact that duration in between the payment of the said premium to 3^rd opposite party and the death of the said cattle, is one month and not 15 days as  alleged by the 3^rd opposite party.

 

      The proceedings before the consumer Fora are inquisitorial but not adversary.  The Consumer Fora confers jurisdiction on the principles of justice, equity and good conscience.  It is not technical but one should follow the principles of natural justice.  Insurance is, basically founded on good faith between the parties.  The question fraud committed by the complainant does not arise.  It is true that she buffalo died.  Because of risk aspect, the complainant paid premium for the cattle.  At the time of payment of premium, he has not visualized the death of animal.  Repudiation of the policy is not on correct lines.  The 3^rd opposite party ought to have paid the insurance amount to the complainant earlier.  The claim of the complainant should be disposed off within two months from the date of submission of the application.  The officials of 3^rd opposite party should not verify each and every detail in minute details of the claim application.  We have considered that the oral arguments of the complainant and there is substance in it.  The opposite parties 1 to 3 are miserably failed in their effort to convince us.  Mental agony cannot be measured in terms of money.  The complainant is entitled to Rs.48,000/- with interest @9% p.a., from the date of the complaint till the realization.  He is also entitled to get Rs.5,000/- for the costs of the complainant. These two points are held in favour of the complainant and against the opposite parties, accordingly.

POINT No.3: In the result, the complaint is allowed in part, ordering the opposite parties 1 to 3 jointly and severally liable to pay Rs.48,000/- (Rupees forty eight thousand only) to the complainant being the policy No.151204/47/12/01/00001267 in respect of the death of she-baffalow being I.D.No.12553 along with interest @9%(nine) p.a., from the date of complaint i.e., 25-08-2014 till the date of realization.  The complainant is also entitled to get Rs.5,000/- (Rupees five thousand only) towards the costs of the complaint, within one month from the date of the receipt of the order.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 30^th day of November,              2015.    

 

 

              Sd/-                                                                            Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

 

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

23-07-2015

:

Ponaka Gopal Reddy, S/o.Subba Reddy, Hindu, aged about 38 years, resident of Annambaka Village, Chillakur Mandal, SPSR Nellore District.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

22-09-2015

:

A.Mahaboob, S/o.A.Salam, Muslim, Employee, aged about 52 years and residing at Nellore Town and District, Andhra Pradesh.

                                                                               

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	-	:	Photostat copy of pass book of petitioner at PAC, Chillkakur.
Ex.A2	-	:	Photostat copy of demand notice from PAC to the petitioner.
Ex.A3	07-04-2014	:	Office copy of legal notice sent by the petitioner.
Ex.A4	-	:	Served acknowledgement cards (three in nos.).
Ex.A5     Ex.A6     Ex.A7   Ex.A8	21-04-2014     11-02-2013     -   21-03-2014	:     :     :   :	Reply notice got issued by the counsel for the 3rd opposite party to the counsel for the complainant.   Copy of Insurance policy bearing no.151204/47/12/01/00001267.   Photos dead bodies of she buffalos (3 in nos.).   Death certificate of the She Buffalos.

 

 

 

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:   

                  

Ex.B1	22-01-2013	:	Photostat copy of counter foil issued by Sri Potti Sriramulu Nellore Co-op. Central Bank Ltd., Nellore  for Rs.18,838/- .
Ex.B2	20-01-2013	:	Photostat copy of Health and valuation certificate issued by the United India Insurance Co.Ltd. in favour of the complainant.
Ex.B3	28-02-2012	:	Photostat copy of receipt  for Rs.1,36,800/-.
Ex.B4	-	:	Dairy entrepreneurship Development scheme (Annexure-II) issued by the Sri Potti Sriramulu Nellore District Co-op. Central bank Ltd., Nellore.

 

                 

               Id/-                                                                  PRESIDENT(FAC)

 

 

Copies to:

 

1. Sri P.Venu Gopal, Advocate, Kodandarampuram, Nellore.

 

      2) The Branch Manager,N.D.C.S. Bank Limited,

No.2523, Gudur Branch, Gudur, SPSR Nellore Ditrict.

 

      3) The Branch Manager,Primary Agricultural Co-op. Society,

Chillakur Village and Mandal,SPSR Nellore Dt.

 

     4) Sri P.V.Mallikarjuna Reddy, Advocate, 24/2/1456, Militery Colony,

         1^st line, Dargamitta, Nellore- 524 004.

          

 

Date when order copies are issued: