BEFORE THE DISTRICT CONSUMER

DISPUTES REDRESSAL FORUM, DHARWAD.

COMPLAINT NO.203/2016
 

Date: 23^rd day of May- 2017.

P r e s e n t:     

Smt.C.H.SamiunnisaAbrar, B.A., LLB   :  President 

Sri.B.S.Keri, B.A., LLB (Spl)                  :   Member   

Complainant/s:          1.      Kempayya S/o Dundayya   

                                          Mathapathi,

                                          Age: major, Occ: Agriculture, R/o

                                          Honnapur (prabhu Nagar), Tq and      

                                           Dist: Dharwad.

                                          (By Sri.S.B.Katagi, Adv.)

V/s

Respondent/s:              1.      The Manager,

                                             Karnataka Vikas Grameena  

                                             Bank, Arawatagi,

                                             Tq & Dist: Dharwad 

                                                 (Absent)

                                      2.      The Manager,

                                               United India Insurance Company

                                               Limited, Branch Office, Shrinivas   

                                               Talkies Complex, Market,

                                               Post Box No.54,

                                               Dharwad- 580001

                                                (By Sri. S.S.Karegoudar, Adv.)

                                                   ::O R D E R ::-

BY: SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT.

1.     The complainant has filed this complaint claiming for a direction to respondents to pay the amount of Rs.60,000/-, with interest @ 18% p.a. from 29.10.2015 till realization and also to pay Rs.10,000/- as compensation for causing harassment and mental agony and to grant such other reliefs.

-::Brief facts of the case are as under::-

2.     The case of the complainant is that, complainant is an agriculturist and associated with a group called “Malaprabha JLG, Honnapur”. The members of “Malaprabha JLG, Honnapur” approached the Manager, Karnataka Vikas Grameena Bank, Arawatagi, Tq and Dist: Dharwad and requested to advance loan to purchase female HF cows.  Accordingly, an account was opened in the name of “M/s. Malaprabha JLG, Honnapur” and on 22.09.2015, the manager agreed and sanctioned loan of Rs.3,00,000/- to the group. 

3.     Accordingly to the terms and conditions of loan, the group members purchased 5 female HF cows on 5.10.2015.  The Manager was present there and also made payment in this regard. 

4.     It is to be noted that the value of a female HF cow is Rs.60,000/-. Further the Manager, on 26.10.2015 debited Rs.9,343/- from the Account of M/s. Malaprabha JLG, Honnapur bearing A/c No. 89064199431 for an insurance policy for the cows.  Further assured my client that insurance policy will be issued shortly.

5.     Unfortunately the cow purchased by the complainant died on 29.10.2015.  Immediately the complainant informed this fact to the manager.  In turn the manager, KVGB, Arawatagi made arrangements for post mortem of the cow by authorized government medical officer, Alnavar.

6.     Thereafter the complainant approached the manager, KVGB, Arwatagi and enquired about the insurance claim, the manager asked the complainant to approach the insurance company.  Accordingly the complainant approached Op No.2 but they didn’t responded properly and further advised my client to approach the bank.

7.     It is to be noted that the complainant, many times approached the bank and the insurance company for settlement of his insurance claim, But of no use.  Till today neither the bank nor the insurance company is taking responsibility in this regard.  Therefore till today the insurance claim is unsettled. 

8.     It is submitted that the complainant has sustained financial loss and also suffered mental agony and harassment in this regard.  Further the opponents are jointly and severally liable to the financial loss and suffering caused to the complainant.

9.     Aggrieved by the carelessness and lack of proper response, the complainant got issued legal notice on 13.08.2016.  The opponents received it but didn’t reply to it.  Therefore the opponents act constitutes deficiency of service as described under the Act, 1986. Hence, complainant filed the instant complaint praying for the relief as sought.

        10.   Despite service of notice respondent No.1 is absent and 2 present before this Forum, and filed written version.  The contention of the said written version as follows;

        11.   The present complaint involves complicated questions of law and disputed question of facts.  Hence, elaborate and great deal of oral and documentary evidence and detailed cross examination of complainant and his witnesses and Opposite Party No.1 and its witnesses are necessary which cannot be adjudicated before the Hon’ble forum. Therefore the complaint is not maintainable either in law or facts.  Hence the complaint is to be dismissed in limine.

        12.   Further contended that the present complainant suppressed material facts before the Hon’ble forum to gain unlawful profit.  And admitted that, animal has been purchased on 05.10.2015 and the same should be accompanied by the health certificate to the OP No.1 and 2, but the complainant has submitted the Health certificate on 25.10.2015 and after getting the Health Certificate from the complainant, the Op No.1 has issued DD on 26.10.2015 and as per OP No.2 DD has been posted on 28.10.2015 and the same has been received by the OP and the policy risk has been commenced from 09.11.2015 to 08.11.2016 and as per the terms and conditions of the policy, the OP is not liable to indemnify the OP No.1 within 15 days of the commencement of the policy and the animal died on 29.10.2015 prior to the commencement of the policy risk date, i.e. 09.11.2015.  Hence, the claim of the complainant has been repudiated by the OP No.2 on 10.04.2016.

        13.   Further contended that, the insurance is a contract of indemnity.  It has to be viewed as a normal contract as per the Indian Contract Act.  Any violation of the Insurance contract by the parties to the contract of insurance, the contract becomes void and in such an event the insurance company won’t be liable to answer the claim of the other party. Further contended that, the insured cannot claim anything more than what is covered by the insurance policy.  The Hon’ble Supreme court in its judgment in I (2009) CPJ 6(SC) has envisaged that in a contract of insurance, rights and obligations are strictly governed by the policy of insurance.  No exception or relation can be made on the ground of equity”.  The contract constitutes a valid offer and acceptance.  Since the policy was availed by the insured on acceptance of the terms and conditions of the policy the same has to be strictly construed as envisaged in the above judgment. 

        14.   Further contended that, complainant has violated the terms and conditions of the said policy.  Therefore, there is no deficiency of service and negligent on the part of this OP.  There is no willful default and imperfection in the service of the OP.  That the present OP is not aware hence, denies the contents of the complaint.  The complainant should be subjected to strict proof of the above said averments with proof.  Under these circumstances OP prays for dismissal of the complaint.

        The Complainant has filed his affidavit and filed 8 documents which are as follows;

COMPLAINANT FILED DOCUMENTS AS under;

        On the other hand OP No.2 filed evidence affidavit along with five documents, which are as follows;

Opponent No.2 FILED DOCUMENTS AS under;

15.   On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents?
2. Whether complainant is entitled to the relief as claimed?
3. To what relief the complainant is entitled?

16.   Complainant admits sworn to evidence affidavit, relied on documents. Heard the arguments and perused the records.

Finding on points is as under:

1. Affirmative 
2. Partly Affirmative
3. As per order

-::R E A S O N S::-

17.  Point No.1 and 2:- The complainant is a member of Mallaprabha JLG Mannapur, the JLH availed a loan of Rs.3,00,000/-  from  OP No1 to purchase female HF cows as per the terms and  condition of the loan the group members purchase HF cow at Rs.60,000/- each on 05.10.2015 unfortunately cow belonging to the complainant died on 29.10.2015 OP No. 1 arranged for the post mortem to claim the insurance.

        18.   The complainant had submitted that after the purchase of HF cows, OP No.1 has debited the amount of Rs. 9,343/- from the group account towards the insurance these are the undisputed fact.

        19.   The disputed fact of the OP No.2 has repudiated “stating diseases contracted prior to commencement of the risk and provided always the any claim arising the out of disease or illness contract by the animals during the first 15 days from the commencement of the date of the policy”.

        20.   OP No.2 in his objection stated that, insurance contracts are contracts of utmost good faith as per the terms and conditions of the contract, the complainant has to follow the terms and conditions of the policy but the complainant has violated  the terms and conditions of the policy. 

        21.   The OP No.1 who is the agent of OP No.2 had deducted the insurance amount of Rs.9343/- from the complainant   group account on 26.10.2015 as per the letter dated: 02.02.2016 of OP No.1 stated that, complainant submitted the health certificate of the cattle on 25.10.2015 and D.D. for the premium of insurance had made on 26.10.2015 and posted to OP No.2 on 28.10.2015 due to the postal delay its seems to have reached late but OP No.1 failed to present before the forum to prove the same.

        22.   On the other hand Op No.2 had stated in his letter Dated:10.04.2016 that the date of receipt of D.D. on 10.11.2015 but insurance policy, risk commencing from 09.11.2015 to 08.11.2016 and the date death 29.10.2015 before the date of policy risk date as per OP NO.2. He had issued the policy before the receipt of the D.D. if the OP No.2 has so much faith on OP No.1 he would have issue the policy on 26.10.2015 when the OP No.1 has issued a DD in the favour of OP No.2, even OP No.2 also failed to produced documentary evidence in this regard that the DD had reached him on 10.11.2015 hence it is very much difficult to conceive the arguments of OP’s since Op’s made deficiency in service here it is very clear that complainant is entitled for relief. We answer point NO.1 in affirmative Point No. 2 in partly affirmative.

23. POINT No.3:- For the reasons and discussion made above and finding on the above points, we proceed to pass following: 

-::ORDER::-

 1.  Complaint is partly allowed with cost.

 2.  Op No.2 is directed to pay the insured amount of        

      Rs.60,000/-  (Rupees Sixty thousand only) to the

      complainant.  

3.  Further OP No.1 is directed to pay a compensation of

     Rs.5,000/-( Rupees Five thousand only ) towards      

     mental agony and harassment  and Rs.1,000/- (Rupees

     one thousand only) towards litigation charges and

     wave-off the interest and other charges against the loan   

     amount.

4.  Further Ops are directed to comply this order within 30   

     days from this order failing which is liable to pay interest  

     @ 12% p.a. from the date of filing this complaint till

     realization.

5. Send the copies of this Order to the parties free of cost.