IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 26th day of June, 2014.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member-I)
Smt. Sheela Jacob (Member-II)
C.C. No. 158/2013 (Filed on 10.12.2013)
Between:
- Jalaludeen. A.H.,
Andoor Manangalloor House,
Kuravamkuzhy P.O.,
Erumely – 686 509.
2. Surekha,
Valiplakkal, Mandiram P.O.,
Ranni – 689 672.
3. Sujithra Saji,
Aged 10 years, D/o Surekha,
-of do- -do-
4. Sooraj Saji, aged 9 years,
S/o late Saji Kumar,
-of do -do-
(Minor petitioners 3 & 4 are represented
by their mother 2nd petitioner) … Complainants.
(By Adv. R. Gopikrishnan)
And:
- The New India Assurance Co. Ltd.,
Branch Office – 760101,
KDCB Buildings, P.B. No. 83,
Central Junction, Kottayam-686001,
Represented by its Branch Manager.
2. The New India Assurance Co. Ltd.,
Divisional Office – 760100,
Polachirackal Chambers,
P.B. No. 1109, KK Road,
Kottayam – 686 002, represented
by its Divisional Manager. … Opposite parties.
(By Adv. P.D. Varghese)
ORDER
Smt. K.P. Padmasree (Member-I):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. Brief facts of this case is as follows: The first complainant is the owner of an elephant named Lakshmi and the said elephant was insured with the opposite parties vide policy No. 76010147100800200136. The second complainant is the wife of late Sajikumar and the complainants 3 and 4 are her minor children. The said policy was issued under the head of Elephant Insurance Policy which covers 2 mahouts for Rs. 2,50,000/- each in the event of any accidents to the mahouts and Rs. 1 lakh for third party personal injury occurred from the insured elephant. The period of the said insurance was from 13.01.2011 to 12.01.2012.
3. The second complainant’s husband Mr. Sajikumar has been working as the second mahout of the first complainant’s elephant called Lakshmi. While so on 03.08.2011, at about 9-30 a.m., the said Sajikumar was trampled to death by the above said elephant at Kottathoor in Ayroor Village in Pathanamthitta District. Thereafter the first complainant placed a claim in this regard before the opposite parties within time. But after several correspondences, the second opposite party rejected the claim on 15.06.2012 on the ground that the deceased was the 3rd mahout of the elephant. The opposite parties came to that conclusion on wrong basis. Actually, the deceased was the second mahout of the elephant. The repudiation of the claim by the opposite parties is a clear deficiency in service which caused financial loss and mental agony to the complainants. Hence this complaint for getting the insurance amount of Rs. 2,50,000/- with its interest along with compensation of Rs. 50,000/- and cost of this proceedings either treating him as a mahout or allowing the third party benefits of Rs.1,00,000/-provided in the policy by treating the deceased as a third party.
4. Opposite parties entered appearance and filed a common version with the following contentions: Opposite parties admit the issuance of policy and its validity. The allegation of the complainants is that late Sajikumar was working as the second mahout at the time of the accident is absolutely false. A crime was registered regarding this accident by Koipuram Police as Crime No. 339/2011 based on the F.I. statement given by one Podiyan. He stated that he was working as the second mahout of the elephant and Sunny @ Kuttappan was the first mahout. The deceased Sajikumar was employed by the first mahout as the third mahout for helping them. While so on 03.08.2011, when the first mahout had gone in search of food to the elephant, the second mahout Podiyan mounted on the elephant and tried to remove timber from a nearby property. Then the deceased Sajikumar was standing near the elephant. All of a sudden, the elephant got infuriated and hit Sajikumar with its trunk and due to the hit, he fell down and the elephant trampled him to death.
5. Moreover, the Malayala Manorama daily dated 04.08.2011 reported that a third mahout was trampled to death. The letter dated 16.01.2012 sent by the second complainant and letter dated 03.04.2012 sent by the first complainant would also support the fact that the deceased Saji was working as the third mahout. After getting the claim form, opposite parties deputed an insurance investigator and he filed a report substantiating the fact that the deceased Sajikumar was the third mahout. As the insurance policy issued does not cover a third mahout, the claim was repudiated by the opposite parties. In the circumstances, the said repudiation is legal and there is no deficiency in service from their part. With the above contentions, opposite parties prays for the dismissal of the complaint with their cost.
6. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
7. The evidence of this complaint consists of the oral testimony of PW1, DW1 and Exts. A1 to A3 and B1 to B5. After closure of evidence, both sides were heard.
8. The Point: The complainants’ case is that he is the owner of an elephant named Lakshmi and the said elephant was insured with the opposite parties duly for the period from 13.01.2011 to 12.01.2012. The second complainant is the wife of late Sajikumar and other complainants are their minor children. The deceased Sajikumar was the second mahout of the first complainant’s elephant. While so, Sajikumar was trampled to death by the said elephant. The first complainant placed a claim before the opposite parties, but they rejected the claim on the ground that the deceased was the third mahout of the elephant as the third mahout is not indemnified in the policy. The repudiation of the claim by the opposite parties is a clear deficiency in service and therefore opposite parties are liable to the complainant.
9. In order to prove the complainant’s case, the first complainant filed a proof affidavit along with 3 documents. On the basis of the proof affidavit, first complainant was examined as PW1 and the documents produced are marked as Exts. A1 to A3. Ext. A1 is the elephant insurance policy dated 13.01.2011 issued by the opposite parties in the name of the 1st complainant. Ext. A1(a) is that particular portion in Ext. A1 showing “2 mahouts covered”. Ext. A2 is the post-mortem certificate of deceased Sajikumar dated 03.08.2011. Ext. A3 is the repudiation letter issued by the opposite parties to the first complainant dated 15.06.2012.
10. On the other hand, the contention of the opposite parties is that the insurance policy does not cover the third mahout and the deceased Sajikumar was the third mahout of the said elephant. The F.I. statement, newspaper report, letters sent by the complainants and the insurance investigators’ report also substantiate the fact that the deceased Sajikumar was the third mahout. So they argued that they are not liable to the complainants. With the above contentions, opposite parties prays for the dismissal of the complaint.
11. In order to prove the case of the opposite parties, the Insurance Manager was examined as DW1 and the documents produced were marked as Exts. B1 to B5. Ext. B1 is the copy of insurance policy dated 13.01.2011. Ext. B2 is the copy of letter submitted by the second complainant to the opposite parties on 16.01.2012. Ext. B2(a) is that particular portion in Ext. B2 showing that the deceased was the third mahout. Ext. B3 is the photocopy of the paper cutting regarding the mahout’s death. Ext. B4 is the photocopy of the FIR dated 03.08.2011. Ext. B5 is the insurance investigation report dated 16.01.2012 prepared by Gireeshkumar.
12. On the basis of the contentions, arguments and materials on record it is seen that the parties have no dispute with regard to the issuance of the policy in question and death of the deceased Sajikumar due to the attack of the elephant owned by the first complainant who is the policy holder. According to the complainants, the legal heirs of the deceased are entitled to get the policy benefit of Rs. 2,50,000/- being the mahout of the complainant’s elephant as per the terms and conditions of the policy. But according to the opposite parties, the policy benefits are not entitled to the deceased as he is not covered by the policy for the reason that the policy coverage is only for the first and second mahouts whereas the deceased Sajikumar is not the first and second mahout. In view of the above, the dispute to be resolved by this Forum is whether the deceased is a mahout who is entitled to the policy benefits as per the terms and conditions of the policy. The contentions of the complainants is that as per the policy which is marked as Ext. A1, 2 mahouts are covered and in the said policy it is not specified that the coverage is given only for the first and second mahouts only as claimed by the opposite parties. So they argued that the number of mahouts attached to an elephant is immaterial and the words “2 mahouts” shown in Ext. A1 policy is intended only for any 2 mahouts out of all mahouts attached to an elephant and in this case deceased was doing and performing his duties as a mahout. So the deceased is definitely a mahout and as such he is entitled to get the policy benefits as the indemnity is for any 2 of the mahouts out of all the mahouts attached to an elephant.
13. At the same time, the contention of the opposite parties is that the indemnity is only for first and second mahouts and it is specifically shown in Ext. B1 policy i.e. the certified copy of the original policy submitted by the opposite parties. Further, they argued that Ext. B2 letter of the second complainant addressed to the opposite party, Ext. B3 newspaper cutting, Ext. B4 FIR and Ext. B5 investigation report of the opposite parties investigator clearly shows that the deceased was not the first or the second mahouts and hence the deceased is not entitled to get the policy benefits as per the policy conditions shown in Ext. B1 which is shown as “only for first and second mahouts”.
14. Since the case is related with an insurance policy, the important document to be considered is the policy certificates and policy schedule attached therewith, and both sides submitted the policy certificates and the policy schedule in respect of the policy in question. The complainants produced the policy certificate and its schedule received by them from the opposite parties and it is marked as Ext. A1. At the same time, opposite parties produced the certified copy of the same and it is marked as Ext. B1. Complainants are relying on Ext. A1 and opposite parties are relying on Ext. B1. On a perusal of Ext. A1, it is seen that the indemnity is for “2 mahouts”. At the same time, on a perusal of Ext. B1which is claimed to be the certified copy of Ext.A3 it is seen that the indemnity is for “first and second mahouts”. This is a material difference and the said difference between Ext.A1 and Ext.B1 compelled us to have a thorough scrutiny and comparison of the said exhibits. Accordingly we have scrutinized and compared the said exhibits and found so many differences other than the one found at the 1st instance. So it is clear that, Ext. B1 is not the true copy of Ext. A1 as there are many differences between Exts. A1 and B1 including the crucial aspect of indemnity. Since opposite parties have no challenge regarding the genuineness of Ext. A1, we are constrained to accept Ext. A1 as the original and hence we are discarding Ext. B1 being a fabricated document willfully created for misguiding this Forum for disallowing the complainants’ claim. So the wordings “2 mahouts” shown in Ext. A1, means 2 mahouts attached to an elephant is entitled to get the policy benefits in spite the number of mahouts attached to an elephant. Further in Exts. B2, B3 and B4, the deceased is referred as a mahout and in all respect, the deceased is a mahout and as such the deceased is entitled to get the policy benefits provided for the mahouts in the policy in question. Therefore, this complaint is allowable.
15. At the same time, the willful production of a willfully fabricated document by a party to the proceedings for defeating justice and misguiding and defrauding a Judicial Forum cannot be ignored. In this case, the opposite party produced a certified copy of the policy certificate and its schedule and it is marked as Ext. B1. Complainant also produced the same and it was marked as Ext. A1. According to the parties, Exts. A1 and B1are, in fact, one and the same documents. But on a thorough scrutiny of Exts. A1 and B1, there are so many differences between them. In Ext. A1, the indemnity is shown as “2 mahouts covered”. But in Ext. B1, the same aspect is shown as “only for first and second mahouts”. Apart from the above difference, the following differences are also seen (i) Policy number shown in the schedule of Ext. A1 ends with the digits ‘106’ (right side top) whereas it is “136” in Ext. B1 (ii) The initials in the name of the policy holder is not seen in Ext. A1. But there is an initial as “A.H” in Ext. B2. (iii) In Ext. B1, in the address of the policy holder, the place “Kottayam” and the chip number are missing (iv) Number shown at left side bottom are entirely different. (v) The words “Death only” attached with the wordings “Third party Person Injury” is missing in Ext. B1(b). The positions (place) of different words are different in both exhibits. The words “2 mahouts covered” seen in Ext. A1 is on the right side whereas the words “only for first and second mahouts” seen in Ext. B1 is on the left side.
16. All the above differences seen in Ext. B1 shows that Ext. B1 is not the true copy of Ext. A1 and it is a subsequently prepared document and is an after thought only for the purpose of defeating a claim by misguiding and defrauding this Forum. The above said act of the opposite parties cannot be justified and it is an offence U/s. 193 of IPC as per Sec.13(5) of Consumer Protection Act. Hence a show-cause is warranted as the preliminary step for proceeding with this matter.
17. In the result, this complaint is allowed, thereby the opposite parties are directed to deposit Rs. 2,50,000/- (Rupees Two lakhs fifty thousand only) the assured amount with compensation of Rs. 10,000/- (Rupees Ten thousand only) and cost of Rs. 2,000/- (Rupees Two thousand only) before this Forum within 30 days from the date of receipt of this order and on deposit, the legal heirs of the deceased Sajikumar, are allowed to receive the same from the Forum as per the Law of Succession applicable to them on production of legal heirship certificate from the concerned Revenue Authorities. In the event of non-compliance of this order by the opposite parties, the complainants are allowed to realize the whole amount as ordered herein above with 10% interest from today till the realization of the whole amount.
18. This Forum further ordered to issue a show-cause notice to first opposite party (DW1) for furnishing his explanation, if any, for not proceeding under Sec. 193 IPC, r/w Sec.13(5) of Consumer Protection Act 1986 against him.
Declared in the Open Forum on this the 26th day of June, 2014.
(Sd/-)
K.P. Padmasree
(Member-I)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. Sheela Jacob (Member-II) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : A.H. Jalaludeen.
Exhibits marked on the side of the complainant:
A1 : Elephant insurance policy issued by the opposite parties in the name of the
complainant on 13.01.2011.
A1(a) : Particular portion in Ext. A1 showing “2 mahouts covered”.
A2 : Post-mortem certificate of deceased Sajikumar dated 03.08.2011.
A3: : Repudiation letter issued by the opposite parties to the first complainant dated
15.06.2012.
Witness examined on the side of the opposite parties:
DW1 : Suresh. C.R.
Exhibits marked on the side of the opposite parties:
B1 : Copy of elephant insurance policy dated 13.01.2011.
B2 : Copy of letter submitted by the second complainant to the opposite parties on
16.01.2012.
B2(a) : Particular portion in Ext. B2.
B3 : Photocopy of the paper cutting regarding the mahout’s death.
B4 : Photocopy of the FIR dated 03.08.2011.
B5 : Insurance investigation report dated 16.01.2012 prepared by Gireeshkumar.
(By Order)
Copy to:- (1) Jalaludeen. A.H., Andoor Manangalloor House, Kuravamkuzhy P.O.,
Erumely – 686 509.
- Surekha, Valiplakkal, Mandiram P.O., Ranni – 689 672.
(3) Branch Manager, New India Assurance Co. Ltd., Branch Office – 760101,
KDCB Buildings, P.B. No. 83, Central Junction, Kottayam-686001.
(4) Divisional Manager, New India Assurance Co. Ltd., Divisional Office – 760100,
Polachirackal Chambers, P.B. No. 1109, KK Road, Kottayam – 686 002.
(5) The Stock File.
