IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Saturday the 06th day of November, 2021.
Filed on 19-07-2019
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. P.R Sholy, B.A.L,LLB (Member)
In
CC/No.184/2019
between
Complainant:- Opposite parties:-
Sri. Dayathmaji.M.N 1. The Veterinary Surgeon
Mattathil Calf Feed
Charamangalam Calf Feed Subsidy
Muhamma.P.O Programme
Alappuzha-688525 Sea view ward, Bazar.P.O
(Party in person) Alappuzha-688012
(Party in person)
2. The Manager
United India Insurance Co Ltd
Sarada Shopping Complex
Mullackal, Alappuzha
Pin -688010
(Adv.Sri.T.S.Suresh)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
Complainant is eking his livelihood by conducting a small scale dairy farm. During 2016-17 complainant purchased a calf as per a scheme of Calf Feed( Calf Feed Subsidy Programme), and it was insured with the 2nd opposite party as per policy No.1015004717P115194713. It was informed that there is insurance coverage for diseases and infertility of the calf. After about 2 years on examination it was found that the calf is infertile and the matter was informed to the 2nd opposite party. One Veterinary doctor attached to the 2nd opposite party inspected the cow and informed that complainant is entitled for insurance amount and accordingly complainant submitted a claim form along with photograph and ear tag of the cow to the 2nd opposite party. Voucher after selling the cow for meat was also produced.
2. After a long period since complainant did not receive any amount he enquired with the 2nd opposite party and it was informed that complainant is entitled for an amount of Rs.1000/- only. As per the policy complainant is entitled for Rs. 33,000/- and hence there is deficiency of service on the part of 2nd opposite party. Complainant sustained mental agony and hence the complaint is filed for realizing an amount of Rs.33,000/- being the policy amount, Rs.25,000/- as compensation and Rs.5000/- as cost.
3. 1st opposite party filed a version mainly contenting as follows:-
Complainant is not entitled to seek any relief against this opposite party. This opposite party had facilitated complainant to join SLBP scheme of Government of Kerala to promote cattle farming. Complainant received all benefits of the scheme.
4. As per the scheme for getting benefit it is compulsory to insure the calf and accordingly it was insured with the 2nd opposite party. Thereafter all the disputes have to be settled between complainant and 2nd opposite party and this opposite party has no role. This opposite party has no objection in giving the insurance claim amount to the complainant. Hence the complaint may be dismissed.
5. 2nd opposite party filed a version mainly contenting as follows:-
The complaint is filed suppressing material facts. There is no bonafides and merits in this case and there is no deficiency from the part of this opposite party.
6. It is admitted that the animal having ear tag No.420022373827 was insured with this opposite party vide policy No.1015004717P115194713 under the calf feed subsidy program (CFSP) and Memorandum Of Understanding(MOU) signed between Special Live Stock Breeding Program with the company. The cow was aged 23 months and insured value was Rs.24,000/-. When the claim was received by this opposite party Sri. P.K.James, Deputy Director (Rtd) Animal Husbandary was deputed and he submitted a report on 29/5/2019 after examining the cow. As per the report the disposal value of the animal is Rs.23,000/-. As per the MOU value of animal at the age of 23 months is Rs. 24,000/-. Hence the benefit under the policy is Rs.1,000/-. (24000-23000). This opposite party as per letter dated 19/7/2019 intimated the same to the insured Asst. Director CFSP, Alappuzha and an amount of Rs.1000/- was disbursed to the claimants account vide UTR AXISCN0036243644 dtd. 20/7/2019. Hence there is absolutely no deficiency on the part of this opposite party. Insurance is a contract of indemnity and the benefit under the policy is in accordance with MOU signed with Special Live Stock Breeding Program. Complainant is not entitled for any relief, compensation, interest , cost etc, since there is no deficiency of service. Hence the complaint may be dismissed with cost and compensatory cost.
7. On the above pleadings following points were raised for consideration:-
1. Whether there is deficiency of service from the part of 2nd opposite party?
2. Whether the complainant is entitled to realize an amount of Rs. 33,000/- being the policy amount as prayed for.?
3.Whether the complainant is entitled to realize an amount of Rs. 25,000/- as compensation?
4. Reliefs and Cost?
8. Evidence in this case consists of the oral evidence of PW1 and PW2 and Ext.A1 to A3 from the side of the complainant. Opposite parties have not adduced any oral evidence. Ext.B 1 to B3 were marked from the side of the 2nd opposite party.
9. Point No. 1 to 3:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A3.
10. PW2 stated that he is familiar with PW1 and had purchased a cow from him for Rs.7,500/- for farming. Since it was not profitable he sold the cow.
11. PW1, the complainant purchased a calf under Calf Feed Subsidy Program of the Animal Husbandry Department, Government of Kerala. It was insured with the 2nd opposite party M/s United India Insurance Company Ltd. When the calf was about 2 years old it was noticed that it is infertile and the matter was informed to the 2nd opposite party and the claim form was submitted. 2nd opposite party deputed Veterinary doctor from their panel and found it true. He calculated the disposal value as Rs. 23,000/-. Since the insurance coverage was Rs.24,000/- deducting the disposal value (meat value) they paid an amount of Rs.1000/- to the complainant. Aggrieved by the same complaint is filed on a contention that the calf was insured for an amount of Rs.33,000/- and so he is entitled for the same. Besides that he is also claiming an amount of Rs. 25,000/- for compensation and Rs. 5000/- as cost. 1st opposite party Veterinary Surgeon filed a version contenting that PW1 was included in the SLBP scheme and all the benefits were given to him. As per the scheme it was mandatory to insure the cattles and accordingly policy was taken from the 2nd opposite party. Thereafter if any dispute arises it is to be settled between complainant and 2nd opposite party and so he is not liable. 2nd opposite party filed a version admitting the policy. According to them the insured cow was aged 23 months and the insured value was Rs. 24,000/-. Insurance was taken on the basis of Memorandum Of Understanding (MOU) between the insurance company and Special Live Stock Breeding Programme. However the insured value of the cow was Rs.24,000/- and since the veterinary doctor in the panel recommended Rs. 23,000/- as disposal value complainant is only entitled for Rs.1000/- which was already paid. Hence according to them the complaint is only to be dismissed, since there is no deficiency of service. Complainant got examined as PW1 and Ext.A1 to A3 were marked. One witness was examined as PW2. Opposite parties did not adduce any oral evidence Ext.B1 to B3 were marked from the side of the 2nd opposite party.
Ext.B1 is the Memorandum Of Understanding between Special Live Stock Breeding Program and the 2nd opposite party M/s United India Insurance Co. ltd. As per the schedule attached to Ext.B1 the insured amount of 23 months old calf is Rs. 24,000/-. Admittedly the cow of PW1 is aged 23 months and so according to PW1 he is entitled for Rs.24,000/- though the amount claimed in the petition is Rs.33,000/-. According to PW1 he sold his cow for Rs. 7500/- and voucher was produced before the 2nd opposite party. To prove the said contention he examined Pw2 who purchased the cow. PW2 also stated that he purchased the cow for Rs. 7,500/-. We have noticed one contradiction in the evidence of PW1 and PW2. As admitted by PW1 he sold the cow since it was infertile. But according to PW2 he purchased the cow for farming. However since it was infertile he sold the same to one Varghese. So from the evidence of PW1 and 2 it is pellucid that PW1 sold the cow for Rs. 7,500/-. Admittedly the cow was insured for an amount of Rs.24,000/- and PW1 is entitled for the remaining amount. But the contention taken by the 2nd opposite party is that as per Ext.B2 Veterinary Enquiry Report Dr. P.K.James, Deputy Director, Animal Husbandry (Rtd) inspected the cow and it was not showing heat signs. He reported that the animal had under developed genatile ovarian small and not functioning. So it proves the case of PW1 is that the cow was infertile. However as per Ext.B2 report the Veterinary Surgeon reported the disposal value(meat value) as Rs.23,000/-. It is not noticed as to how he arrived such an amount of Rs.23,000/-. The age of the cow is shown as 2 years. But the weight of the cow and the meat value on the date of inspection ie, on 29/5/2019 is conspicuously absent in Ext.B2 report. As stated earlier opposite parties did not adduce any oral evidence and Ext.B1 to B3 were marked. We do agree that there was no objection from the part of the complainant in marking Ext.B1 to B3. It is to be noted that complainant was conducting his case in person and so he may not be knowing the technicalities in marking documents.
12. In M/s PRS Hospital Killipalam, Thiruvananthapuram Vs. P. Anilkumar (2020 0 Supreme (Kerala) 883, A division bench of the Hon’ble High Court had considered regarding the marking of a document. It was held,
“There are four stages before a Court of law can rely upon a document. They are (i) marking of a document, (ii) admissibility of a document, (iii) proof of contents of the document and (iv) evaluation of the document. Reliance upon a document can be made by the court only if all the above four stages are complied with or satisfied. By the mere marking of a document, it does not become admissible in evidence. Further, the marking of a document and being admissible in evidence, will still not render the contents of a document as proved. When a document, admissible in evidence, is marked, still to be relied upon by the courts, its contents will have to be proved. For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage ie, evaluation takes place. Evaluation of the document is a judicial exercise. Unless all these stages are done, a court of law cannot rely upon any document produced or marked before it.”
13. Applying the principles laid down by the Hon’ble High Court it can be seen that Ext.B2 is not admissible in evidence. The maker of the document Dr. P.K.James was not examined as a witness. As stated earlier how the figure of Rs. 23,000/- was arrived as disposal value is also not described in detail. The weight of the animal and the price/kg of meat is not mentioned in Ext.B2 document. He has arrived at a figure of Rs.23,000/- without giving any datas. Hence we find that Ext.B2 is not admissible in evidence. Per contra the evidence of PW1 and 2 clearly shows that the animal was sold by PW1 to PW2 for Rs. 7,500/-. We do agree that there is a minor contradiction in the evidence of PW1 and 2. As stated earlier PW1 himself was conducting the case and some allowance is to be given he being conducting a small scale dairy farm with 2 or 3 cows. Though Ext.B1 to B3 were marked and a detailed version were filed by the opposite parties they did not enter the witness box to prove their case on oath. Even the maker of Ext.B2 which is strongly relied upon by the 2nd opposite party to calculate the disposal value of the cow was not examined.
14. As held by the Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao).
“WHERE a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”
15. So we reject Ext.B2 document and find that the disposal value (meat value ) of the cow as Rs.7,500/-. As admitted in Ext.B1 policy document the insured value of 23 months old calf is Rs.24,000/-. In the version also the calculation is made as if the insured value is Rs.24,000/-. Rs. 1000/- was given to PW1 and after deducting Rs. 23,000/- as disposal value shown in Ext.B2. Since Ext.B2 cannot be relied upon PW1 is entitled for Rs. 16,500/-(24,000-7,500). Out of the same 2nd opposite party has paid an amount of Rs. 1000/- to PW1 and so he is entitled for Rs. 15,500/-.
16. It is seen that 2nd opposite party paid an amount of Rs.1000/- on the basis of Ext.B2 report. So it cannot be said that there was deficiency of service and only the amount was less. Hence no compensation can be awarded to the complainant on account of deficiency of service. These points are found accordingly.
17. Point No.4:-
In the result complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs. 15,500/-(Rupees fifteen thousand five hundred only) from the 2nd opposite party along with interest @ of 9% per annum from the date of complaint ie, 19/7/2019 till realization.
B) Complainant is allowed to realize an amount of Rs 2000/- Rupees Two thousand only) as cost.
The order shall be complied within one month from the date of the receipt of the copy of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 06th day of November, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/- Smt. Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - M.N.Diyamaji (Complainant)
PW2 - Murali.V.N(witness)
Ext.A1 - Letter dtd.20/8/2018
Ext.A2 - Letter dtd. 29/7/2019
Ext.A3 - Cattle Insurance Policy
Ext.A4 - Bill dtd.3/9/2018
Ext.A5 - Letter dtd.4/9/2018
Ext.A6 - Letter dtd. 18/7/2018
Evidence of the opposite parties:-
RW1 - Anil((opposite party)
Ext.B1 - Cattle Insurance Policy
Ext.B2 - Veterinary Enquiry Report
Ext.B3 - Letter dtd. 19/7/2019
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
