KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 657/2009

JUDGMENT DATED: 22-12-2010

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU                :PRESIDENT

SHRI.S. CHANDRAMOHAN NAIR                      : MEMBER

K.E.James, Idukkutharayil,

Nendoor.P.O, R/by Power of-

Attorney Holder, P.S.Ganapathy,                       : APPELLANT

“Vindhya”, Behind Dalmiya Company,

Perumpuzha.P.O, Kollam Dist.

(By Adv:Sri.D.R.Rajesh)

            Vs.

The United India Insurance Co. Ltd.,

Branch Office, Daivasahayam Building,

K.K.Road, Ponkunnam.P.O,                                : RESPONDENT

Kottayam, R/by its Branch Manager.

(By Adv:Sri.Thomas P.Jacob)

JUDGMENT

JUSTICE SHRI. K.R. UDAYABHANU:PRESIDENT

Appellant is the complainant in CC.136/06 in the file of CDRF, Kottayam.  The complaint stands dismissed.  The case of the complainant is that the elephant by name Aravindakshan purchased by him for a sum of Rs.4.lakhs on 26/5/2003 died on 27/6/2003 due to acute Cardio Pulmonary failure.  The elephant was covered by the policy of opposite party for a sum of Rs.3.lakhs.  Postmortem was done by the Veterinary Surgeon on 28/6/2003. The claim was repudiated.  The opposite party has contended that the condition of the policy that the opposite party ought to have been intimated immediately as to the death of the elephant has been violated.   Clauses 4 and 6 of the conditions of the policy contains the above stipulation.  It is alleged that the elephant was poisoned by the complainant.

2. The evidence adduced consisted of the proof affidavits of the respective sides and Exts.A1 to A6 and B1 to B14.

3. The Forum has upheld the contentions of the opposite parties that policy conditions were violated as the death was intimated only on 30/6/2003 ie, on the 3^rd day after death and that the opposite parties were denied the opportunity to inspect the carcass.

4. We find that the policy stands admitted.  The contention that the elephant was poisoned stands not proved as no independent evidence in this regard has been produced.  Exts.B6 and B9 statements by two of the local residents were not proved as the persons who allegedly issued the above statements were not examined.  The postmortem certificate produced by the Veterinary Surgeon mentions that the elephant died due to acute cardio pulmonary failure.  The only lapse on the part of the opposite parties alleged is the delay in giving intimation as to the death of the elephant at the office of the opposite party.  The explanation by the complainant is that 28^th and 29^th were Saturday and Sunday and on those days the office of the opposite parties was closed.  It is submitted by the counsel for the appellant that residence of the opposite party is situated 41 Kms away from the residence of the complainant.  We find that the delay to intimate cannot be the only reason for the denial of the policy claim altogether.  As pointed out by the counsel for the appellant the elephant was purchased for a sum of Rs.4.lakhs as per sale deed dated:26/5/2003.   The above document is Ext.A1.  Hence it is unlikely that the complainant would have poisoned the elephant for claiming Rs.3.lakhs. Of course the contention that the salvage could not be valued as the body of the elephant was buried and the salvage ie, the tusks, teeth, nail etc were not handed over to the opposite parties.  Ext.B12 newspaper report contains the photograph of the elephant.   It can be seen from it that the elephant had tusks.  All the same we find that the repudiation of the claim is illegal.  Hence the order of the Forum in this regard is set aside.  The opposite parties are liable for the policy claim after deducting the value of the tusks, teeth and nails.  In the absence of any objective evidence as to the value of the same we are inclined to treat the value of the same as Rs.1.lakh.  The opposite party/respondent is directed to pay the rest of the amount ie Rs.2.lakhs to the complainant with interest at 9% per annum from the date of complaint ie,29/6/2006.  The complainant will also be entitled for cost of Rs.5000/-.  The opposite party/respondent is directed to make the payment within 3 months from the date of receipt of this order failing with the complainant will be entitled for interest at 12% from 22/12/2010.

Office will forward the LCR along with the copy of this order to the Forum.

JUSTICE K.R. UDAYABHANU:PRESIDENT

S. CHANDRAMOHAN NAIR: MEMBER

VL.