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2003 DIGILAW 4 (UTT)

New India Assurance Co. Ltd. v. Bhagwan Das

2003-01-17

K.D.SHAHI, LUXMI SINGH, SURENDER KUMAR

body2003
JUDGEMENT. This appeal has been filed by the New India Assurance Co. Ltd. against the judgment and order dated 20.11.2000 passed by the District Forum, Uttarkashi in Complaint Case No.1 07 of 1999 (Bhagwan Dos v. New India Assurance Co. Ltd.). 2. The facts of the case are that in 1996, the complainant Shri Bhagwan Das took a loan of Rs. 21,000/- for the purchase of two mules. The mules were insured with the appellant, the insurance was for three years. On 20.1.1999 one mule died. Information was given to the bank and the Insurance Company and the veterinary doctor. On 26.1.1999, the doctor came on the spot and did the postmortem. After the postmortem, the claimant filled a claim for a sum of Rs. 10,500/- before the Insurance Company, which repudiated the claim, thereafter the claim petition was filed before the District Forum. 3. In the written statement, the Insurance Company took the plea that the identity of the mule was not established. The mule which died was purchased in 1998, whereas the mule which was insured was purchased in 1996. The complaint had come with the false case. 4. After hearing the parties, the learned Forum allowed the claim for recovery of Rs. 10,500/- alongwith the interest at the rate of 12% pr annum. 5. The only question which arose for determination in this appeal was whether the complainant could be able to establish the identity of the mule. 6. The mule was purchased in 1996. It is said to have been insured for three years. It is furher said that the same mule died. But when the survey was being made, the complainant gave the statement that the mille which died was purchased in 1998. It is alleged in the written argument of the claimant as also it was argued by the learned counsel for the complainant that the surveyor got the signature on blank paper. He did not record any evidence., Had it been so where from the surveyor could have got the informations as written in the survey report. The surveyor has further report that the colour of the animal dead and that which was insured is different. Even if the year' of purchase is taken to be mistaken statement or wrong recording but there is no reason to dis-believe the doctor who made the postmortem. The surveyor has further report that the colour of the animal dead and that which was insured is different. Even if the year' of purchase is taken to be mistaken statement or wrong recording but there is no reason to dis-believe the doctor who made the postmortem. In the postmortem report, it is specifically written statement of - the doctor recorded by the surveyor, the doctor has specifically stated that the owner has taken out the tag from the ear of the dead mule. If seen in this context, the statement of the complainant in case becomes false that he has signed on a blank paper rather he has stated that the tag was with him and not in the ears of the mule at the time of the postmortem. The counsel for the complainant argued that the same tag is reported to be with the mule. In the surveyor's reports the tag was there and it must have been written in the papers on the in formation of the complainant, the question is where it was at the time of the postmortem and this is clear from the evidence that it was not at the ears of the deceased mule but was in the hands of the complainant. The complainant has filed the affidavit on Jaina Devi who is the Pradhan of the village who has alleged that she was there at the time of the postmortem and the tag was in the ears of the dead mule. Firstly, the Pradhan is the head of the village, she has to collect votes, secondly her presence is not certified from the papers. If she was present at the time of the postmortem. she should have signed the postmortem report in the earlier statements of the complainant or the doctor, there is no evidence to show the presence of Jaina Devi. They never stated that Jaina Devi was present there. One doctor has filed affidavit to show the tag number but the doctor was not present at the time of the postmortem, he has verified the tag number only from records. He could not be a witness of the fact whether the tag was in the hands of the complainant or it was in the ears of the cattle. One doctor has filed affidavit to show the tag number but the doctor was not present at the time of the postmortem, he has verified the tag number only from records. He could not be a witness of the fact whether the tag was in the hands of the complainant or it was in the ears of the cattle. There was no reason for the removal of the tag from the ear of to cattle had it been genuine claim, the tag would have been there in the ears of the mule. 7. The insurance Company is not a witness of the death or the identity of the mule, it has only to verify it from the statement of the doctor, the complainant and the surveyor report. According to the statement of the complainant which is perhaps in his own writing, the tag was not there in the ear of the mule. The surveyor reports the colour of the mule was different, the mule who dead was purchased in December 1998, whereas the mule which was insured was purchased in 1996, the tag was not there in the ear of the cattle. According to the statement of the local persons, the insured has already sold the mule which he has purchased in 1996. The tag was not taken off in the presence of the veterinary doctor. The statement of the doctor who has done the postmortem is specific that the tag has been taken out before the postmortem although the tag which was producted tally with the number of the mule insured. All these were substantial grounds for the Insurance Company to reject the claim. It has been decided by the National Commission in the ruling reported in I (1992) CPJ 36 (NC), M/s. Rajdeep Leasing & Finance v. New India Assurance Company that where the Insurance Company has rejected the claim after proper application of mind after holding an investigation, the petition does not lie in the forum. The complainant can file" civil suit in the court of competent jurisdiction. 8. Since the tag was not in the ear of the deceased mule, the identity of the mule is not at all established that it was the same mule which was insured and in the circumstances the Insurance Company was entitled to repudiate the claim. 9. The complainant can file" civil suit in the court of competent jurisdiction. 8. Since the tag was not in the ear of the deceased mule, the identity of the mule is not at all established that it was the same mule which was insured and in the circumstances the Insurance Company was entitled to repudiate the claim. 9. The learned forum allowed the claim merely because the tag was produced and a dead mule was there but it was the duty of the complainant to have establised the identity. The appeal deserves to be allowed. ORDER The appeal is hereby allowed. The judgment and order passed by the Forum on 20.11.2000 is hereby set aside. Complaint is dismissed. However, the complainant is free to file a suit in the civil court of competent jurisdiction where the judgment and order pronounced by the District Forum or this State Commission shall not be treated as expression of opinion on any point of dispute. Cost of the complaint as well as this appeal shall be easy.