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2003 DIGILAW 83 (UTT)

NEW INDIA ASSURANCE CO. LTD. v. GOVIND SINGH

2003-07-15

K.D.SHAHI, LUXMI SINGH, SURENDRA KUMAR

body2003
ORDER Mr. Justice K.D. Shahi, Chairman—This is Insurance Company’s appeal against the judgment and order dated 6.8.2002 passed by District Forum, Tehri Garhwal, wherein the complaint of the complainant was allowed against the Insurance Company for recovery of Rs. 10,000/- as insured amount after the death of the buffalo. 2. When the Consumer Protection Act came into force, it was intended to give relief to the consumers. But these type of cases have also turned into technical litigations in the hands of legal and qualified persons representing the interest of the parties. 3. The brief facts of the case are that Shri Govind Singh has insured his buffalo. It died. He claimed for compensation against the New India Assurance Co. which is said to have insured the buffalo and the Manager, Ganga Yamuna Gramin Bank. It is said that the buffalo died on 5.9.1999. It was examined by the doctor on 6.9.1999. Information was given to the opposite party on 7.9.1999. The complainant completed the entire formalities. Still, his claim was repudiated by the Insurance Company, therefore, he filed the complaint. 4. The facts which emerged out from the evidence of the parties are that the complainant has purchased one buffalo in January, 1999. He purchased the disputed buffalo in June, 1999. This is the buffalo of June, 1999 which died on 5.9.1999. The tag number of the buffalo purchased in January is said to be 081500/7230 and the tag number of the buffalo purchased in June was 1360/98/321903. The complainant submitted his claim form to the Bank and the Bank forwarded it to the Insurance Company. The Bank attached the cover note of the buffalo purchased in January, 1999. It did not attach with the claim any insurance paper of the buffalo purchased in June, 1999. There was no option with the Insurance Company except to repudiate the claim. Even in the appeal, the complainant could not show any cover note or policy issued after June, 1999. If the buffalo is purchased in June, 1999, it could have never been insured in January, 1999. It was argued by the learned Counsel for the complainant that the insurance is done through the Bank and it is the duty of the Bank to deposit the premium and get the cover note or policy and to hand over it to the complainant. It was argued by the learned Counsel for the complainant that the insurance is done through the Bank and it is the duty of the Bank to deposit the premium and get the cover note or policy and to hand over it to the complainant. The complainant is not aware whether of the buffalo purchased in June, 1999, any premium was deposited or not and whether any cover note was issued. From the record, it appears that the Bank has not paid the premium or got the buffalo purchased in June, 1999 insured, but when it died, to avoid their liability, they attached the insurance papers of the buffalo purchased in January, 1999. Such a claim could never have been allowed by the Insurance Company. 5. The opposite party No. 1, the Bank did not contest the claim before the Forum. It appears that they were aware of their negligence or omission or deliberate mischief. Therefore, they did not prefer to contest. 6. The learned Forum did not enter into main controversies, but it decided that since in the claim form, the tag number was correctly written, therefore, the Insurance Company should pay the amount. How the learned Forum has held that from the perusal of the insurance paper, it is clear that the buffalo which died was insured from the period 16.1.1999 to 15.1.2002. How it could have been possible when on 16.1.1999 this buffalo was not purchased ? 7. The deficiency in service, if any, was of the Bank which it appears did not send the premium of the buffalo purchased in June, 1999. Even if it had sent the premium and got a cover note then also there was deficiency in service by attaching the cover note of the buffalo purchased in January, 1999. Therefore, the claim should have been allowed against the opposite party No. 1, the Bank and not against the Insurance Company. The claimant was not entitled to any compensation unless it is proved that the buffalo was insured. If the Bank has defaulted in not getting the insurance it is the Bank which should have paid the compensation. 8. To the bad luck of the complainant, the claim petition has been dismissed against the Bank and no appeal has been filed by the claimant that it be decreed against the Bank. If the Bank has defaulted in not getting the insurance it is the Bank which should have paid the compensation. 8. To the bad luck of the complainant, the claim petition has been dismissed against the Bank and no appeal has been filed by the claimant that it be decreed against the Bank. However, the Insurance Company has filed the appeal against the complainant as well as the Bank. Here, too, the Bank did not appear to contest. Therefore, the appeal was also heard ex parte against the Bank. The question is, whether the complaint could be allowed against the Bank here in the absence of the Bank. Even if we proceed to allow, we find that the complaint has also been badly drafted although it appears to have been drafted by some Advocate. The claimant has claimed Rs. 10,000/- from the Insurance Company. Why the Insurance Company will pay it unless the insurance is proved ? Then the claimant has claimed only a sum of Rs. 5,000/- against the Bank. No claim can be allowed against the Bank beyond the relief claimed for. If the claimant has not claimed the total sum from the Bank and has claimed only Rs. 5,000/-, we cannot allow it for Rs. 15,000/- against the Bank. 9. The case has not met a fair trial in the hands of the learned Counsel for the complainant and the District Forum also did not go into the controversies properly. On the facts and evidence on record, no deficiency in service against the Insurance Company is proved and the deficiency in service, if any, was by the Bank. As said in the first few lines of the judgment, merely for technicality, a poor consumer should not suffer in the hands of the lawyers and Forum. At least, a direction may be given by the State Commission to give justice to the party by a fair trial considering the case of the parties and in the circumstances as such, it is proper to remand the case for fresh hearing in the light of the observations made in the body of this judgment. A fresh notice shall be issued to the Bank also along with a copy of this judgment to appear in the Forum if they prefer to do so. ORDER The appeal is allowed. A fresh notice shall be issued to the Bank also along with a copy of this judgment to appear in the Forum if they prefer to do so. ORDER The appeal is allowed. The judgment and order dated 6.8.2002 passed by District Forum, Tehri Garhwal is, hereby, set aside. The case is remanded to the learned Forum to decide it afresh in the light of observations made in the body of this judgment after allowing sufficient opportunities to the parties to prove their case against each of the opposite party individually and separately. Cost of this appeal shall be easy. Appeal allowed. ––