GOVIND SINGH RANA vs NEW INDIA ASSURANCE CO. LTD.

THIS is an appeal against the order dated 28.8.1993 passed by the District Forum, Uttarkashi whereby the complaint of the complainant for compensation on the death of his mare was rejected by the learned Forum.

THE complainant has purchased a mare and it was insured with the opposite party, New India Assurance Co. Ltd. for a sum of Rs. 7,000/-. THE insurance was valid from 28.10.1988 to 27.10.1989. On 11.7.1989 the mare rolled down from the hill and died. Information was furnished to the opposite party. THE opposite party vide letter dated 17.7.1989 required the Manager, Distt. Co-operative Bank, Chinyalisaur to furnish certain particulars. THE particulars were submitted. THE tag was not traceable and the same could not be delivered. THE complainant made several requests but the Insurance Company did not hear. THEn he filed the complaint before the learned Forum. Before the learned Forum, the New India Assurance Co. Ltd. filed written statement. It admitted the insurance but alleged in para 2 that the insured mare has not died. The complainant has not produced any authentic evidence in respect of that. The period of insurance is admitted. In additional pleas, it was pleaded that on investigation the case was found to be false and it was accordingly repudiated and the complainant was informed. It was further alleged that tag is necessary to be submitted to the Insurance Company on the death of the mare. It was further alleged that there was no proper post-mortem. The stockman has got no right of post-mortem. Post-mortem report has not been given by Competent Authority. It is further pleaded that the complaint is barred by time.

The learned Forum took the evidence of the parties and rejected the complaint, against which order the present appeal has been filed.

IN the judgment, the learned Forum has written that the complainant is the best person to speak on the death of the mare. According to him on the date of incident he had gone out and he was informed by his brother at Chinyalisaur about the accident and death of the mare. This version of the complainant is not corroborated by the post-mortem report. It has been specifically mentioned in the post-mortem report that Govind Singh was with the mare. The learned Forum held that before the Forum the complainant has categorically stated that he was not with the mare and his brother informed him about the death of the mare. This was major contradiction. The complainant cannot forget whether he was with the mare or not and the doctor cannot mention anything in the post-mortem report without information being furnished by the person concerned. The tag has not been produced. According to the learned Forum, the tag was the best evidence to show that the mare met with accident or not and was in fact insured. The theory of the complainant was found to be incredible, therefore, the learned Forum rejected the complaint. On the ground of limitation also it was said by the learned Forum that the mare died on 11.7.1989 and the claim was put forward before the Forum on 5.2.1993 after 3 years, therefore, it is barred by time. We have heard the learned Counsel for the parties and gone through the records. The first question in regarding the death of the mare. It is true that the stockman was not entitled to do the post mortem but post-mortem is necessary only to know the cause of death and also the identity of the mare. Cause of death has specifically been stated that it rolled down from the hill. The stockman cannot do the post-mortem but he can definitely identify the mare. He has specifically given in his application dated 7.3.1990 to the Inquiry Officer of the Insurance Company that he has seen the mare. It rolled down from the hill and its ear was torn, therefore, tag fell down and was not traceable. The stockman Sh. B.P.S. Bhandari confirmed that this mare belonged to Govind Singh. The doctor has also given in writing that he has countersigned the post-mortem report and has incorrectly written as having done the post-mortem. At least this makes it clear that the mare is dead.

THE Insurance Company did not repudiate the claim on the ground that the mare has not died but on the ground that the tag was not submitted. Tag is also necessary to establish identity but when the tag has been lost after death, how it can be submitted? THE repudiation order has been filed by the Insurance Company and in this repudiation order dated 31.10.1989 it is written that only because the earlier letter has not been replied, the file is closed. This is the entire repudiation order. This does not show the grounds of repudiation. It is true that there has been some discrepancy in the statement of the complainant regarding his presence at the time of death or the post-mortem but definitely the complainant was not present at the time of the death of the mare. THEse contradictions will not go to show that the mare was alive and did not die. In the entire investigation report, the Insurance Company nowhere found the alive mare, nor they could identify any mare to say that this is the mare, which they have insured and it is not dead. Mere denial is of no value and the contradiction will not show that the mare has not died. THE death is there. Tag proves nothing except identity which tag has been lost. Post-mortem proves nothing but cause of death and definitely the mare is said to have died having been rolled down from the hill. Thus the death of mare is established. Its insurance is admitted. THEre is no case of the Insurance Company that the complainant has got number of mares. THEre is also no case that the complainant has removed his mare somewhere else. In a case decided by this Commission reported in 2003 (1) UC 513, National Insurance Co. Ltd. v. Smt. Guddi Devi, we have definitely held that where the complainant has got only one buffalo and there was only one tag, it was insured, if it is dead, the mere non-production of the tag is no ground to reject the claim. Now it is said that the complaint was barred by time. It is said that the repudiation was on 31.10.1989 but the complainant alleged that there was no proper investigation and then thereafter on 7.3.1990 the stockman has given a representation and the doctor has also given his representation on 9.3.1990. On 3.5.1991 the Insurance Company also acknowledged the letter of the complainant dated 24.4.1991 and informed to the complainant that on further receipt of the reply from the Uttarkashi Branch, further reply to the complainant shall be given. In the letter dated 11.1.1993 of the Branch Officer addressed to Anurag Gupta, Advocate, it is clearly written that if the claim has been rejected on any other ground except non-submission of the ear tag, it shall be informed to the complainant in future. This letter clearly shows that the entire ground of repudiation was not informed to the complainant and, therefore, the claim cannot be said to have been finally repudiated. The learned Counsel for the Insurance Company very emphatically argued regarding limitation but in the affidavit of the complainant dated 11.5.1993, it is specifically written that the Insurance Company has appointed Surveyor who investigated the claim of the complainant on 22.2.1990. If the claim has been rejected on 31.10.1989, where is the question of survey on 22.2.1990 and this fact has not been denied by the Insurance Company by any counter affidavit or any other evidence. Not only this to prove his case the complainant applied on 5.8.1993 to the Insurance Company to furnish the survey report of the deceased mare, medical report of the deceased mare and insurance policy but all these papers have not been produced by the Insurance Company and, therefore, it shall be presumed that had these papers been produced, these could have gone against the Insurance Company. The complainant wanted to prove that there was no question of final repudiation on 31.10.1989, the matter was still being investigated by the Surveyor on 22.2.1990 and, therefore, that 22.2.1990 the claim could have been rejected or allowed but at least the complaint was not barred by time, which was filed on 5.2.1993 because in those days the Limitation Act was not amended and within 3 years the complaint could have been filed. The finding of the learned Forum, therefore, that the complaint was barred by time is also to be quashed.

THE death of the mare is proved. Its death by falling down from hill is proved. It is ear tag has been lost due to this falling because of the tear of the ears. THE insurance is proved. THE complaint is within time, therefore, the complaint should have been allowed. THE order under appeal is liable to be quashed. ORDER THE appeal is hereby allowed. THE order under appeal dated 28.8.1993 is hereby quashed. THE complaint is also allowed. THE opposite party, Insurance Company is hereby directed to pay a sum of Rs. 7,000/-, insured amount to the complainant along with interest @ 9% payable from the date of complaint, i.e., 5.2.1993 till the actual date of payment. Cost of the appeal, shall be easy. Appeal allowed.