Order by:

Sh.Amrinder Singh Sidhu, President

1.       The complainant  has filed the instant complaint under section 35 of the Consumer Protection Act, 2019  on the allegations that he insured his two cows bearing Tag No.19682 and 19683 with Opposite Parties vide policy No.OG-20-1213-5002-00000081 for Rs.60,000/- each valid for the period w.e.f. 16.07.2019 to 15.07.2020. Further alleges that during the policy  period, one insured cow bearing tag No. 19682 died on 26.01.2020 and due intimation was given to the Opposite Parties. The Opposite Parties got conducted post mortem on the dead cow and thereafter, the complainant lodged the claim  for the payment of the insurance amount of dead cow  and also completed all the formalities, but the Opposite Parties repudiated the claim of the complainant without any valid reason.    In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint.  Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties may be directed to pay the insured amount of Rs.60,000/- of dead insured cow alongwith interest @ 12% per annum and also to pay Rs.10,000/- as compensation on account of mental tension, physical harassment and Rs.5000/- as costs of litigation  or any other relief to which this District Consumer Commission may deem fit be also granted.

2.       Opposite Parties  appeared through counsel and contested the complaint by filing  the written version  on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Parties and that the complaint is absolutely false and frivolous.  The intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure  under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Party. In fact, after receipt of intimation of loss on 27.01.2020, the carcass was inspected by an independent investigation agency and found that the description of dead cattle mismatches with the description of cattle insured vide tag No. 19682 and colour front leg of dead cattle differs with the colour of cattle insured with them as compared with pre inspection photographs. Thereafter, after due application of mind, the claim of the complainant was repudiated vide letter dated 04.03.2020. On merits, the Opposite Parties took up the same and similar pleas as taken up by them in the preliminary objections.  Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.

3.       In order to  prove  his  case, the complainant has tendered into evidence his affidavit Ex.C1  alongwith copies of documents Ex.C2 to Ex.C8 and closed his evidence.

4.       On the other hand,  to rebut the evidence of the complainant,  Opposite Parties tendered into evidence affidavit of Sh.Saurav Khullar Ex.OP1  alongwith copies of documents Ex.OP2 to Ex.Ops12 and closed the evidence on behalf of the Opposite Parties.

5.       We have heard the ld.counsel for the parties and  gone through the documents placed  on record.

6.       During the course of arguments, ld.counsel for the Complainant has  mainly reiterated the facts as narrated in the complaint and  contended that  the written version  filed on behalf of Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party.  Further contended that the  complainant insured his two cows bearing Tag No.19682 and 19683 with Opposite Parties vide policy No.OG-20-1213-5002-00000081 for Rs.60,000/- each valid for the period w.e.f. 16.07.2019 to 15.07.2020. Further alleges that during the policy  period, one insured cow bearing tag No. 19682 died on 26.01.2020 and due intimation was given to the Opposite Parties. The Opposite Parties got conducted post mortem on the dead cow and thereafter, the complainant lodged the claim  for the payment of the insurance amount of dead cow  and also completed all the formalities, but the Opposite Parties repudiated the claim of the complainant without any valid reason.

7.       On the other hand, ld.counsel for the Opposite Parties  has repelled the aforesaid contention of the ld.counsel for the complainant  on the ground that first of all, the  intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure  under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Party. In fact, after receipt of intimation of loss on 27.01.2020, the carcass was inspected by an independent investigation agency and found that the description of dead cattle mismatches with the description of cattle insured vide tag No. 19682 and colour front leg of dead cattle differs with the colour of cattle insured with them as compared with pre inspection photographs. Thereafter, after due application of mind, the claim of the complainant was repudiated vide letter dated 04.03.2020.

8.       Perusal of the contention of the ld.counsel for the complainant   shows  that  the written version  filed on behalf of Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party.  In this regard, Hon’ble Supreme Court of India in case titled as Shubh  Shanti  Services  Limited  v.  Manjula S.Agarwalla and others (2005) 5 SCC 30, decided on 11.05.2005 has  and observed to the following effect:

 “..............As already stated, it has not been  averred in the plaint nor sought to be proved that  any resolution had been passed by the Board of  Directors  of  the  plaintiff  company  authorising  Shri A.K. Shukla to sign, verify and institute the  suit.   It  has  also  not  been  averred  that  the  memorandum/articles of the plaintiff company give ny right to Shri A.K. Shukla to sign, verify and  institute  a  suit  on  behalf  of  the  plaintiff  company.  It, therefore, follows that the plaint  has been instituted by Shri A.K. Shukla only on  the  authority  of  Sh.  Raj  K.Shukla,  CEO  of  the  plaintiff  company.   Such  an  authority  is  not  recognized under law and, therefore, I held that  the  plaint  has  not  been  instituted  by  an  authorised  person.   Issue  No.1  is  accordingly,  decided against the plaintiff and in favour of the  defendants.”

Further,  Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment,  has held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Recently Hon’ble State Consumer Disputes Redressal Commission, Punjab at  Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by  an unauthorized person has no legal effect.

9.       For the sake of arguments, for the time being, if the written reply filed by Opposite Parties is presumed to be correct, the next  plea  raised by the Opposite Parties is that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure  under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court and this  District Consumer Commission has no jurisdiction to try and decide the present complaint. So far as the objection that complicated question of the fact is involved as such the Insured be relegated to go before Civil Court, is concerned, The Consumer Protection Act, 1986 (as amended upto date) (hereinafter referred to as the Act) was enacted with object to provide for better protection of the interests of the consumers and for that purpose, to make provision for the establishment of consumer council and other authorities for settlement of consumer disputes and other matter connected therewith. Section 13 (4) confers same powers upon the authorities under the Act, which are vested in Civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of (i) The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavits, (iv) the requisitioning of the report of the concerned analysis or test the appropriate laboratory or from other relevant source, (v) issuing of any commission for the examination of any witness and (vi) any other matter which may be prescribed. The authorities are conferred jurisdiction to decide the issue of “unfair trade practice” which has been defined under Section 2 (r) of the Act. This definition is similar to the definition of “fraud” as given under Section 17 of Indian Contract Act, 1872. From these provisions it is clear that this Commission can hold a full trail as held by civil court or adopt summary procedure for decision of any complaint. Under the Act, although the jurisdiction of the authorities is limited to consumer complaint, but while deciding such complaint no limit has been fixed for adjudicating of the dispute. Three Judges Bench of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services and the benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. Under the Act, the consumers are provided with an alternative efficacious and speedy remedy. As such the Consumer Forum is an alternative forum established under the Act to discharge the functions of Civil Court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (In paragraph-12). Similar view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233.  Hon’ble National Commission, New Delhi in CC No. 101 of 2009 titled as Mahalaxmi Dyes & Chemicals Ltd. Vs. New India Assurance Company Limited decided on 07.09.2021 also held so.  Hence, this District Consumer Commission is  not convinced with the aforesaid contention of the ld.counsel for the Opposite Party.

10.     Further contention of the ld.counsel for the Opposite Parties is that immediately after receipt of intimation of loss on 27.01.2020, the carcass was inspected by an independent investigation agency and found that the description of dead cattle mismatches with the description of cattle insured vide tag No. 19682 and colour front leg of dead cattle differs with the colour of cattle insured with them as compared with pre inspection photographs. Thereafter, after due application of mind, the claim of the complainant was repudiated vide letter dated 04.03.2020, but we do not agreed with the aforesaid contention of the ld.counsel for the Opposite Parties. Bare perusal of the investigation report of Sh.Om Parkash dated 06.02.2022 (Ex.OP3) submitted by the Opposite Parties shows that said investigation has specifically mentioned under the head Findings and Conclusion of the Investigator  to the following affect:-

“1. That the one insured cow bearing ear tag number 19C-19682 colour black and white owned by Sh.Jarnail Singh son of Sh.Virsa Singh, R/O Maste Wala Road, Kot Ise Khan, Tehsil: Dharamkot, District Moga was died on 26.01.2020  at 1930 hours.

2.       Tat the Ear tag number 19C-19682 of animal was intact in the right ear and the description of died cattle matches with the description of cattle insured bearing  tag No.19C-19782 as pre-Inspection photographs and health certificate.” 

When there is specific report of Sh.Om Parkash dated 06.02.2022 (Ex.OP3) submitted by the Opposite Parties themselves, in which it is clearly mentioned that insured cow bearing ear tag number 19C-19682 colour black and white owned by Sh.Jarnail Singh son of Sh.Virsa Singh, R/O Maste Wala Road, Kot Ise Khan, Tehsil: Dharamkot, District Moga was died on 26.01.2020  at 1930 hours and that Ear tag number 19C-19682 of animal was intact in the right ear and the description of died cattle matches with the description of cattle insured bearing  tag No.19C-19782 as pre-Inspection photographs and health certificate, then how the description of dead cattle mismatches with the description of cattle insured vide tag No. 19682.

11.     In such a situation the repudiation made by the Opposite Party-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.  The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

12.     In view of the above discussion, we hold that the Opposite Party-Insurance Company have wrongly and illegally rejected the claim of the complainant. Resultantly, the instant complaint is allowed and the Opposite Parties are directed to pay the insured amount of Rs.60,000/- (Rupees sixty thousands only) of dead buffalo  bearing tag No. 19C-19682, to the complainant  alongwith interest @8 % per annum from the date of filing the present complaint i.e. 07.09.2020 till its actual realization. Opposite Parties are also directed to pay the lump sum compensation to the complainant to the tune of Rs.10,000/- (ten thousands only) on account of harassment, mental tension  and litigation expenses. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

13.     Reason for delay in deciding the complaint.

          This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated:21.04.2022.