IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,

Dated this the 23rd day of July, 2010.

Present : Sri. Jacob Stephen (President).

Smt. C. Lathika Bhai (Member)

N. Premkumar (Member)

C.C. No. 08/2009 (Filed on 13.01.2009)

Between:

Bindu. K.S.,

Ambattuparambil House,

Nedumpram P.O.,

Thiruvalla.

(By Adv. Sherin. M. Thomas)                                     ...  Complainant.

And:

Branch Manager,

National Insurance Company Ltd.,

P.O. Box No.37,

Ennikkattil Estate,

M.C. Road, Thiruvalla.        

(By Adv. Sam Koshy)                                                   ....  Opposite party.

ORDER

Smt. C. Lathika Bhai (Member):

                   The complainant has filed this complaint against the opposite party for getting a relief from the Forum.

                   2. The facts of the complaint is as follows:  The complainant is a house wife who had purchased two cows for her livelihood.  The above said cows were insured with the opposite party for an amount of Rs.15,000/- each as per the policy No.570202/47/07/9400000030.  The policy was valid from 11.10.2007 to 10.10.2010.  On 13.10.2007, the cow bearing ear tag No.99932 Bovine Calf at foot seen died.  Immediately, complainant informed the matter to Dr.Jyothi. V. Dev, the veterinary doctor at Nedumpram Veterinary Dispensary.  She examined the cow and confirmed death, after conducting postmortem and he prepared a postmortem report.  As per post-mortem report, the cow died due to septic metritis.  The complainant lodged a claim before the opposite party along with ear tag and post-mortem report.  But the opposite party had not take any step to settle the claim.  The complainant approached several time to opposite party for settling the claim.  After that on 26.08.2008 the complainant had sent a lawyer’s notice demanding to pay compensation for her died cow within 15 days.  But the opposite party has not replied.  The death of the cow was during the valid coverage period.  Hence the opposite party is liable to pay the insured amount of the cow to the complainant.  The non-payment of the insured amount of the complainant’s died cow is a clear deficiency in service from the part of opposite party.  The complainant is entitled to get the insured amount of cow from the opposite party.  Therefore, she filed this complaint for getting the insured amount of cow with interest along with compensation and cost.  The complainant prays for granting the relief.

                   3. The opposite party’s Branch Manager at Thiruvalla has filed a version raising the following contentions:  The complaint is not maintainable either in law or on facts.  The opposite party admitted the policy issued to the complainant’s cow and the receipt of the claim against the cow bearing ear tag No.99932 stating that the cow died on 13.10.2007.  On receipt of the claim an Investigator has been appointed to ascertain the genuiness of the claim.  The cow died just after two days from the commencement of the policy.  The postmortem was conducted by the same doctor who issued certificate at the time of the proposal herself and she would say that she has first seen the animal ill on 12.10.2007 morning the cow was then off feed which itself shows that the certificate issued by her just 2 days back was without any application of mind and proper examination.  The death of the cow just after 2 days of the commencement of the insurance itself shows that the disease was contracted prior to commencement of risk.  Exception 2 of the Cattle Insurance Policy excludes all diseases contracted prior to the commencement of the risk. 

                   4. It is understood from reliable source that the cow was under the treatment of Dr. Balakrishna Pillai who is a retired Deputy Director of Animal Husbandry Department and avoided the treatment of the veterinary surgeon attach to Nedumpram.  The opposite party has rightly came to the conclusion that the insurer was fully aware of the fact that the cow was ill at the time of submitting proposal form which resulted in repudiating the claim.  There is no deficiency in service from the part of opposite party.  Hence the opposite party prays for the dismissal of the complainant.  

                   5. The points for consideration are:

(1)             Whether the complaint is maintainable before this Forum?

(2)             Whether the reliefs sought for in the complaint are allowable?

(3)             Reliefs and Costs?

                     6. The evidence in this case consists of the oral evidence of the complainant as PW1 and Exts.A1 to A7 were marked.  One witness for the complainant, the doctor who examined the cow and conducted postmortem was examined as PW2.  For the opposite party, the Branch Manager, Thiruvalla has filed a proof affidavit and Exts.B1 to B4 were marked.  After closure of the evidence, both sides were heard.

                   7. Point Nos. 1 to 3:  The complainant’s case is that the opposite party had repudiated the insurance claim of her died insured cow, as the cow was contracted disease prior to the commencement of the policy.  The death of the cow was during the valid coverage period.  Hence she is entitled to get the insured amount from the opposite party. 

                   8. In order to prove the complainant’s case, the complainant has adduced oral evidence as PW1 and Exts.A1 to A7 were marked.  Ext.A1 is the Cattle Insurance Policy issued by the opposite party to the complainant’s cow.  Ext.A2 is the premium repayment receipt of Ext.A1.  Ext.A3 is the copy of lawyer’s notice issued by the complainant to the opposite party.  Ext.A4 is the postal receipt of Ext.A3 and Ext.A5 is the acknowledgment card of Ext.A3.  Ext.A6 is the letter given by the doctor who conducted the postmortem of complainant’s cow to opposite party.  Ext.A7 is the death certificate of the complainant’s cow.  Opposite party’s counsel has been cross-examined PW1. One witness for the complainant who issued fitness certificate and fix the ear tag of the complainant’s cow has been examined as PW2.  Opposite party’s counsel has been cross-examined PW2. 

                   9. According to the opposite party, the cow died just after 2 days of the commencement of the policy.  It shows that the disease was contracted prior to the commencement of risk.  Exception 2 of the Cattle Insurance Policy excludes all diseases contracted prior to the commencement of the policy.  The insured was fully aware of the fact that the cow was ill at the time of submitting proposal form, which resulted the repudiation of complainant’s claim.

                   10. In order to prove the contentions of opposite party, the Branch Manager of Thiruvalla has filed a proof affidavit and Exts.B1 to b4 .  Ext.B1 is the fitness certificate issued by the PW2 to the complainant’s cow at the time of proposal.  Ext.B2 is the claim form filed by the complainant before the opposite party.  Ext.B3 is the valuation certificate of the complainant’s cow issued by PW2.  Ext.B4 is the postmortem certificate issued by PW2.

                   11. On going through the evidences in this case, the materials on record shows that the insured cow died 2 days after taking the policy.  Ext.B1 fitness certificate issued by the PW2, column 5 shows that the cow was sound healthy in good condition and free from vice and ever suffered from any disease, illness or ailments.  As per Ext.B1, the complainant’s cow was medically fit for taking the insurance policy at the time of proposal.  Ext.B4 shows that the complainant’s cow died due to Septic Metritis.  At the time of deposition, PW2 deposed that “Exts.A6 and A7 {]Imcw ]ip N¯Xnsâ ImcWw Septic Metritis F¶ tcmKw aqeamWv.  K]m{X¯n infection D­mbn.  B infection blood/span> Ie#182;v D­mIp¶ acW¯n\mWv Septic Metritis F¶p ]dbp¶Xv.  CXv s]s«¶v acWw kw`hn¡p¶ tcmKamWv.  CXnsâ symptoms last stagee ]pdsa ImWm³ Ignbp“.  At the time of cross examination PW2 stated that “10-mw XobXn Rm³ ]iphns\ ImWpt¼mA¶v Blmcw Ign¡p¶p­mbncp¶p“.  The materials on Ext.B1 clearly prove that at the time of taking the policy, the complainant’s cow was in a good healthy condition.  Moreover, as per Ext.A1, 2 cows of the complainant were insured with the opposite party.  The doctor who issued the fitness certificate is conducted the postmortem and find the cause of death is due to Septic Metritis.

                   12. According to the opposite party, the postmortem was conducted by the very same doctor who issued fitness certificate at the time of proposal.  The fitness certificate was issued by her without any application of mind and proper examination.  The death of the cow just after 2 days of the commencement of the insurance itself shows that the disease was contracted prior to commencement of risk.  Exception 2 of the Cattle Insurance Policy excludes all diseased contracted prior to the commencement of the risk.  The opposite party has not produced any evidence to show that the complainant’s cow was contracted the disease before taking the policy or at the time of taking the policy and without disclosing the fact that she had taken the policy.  No investigation report has not been produced by the opposite party proving the prior disease of the cow.  Without producing cogent evidence to corroborate the contentions of opposite party, the contentions raised by them are not sustainable.  The complainant’s cow died due to Septic Metritis.  At the time of death, the cow had valid insurance coverage.  It is the duty of the opposite party to prove the pre-existence of disease to the complainant’s insured cow.  The complainant is entitled to get the insured amount of the cow as per the policy.  In the circumstance, the repudiation of the complainant’s claim is a clear deficiency in service and the opposite party is liable to pay the insured amount to the complainant.  Hence the complainant’s prayer can be allowed.

                   13. In the result, the complaint is allowed, thereby the complainant is allowed to realise Rs.15,000/- (Rupees Fifteen thousand only) as the insured amount of the cow as per Ext.A1 policy with an interest @ 8% per annum from the date of filing of this complaint along with a cost of Rs.1,500/- (Rupees One thousand five hundred only) from the opposite party.  The opposite party is directed to pay the amount within 2 months from the date of receipt of the order, failing which an interest @ of 9% per annum will be followed to the above said amount till the whole payment.`

                   Pronounced in Open Forum on this the 23rd day of July, 2010.

                                                                                                         (Sd/-)

                                                                                                C. Lathika Bhai,

                                                                                                     (Member)

Sri. Jacob Stephen (President)        :         (Sd/-)

Sri. N. Premkumar (Member)       :         (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :`       Bindu. K.S.

PW2  :         Dr. Jyothi. V. Dev.

Exhibits marked on the side of the complainant:

A1     :         Cattle Insurance Policy issued by the opposite party to the

                      complainant’s cow.

A2     :         Premium repayment receipt of Ext.A1.

A3     :         Copy of lawyer’s notice issued by the complainant to the

                     opposite party.

A4     :         Postal receipt of Ext.A3.

A5     :         Acknowledgment card of Ext.A3.

A6     :         letter dated 13.10.2007 sent by the Veterinary Surgeon who        

                     conducted the postmortem of complainant’s cow to the   

                     opposite party.

A7     :         Death certificate dated 13.10.2007 of the complainant’s cow.

Witness examined on the side of the opposite party :  Nil.

Exhibits marked on the side of the opposite party:

B1     :         Veterinary Surgeon’s Certificate dated 10.10.2007.

B2     :         Claim for loss of Live Stock (Claim notice No.1/07).

B3     :         Valuation Certificate 17.10.2007.

B4     :         Postmortem Certificate dated 17.10.2007.

                                                                                                (By Order)

Senior Superintendent.

Copy to:  (1)  Bindu. K.S., Ambattuparambil House, Nedumpram P.O.,

                        Thiruvalla.

                 (2)  The Branch Manager, National Insurance Company Ltd.,

                        P.O. Box No.37, Ennikkattil Estate, M.C. Road, Thiruvalla.

                (3)   The stock file.