DOF.3.10.2009 DOO.1.4. 2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy : Member Dated this, the 1st day of April 2011 CC.266/2009 Vengara Savithri, W/o/Kunhikrishnan, Umesh Bhavan, P.O.Kuthuparamba, Complainant (Rep. by Adv.K.K.Balaram) Divisionaal Manager, Oriental Insurance Co. Ltd., Ramakrishna Building, Aristom Junction Cast., Thambanur, Thiruvananthapuram. (Rep. by Adv.P.P.Venu) Opposite parties O R D E R Smt.KP.Preethakumari, Member This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite party to pay the insurance claim amount of `15,000 along with ` 10000 as compensation and cost. The case of the complainant in brief is that three cross breed milch cow of the complainant’s were insured with the opposite party under the cattle Insurance Scheme each for a coverage of ` 15000 on 7.2.09 with a policy having No.442301/47/2009/53949. The opposite party has fixed ear tag separately to the ear of each cow as an identification mark. The period of insurance is from 7.2.09 to 6.2.12. The complainant is looking after the animals as per the direction of the veterinary surgeon of that area by providing sufficient and proper food, water, hygienic shelter and also by vaccinating them properly. Moreover at the time of taking policy the complainant has produced vaccination certificates also. In short the complainant is looking after the milch cows with proper precautions and safeguard against loss. But unfortunately on 29.3.09 one of the milch cows having Ear tag No.67431/40000 suddenly fallen down by slipping its leg. Soon after the incident the veterinary surgeon came and examined the cow. But at the time of examination the ear tag was lost due to the sudden unwilling act of the cow. Even though proper search was done for finding out the ear tag, it was not become fruitful. The veterinary surgeon had retagged the ear with an ear tag having No.OIC 440000/68868 and he had informed the same to the opposite party. But instead of giving proper treatment and proper care and attention, it has taken its last breath on 5.4.09 at 8 p.m. The veterinary surgeon conducted postmortem on 6.4.09 at 7.30 a.m. The above said veterinary surgeon had issued a letter to opposite party stating all these facts and also requested for claim form. The complainant also issued a letter to opposite party for allowing the claim. The complainant had submitted the duly filled claim form along with documents and with the certificates of veterinary surgeon. But they repudiated the claim on the ground that the number of the ear tag which was submitted along with the claim form is differs from that tagged on the ear of the cow at the time of issuing policy. But the veterinary surgeon has retagged the ear tag only after identification by him as per the details shown in the insurance policy and the same was also informed the company. So the repudiation of the claim amounts to deficiency of service and unfair trade practice. So without intervention of the Forum the opposite party will not allow the claim amount to them. Hence the complaint. Upon receiving notice from the Forum, opposite party entered appearance and filed version contending that the complaint is not maintainable before the Forum, Since the complainant has filed the complaint without taking steps for arbitration proceedings. The opposite party further contended that they have insured only one cattle as per the policy mentioned in the complaint and issued a ear tag having No.67431/40000. So the opposite party has the risk and liability only to indemnify the cattle which was insured as per the above policy and the ear tag number. The opposite parties denied the contention that the above said ear tag was lost at the time of examination of veterinary surgeon and re-tagged the ear of the cow after verifying the identification marks as per policy by the above said veterinary doctor and he had informed the same to the opposite party etc. According to the opposite party the ear tag was not lost and the loss of ear tag was not informed to the opposite party. So the claim was submitted by the complainant is for some other cattle. If the complainant has informed the same to the opposite party they will issue a new ear tag and its number will be recorded in the policy and schedule. But in this case no such recordings are seen in the policy or schedule. Policy condition itself shows “No tag No claim’. So without producing the ear tag having the number which was mentioned in the policy the opposite party cannot allow the claim. So there is no deficiency of service on the part of opposite party. More over it is not specifically mentioned in the complaint about who had identified the cow and who had retagged the ear tag etc. So there is no deficiency of service on the part of opposite party and hence the complaint is liable to be dismissed. Upon the above contention the following issues have been raised for consideration. 1. Whether the complaint is maintainable before the Forum? 2. Whether there is any deficiency on the part of opposite party? 3. Whether the complainant is entitled for the relief as prayed in the complaint? 4. Relief and cost. The evidence consists of oral evidence of PW1, PW2, Exts. A1 to A12, MO1 and Ext.B 1. The opposite party contended that the complaint is not maintainable before the Forum since the complainant has filed the complaint without taking steps for arbitration proceedings. But in sky park couriers Ltd.Vs.Tata Chemicals the Hon’ble Apex court held that even if there exists an arbitration clause in an agreement and a complaint is made by a consumer in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the redressal agency constituted under the act, since the remedy provides under the Act is addition to the provisions of any other law for the time being in force and the same was reported in AIR 2000 SC 2008 and 2009. So it is found that the complaint is maintainable before the Forum and hence issue No.1 is found in favour of the complainant. Issue Nos.2 to 4 The complainant’s case is that the opposite party ha repudiated the claim by saying that the complainant has not produced the relevant ear tag, even though she has produced the ear tag. In order to prove her case her husband was examined as PW1, the veterinary doctor was examined as PW2 and produced documents such as photocopies of the policy schedule, letter issued to the opposite party by the complainant, photocopy of the claim form, treatment certificate, valuation certificate, postmortem report, letter from opposite party for producing ear tag etc. later on as per the petition filed by the complainant for cause production of document, the opposite party has produced documents such as claim form filed by the complainant, claim application filed along with the documents issued by the doctor i.e. Valuation certificate postmortem report, letter informing that the ear tag was retagged etc. The opposite party has produced the retagged ear tag as MO1.The opposite party contended that the claim was repudiated as per the conditions of the policy “No tag No claim”. Since the complainant has produced another tag having No.68868/OIC 440000. But at the time of issuing policy the tag number noted in the policy is 67431/4000. According to the complainant the tag which was tagged by the insurance company was lost when the cow was struggled to get up at the time of treatment by the doctor on 29.3.09 and another tag having No.68868/OIC 440000 was tagged by the veterinary doctor as per her request after identifying the cow as per the details shown in the policy. The above said doctor was examined as PW2. But the insurance company contended that the complainant had collected the ear tag some where else and applied for claim for a cattle which was not insured. But the complainant contended that the ear tag was tagged as per the scheme of the animal husbandry department and hence the tag was tagged by a veterinary doctor. But the opposite party has not challenged this version of the complainant that the animal was insured through the scheme of animal husbandry department. In order to disprove the case of the opposite party the complainant had examined the veterinary doctor as PW2. He deposed that “insurance company bpsS A\p-hm-Z-an-ÃmsX Hcn-¡Â insure sNbvX ]ip-hn\v doSmKv sN¿m³-F-\n¡v A[n-Im-c-ap-v. Fs¶ ImWn¨ 10.4.09 se I¯v {]Im-c-amWv ]pXnb tag fix sNbvX Imc-yT Rm³ insurance company sb And-bn-¡p-¶Xv.Tagamdp-¶Xv 29.3.09emWv .The veterinary doctor further deposed that “ sNhn-bpsS Zzm-c-c-hpT If-dpT t\m¡n-bmWv ]ip-hns\ Xncn-¨-dn-ª-Xv. Insurance policy {]Im-c-ap-ff colour tally sNbvXn-cp¶p “. From the above deposition of PW2 veterinary doctor it is proved that he had retagged the MO1 ear tag to the cow instead of that mentioned in the policy. The opposite party has not produced any document to show that he has no such authority even as per the scheme of animal husbandry department. The opposite party contended that the doctor is giving evidence in order to help the complainant. But the opposite party has not disputed that the re-tagged ear tag is not belonging to the company. Instead of that they contended that the complainant had obtained the tag from some where else. But the opposite party is the best person to say that “From where it was received by the complainant because they are keeping the details for the ear tags given to insured cattle’s. So if it so they can very well produce that documents. More over if the above ear tag is supplied to any other animal after its death it will have to be surrendered before the company for the insurance claim of that animal for the insurance claim of that animal. So such contention put forwarded by the company is only to escape from the liability. The doctor deposed that “Fsâ ssIbn ear tag kq£n-¡m-dpv“. But the opposite party has no case that they are not issuing the ear tag to doctors. More over nothing is brought before us to disbelieve the words of the veterinary doctor. The Ext.A12 photos shows that the died animal is black in colour and the colour shown in policy schedule is also black. Above all the opposite party has not produced any documents to show that what is the remedy available to the complainant if the ear tag is lost. From the evidence it is clear that the ear tag was lost on 29.3.09 and it was retagged and the same was informed to the company on 10.4.09. Meanwhile the cow was died. So for the interest of natural justice also we are of the view that the same was informed the opposite party within a reasonable time. So from the above discussion we are of the view that the ear tag in question i.e. MO1 is retagged to the same animal which was insured as per B1 policy by the PW2 Veterinary doctor, since the original ear tag was lost and the same was informed to the company by the doctor within a reasonable time and hence the complainant is entitled to the claim amount. So we are of the opinion that there is deficiency of service on the part of opposite party in repudiating the claim. So the opposite party is liable to pay `1000 as cost to the complainant along with the claim amount of `15000 and order passed accordingly. In the result, the complaint is allowed directing the opposite party to pay the claim amount of `15,000 (Rupees Fifteen thousand only) along with `1,000 (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the policy schedule issued by OP A2.Copy of the letter sent to OP A3.Copy of the claim form dt.15.5.09 A4.Copy of treatment certificate issued by Dr.S.Raviprasad A5.copy of the valuation statement A6.Copy of the postmortem report A7.Letter dt.6.8.09 issued by OP A8.Copy of the letter sent to OP dt.21.4.09 A9.Letter Dt.10.4.09sent by Dr.S. Raviprasad to OP. A10. Claim form dt.15.5.09 A11.Postmortem report Exhibits for the opposite party: B1. Copy of the policy schedule issued by OP Exhibits for material object MO1.Ear tag of the cow Witness examined for the complainant PW1.Complainant PW2.Dr.S.Raviprasad Witness examined for the opposite party: Nil /forwarded by order/ Senior Superintendent Consumer Dispute Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
