C.C filed on : 15/02/2016
Disposed on:31.08.2016
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, TUMKUR
DATEDTHISTHE 31st DAY OF AUGUST – 2016
C.C. NO. 21 OF 2016
:PRESENT:
SMT. PRATHIBHA. R.K. PRESIDENT, BAL LLM.
SRI. D. SHIVAMAHADEVAIAH, B.A. LLB, MEMBER
SMT. GIRIJA, B.A. LADY MEMBER
COMPLAINANT/S:
Nagaraju S/o Rangaiah
A/a 40 years,
Residence:Banasandra,
Turuvekere Taluk,
Tumkur District.
(OP By Sri/Smt. G.Sreepathi - Advocate)
-V/s-
OPPOSITE PARTY/IES
1. Divisional Manager,
United India Insurance Co., Ltd.,
Divisional Office,
Jayadeva Complex, B.H.Road,
Tumkur – 01.
2. Branch Manager,
United India Insurance Co., Ltd.,
Micro Office : 1st Floor,
Jyothi Provision Stores,
B.S.Road, Near Post Office,
Turuvekere – 572 221.
3. Dr.Thejashwini, KVC No.5235,
Veterinary Doctor & Advisor,
Tumkur Milk Federation (TUMUL),
Turuvekere Taluk.
4. The Secretary,
Milk Producers Sahakara Sangha Niyamitha,
Banasandra, Turuvekere Taluk.
(OP No.1 By Sri/Smt. H.M.Nagabhushan - Advocate)
(OP No.2 – Ex-parte)
(OP No.3 – Given up)
(OP No.4 – Ex-parte)
BY SMT. PRATHIBHA. R.K. - PRESIDENT
-:O R D E R:-
The complainant has filed this complaint U/s 12 of the Consumer Protection Act 1986 alleging deficiency of service on the part of OPS and prays to direct the OPS to pay Rs.60,000/- towards insurance policy along with 12% interest till realization, Rs.50,000/- towards mental, Rs.25,000/- towards cost and Rs.86,400/- along with 12% interest towards loss suffered by the complainant till today.
The brief facts of the complaint is as under:-
2. The OP No.4 insured the complainant’s two H.F. cows for Rs.30,000/- each with the OP Nos. 1 & 2 by paying premium of Rs.389 each in the amount payable to the complainant towards payment of milk. In this regard, the OP No.2 has issued receipt for Rs.19,061/- for 39 members / farmers on 07/10/2015 under voucher No.10207148615105009132 and payment I.D.No.115071485105005614. The complainant submitted that the policy bearing Nos.0714854715 and 108069483 issued by the OP Nos. 1 & 2 with regard to his two cows is valid from 07/10/2015 to 06/10/2016. The OP Nos.1 & 2 after obtaining the policy from the complainant has put the ear tags bearing Nos.808656 & 808430 to the complainant’s two cows through OP No.3.
The complainant further submitted that his two cows were hail and healthy and giving milk regularly, but suddenly the cow bearing ear tag No.808656 died on 13/10/2015 and another cow bearing ear tag No.808430 died on 14/10/2015. Thereafter on the request of the complainant and on the advice of OP No.2, the OP No.3 did the post mortem of the cows and in that regard the OP No.3 issued certificate with regard death of cows and same has been produced by the complainant as Ex.C2 and C3.
The complainant further submitted that the OP Nos. 1 & 2 have rejected the complainant’s claim towards insurance of his two cows stating that the cows were dead after a week from the date of obtaining the policy. Hence, the complainant issued legal notice to the OP No1 to 3. In spite of receipt of legal notice, the OP Nos. 1 to 3 neither settled the claim nor replied to the legal notice.
The complainant further submitted that his two cows were hale and healthy and each cow gave 12 to 18 liters of milk a day and the OP Nos. 1 & 2 in spite of receipt of premium amount failed to issue insurance certificate to the complainant and thereby the OP Nos. 1 & 2 have committed deficiency of service.
The complainant further submitted that even though the policy was in force, the OP Nos. 1 & 2 have rejected the claim of the complainant and thereby the complainant suffered monetary loss of Rs.86,400/- per annum due to the deficiency of service on the part of OPS. Hence, the complainant filed this complaint.
3. Upon service of notice, the OP No.1 appeared and filed his version. In spite of receipt of notice, the OP Nos. 2 & 4 remained absent. Hence, they are placed at Ex-parte. As per the memo filed by the complainant, the claim against OP No.3 was given up.
In the version the OP No.1 admitted about the insurance policy issued by them with regard complainant’s two cows vide policy bearing Nos.0714854715P108069483 valid from 07/10/2015 to 06/10/2016. The OP No.1 further admitted with regard to the ear tags put to the complainant’s cow vide ear tag Nos.808656 & 808430. The OP No.1 further submitted that the cows of the complainant were not insured with the OP No.1 or with other insurers prior to the commencement of the policy said above i.e., policy No.0714854715P1 08069483 valid from 07/10/2015 to 06/10/2016 under the Karnataka Government KLDA Insurance Scheme, in which it is pleaded by the complainant that out of premium amount for complainant’s cows Rs.389/- each was paid by the complainant and Rs.619/- was met by the Government as premium subsidy to the complainant.
The OP No.1 further submitted that the KLDA scheme rules and regulations are explained by the Karnataka Livestock Development Authority under hand bills and publications and advertisements through media to make use of the Government sponsored schemes for which farms will agree and came forward to insure their livestock voluntarily, it is submitted that immediately after payment of the premium, policy will be handed over to the government authorities to distribute the policy to the beneficiaries and in the present case also the same thing was done.
The OP No.1 further submitted that the complainant does not know about the rules and regulations of the scheme as he has not alleged those things in the legal notice issued to the OP dated 12/01/2016 nor in the complaint copy and the said things are not pleaded by the complainant nor proved by the complainant to apply the principles decided in the rulings relied on by him.
The OP No.1 further submitted that they have narrated all the facts in the reply legal notice and the complainant has not mentioned in the affidavit that he was not aware of the policy conditions nor the said conditions are not explained to him. Further, the OP No.1 submitted that it is not true that certificate of insurance/policy copy was not given to him as the premium for all the group insurers will be remitted by the KLDA officials and policy copy will be handed over to the officials in turn to hand over to the farmers.
The OP No.1 further submitted that for the reasons best known to the complainant the complainant though arrayed the KLDA offices as parties to the proceedings without giving their correct address and process. The OP No1 stated that the complainant filed a memo stating OP No.3 has given up the claim and it shows that if the OP No.3 department official appears before this Forum, the truth will be proved and chances of claim may be rejected and thereby the complainant has filed a memo against her as not pressed. The petition filed against OP Nos. 1 & 2 to make a wrongful gain if possible. It is further submitted that the liability if any to pay compensation to the complainant is governed by the terms and conditions of the policy and therefore the petition is liable to be dismissed against the OP Nos. 1 & 2 who are single person and that among other grounds the OP No.1 prayed to dismiss the complaint against OP Nos. 1 & 2.
4. In order to prove their case, both parties have filed their affidavit evidence. The complainant has got marked the documents at Ex.C1 to C11 and the OP No.1 has marked the documents at Ex.R1 to R6. Heard the arguments and then posted the case for orders.
5. On the basis of the above pleadings and evidence, the following issues will arise for our consideration.
- Whether the complainant proves deficiency of service on the part of OPS?
- What Order?
6. Our answer to the above issues are as under:-
Issue No.(1) : In the Affirmative
Issue No.(2) : As per order below
-:REASONS:-
Issue No(1):-
7. On perusal of pleadings and evidence, it is an admitted fact that the complainant had obtained the policy bearing No.0714854715P108069483 for his two cows with ear tag Nos.808656 & 808430 and the said policy was valid from 07/10/2015 to 06/10/2016 as per Ex.R6. Further, the complainant had paid Rs.389/- each as premium to the OP Nos. 1 & 2 for his two cows as per Ex.C1. It is also not in dispute that the cow bearing ear tag No.808656 died on 13/10/2015 and another cow bearing ear tag No.808430 died on 14/10/2015. In this regard the OP No.3 has issued death certificate as per Ex.C2 & C3. Further it is also not in dispute that the OP No.3 has done post mortem with regard to two cows of the complainant and in that regard the complainant has produced photo copies as per Ex.C4(a) to C4(h).
8. The contention of the complainant is that the OP Nos. 1 & 2 have rejected the claim of the complainant though the policy was in force at the time of death of cows.
9. On the contrary, the OP No.1 submitted that according to the policy condition No.2 the complainant is not entitled for the insurance claim. The condition of policy No.2 reads as under:-
“Deceased contracted prior to commencement of risk. And provide always that if any claim arising out of disease or illness contracted by the animal during the first 15 days from the commencement date of policy. This exclusion shall not however, apply if insurance is in existence for a continuous period of 12 months without any break.
The OP No.1 further submitted that in the instant case, the cows died within 15 days from the date of commencement of the policy. Hence, they have rejected the claim of the complainant.
10. On perusal of pleadings, evidence and documents produced by both parties, it is seen that the policy was in force at the time death of two cows. It is also not in dispute that the cows of the complainant died on 13/10/2015 and 14/10/2015 as per Ex.C2 & C3 i.e. within 15 days from the date of commencement of policy.
11. Further, the OP Nos.1 & 2 have contended that diseases contracted prior to commencement of risk and provided always that if any claim arising out of disease or illness contracted by the animal during the first 15 days from the commencement date of policy and this exclusion shall not however apply if insurance is in existence for a continues period of 12 months without any break.
12. In this regard we have perused the death certificate issued by the OP No.3, wherein the OP No.3 has stated that the cows bearing ear tag Nos.808656 & 808430 have died on 13.10.2015 and 14.10.2015 and the detailed PM report can be furnished after receiving of claim form from your insurance office. No doubt the OP Nos. 1 & 2 have rejected the claim of the complainant by quoting condition No.2 of the policy. But in this regard the OP Nos.1 & 2 have not produced any supporting documents to show that the cows of the complainant died due to any diseases or illness. No doubt, the OP No.3 has stated in the death certificate that she has furnished PM report after receiving claim form from the insurance office. When that being the case, there was no obstruction for OP Nos. 1 & 2 to collect the PM report from the OP No.3. Further, in the instant case, the OP Nos. 1 & 2 have also not produced any documents to show that they have informed the policy terms and conditions to the complainant at the time of issuing the policy to the complainant.
13. Further, the complainant has produced some citation to support his contention i.e., United India Insurance Co. Ltd., & Another Vs. SMS Telecommunications and Another, reported in 2010 CJ 190 (NC), wherein the Hon’ble National Commission has held as under:-
Being aware of existence of policy is one thing and being aware of contents and meaning of clauses of policy another policy was taken by bank and not by complainant nothing one record to show that Insurance company had explained meaning of all exclusion clauses to Bank and requested them in turn to bring them to the notice of complainant-unexplained or unnoticed exclusion clause would not be binding to insured.
Further, in the case between Life Insurance Corporation of India Vs. Smt. Priya Sharm, reported in 2012 NCJ 870 (N.C.), wherein it has held that:
Onus to prove that insured was suffering from pre existing disease is on the insurance company.
Further in the case between New Indian Assurance Co., Ltd., Vs. M/s Komboj Ultra Sound & Diagnostic Pvt. Ltd., reported in 2014(3) CPR 732 (N.C.), reported in 2014(3) CPR 732 (NC), wherein it has held as under:-
Insurance Company cannot escape liability after accepting premium from insured.
Further, the complainant produced order copy in C.C.No93/2010 of this Forum and Appeal filed field by the OP against the said order in appeal No.5250/2011, wherein the Hon’ble State Commission has clearly stated as under:
“Admittedly the said cow died on 16.02.2009 and the so called insurance policy came into effect form 16.02.2010 from 3-44 PM. It was in force up to 15.02.2011. AS per the records, the said cow died within the coverage of insurance policy. Now the defense set out by the OP No.2 is that, no liability lies on their part and no claim can be entertained if animal dies within 15 days of inception of the policy. Whether such an exclusion clause is really explained to the complainant either by OP No.1 or by OP No.2 is not known. Mere incorporating the same exclusion clause in the policy will come to the aid of OP No.2 in repudiating the genuine claim of the complainant and OP No.2 cannot deprive the rights of the complainant.
14. In the instant case no doubt there is a condition to that the policy will not be applied if the claim is within 15 days from the date of policy. However, such condition was not made known to the complainant. Hence, in the absence of such information to the complainant, the rebuttal made by the OP Nos. 1 & 2 is not legal and valid.
15. Hence, on the above discussion and citations we are of the opinion that the complainant has proved the deficiency of service on the part of OP Nos. 1 & 2. Accordingly, we answer the point No.1 in the affirmative.
Issue No.(2):-
16. In the result, the OP Nos. 1 & 2 are liable to pay the insurance amount to the complainant with regard to his two cows. Hence, it is just and proper to direct the OP Nos. 1 & 2 to pay Rs.30,000/- each to the complainant with regard to his two cows bearing ear tag Nos. 808656 & 808430 together with 9% interest from the date of repudiation i.e., 09.12.2015 to till realization. The complainant claimed Rs.50,000/- towards mental agony and Rs.25,000/- towards damages. Of-course, the OP Nos. 1 & 2 have rejected the claim of the complainant though the policies were in existence and if the OP Nos.1 & 2 would have been released the policy amount in time, the complainant could have purchased another two cows in the said amount and lead his life by selling milk as usual. But the OP Nos. 1 & 2 have not done so and made the complainant to suffer mental agony and financial loss. Therefore, it is just and proper to direct the OP Nos. 1 & 2 to pay Rs.10,000/- towards compensation/damages. Further, the complainant claimed Rs.86,400/- along with 12% interest towards loss. But the complainant has not produced any documents in that regard. Hence, we rejected such prayer. But the complainant is entitled for Rs.5,000/- towards cost of litigation. The complaint against OP No.4 is dismissed as the OP No.4 is only a bridge between the complainant and OP Nos. 1 & 2. Accordingly, we proceed to pass the following:-
: O R D E R:
1. The complaint filed by the complainant is allowed in part with litigation cost of Rs.5,000/- (Rs.Five Thousand only)
2. The OP Nos. 1 & 2 are directed to pay Rs.30,000/- each with regard insurance policy for two cows of the complainant bearing ear tag Nos. 808656 & 808430 together with interest @ 9% PA from the date of repudiation i.e. 09.12.2015 to till realization.
3. The OP Nos.1 & 2 are further directed to pay Rs.10,000/- (Rs.Ten Thousand Only) to the complainant towards compensation/damages.
4. The OP Nos. 1 & 2 are further directed to comply the above order within 30 days from the date of receipt/knowledge of the order.
5. Supply free order copy to the parties.
(Dictated to the stenographer, transcribed and typed by him, then corrected and pronounced in the open Forum on this the 31st Day of AUGUST 2016).
LADY MEMBER MEMBER PRESIDENT
Tss
