Punjab

Ludhiana

CC/15/102

Amarjit Singh - Complainant(s)

Versus

ICICI Lombard Gen.Ins.Co.Ltd - Opp.Party(s)

Gurdeep Singh Adv.

31 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 102 of 19.02.2015

Date of Decision            :   31.05.2016

 

Amarjit Singh son of S.Bhag Singh r/o village Mukandpur, Tehsil and District Ludhiana.

….. Complainant

Versus

1.ICICI Lombard General Insurance Company Limited, Cattle Insurance, Civil Lines, Ludhiana through its Manager.

2.ICICI Lombard General Insurance Company Limited, Cattle Claims Team, Plot No.12, Financial District Nanakarmgude, Gachibowli, Hyerabad-500032, through its Manager/Authorized representative.

3.ICICI Lombard House, 414, Veer Savaskar Marg, Prabhdevi, Mumbai-400025, through its Manager/Authorized representative.

…Opposite parties

 

                   (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :           Sh.Gurdeep Singh Salh, Advocate.

For OPs                          :           Sh.Rajeev Abhi, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant Sh.Amarjeet Singh, filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as ‘Act”) against OPs, by claiming that he got cattle insurance policy vide certificate of insurance No.IL100002667(Cow Tag Number) of his cow to the tune of Rs.50,000/- with validity from 16.5.2012 to 15.5.2015 by paying the premium amount. Death of the insured cow took place on 29.9.2014, due to sudden cardiac problem. Postmortem of the insured cow was conducted by Veterinary Officer, PAHS-I, I/C Veterinary Hospital, Dehlon, Ludhiana. Claim was lodged by the complainant with OPs on 17.10.2014 by submitting necessary documents. That claim was received by OP1, but was repudiated vide letter dated 26.12.2014 with remarks “death due to mismanagement of farm or stable”. In fact, there was no mismanagement of farm and stable of the said cow and as such, the claim alleged to be erroneously rejected. By pleading deficiency in service on the part of Ops, prayer made for directions to OPs to settle the claim and pay litigation expenses of Rs.11,000/-, but compensation for mental harassment of Rs.1 lac claimed.

2.                          In joint written reply filed by OPs, it is pleaded interalia as if complaint is barred under section 26 of the Consumer Protection Act; complaint is not maintainable because repudiation of claim took place as per exclusionary clause of the insurance contract; matter liable to be decided by the Civil Court because intricate question of law and facts are involved, due to which, elaborate oral and documentary evidence needs to be adduced. Besides, it is claimed that the complainant is estopped by his own act and conduct from filing this complaint because he has not approached this Forum with clean hands. Sharp nail was found pierced in the heart of cattle head resulting in cardiac arrest as per the postmortem certificate and as such, it is averred that it is a case of mismanagement of farm. Even as per the postmortem report of Dr.Darshan Dass, Veterinary Officer, PAHSC-I, I/C, Civil Veterinary Hospital, Dehlon, Ludhiana, the sharp nail pierced in the heart due to mismanagement of the farm. Had nail being not thrown or found in the place where the cow was kept in the cattle shed, then it would not have been swallowed while grazing. There is no deficiency in service or negligence on the part of OPs and as such, repudiation of claim defended as legal and valid. Facts with regard to the purchase of insurance policy and payment of premium and lodging of claim not denied. Admittedly, death of cow took place on 29.9.2014 due to sudden cardiac problem, but the reasons for the same are referred above. Claim of the complainant is not genuine. By denying each and every other averment of the complaint, prayer made for dismissal of complaint.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.CW1 to Ex.CW6 and thereafter, counsel for the complainant closed the evidence.

4.                On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA of Ms.Meenu Sharma, Manager Legal of OPs, Ex.RB of Sh.Daljinder Singh, the Investigator along with documents Ex.R1 to Ex.R6 and thereafter, counsel for OPs closed the evidence.

5.                          Written arguments submitted by Ops alone, but they are not submitted by the complainant. Oral arguments of counsel for the parties addressed and were heard. Records gone through minutely. 

6.                From the pleadings of the parties and affidavit Ex.CA as well as Ex.RA and copy of insurance cover note Ex.CW1=Ex.R2, it is made out that the cattle head in question with Tag No.100002667 was insured with OPs, but death of same took place on 29.9.2014, due to cardiac rupture. Copy of claim form for cattle insurance Ex.CW2=Ex.R5; copy of postmortem certificate Ex.CW3=Ex.R4 establishes that on conduct of postmortem of the insured cow, it was found as if sharp nail found pierced through cardiac muscle. In view of piercing of the sharp nail in the cardiac muscle, it is vehemently contended by the counsel for the OPs that it is a case of mismanagement of farm and stable. That contention of counsel for the OPs vehemently opposed by the counsel for the complainant by contending that allegations of mismanagement of farm and stable are not proved just because the nail was found pierced in the stomach. No treatment to the cow in question could be provided is a fact borne from the treatment certificate Ex.CW4.

7.                Repudiation of claim on account of death due to mismanagement of farm and stable took place vide letter dated 26.12.2014 Ex.CW6=Ex.R1. That repudiation was on account of exclusionary clause No.8 of terms and conditions of policy. In fact, the repudiation took place as per clause no.13 of Ex.R3. Clause 13 of Ex.R3 reads as under:-

“Insurance claim automatically will cease, in case of death due to mismanagement of farm or stable(if animal is not treated by authorized Govt. Vet.doctor/if animal is not treated if sickness is more than 3 days)”

8.                Treatment to the cow was not provided is a fact borne from Ex.CW4, the treatment certificate. So, question deserves to be determined as to how the sharp nail pierced through cardiac muscle. The appointed surveyor through report Ex.R6 reported that as per interactions with claimant and neighborhoods, the insured cattle was found OK during morning hours but thereafter, the owner(claimant) left for outside, but when the servant came out at 2:30 P.M, he found the cattle head lying dead. However, interactions with Panchayat member shows as if the cattle head was already lying ill. Duration with effect from which the cattle head was lying ill is not mentioned in report Ex.R6. If that be the position then it cannot be considered to be a case, in which, treatment of more than 3 days was not provided to the cattle head. The investigator has not found as to how the sharp nail pierced in the stomach of the cattle head. Cause of death is sudden is a fact mentioned in report Ex.R6 of surveyor. If cause of death is sudden,then question of animal suffering from ailment for the last 3 days does not arise at all and as such, report of surveyor Ex.R6 does not support the claim of OPs that cattle head was not treated for more than 3 days.

9.                It is contended by counsel for the Ops that the complainant has not taken due care of the cattle head in question, due to which, he died. The factum of earlier ailment of cattle head does not arise because death took place suddenly and the cattle head found normal during morning hours is a fact borne from report of surveyor Ex.R6.

10.              Though, it is contended by the counsel for the Ops that had  the complainant taken due care of cow, then there was no occasion for the cattle to inhale the sharp nail. What precaution was not taken by the complainant qua that submissions of counsel for the OPs are silent. So bare allegation of negligence or of not taking due care of the cattle head not enough to prove that the complainant did not take due care of the cattle head. As the cattle head remained under the care of the owner during morning, but under the care of servant thereafter and as such, in the absence of any evidence to the effect that sharp nail was lying scattered on the spot, where the cattle head grazed, it has to be held that Ops failed to establish negligence in taking due care on the part of the complainant.

11.              Certainly, the terms and conditions of the policy to be strictly construed because the policy documents binding between the parties and nothing can be added or subtracted by giving different meaning to words mentioned therein.     In holding this view, we are fortified by law laid down in cases Ind Swift Limited vs. New India Assurance Co.Ltd. and others-IV(2012)CPJ-148(N.C.); Usha Sharma and others vs. New India Assurance Co.Ltd and others-I(2012)CPJ-488(N.C.);United India Insurance Co.Ltd. vs. Harchand Rai Chandan Lal-IV(2004)CPJ-15(S.C.) and Deokar Exports Pvt. Ltd. vs. New India Assurance Company Limited-I(2009)CPJ-6(S.C.). Even if the terms of contract of insurance to be strictly construed, but despite that it is a matter of appreciation of evidence as to whether any mismanagement on the part of complainant resulting in inhaling of the sharp nail, found pierced in the heart of the insured cow was there.

12.              Cattle commonly ingest foreign objects because they do not discriminate against metal materials in feed and do not completely masticate feed before swallowing. When such is the position, then in the absence of producing any material on record as to how the sharp nail pierced in the cardiac muscle of insured cattle head, it has to be held that OPs failed to prove any negligence on the part of complainant qua taking of due care of the insured cattle. If such negligence is    not proved, then repudiation of claim is quite improper because repudiation virtually ordered on whimsical hypothesis. Rather, on swallowing of sharp nail with graze or fodder, the said nail may pierce through cardiac muscle under natural course of digestion or of moment of intestine or bowls and as such, allegations of mismanagement of farm and stable are not proved at all.

13.              The investigator himself found that claim is payable for sum of Rs.30,000/- as per market value, but the cow was insured for sum of Rs.50,000/- is a fact borne from insurance cover note Ex.R2=Ex.CW1. As death of cow was sudden/abrupt and as such allegations of illness of cow are not born from the report of postmortem Ex.R4=Ex.CW3 or of contents of claim form Ex.R5=Ex.CW2 and surveyor report Ex.R6. As the surveyor himself found the market value of cow as Rs.30,000/- which is less than the insured value and as such, claim of the complainant deserves to be allowed by awarding of Rs.30,000/- as insurance compensation amount. As repudiation of claim is improper and as such, complainant has suffered mental agony and sufferings, due to which, he is entitled for compensation under this head also.

14.              As a sequel of above discussion, complaint allowed in terms that OPs will pay the insurance claim amount of Rs.30,000/- to the complainant within 60 days from the date of receipt of copy of this order. Even OPs will pay Rs.5000/- as compensation for mental harassment and sufferings of the complainant. Litigation expenses of Rs.5000/- more allowed in favour of the complainant and against OPs. Payment of amount of compensation for mental harassment and litigation expenses be made within 30 days from the date of receipt of copy of this order. Copies of order be supplied to the parties free of costs as per rules.

15.              File be indexed and consigned to record room.

 

 

                             (Babita)                                        (G.K. Dhir)

                             Member                                          President

Announced in Open Forum.

Dated:31.05.2016. 

GurpreetSharma