Kerala

Idukki

CC/12/2018

Sheeba Saji - Complainant(s)

Versus

Maanger New India Insurance Co.Ltd - Opp.Party(s)

Adv.K M Sanu

05 May 2023

ORDER

DATE OF FILING : 19.1.2018

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the    5^th   day of  May,  2023

Present :

SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.12/2018

Between

Complainant                                          :     Sheeba Saji,                                     

                                                                   Manalel House,

                                                                   Kudayathoor P.O.,

                                                                   Thodupuzha.

          (By Adv: K.M. Sanu)

And

Opposite Parties                                     : 1. The Manager,

                                                                   New India Assurance Co. Ltd.,

                                                                   Thripunithura,     

                                                                   Thripunithura P.O. – 682 301.

                                                                2. The Manager,

                                                                   New India Assurance Co. Ltd.,

                                                                   Thodupuzha,

                                                                   Thodupuzha P.O.

           (By Adv: Thomas Sebastian)

      3. The Secretary,

                                                                   Ksheerolpadaka Sahakarana Sangham

                                                                             No.I 211 D,

                                                                   Kudayathoor P.O.

                                                                4. The Deputy Director,

                                                                   Dairy Development Department,

Thodupuzha P.O. – 685 584.

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

          1. This case originates from a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Complaint averments are briefly discussed hereunder :

 

          Complainant rears cattle for her livelihood and is residing in Kudayathoor, within the local limit of this Forum.  1^st opposite party is manager of Thripunithura branch of New India Assurance Company Ltd. and 2^nd opposite party is manager of Thodupuzha branch of the same insurance company.  3^rd opposite party is secretary of Milk Producers                                                                                                                  (cont….2)

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Society No.I 211 D at Kudayathoor and 4^th opposite party is Deputy Director of Dairy Development Department having its office in Thodupuzha.  Complainant has taken insurance for her cow via a master policy scheme offered by 3^rd opposite party and paid Rs.4,389/- towards insurance premium in March, 2016.  Policy amount was Rs.40,000/-. Apart from covering cattle loss, there was life coverage for complainant, her husband and children as well.  Before taking insurance, veterinary doctor of Govt. Veterinary Hospital had inspected the cow and fixed an ear tag for its identification.  In 2016 April, cow had died suddenly.  The very same Veterinary Surgeon who had inspected cow earlier had conducted postmortem.  Complainant was informed that the cow had died due to heart attack.  Photos of the cow after postmortem were taken by the Doctor.  Complainant had then preferred claim along with all requisite documents in May 2016 for her dead cow.  Despite repeated enquiries, there was no response from opposite parties.  Finally in 2017 January, she was informed that the claim was repudiated and further that an intimation dated 20.11.2016 was received by her.  Claim was repudiated for the reason that ear tag of the cow was not found to be fixed.  Reason stated for repudiation is not correct.  Insured cow was identified by the Veterinary Surgeon before insurance.  At the time of postmortem also, Govt. Veterinary Doctor had identified the cow on the basis of identification marks noted above earlier and the ear tag.  Cow is shown to be worth Rs.40,000/-.  Complainant is entitled to receive policy amount for the dead cow.  Refusal to grant the same is deficiency in service from the side of opposite parties.  Complainant therefore prays for a direction against opposite parties to pay Rs.40,000/- to her towards insurance policy coverage for the dead cow along with Rs.25000/- as damages for deficiency in service.  She also seeks an award of Rs.5000/- from opposite parties towards litigation costs.

 

          2. Opposite parties 1 and 2 have filed written version contending that complaint is not maintainable in law or upon facts.  It is incorrect to say that Govt. Veterinary Surgeon had inspected the cow and fixed an ear tag on its ear.  It is also incorrect to say that the doctor identified the dead cow by the said ear tag.  It is also incorrect to say that the cow having ear tag was subject to postmortem examination.  It is true that 1^st opposite party had issued a master policy bearing No.76100247150400000015 in the name of Convener, Ksheera Jyothi Insurance Scheme, C/o. Deputy Director, Dairy Development Department, Mini Civil Station, Idukki to cover complainant’s cow with ear tag No.16975 along with other cows.  Ear tag given by 1^st opposite party is to be fixed upon the ear of cow which is to be insured.  Complainant was having 9 cows.  She had insured only one cow.  However, she had not fixed the ear tag upon the cow which was proposed to be insured.  Since there was no ear tag fixed upon the dead cow, it cannot be presumed that it was the cow which was insured by complainant.  Upon scrutiny of claim form, it was found that ear tag bearing No.16975 sent along with it was not used.  Eventhough complainant had obtained ear tag, she had not fixed the ear tag.  As  per  policy,  if  the  ear tag is not fixed,  insurance  company  is  not liable to pay                                                                                                                  (cont….3)

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insurance amount.  When one of the cows of complainant had died, Govt. Veterinary Doctor had conducted postmortem.  She had prepared and submitted a postmortem report to the effect that postmortem examination was of an animal with ear tag No.16975.  Actually, she had conducted postmortem of the dead cow which had no ear tag.  Therefore, it cannot be said that the dead cow was the insured one.  All this was done by the doctor upon influence by complainant.  There is collusion between complainant and the government doctor in preparing postmortem report.  As postmortem was of a cow which had no ear tag, identification by the doctor cannot be accepted.  In absence of proof with regard to effect that the dead cow was insured, opposite parties are not responsible to pay claim amount.  This matter was informed to 4^th opposite party vide letter dated 20.11.2016.Repudiation of the claim was for reasons mentioned above.  There is no deficiency in service from the side of opposite parties 1 and 2.  Complainant is not entitled for the reliefs prayed for.  It is to be dismissed with compensatory costs. 

 

          3. Third opposite party is seen to have filed written version along with documents relating to insurance of the cow.  3^rd opposite party has only stated that, the complainant was a member of the society and had taken cattle insurance.  Insurance papers were given to her after completion of formalities.

 

          4.  Fourth opposite party has filed a separate written version contending that complainant was inducted into insurance scheme offered by 3^rd opposite party.  Premium amount was collected from her along with other dairy farmers.  Purpose of insuring a cow or cattle was to compensate owners for the loss occasioned by the death of animal.  4^th opposite party has no direct involvement in insuring and accompanying formalities.  There is no deficiency in service from the side of 4^th opposite party.

 

          After affording sufficient opportunity for steps, case was posted for evidence. Though opposite parties 3 and 4 have filed written versions, they have not participated in the trial or tendered evidence.  On the side of complainant, she, along with Govt. Veterinary Doctor who had identified the cow and conducted postmortem examination were examined as PWs1 and 2 respectively.  Exts.P1 and P2 were marked on her side.  On the side of opposite parties 1 and 2, branch manager of Thodupuzha New India Assurance Company was examined as RW1.  Earlier, Exts.R1 to R3 were marked during cross examination of PW2.  Exts. R4 and R5, copy of insurance policy and letter of repudiation were proved by him. R6 and R7, copy of master policy No. 76100247160400000009 and copy of report filed by insurance investigator were subsequently admitted in evidence from the side of opposite parties 1 and 2 without formal proof.  MO.1 is the ear tag which according to complainant was fixed upon ear of the dead cow.  It was identified by PW2 during cross examination.  Thereafter evidence was closed and both sides were heard.    Now the points which arise for consideration are :

                                                                                                                 (cont….4)

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1)  Whether there was any deficiency in service from the side of opposite parties ?

2)  Whether complainant is entitled for the reliefs prayed for ?

3)  Order to be passed ?

 

5.  Point Nos.1 and 2 are considered together :

 

          PW1 is the complainant herein.  In her proof affidavit, she has reitriated her  contentions raised in the complaint as such.  Ext.P1 is copy of repudiation letter received by her from 1^st and 2^nd opposite parties.  Ext.P2 series are 2 counterfoils evidencing payment of premium amount.  PW2 is the doctor who had identified the cow for insuring the same and subsequently conducted postmortem examination of its carcass.  RW1 is branch manager of Thodupuzha branch of insurance company.  He has, in his proof affidavit, supported the case of opposite parties 1 and 2 as stated in written version filed by them.  Ext.R1 is copy of claim form cum veterinary certificate.  Ext.R2 series are 2 photographs of the carcass of the cow taken after postmortem.  Ext.R3 is copy of postmortem report.  Ext.R4 is copy of insurance policy (master).  Ext.R5 is letter of repudiation, copy of which was marked as Ext.P1 from the side of complainant.  Ext.R6 is copy of another master policy.  Ext.R7 is investigation report filed by one Haridasan Nair, Investigator, New India Insurance Company Ltd., dated 16.11.2016.  Since investigator was not examined, Ext.R7 cannot be relied upon without corroborating materials.  Investigator has  stated in R7  that according to his enquiry, complainant had only 2 or 3 cows. He has not stated how and what, was the manner of enquiry conducted by him.  He has not named any one, except complainant, he had met and conducted enquiries with.  Though he claims that the postmortem certificate does not reveal that the dead cow was pregnant, these findings appear to be incorrect.  It is specifically mentioned in postmortem certificate that the cow had gravid uterus.  Moreover, this aspect was not put to PW2 during cross examination.  We also notice that ear tag No.16975 is not mentioned in Ext.R6 or in Ext.R4. 

 

          We also notice that as per written version filed by opposite parties 1 and 2, master policy issued in the name of 4^th opposite party which included the cow of complainant was policy No.76100247150400000015.  However, policy number shown in Ext.R6 is 76100247160400000009.  Both numbers differ.  Evidently, Ext.R6 is not the master policy issued in this case. Probably it was produced only to bring to light the terms of cattle insurance which are similar in all such policies.  As far as Ext.R4 is concerned, though the policy number is correct, ear tag number of complainant’s cow is not shown in this document.

 

          Going by the admission made by opposite parties 1 and 2, one of the cows, out of nine owned by complainant  was insured.  Ear tag number of the insured cow was 16975.  Exts.P1 and P2 series are copy of repudiation letter and counterfoils of the bank                                                                                                          (cont…..5)              

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evidencing payment of insurance premium by complainant respectively.  It is not in dispute that one of the cows of complainant was insured with opposite parties 1 and 2 under  master policy No.76100247150400000015.  It is also not in dispute  that one of the cow of complainant had died.  Death was during the period when the policy was alive.  Complainant has stated in her evidence that she had 9 cows at that time and only one was insured.  That it was the insured cow which had died.  Ear tag forwarded along with the claim proposal form via 4^th opposite party was tag No.16975. Nobody has a case that an eartag with a different number was clamped upon the ear of dead cow at the time when it was insured. Both sides converge on one point which is that eartag of insured cow is 16975. This was the eartag which was forwarded to insurance company along with claim documents.  During cross examination of PW2, it has come out that the said ear tag, which was forwarded along with claim form was not used.  Though she would say that, at the time of insurance, ear tag was fixed upon the ear of cow and further that during postmortem examination, she has noticed the ear tag of the dead cow and identified it, her evidence is to the effect that MO.1, ear tag 16975 has not been used.  In other words, it was not fixed on the  earlobe of the dead cow or any other cow.  Her evidence would reveal that this tag comes in 2 parts and it is clamped from both sides on the earlobe of the insured animal. It can be removed only by cutting it out from the ear of the animal.  At the time of postmortem, ear tag is removed by cutting earlobe of the dead animal.  Thereafter, it is retrieved and forwarded along with claim form to the insurance company.  PW2 has stated that a used ear tag cannot be reused.  Her evidence would reveal that it is possible to differentiate a used ear tag from one which has not been used.  When evidence of PW2 mentioned above is considered, it can be seen that MO.1 ear tag which was forwarded from the insurance company has not been fixed upon cow which was proposed to be insured. It was kept unused by complainant. The doctor had in all probabilities, collected the unused ear tag and forwarded it along with her postmortem certificate and other documents to opposite parties.  Her evidence is that she does not know how MO.1 was remaining unused.  This appears to us as only an attempt to cover up her mistake.  Probabilities are that insurance was taken for one cow, out of nine owned by complainant,  with the intention of using it for any cow with similar features which may die.  Identification marks given in proposal form of the cow are only of  general nature and any other cow having similar colour patterns, physical characteristics and age can be substituted easily.  Complainant has admitted that she had 9 cows at that time. It is possible that a similar heifer heavy with calf was also there. Ear tag is the positive identification mark which insurance company  relies upon for honoring the claim. Without ear tag there cannot be positive or reliable identification of insured animal.  In the present case, going by the evidence tendered, there is nothing to show which was the cow for which insurance was taken by complainant.  Ear tag of the cow has not been fixed.  Hence it is not proved that the dead cow was the one which was insured by complainant.  Claim was therefore repudiated vide Ext.R5.  Repudiation of the  claim  appears to  be  proper.   Though  RW1  was  subjected  to  intense  cross                                                                                                            (cont…6)

• 6  -

examination, nothing favourable to complainant had surfaced from his evidence.  We do notice that there are shortcomings from the side of opposite parties 1 and 2 in not submitting copies of master policy issued in this case, considering evidence at large, we do not think that production of master insurance policy or its copy will tilt the scales in favour of complainant.  She  has not succeeded in proving that there is deficiency in service from the side of opposite parties.  As far as opposite parties 3 and 4 are concerned, they have no significant role in repudiation of claim and no deficiency in service  is attributed to them specifically.  Hence we find that in the absence of proof with regard to deficiency in service, complainant is not entitled for the reliefs prayed for.  Point Nos.1 and 2 are answered accordingly.

 

Point No.3 :

 

          In the result, complaint is dismissed, under the circumstances, without costs.  Parties shall take back extra copies, without delay. 

 

                         Pronounced by this Commission on this the    5^th  day of May, 2023

 

 

 

   SRI. C. SURESHKUMAR, PRESIDENT

 

 

 SMT. ASAMOL P., MEMBER

 

 

SRI. AMPADY K.S., MEMBER

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                                                                        (cont....7)

 

 

• 7  -

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Sheeba Saji.

PW2         -  Dr. Mariyamma Thomas.

On the side of the Opposite Party :

DW1        -  Vignesh S. Thottam.

Exhibits :

On the side of the Complainant :

Ext.P1      -  Copy of repudiation letter.

Ext.P2      -  Copy of 2 counterfoils.

On the side of the Opposite Party :

Ext.R1     -  Copy of cattle claim cum veterinary certificate.

Ext.R2     -  2 photographs of the dead cow.

Ext.R3     -  Copy of post-mortem report.

Ext.R4     -  Insurance policy.

Ext.R5     - Copy of repudiation letter.

Ext.R6    -  Copy of master policy.

Ext.R7    -  Investigation report of the claim.

Ext.MO.1 -  Ear tag bearing No.16975.