2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 190 of 2011
Date of institution: 27.1.2011
Date of Decision: 16.1.2015
New India Assurance Co. Ltd., having its Regional Office at SCO 36-37, Sector 17-A, Chandigarh, through its Duly Constituted Attorney Shri K.B. Bindal, Manager.
Appellant/Opposite Party
Versus
M/s Global Poultry Products, 3rd Floor, Noble Enclave, Opposite Hotel Park Plaza, Ludhiana through its partner Shri Gurpreet Singh.
Respondent/Complainant
First Appeal against the order dated 15.12.2010 passed by the District Consumer Disputes Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Present:-
For the appellant : Sh. Parminder Singh, Advocate
For the respondent : Sh. Harish Sharma, Advocate
2nd Appeal
First Appeal No. 337 of 2011
Date of institution: 21.2.2011
M/s Global Poultry Products, 3rd Floor, Noble Enclave, Opposite Hotel Park Plaza, Ludhiana through its partner Shri Gurpreet Singh.
Appellant/Complainant
Versus
The New India Assurance Company Limited, D.O. III, Atam Nagar, Dugri, Ludhiana through its Divisional Manager.
Respondent/Opposite Party
First Appeal against the order dated 15.12.2010 passed by the District Consumer Disputes Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Present:-
For the appellant : Sh. Harish Sharma, Advocate
For the respondent : Sh. Parminder Singh, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
This order will dispose of both the above mentioned two appeals as both the appeals are cross appeals and against the impugned order dated 15.12.2010 passed in Consumer Complaint No. 154 dated 2.3.2010 by the District Consumer Disputes Redressal Forum, Ludhiana(in short the “District Forum”) vide which the complaint filed by complainant was allowed with a direction to the opposite party to pay a sum of Rs. 7,70,752/-.
2. The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the opposite party on the allegations that the complainant is a partnership firm and Mr. Gurpreet Singh is one of its partner, who is well conversant with the contents of the complaint and competent to file the complaint. In the year 2006, the complainant firm started Poultry Farm and approached the OP for insurance cover for their Poultry Farm. Dr. K.S. Dhillon was deputed for pre-risk inspection of Poultry Farm situated at Talwandi Khurd, Near Mullanpur, Ferozepur Road, Ludhiana, who submitted his report on 9.7.2006 who termed the existing management/infrastructure as superb. The OP vide letter dated 26.6.2006 intimated the complainant claim procedure in the event of death of the birds. However, no terms and conditions were disclosed to the complainant. The complainant had obtained Policy No. 360300/47/07/38/000000 w.e.f. 21.5.2007 to 20.5.2008, 360300/47/06/38/00000070 w.e.f. 28.2.2007 to 27.2.2008, 360300/47/06/38/00000019 w.e.f. 19.2.2007 to 18.2.2008, 360300/47/06/38/00000018 w.e.f. 13.2.2007 to 12.2.2008 and 360300/47/06/38/00000017 w.e.f. 31.1.2007 to 30.1.2008 for indemnification of loss and not to generate any type of profit. In the month of June, 2007, the complainant lodged the claim with the OP due to outbreak of complicated chronic respiratory disease (in short CCRD) in the Poultry Farm of the complainant and approximately 25,000 birds of 24 days, 27 days, 37 days had died during the period 14.6.2007 to 15.6.2007, 35,000 birds had died due to heat stroke complicated CCRD from 8.6.2007 onwards. Post Mortem was conducted by Dr. S.K. Khanna, Veterniary Surgeon at Govt. Poultry Disease Investigation Lab, Ambala City, Haryana. Complainant followed the procedure laid down in the letter dated 26.6.2006 for settlement of the claim and supplied the document, which included claim form, Veterinary Post Mortem reports, complete Daily records of mortality, feeding, purchase invoice of birds, photographs, medical bills etc. and the OP deputed Dr. A.P. Singh for investigation. However, the Op had repudiated the claim vide letter dated 28.3.2008 on flimsy grounds that existing infrastructure was not upto mark. The complainant was entitled to the claim on the ground that policy terms and conditions were not supplied to the complainant. The Op had already admitted the good infrastructure of the complainants Poultry Farm. All the requisite documents were supplied to the OP and the policies remained in force even after lodging of the claim. Therefore, it was pleaded that there was deficiency in services on the part of the Op. The complainant was entitled to claim of Rs. 10,99,760/- alongwith interest, compensation of Rs. 1 lac and litigation expenses of Rs. 22,000/-.
3. The complaint was contested by the OP by taking preliminary objections that the complaint was false and frivolous, liable to be dismissed under Section 26 of the Act; the Hon’ble District Forum had got no jurisdiction to try and decide the complaint as there was no deficiency in services on the part of the OP. After receipt of the report of Dr. A.P. Singh dated 7.1.2008 and after scrutinizing the claim file, the claim of the complainant was repudiated vide letter dated 28.3.2008 on the grounds that the death of birds occurred due to mis-management in keeping the birds, non-submission of health certificate from Veterinarian; that the parent stock was free from disease. The complainant intimated the start of mortality of birds w.e.f. 8.6.2007 whereas as per claim bill, he had claimed the mortality from 10.5.2007. The complainant had sent reply to the repudiation letter by taking false and frivolous pleas after considering his letter dated 20.8.2008. The opposite party had sent a detailed reply on 2.11.2008 clearly stating that the Investigator of the Company had revealed that the proper care has not been taken to control the disease from 10.5.2007 till October, 2007 as per the report of University GADVASU, Ludhiana, despite the fact that facility of Thermo regulation to control the temperature and humidity and even then if the temperature goes up causes mortality, which shows that there was either failure of equipment of overcrowding of birds inside the shed, which caused mortality or the mismanagement on the part of the complainant. The sterilization of the farm was compulsory and need of the hour after the disposal of each flock, in case of prevalent of any disease but that was not adhered to. The terms and condition No. 10(8) of the policy has not been fulfilled. The certificate issued by Dr. K.S. Dhillon at the time of pre-inspection of the risk is of no help if policy conditions were breached. It was submitted by the complainant that all type of vaccination was done but as per the post mortem report issued by the Department of Vety. Pathology, College of Vety Medicine on 2.7.2007 according to which except for the vaccination detailed in certificate dated 2.7.2007 no other vaccination was done. Ideal management for control of IB includes strict isolation and repopulation following cleaning and disinfection of poultry house, which shows that vaccination against disease IB had not been done, which caused the mortality. Further the complainant had not submitted the Veternary Certificate from Veterinarian that parent stocks were free from disease alongwith the proposal of each flock and the complainant had agreed to the objections of the Ops. Dr. A.P. Singh had personally seen the birds at Govt. Lab at Ambala and conducted the Post Mortem of 189 birds on 11.6.2007 and the Department had confirmed the death of the birds due to CCRD, which is specific exclusion Clause and is covered only if the birds are successfully inoculated against these disease, which was confirmed by the complainant that IB disease was not done. The mortality reports reveal the vaccination of birds with the infectious birds, which has caused rise in mortality and a part of mis-management, therefore, the claim was rightly repudiated. Then the complainant had shown the mortality of 31140 birds starting from 10.5.2007 to 3.7.2007 whereas the complainant had reported the outbreak of the disease from 8.6.2007, therefore, 4109 birds were added to enhance the claim amount; the complainant was estopped by his act and conduct from filing the present complaint; he had not come to the Forum with clean hands and concealed the material facts from the Hon’ble Forum by using fraudulent means and devices to exaggerate his claim and committed the breach of terms and conditions of the insurance policy; the complainant was not a consumer as the complainant was commercial organization running the business on commercial lines, complicated questions of law and facts were involved, which cannot be decided in the summary proceedings, therefore, the matter be relegated to the Civil Court. Same averments were reiterated on merits and it was submitted that the complaint was without merit and it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavit of Gurpreet Singh, Partner Ex. CW-1/A, affidavit of Surinder Kumar Tikku Ex. CW-2/A, partnership deed Ex. C-1, claim procedure detail Ex. C-2, description of birds insured Ex. C-3, Poultry Ins. Proposal forms Exs. C-4 to 6, insurance cover Exs. C-7 to 11, claim form Exs. C-12, 13, 14, letter of complainant dt. 23.3.07 Exs. C-15 to 18, pre-risk inspection report Ex. C-19, letter dt. 11.9.07 Ex. C-20, 21, 22, 23, 24, 25, reminder of complainant Exs. C-26, 27, letter of Op dt. 28.3.08 Ex. C-28, complainant letter dt. 20.8.08 Ex. C-29, letter of OP Ex. C-30, delivery challans Exs. C-31 to 38, Weather Report with photos, bills Exs. C-39 to 49, Poultry Claim form Ex. C-50, bills Exs. C-51 to 144, letter of Op Ex. C-146, mortality report by complainant Exs. C-146 to 223. On the other hand, the opposite party had tendered into evidence affidavit of R.K. Malhotra, Reg. Manager Ex. RW-1/A, affidavit of Jaimal Singh, Ex. RW-2/A, affidavit of S.S. Manchanda, Asstt. Manager Ex. RW-3/A, insurance policy Ex. R-1, letter of OP Ex. R-2 & 3, letter of complainant Ex. R-4 & 5, letter of OP Ex. R-6, 7, 8, letter of Dr. A.P. Singh Ex. R-9, letter from DTO, Patiala Ex. R-10, letter of complainant Ex. R-11, letter of OP Ex. R-12, letter of complainant Ex. R-13, surveyor report of A.P. Singh Ex. R-14 with documents and newspaper cuttings Ex. R-15 to 196, cover notes Exs. R-197 to 201, Poultry Insurance Scheme Ex. R-202, affidavit of Jaimal Singh, AO Ex. R-203.
6. After going through the allegations in the complaint, written statement filed by the OP, evidence and documents brought on the record, the complaint was partly allowed by the learned District Forum as referred above.
7. Feeling aggrieved with the order passed by the learned District Forum, the complainant as well as opposite party have filed their respective appeals.
FIRST APPEAL NO. 190 OF 2011
8. This appeal has been filed by the opposite party against the claim allowed by the District Forum on the grounds that the District Forum fell in error in allowing the complaint on the grounds that the terms and conditions of the insurance policy were not supplied to the complainant whereas these were duly delivered by hand to Sh. S.K. Tikku, a partner of the complainant firm by the Development Officer Sh. Vipon Malhotra. The said assertion was never denied by the OP before the District Forum and appellant has proved the said assertion by filing affidavit of Ex. RW-2/A of Sh. Jaimal Singh stating that the policy terms and conditions were duly supplied to the complainant and also proved from the communication dated 29.11.2007 Ex. R-80. The learned District Forum was wrong to give the finding that signatures of Sh. Tikku were not obtained, therefore, no evidence that terms and conditions of the policy were supplied to him.
9. In case we go through the letter Ex. R-80, it has been written by the complainant firm to Dr. A.P. Singh in which there is a reference of the letter dated 26.6.2006 and he has further referred to produce the certificate indicating that their source of purchase of broiler chicks free from the disease, health certificate indicating that parental stock of hatchery was free from disease. It has been contended by the counsel for the appellant that in case he would not have received the terms and conditions of the insurance policy then these references would not have been in the said letter. However, only on the basis of these letter, we cannot raise an inference that the terms and conditions of the policy were supplied to the complainant.
10. The letter dated 26.6.2006 written to the complainant is Ex. R-81 in which the claim procedure in the event of death of birds have been stated vide which intimation was sought from the complainant as under:-
“a) Duly filled in claim form.
b) Vet. P.M. Report
c) Daily record of mortality, feeding etc.
d) Purchase invoice of the birds.
e) Any other point to substantiate the loss like photographs, medical bill etc.”
11. Normally in case any person opts for a policy then first he understand the nature of the policy, its terms and conditions and only then opts for the policy, therefore, merely because of the fact that signatures were not taken by the officials of the opposite party while handing over the copy of the terms and conditions of the policy to the complainant does not mean that these were not supplied or were made aware to the complainant. In case he has raised his claim on the said policy then he cannot say that he was not provided the terms and conditions of the policy. Before raising the claim, he has not written any letter to the opposite party that he was not supplied the copy of the terms and conditions of the policy. However, after the death of the birds when he started to write to the OPs to say that he was not provided the copy of the terms and conditions of the policy, perhaps to save himself from the exclusion clauses as mentioned in the terms and conditions of the policy. A reference can be made to the judgment given by Constitutional Bench of our Hon’ble Apex Court reported in 1966 (7) CPSC 44 “General Assurance Society Limited versus Chandmull Jain” wherein it was observed in para No. 11(relevant extract) as under:-
“…..The policy not only defines the risk and its duration but also lays down the special terms and conditions under which the policy may be enforced on either side. Even if the letter of acceptance went beyond the cover notes in the matter of duration, the terms and conditions of the proposed policy would govern the case because when a contract of insuring property is complete, it is immaterial whether the policy is actually delivered after the loss and for the same reason the rights of the parties are governed by the policy to be, between acceptance and delivery of the policy. Even if no terms are specified the terms contained in a policy customarily issued in such cases, would apply.”
12. Whereas the learned District Forum has relied upon two judgments, one of Hon’ble National Commission “Hundi Lal Jain Cold Storage and Ice Factory Pvt. Ltd. versus Oriental Insurance Co. Ltd.”, 2004(3) CLT 245 and of Hon’ble Orissa State Commission “New India Assurance Co. Ltd. & Anr. versus Patitapaban Karan”, 2008(1) CLT 177. In reference to the Constitutional Bench judgment of the Hon’ble Supreme Court, the judgment so relied upon by the learned District Forum of the Hon’ble National Commission cannot be preferred. Therefore, we are of the opinion that the plea of the complainant that he was not provided the copy of the terms and conditions of the policy is devoid of merit.
13. The second point raised by the counsel for the appellant is that the claim of the complainant was within the exclusion clauses and that he had not supplied the relevant documents to the Investigator or to the opposite party to say so that he adhered to the terms and conditions of the policy and that his case does not fall under the exclusion clauses. The repudiation letter is Ex. R-12, which shows that the claim of the complainant was repudiated on the following grounds:-
“1. The death of the birds has occurred due to Mismanagement in keeping the birds.
2. You have not submitted the health certificate from the Learned Veterinarian that the parents stocks are free from the disease.
3. As per your intimation dt. 14.6.2007 intimating the start of mortality of birds w.e.f. 8.6.2007 where as per the claim bill you have submitted to the investigator the mortality is claim from 10.5.2007 thus 4109 birds were more claimed in the alleged claim.
4. You have not taken proper care to control the disease that comes due to vertical transmission as well as mismanagement as the authorized person did not perform the proper vaccination.”
14. The terms and conditions of the Poultry Insurance claim are Ex. R-83. Exclusion ‘K’ refers as under:-
“(k) Marek’s disease, Ranikhet disease, Fowl Pox and Infectious Bronchitis. These diseases are covered by the policy if the birds are successfully inoculated against these diseases and the necessary veterinary certificate to that effect is supplied to the company. Coccidiosis and other diseases are covered only if preventive and curative measures are taken from time to time.”
15. It further make it clear that these diseases are covered if the birds are successfully inoculated against these diseases and necessary certificate to that effect is supplied to the Company. Clause 8 refers to the Veterinary Examination wherein it has been referred that Veterinary Certificate from qualified Veterinarian of insured is necessary. In Clause 10 (g), it has been mentioned that the farms should not resort to replacement of chicks in the affected sheds after claim is reported due to diseases and according to Clause 10(i) any change of birds should be informed immediately to the concerned office and new birds should pass through Veterinary Examination. The post mortem of the birds was conducted by Department of Veterinary Authority, the College of Veterinary medicines, GADVASU, Ludhiana Ex. R-179, which is silent about the symptoms of the disease and treatment if any given with regard to 1,50,000 birds. During the course of arguments, the counsel for the complainant was unable to place on the record any Veterinary Certificate from a qualified Veterinary to show that when the birds were purchased, they were subject to vaccination and free from any disease. The matter was thoroughly investigated by Dr. A.P. Singh, his report is Ex. R-14, which makes it clear that according to the Post Mortem report submitted by the claimant under the signatures of Dr. S.K. Khanna, disease suspected due to heat stroke, complicated with CCRD. Then he had personally seen the birds at Govt. Lab at Ambala and conducted the post mortem of 189 birds on 11.6.2007 and in his opinion, the said birds died due to heat stroke with CCRD. The claimant is silent against the vaccination of the disease IB. The team of Doctors also visited at the Globle Poultry Farm and they were also suggestive of CCRD with PM Lesions and detail of CCRD has been given that it is commonly referred to infection of birds caused by combinations of E.Coli, mycoplasma, Newcastle disease virus (NDV), complicated by environmental stress factors. E. Coli infection of respiratory tract of birds can be reduced by raising mycoplasma free birds and reducing exposure of birds to virus causing respiratory tract diseases and proper ventilation will reduce respiratory tract damage and exposure.
16. He further quoted that the preventive measure to control the disease CCRD were not taken. The poultry farm was having the facility of Thermo Regulator to control temperature and humidity as claimed by the complainant and temperature was not so high, which cannot be controlled by the equipment. In case the temperature can go high and causing mortality, which shows the failure of the equipment or overcrowding of the birds, which further shows the mis-management at the end of the complainant. The complainant has failed to produce the health certificate of purchased broiler chicks to confirm that the broilers were fit for insurance as per the policy terms and conditions. He has failed to produce the certificate that the Hatchery and parental stock was free from disease. He has also failed to submit the certificate conforming that vaccination of various diseases was performed by the authorised person. He has also failed to produce the certificate that the vaccination was perfectly and properly performed and solid immunity was developed. Although he had assessed the loss of the birds died but it was with rider in view of the findings stated above and it was submitted by the Surveyor that the liability of the claim now comes upon the shoulders of the Company as the complainant has not taken care to control the disease as well as mis-management and proper vaccination on the basis of that the claim of the complainant was repudiated. Normally the report of the Surveyor should be accepted because he is an independent person and not an employee of the Insurance Company.
17. During the course of arguments, the counsel for the complainant was asked to refer any certificate to show that when the purchases were made during the insurance period from various quarters; any certificate that those birds were free from any disease. No certificate was referred that the vaccination was done by the competent person to make the birds free from disease. The Poultry Farm of the complainant was equipped with Thermo Regulator to control temperature and humidity in case the birds died due to heat resulting into CCRD, which shows the failure of the equipment or overcrowding of broilers, which shows mis-management on the part of the complainant. He failed to submit any document confirming the vaccination of any disease performed by authorised person, therefore, in case he has not taken proper management of the Poultry Farm and did not take proper measures to control the disease then his claim will fall under the exclusion clauses. In those circumstances, the insurance company was justified to repudiate the claim. The learned District Forum has relied upon the report of the investigator on the grounds that terms and conditions were not supplied to the complainant, therefore, exclusion clauses will not be applicable to the case of the complainant, however, in view of our above findings that the complainant was aware of the terms and conditions of the policy, therefore, it cannot be said that the terms and conditions of the policy will not be applicable to his case and in case the terms and conditions are applicable, in view of the foregoing discussion; the points raised by the Investigator in his investigation has not been replied by the complainant and has not been able to convince before this Commission that precautionary measures as per the terms and conditions of the policy were taken by the complainant, therefore, in case the learned District Forum has not analysed the claim of the complainant in view of the terms of the policy then such an order cannot be sustained and is liable to be set-aside.
18. In view of the above discussion, we accept the appeal. The impugned order of the learned District Forum is set-aside. Consequently, the complaint of the complainant is dismissed.
19. The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.
FIRST APPEAL NO. 337 OF 2011
20. In view of the findings recorded in F.A. No. 190 of 2011 when the impugned order has been set-aside and the complaint has been dismissed, no question arises for the enhancement of the compensation, consequently, this appeal is dismissed.
21. The arguments in these appeals were heard on 13.1.2015 and the orders were reserved. Now the orders be communicated to the parties as per rules.
22. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
23. Copy of this order be placed on F.A. No. 337 of 2011.
(Gurcharan Singh Saran) Presiding Judicial Member
January 16, 2015. (Jasbir Singh Gill)
as Member
