By. Sri. Chandran Alachery, Member:
The complaint is filed Under section 12 of the Consumer Protection Act of 1986 for an Order directing the opposite party to pay Rs.3,00,000/- together with all the benefits covered by the policy to the complainant towards the death compensation of the elephant and to pay Rs.10,000/- as compensation and Rs.5,000/- as cost of the proceedings.
2. Brief of the complaint:- The complainant Sree Pulpally Dewasom was the owner in possession of an Indian Elephant named Sankaran Kutty and the elephant was maintained for religion purpose at the temple premises. Ownership certificate No.34/92 in Form No.16(Rule 37) was issued by the Chief wild life warden. For about more than last 23 years the elephant was kept with the institute and was continuously insured with opposite party. The renewal policy No.101602/47/12/34/00000730 was issued to the complainant insuring the elephant from 02.05.2012 to 01.05.2013 after remitting premium of Rs.15,406/-. While so on 15.10.2012, the said elephant was seen tired and has consulted Dr. K.S. Preman, Veterinary Surgeon Irulam, by around 3.30 PM, the Elephant suddenly fell down and died. The complainant informed the opposite party about death and submitted claim form to the opposite party with documents. Thereafter, the opposite party vide letter dated 03.05.2013, has repudiated the claim of the complainant on the ground that the complainant had suppressed certain material facts regarding the death condition of the animal and also violated the clause 1 and 2 of the policy and therefore the company is repudiated the claim made by the complainant. The complainant alleges that the repudiation is without any basis and unlawful. So the act of the opposite party is deficiency of service.
3. On receipt of complaint, notice was issued to opposite party and opposite party appeared before the Forum and filed version. In the version the opposite party admitted that the elephant bearing micro chip No.00065DD589 belonged to the complainant was insured with this opposite party as per IP No.101602/47/12/34/00000730 for the period starting from 02.05.2012 to 01.05.2013. The complainant obtained the policy of insurance suppressing the material facts and misrepresentation. As per the policy condition No.1 “If there shall be any incorrect or untrue statement in the proposal herein referred to or if the insured shall not state any material fact or circumstances at the time of proposal or after words, or at the commencement of risk hereunder or on any alteration or extention or renewal of this policy or on the insured making any claim hereunder or is he shall make any false or fraudulent claim or shall in any particular to observe and perform the terms and conditions hereof, this policy shall be void and all premiums paid thereon shall be forfeited to the company” and as per the condition No.2 of the policy “Every animal must be sound and in perfect health, and free from any injury at the time of proposal for insurance or for any renewal, addition or substitution and must also tremain sound and be in perfect health and free from any injury at the time of payment of the premium or balance thereof”.
4. The complainant in the proposed form specifically declared that the animal is sound, well cared and regularly fed, free from vices and there is no contagious or infectious disease prevalent in the stable or its vicinity. The relevant policy was issued on 02.05.2012 based on proposal form submitted by the complainant. Actually the elephant was lost its eye sight three years back and it was under treatment under Veterinary Suregeon Dr. Preman of Irulam Veterinary Dispensary from 22.02.2011 onwards for colic continuously. More over the eye sight of the elephant was lost three years back. The elephant collapsed on 14.10.2012 due to arthritis (Mayo cardial Infraction). But at the time of submitting proposal the complainant declared that there is no contagious or infectious diseases prevalent in the stable or it vicinity. The complainant had purposefully suppressed the material fact regarding age and the health condition of the elephant. Even in the claim form the complainant stated that the elephant was first seen ill on 15.10.2012. This is not true since the elephant stated treatment since 22.02.2011. In fact the complainant obtained the policy of insurance foreseeing the immediate death of the elephant. Due to the illness the elephant was not used for any functions in the temple since three years. The actual age of the elephant was not known. The elephant from the forest fell in the pit years back arranged to catch. The approximate age of the elephant was 80. Since the complainant has violated the policy conditions No.1 and 2 this opposite party repudiated the claim.
5. The valuation of the elephant and amount claimed by the complainant is excessive, unreasonable, baseless and incorrect. The complainant had not property assessed and reduced the value of tusk. So the complainant is not entitled to get the benefits as claimed. So the complainant is to be dismissed with cost to opposite party.
6. On going through the complaint, version, documents of both parties, the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite party?
2. Relief and Cost.
7. Point No.1:- In addition to complaint, the complainant filed proof affidavit. The complainant is examined as PW1 and documents are marked as Ext.A1 to A11. Complainant's witness is examined as PW2. Ext.A1 is the Certificate of ownership of the elephant. Ext.A2 is the declaration submitted by the Additional Chief Conservator of Forest. Ext.A3 is the copy of policy. Ext.A4 is the Repudiation letter, Ext.A5 is the Mahazer prepared by Forest Range Officer, Ext.A6 is the Valuation Certificate, Ext.A7 is the Description of Animal submitted by Veterinary Doctor, Ext.A8 is the claim Form. Ext.A9 is the Certificate of implementation of microchip issued by Forest and Wildlife department, Ext.A10 is the register which shows the treatment given to the elephant. Ext.A11 is the Certificate of Fitness prepared and signed by the Veterinary Doctor. On completion of complainant's evidence, the opposite party filed proof affidavit and is examined as OPW1 and Ext.B1 to B8 is marked. Ext.B1 is the copy of policy during the period 02.05.2012 to 01.05.2013. Ext.B2 is the Insurance Proposal Form. Ext.B3 is the claim form. Ext.B4 is the Certificate of description of animal. Ext.B5 is the Valuation Certificate. Ext.B6 is the paper cutting which reported the death of elephant. Ext.B7 is the copy of policy during the period 30.04.2011 to 29.04.2012. Ext.B8 is the policy during the period 02.05.2012 to 01.05.2013. On analyzing the evidences and documents, it is found that the elephant died on 15.10.2012 during the coverage period of the last policy. The elephant is being continuously insured with opposite party for the last 23 years. The period of coverage for the last but first policy was during the period 30.04.2011 to 29.04.2012. The present policy period is 02.05.2012 to 01.05.2013. So there is two days delay in renewing the policy. The elephant is admittedly died due to arthritis (Mayo cardial Infraction). So the Forum analyzed that there is no contagious or infectious disease prevalent at the time of the death of elephant. Ext.A11 is the Fitness certificate issued by a Government Veterinary Surgeon on 04.01.2012. The present policy is renewed on 02.05.2012. Ext.A11 will show that the elephant was fit to be reinsured as on 04.01.2012 onwards. In cross-examination of the Doctor who have attended the elephant stated that there is no permanent cronic diseases were there to the elephant and minor health problems occurred occasionally. The elephant had a disease named colic ie Erandakettu from 22.02.2011 up to 23.03.2011. Erandakettu is a common phenomena to all elephants. According to the Doctor, Erandakettu is not the reason for the death of animal. Erandakettu started to the animal on 22.02.2011 and it is cured on 23.03.2011. After this Erandakettu disease the elephant was in good condition for the next one and half years. In Ext.A7 Postmortem report, the cause of death is stated as cardiac arrest ie Mayo Cardial Infraction as a result of Arthritis. As per records and evidences, the Forum found that the above cause of death is not due to a continuous pre-existing disease. The Doctor who treated the animal is a Veterinary Surgeon in Government Dispensary at Irulam. He deposed that he was attending the health condition of the elephant for the last 15 years. According to the complainant, the said doctor is a permanent doctor who treats the elephant and that is why the complainant did not approach the veterinary surgeon who is working at Pulpally. The Forum cannot find fault with that and it does not mean that the doctor is biased. Minor discrepancies in Ext.A10 document can be ignored. The Forum found that there is no untrue declaration submitted at the time of proposal of policy as per condition 1 and 2 of the policy. As per condition 3 of the policy, the insurance company have the right to inspect the animal and to ascertain the health condition of the animal directly. But the opposite party did not make use of it. Moreover, the opposite party was collecting insurance premium from the complainant for the insurance of the elephant for the last 23 years continuously. The Forum found that when a claim arised, the opposite party is repudiating the claim with untenable grounds. That cannot be encouraged. The opposite party already collected huge amount of premium from the complainant for the last 23 years. So the Forum found that the repudiation of claim with untenable reasons by the opposite party is a deficiency of service from the part of opposite party. Point No.1 is found accordingly.
8. Point No.2:- Since Point No.1 is found in favor of complainant, the complainant is entitled to get the cost and compensation. The Point No.2 is decided accordingly.
In the result, the complaint is partly allowed and the opposite party is directed to pay Rs.3,00,000/-(Rupees Three Lakhs Only) being the sum assured amount to the complainant with 12% interest from the date of claim till payment. The opposite party is also directed to pay Rs.5,000/- (Rupees Five Thousand Only) as compensation and Rs.5,000/- (Rupees Five Thousand Only) as cost of the proceedings. The opposite party shall comply the Order within 30 days from the date of receipt of this Order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 30th day of September 2014.
Date of Filing:14.08.2013.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX
Witness for the complainant:-
PW1. K. Rajasekharan Nair. Agriculture.
CW1 Dr. K. S. Preman. Veterinary Surgeon.
Witness for the opposite parties:-
OPW1. Sajeevan. Branch Manager, United India Insurance
Company Limited, Sulthan Bathery.
Exhibits for the Complainant:-
A1. Certificate of Ownership. Dt:06.05.1992.
A2. Declaration submitted by Addition Chief Conservator of Forest.
A3. Copy of Insurance Policy.
A4. Repudiation Letter. Dt:03.05.2013.
A5. Copy of Mahazer.
A6. Copy of Valuation Certificate.
A7. Copy of Description of Animal.
A8. Copy of Claim Form.
A9. Copy of Certificate of Implementation of Microchip. Dt:22.05.2008.
A10. Register.
A11. Copy of Certificate of Fitness. Dt:04.01.2012.
Exhibits for the Opposite Parties:-
B1. Copy of Policy during the period 02.05.2012 to 01.05.2013.
B2. Cattle Insurance Proposal Form.
B3. Claim Form.
B4. Description of Animal.
B5. Valuation Certificate.
B6. Paper cutting.
B7. Copy of Policy during the period 30.04.2011 to 29.04.2012.
B8. Copy of Policy during the period 02.05.2012 to 01.05.2013.
Sd/-
PRESIDENT, CDRF, WAYANAD.
