Kerala

Idukki

CC/141/2017

Boban Chacko - Complainant(s)

Versus

New India Assurance Co.Ltd - Opp.Party(s)

Adv.Vikraman Nair M G

29 Nov 2019

ORDER

DATE OF FILING : 06/07/17

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 29^th day of November 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL P. MEMBER

CC NO.141/2017

Between

Complainant : Boban Chacko,

Kanakkalil House,

Upputhara P.O., Kakkathode,

Idukki District – 685 505.

(By Adv: Vikraman Nair N.G.)

And

Opposite Party : 1 . The New India Assurance Co.Ltd.,

Registered & Head Office: New India Assurance Building,

87 Mahatma Gandhi Road, Fort, Mumbai – 400 001.

2 . The Divisional Manager,

The New India Assurance Co.Ltd.,

Perincherry's Building, Round North,

Thrissur – 680 001.

(Both by Adv: Thomas Sebastian)

3 . AIMs Insurance Broking Pvt.Ltd.,

Insurance Broking, Thrissur.

 

O R D E R

SRI. S. GOPAKUMAR (PRESIDENT)

 

The case of the complainant is that,

 

Complainant is a member of MILMA, Upputhara Apcos having membership No.453. He purchased two Milch cows and both these cows are duly insured with the first opposite party through the second opposite party under the scheme Ksheera Mithram of Milma Ernakulam Region. The insured's name entered in the insurance policy is ERCMPU LTD (MILMA). The identification tag number of the cows covering under the cattle insurance policy No.76240047160400003176 are 3927039 and 420015/861330 respectively. Immediately after few days of the

(Cont.....2)

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inception of insurance policy, one of the cow having tag No.3927039 suffered a disease “Toxaemia” and it was under the treatment of Veterinary Surgeon, Upputhara from 01/11/16. But unfortunately the cow dead on 06/11/16. As per the norms, a claim was lodged before the opposite parties along with post mortem report, veterinary report and ear tag of the cow, for getting the insurance claim. But the insurance company had repudiated the claim on the reason stating in the insurance certificate that 'Death due to disease contracted prior to and within 15 days of commencement of the risk are not payable'.

 

Complainant further averred that, the subject matter cow dead on 16^th day of commencement of the risk policy and moreover the cattle was insured under a Scheme of MILMA, Ksheera Mithram. Hence the claim cannot be repudiated. Hence the act of the opposite parties is a deficiency in service and unfair trade practice. The complainant filed this petition for allowing the relief such as to direct the opposite parties to allow the claim amount as per the policy and further direct them to pay compensation and cost.

 

Upon notice opposite parties entered appearance and filed detailed reply version by admitting the insurance of cattle policy as stated in the complaint. Opposite parties further contented that on scrutiny of the claim of the deceased cow having ear tag No.3927039 along with post mortem report as well as Veterinary certificate, the cause of death was shock due to Toxaemia and the date on which the animal was first seen ill on 01/11/16. So the insured cow was affected by the disease within 15 days of commencement of the risk which was 22/10/16. As per the condition of the policy 'Death due to disease contracted prior to and within 15 days of commencement of the risk are not payable'. So the second opposite party informed the complainant that the insurance company is not able to entertain the claim and so closing the claim as 'No Claim' through a repudiation letter dated 07/12/16. There fore there is no deficiency in service and unfair trade practice on the part of the second opposite party in repudiating the claim. So the opposite parties is not liable to pay compensation and cost.

 

Evidence adduced by the complainant by way of proof affidavit and documents. Complainant and one Solly Thomas, Apcos Secretary were examined as PW1 and PW2 respectively. Ext.P1 to Ext.P8 were marked. Ext.P1 is the

(Cont.....3)

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purchase agreement of cows, Ext.P2 is the copy of cattle insurance policy, Ext.P3 is the copy of cattle claim, Ext.P4 is the copy of post mortem certificate, Ext.P5 is the claim repudiation letter dated 07/12/16, Ext.P6 is the certificate issued by the PW2, Ext.P7 is the proposal cum veterinary certificate of Milma, Ksheera Mithram Scheme, Ext.P8 is the copy of letter issued to the second opposite party by the Upputhara society.

 

From the opposite parties side one veterinary doctor B. Reghunandan was examined as DW1. The cattle insurance policy is marked as Ext.R1.

 

Heard both sides,

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties, and if so, for what relief the complainant is entitled to ?

 

The Point:- We have heard the counsels for both sides and had gone through the records. It is an admitted fact that the complainant had insured his two cows with the second opposite party. As per Ext.P2 cattle insurance policy certificate the insured is ERCMPU LTD (MILMA) A/C BOBAN CHACKO. One of the cattle bearing ear tag No.3927039 dead on 06/11/16. The cause of death stated in the post mortem report is shock due to 'Toxaemia'. The learned counsel for the complainant argued that, even though they submitted all relevant records along with the claim application, opposite parties repudiated the claim on the reason that as per the policy condition 'Death due to disease contracted prior to and within 15 days from the commencement of risk are not payable'. Repudiating the claim on a flimsy reason is gross deficiency in service, because the cows are insured under a specified scheme of Milma, Ernakulam diary named a “Ksheera Mithram”.

 

The counsel further argued that the disease Toxaemia caused to the cow due to a fall and resultant skin sore. The doctor who treated the cow was examined as DW2, categorically deposed that 'പശു വീണ് Hip fracture ഉണ്ടായി തുടർന്ന് കിടന്നതിനാൽ തൊലി ചീഞ്ഞു പോയതാണ് അസുഖം. രോഗം മൂലമുള്ള

 

(Cont.....4)

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വീഴ്ചയിൽ ഇത് ഉണ്ടാകുമോ (Q), രോഗം വന്നാൽ മറിഞ്ഞു വീഴാറില്ല.. Post mortem ത്തിൽ Shock due to bed sore മൂലം ചീഞ്ഞു toxin blood ൽ വരാം.'

 

Further the witness deposed that proposal form was submitted on 17/10/16 and under the scheme of Milma named as 'Ksheera Mithram'.

 

On perusing Ext.P2 cattle insurance policy, it is seen that clause 1 of special condition of the policy stated as 'Death due to Disease contracted prior to and within 15 days of commencement of risk are not payable for Non-Scheme cattle'. On further perusal of the documents, it is seen that, type of this policy is Non-Scheme. At the same time on going through Ext.P7 policy proposal form issued by the second opposite party for 'Milma Ksheera Mithram Scheme', it is specifically stated in the head.

 

'നഷ്‌ടപരിഹാരം ലഭിക്കാത്ത സാഹചര്യങ്ങൾ- 1) ഇൻഷുർ ചെയ്യുന്നതിന് മുൻപ് ആരംഭിച്ച രോഗം കൊണ്ടുള്ള മരണം.'

 

On going through the entire materials on this case, it is seen that the cattle insurance policy commenced on 22/10/16 and as per the veterinary certificate the cow affected Toxaemia from 01/11/16 and it dead on 06/11/16. Eventhough the post mortem report and veterinary surgeon's certificate says that the cause of death of the cow is shock due to Toxaemia. At the same time, the doctor who attedded the cow deposed that Toxaemia caused due to skin sore. He specifically deposed that the cow was fallen down and suffered hip fracture and dislocation. Due to that the skin sores are formed and the toxin from the skin sores affected the internal organs of the cow. So from the deposition of the DW1 Veterinary Surgeon the death caused due to the after affect of the fall and resultant skin sores. So it cannot be considered as a disease.

 

More over when we looked into the condition of Ext.P7 policy proposal form, it is obvious that the condition is not applicable for allowing this claim. At this juncture we should consider the version of the complainant that, the cows were insured under a scheme of Milma and their version is fortified through the deposition of PW2, the Society Secretary. Hence the contention of the opposite parties and entry in the insurance certificate that the policy is a non-scheme policy cannot be sustainable. More over the policy not directly issued to the

(Cont.....5)

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complainant. It is issued to the ERCMPU LTD (MILMA) for and on behalf of the complainant and it is quite natural that, the complainant is not aware of the policy condition.

 

On the basis of above discussion, the Forum is of a considered view that the act of repudiation of the cattle claim is no way justifiable and it amounts to deficiency in service . Hence the complaint allowed. Opposite parties directed to pay the claim amount to the complainant within 30 days from the date of receipt of the copy of this order, failing which this amount shall carry 12% interest from the date of default till its realization. No order to cost or compensation.

 

Pronounced in the Open Forum on this the 29^th day of November, 2019.

 

Sd/-

SRI. S. GOPAKUMAR (PRESIDENT)

Sd/-

SMT. ASAMOL P. (MEMBER)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Cont.....6)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Boban Chacko

PW2 - Solly Thomas

On the side of the Opposite Party :

DW1 - Dr.B.Reghunandhan

Exhibits :

On the side of the Complainant :

Ext.P1 - The purchase agreement of cows

Ext.P2 - The copy of cattle insurance policy

Ext.P3 - The copy of cattle claim

Ext.P4 - The copy of post mortem certificate

Ext.P5 - The claim repudiation letter dated 07/12/16

Ext.P6 - The certificate issued by the PW2

Ext.P7 - The proposal cum veterinary certificate of Milma,

Ksheera Mithram Scheme

Ext.P8 - The copy of letter issued to the second opposite party by the

Upputhara society.

On the side of the Opposite Party :

Ext.R1 - The cattle insurance policy

 

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT