Haryana

Yamunanagar

CC/522/2012

Anil Kumar s/o Sh.Shyam Lal, - Complainant(s)

Versus

NIC Ltd. - Opp.Party(s)

VK Kamboj

14 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                                    Complaint No. 522  of 2012.

                                                                                                    Date of institution: 28.05.2012

                                                                                                    Date of decision:  14.07.2016

Anil Kumar aged about 31 years son of Shri Shyam Lal, resident of village & P.O. Gobindpura, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                                                 …Complainant.

                                                Versus                                                

1. National Insurance  Company Ltd. New Fountain Chowk, Workshop Road, Yamuna Nagar through its Divisional Manager.
2. Punjab National Bank, New Grain Market, Yamuna Nagar, through its Branch Manager.                                                                                                                                                                                                                                …Respondents 

Before:               SH. ASHOK KUMAR GARG, PRESIDENT

                          SH. S.C.SHARMA, MEMBER

Present: Sh. Vijay Kumar Kamboj, Advocate, counsel for complainant.   

              Sh. Karnesh Sharma, Advocate, counsel for respondent No.1.

              Sh. Atul Jaiswal, Advocate, counsel for respondent No.2.   

 

ORDER

1.                     Complainant Anil Kumar has filed the present complaint under section 12 of the Consumer Protection Act 1986 praying therein that the respondents (hereinafter referred as OPs) be directed to pay claim amount of Rs. 45,000/- alongwith interest on account of death of cow and also to pay compensation and litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant was owner of three milch cows and was financed from the Op No.2 and OP No.2 took a policy bearing No. 422100/47/11/9400000273 from Op No.1 which was effective from 3.11.2011 to 02.11.2012 and identification tag was put in the ear of each cow.  On 22.03.2012 a cow bearing tag No. NIC/00296 fell ill and the same was treated by Veterinary doctor of Government Veterinary Hospital, Chandpur and the said cow died on 22.03.2012 at about 5./5.30 PM and the postmortem was conducted on 24.03.2012 by the Veterinary doctorof Government Hospital, Chandpur. At the time of treatment, the tag was intact and a certificate to this effect has been given by the doctor Vijay Chaudhary of Government Veterinary Hospital, Chandpur on 26.03.2012 certifying that he has been conducting the postmortem of the cow bearing tag No.NIC/00296. The complainant intimated to OP No.1 who has also informed the Op No.2 in this regard.  The Sarpanch of Gram Panchayat Gobindpura, Block Jagadhri has also issued a certificate and the same was submitted to the OPs but they have got manipulated the report in connivance with their surveyor and has given a false report that ear tag of the cow was not found intact in the ear of deceased cow at the time of death and as such they have repudiated the claim of the complainant vide its letter dated 02.05.2012 on flimsy ground. Hence this complaint.

3.                     Upon notice, OPs appeared and filed its written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable against the OP No.1; the claim of the complainant has been repudiated on the legal and valid ground under special condition of the insurance policy “ No. Tag No Claim” The complainant was informed about the fate of his claim vide registered letter dated 02.05.2012; this Forum has got no territorial jurisdiction to try, entertain and adjudicate the present complaint; the complaint is bad for non joinder and mis joinder of necessary parties; complainant has not come to this Forum with clean hands; complainant has no locus standi to file the present complaint and on merit it has been admitted that the OPNo.1 had issued an insurance policy under cattle insurance, insured’s name PNB (NGM) A/c Sh. Anil Kumar son of Shyam Lal vide insurance policy No. 422100/47/11/9400000273 which was effective from 03.11.2011 to 02.11.212. On receiving the intimation regarding the death of one cow bearing tag No. NIC/00296, the OP No.1 immediately registered the claim and deputed Mr. Ashok Kumar Sood for inspection and after inspection he submitted his report dated 30.30.2012 and came to the conclusion that the ear tag was not intact on the carcass of cow. Since, the ear tag was not intact on the carcass of cow, the genuineness of claim is not established and the claim is not payable as per terms and conditions of the insurance policy “No tag No Claim”. Mr. Ashok Kumar Sood had also obtained a written statement of Mr. Anil Kumar, duly signed by him in the presence of witnesses. The complainant has stated that the ear tag was not intact in the carcass of the cow. As such, there is utter violation of the terms and conditions of the insurance policy, the claim of the complainant was repudiated on legal and valid ground and the complainant was informed accordingly vide registered letter dated 02.05.2012.  Lastly, prayed for dismissal of complaint being no deficiency in service or unfair trade practice on the part of OP No.1 Insurance Company. 

4.                     OP No.2 filed its written statement by taking some preliminary objections such as complaint is not maintainable as there is no deficiency in service on the part of OP Bank towards the complainant as the insurance claim has to be paid by the Op No.1 National Insurance Company as the cow was insured with them and on merit no information regarding the death of said cow has been given to the Op No.2 by the complainant. OP No.2 had not inspected the dead body of the cow. If the said cow has been died then only the Op No.1 is liable to pay the claim to the complainant and Op No.2 is not liable to pay any claim to the complainant rather the OP Bank has a right to recover their loan amount given to the complainant in time. Lastly prayed for dismissal of complaint.

5.                     To prove the case, counsel for the complainant summoned the witnesses and have examined witnesses Sh. Parveen Arora Administrative Officer, Dr. Vijay Chaudhary and Sh. Rajesh Kamboj as CW1 to CW3 and thereafter the evidence of the complainant was closed by court order dated 09.04.2015. However, at the time of filing of complaint counsel for the complainant tendered short affidavit of  complainant  and documents such as Photo copy of health certificate Annexure C-1, Photo copy of Insurance Cover Note Annexure C-2, Photo copy of certificate issued by Veterinary Surgeon Annexure C-3, Photo copy of postmortem certificate Annexure C-4, Photo copy of valuation certificate Annexure C-5, Photo copy of Bank Advance Certificate Annexure C-6, Photo copy of insured Animal’s Death Verification by Bank Annexure C-7, Photo copy of certificate issued by Sarpach Gram Panchayat Gobindpura, Block Jagadhri Annexure C-8, Photocopy of Live Stock Claim Form Annexure C-9, Photo copy of veterinary certificate Annexure C-10, Photo copy of claim repudiation letter dated 02.05.2012 Annexure C-11, Photo copy of ration card Annexure C-12, Photographs of cow Annexure C-13 and C-14, Receipt of photographer Annexure C-15 in support of his complaint.

6.                     On the other hand, counsel for the OP No.1  Insurance Company tendered into evidence affidavit of Parveen Arora, Administrative Officer, NIC, as Annexure RW1/A and documents such as Photo copy of claim repudiation letter dated 02.05.2012 as Annexure R1/1, Duplicate Insurance Policy as Annexure R1/2, Photo copy of intimation letter dated 24.03.2012 as Annexure R1/3, Photo copy of surveyor report as Annexure R1/4, Photo copy of intimation letter dated 24.03.2012 written to PNB as Annexure R1/5 and closed the evidence on behalf of OP No.1.

7.                     Counsel for the OP No.2 closed the evidence without tendering any document on behalf of OP No.2  on 18.04.2016.

8.                         We have heard learned counsel for both the parties and have gone through the pleadings as well as documents carefully and minutely placed on the file. Counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for opposite parties reiterated the averments made in reply and prayed for its dismissal.

9.                     Learned counsel for the complainant argued at length that genuine claim of the complainant has been repudiated by the OP Insurance Company on the flimsy ground that the dead cow was not wearing any tag in the ear at the time of death i.e  No Tag No Claim, whereas other particulars of the dead cow mentioned in the PMR Annexure C-4 were tallied with the particulars mentioned in the Health Certificate Annexure C-1 as the Veterinary Doctor Vijay Chaudhary admitted in his statement made in the Forum CW2 that the description of the animal in the health certificate and postmortem report are same. Learned counsel for the complainant further argued that OP Insurance Company cannot repudiate the claim on the mere ground that there was no Tag in the ear of the dead cow and referred the case law titled as National Insurance Company Limited and another Versus Roop Dass and Another, 2004(1) CPC page 573 State Commission Punjab wherein it has been held that three buffalos were insured with opposite party for Rs. 38,250/- one of them died- Claim filed but repudiated- District Forum held that particulars of deceased buffalo did tally with buffalo described at serial No.1 in the health certificate annexed with document of policy- Repudiation of claim on the basis of postmortem report cannot be sustained as tag was not found tied to the body of buffalo at the time of postmortem- Appeal dismissed with costs. Further referred the case law titled as New India Assurance Co. Ltd. Versus Gaindi Devi, 2004(1) CLT page 347 Uttaranchal State Commission, Dehradoon wherein it has been held that Insurance Claim- Buffalo died- Claim refused on the ground that there was no tag in the ear of the buffalo- The survey was after 5 months- Held that the recording of evidence by the surveyor after 5 months does not remain reliable- Order of the District Forum allowing the complaint on the basis of evidence on record upheld.

10.                   On the other hand, counsel for the OP No.1 Insurance Company hotly argued at length that the claim of the complainant has been rightly repudiated vide its letter dated 02.05.2012 (Annexure C-11/R-1) as there was violation of terms and conditions of the Insurance Policy on the part of the complainant. The dead cow was not wearing any tag in the ear at the time of spot survey done by the Investigator Sh. Ashok Kumar Sood, which is evident from Investigator Report (Annexure R1/4). Learned counsel for the OP further argued that as per terms and conditions of the insurance policy no claim is payable if the dead cow does not wear the tag as the specific condition has been mentioned in the policy that “No Tag No Claim” and draw our attention towards the insurance policy/cover note Annexure R1/2/C-2. Learned counsel for the OP further argued that the claim of the complainant has been rightly repudiated vide its letter dated 02.05.2012 (Annexure R1/1). Hence, there is no deficiency in service or unfair trade practice on the part of Op Insurance Company and referred the case law titled as United India Insurance Company Ltd. Versus Banbari 2003(1) CLT Page 621 State Commission, Lucknow.

11.                   After hearing the parties at length, we are of the considered view that there is deficiency in service on the part of OP Insurance Company and the claim of the complainant has been wrongly repudiated by the Op Insurance Company. The law cited by the counsel for the OPs is not disputed but not helpful in the present case whereas the law cited by the counsel for the complainant is fully applicable in the present case as in the case titled as National Insurance Company Limited and Another Versus Roop Dass and another (Supra) it has been mentioned that repudiation of claim on the basis of postmortem report cannot be sustained as tag was not found tied to the body of buffalo at the time of postmortem. In the present case statement of Dr. Vijay Chaudhary, Veterinary Surgeon, GVH, Chandpur, Yamuna Nagar was recorded who stated that the description of the animal in the health certificate and postmortem report are same. It has also been admitted by the Veterinary Surgeon that usually they suggest the owner to bring carcass after removing the tag at the place of postmortem as it may be misplaced. Even, the investigator Sh. A.K.Sood has specifically mentioned in the report Annexure R1/4 under head conclusion that “ The identity of carcass of cow tallies with description of cow given in health certificate, as per post mortem report the cow died due to illness.”  Thus the repudiation letter dated 02.05.2012 (Annexure R-1/1) is liable to be set aside and the act of the OP No.1 in repudiating the claim of the complainant amounts to deficiency in service and the complaint of complainant deserve acceptance.

12.                   Learned counsel for the complainant placed on file photo copy of No Objection Certificate issued by the PNB New Grain Market, Yamuna Nagar dated 29.03.2016 wherein the loan amount had already been cleared by the complainant of the Bank. As such the complainant is entitled to get the insured amount.

13.                   Resultantly, we partly allow the complaint of complainant and direct the OP No.1 Insurance Company to pay a sum of Rs. 45,000/- as insured amount on account of deceased cow bearing tag No. NIC/00296 to the complainant alongwith interest at the rate of 7% per annum from the date of filing of complaint till its realization and also to pay Rs. 2000/- as litigation expenses within 30 days failing which the complainant is at liberty to initiate the legal proceedings against the OP Insurance Company as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 14.07.2016.

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER