STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 19.04.2017
Date of final hearing: 21.11.2023
Date of pronouncement: 10.01.2024
First Appeal No.468 of 2017
IN THE MATTER OF :-
M/s Gill Emu Farm through its Prop. Jeewan Singh S/o Sh. Baldev Singh, R/o Village Dhanoor, Tehsil Rania, District Sirsa.
....Appellant
Versus
1. The Manager, Oriental Insurance Company Limited, Branch Office at SCO 325, 2nd Floor, Sector-9, Panchkula also having its Branch Office at Sirsa.
2. M/s Galaxy Agro Foods International, through its Chairman Mr. Ajay Kamboj, situated at Opp. Main Gate GMK National College, New Mandi, Sirsa through its Chairman Mr. Ajay Kamboj.
3. Ajay Kamboj, Chairman of M/s Galaxy Agro Foods International, R/o Dhani 400, Post Office Jhorar Nail, Tehsil and District Sirsa. …..Respondents
CORAM: Sh. Naresh Katyal, Judicial Member
Argued by:- Sh. Gaurav Grover, counsel for the appellant.
Sh. Satpal Dhamija, counsel for respondent No. 1.
Services of respondent No. 2 and 3 already dispensed with vide order dated 20.09.2017.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:-
Delay of 46 days in filing of present appeal stand condoned for the reasons stated in the application for condonation of delay.
2. Challenge in this Appeal No.468 of 2017 filed by appellant-complainant has been invited to the legality of order dated 30.01.2017 passed by District Consumer Disputes Redressal Forum-Sirsa (In short “District Consumer Commission”) in complaint case No.64 of 2014, vide which appellant’s complaint has been dismissed.
3. Facts in brief run as follows: complainant deals in business of sale/purchase of eggs of Emu birds/Immu birds. OP No.2 also deals in business of sale/purchase of Emu birds/Immu birds while OP No.3 is sole proprietor/ Chairman of OP No.2-firm. Complainant came in their contact; desired for purchasing Emu birds and OPs agreed. Complainant purchased 15 pairs of Emu birds under contract, which were supplied by OP No.2. It was assured that all pairs aged about 42 months will provide 20-25 eggs in a year and average will be 25 eggs per pair. As per contract, Rs.6,00,000/- was to be paid by complainant to OP No.2 and rate of per egg will be Rs.1200/- for ten years and after 10 years; rates will be fixed on market rate, or by mutual consent. Insurance of 15 pairs was conducted by OP No.1 after medical checkup of birds vide policy No.469434 w.e.f. 02.10.2012 to 02.10.2013. Out of 15 pairs of birds; 17 Emu birds died from 28.12.2012 to 27.09.2013 (details in this regard have been mentioned in para no. 6 of complaint). Their post-mortems were conducted on date of their death. After death of Emu birds within the period of insurance, complainant supplied all documents to appointed surveyor/agent of OP No.1 but OPs failed to make payment of sum assured against each and every dead bird though it was liability of OP No.1. It is pleaded that OP No.1 failed to discharge its legal liability in spite of verifying all facts regarding genuineness of claim of complainant. Legal notice was issued by complainant to OPs and he is entitled to Rs.2,12,500/- along with other benefits as per condition of policy. When he approached Branch Officer Sh. D.P. Singh at Panchkula regarding death of Emu birds on different dates; said officer demanded various documents i.e. claim form, copy of insurance policy, copy of post-mortem report, copy of purchase bill, copy of cancellation of cheque, photographs of Emu birds, original tag, evidence of neighbour, report regarding feed and medicine to birds and he (complainant) sent these documents to said officer and also sent copies of those documents to branch office at Sirsa, but despite that; claim of birds has not been disbursed to him. It is averred that: due to death of birds; he has undergone harassment, pecuniary and non-pecuniary loss as he purchased Emu birds by availing loan facility from bank and now due to death of birds; he has suffered double loss i.e. loss of profit and he is unable to pay installments of loan amount and OP No.1 caused mental tension, harassment and humiliation by not disbursing the sum assured. He is entitled to compensation of Rs.2,00,000/- from OP No.1 as well as from OPs No.2 & 3, jointly and severally. Conduct of OPs in repudiating claim of complainant is in utter disregards to insurance policy and OP No.1-insurer did not bother to give opportunity of hearing to him, before repudiating his claim and out rightly refused to disburse claim without any information to him and disclosure of any fault on his part. He is also entitled to Rs.5000/- as litigation expenses.
4. Counsel for the complainant suffered statement before learned District Consumer Commission on 27.04.2015 to give up OP No.2. Accordingly vide order dated 27.04.2015, OP No. 2 was given up, while through same order dated 27.04.2015, OP No.3 was proceeded against ex-parte.
5. Contest has been raised by OP No.1-insurer only. In its written statement it is pleaded that: Complaint is not maintainable, complainant has no locus standi. He has concealed and suppressed true material facts. He is stopped from filing of this complaint by his own act and conduct. Insurer vide its letters dated 09.12.2013, 17.12.2013 and 21.01.2014 required him (complainant) to fulfil all formalities, relating to different claims i.e. daily mortality record, feed record, treatment record, purchase bill, remaining birds maintained at his farm, but he did not respond to these letters and remained silent and did not provide required details. From perusal of complaint, it is clear that he purchased Emu birds from OPs No.2 & 3 for business purposes which fall under commercial transaction. Complainant purchased these birds under contract, so he does not fall within “definition of consumer” and subject matter of complaint is also out of purview/ scope of provisions of the Act. It is pleaded that complainant has violated terms and conditions of Emu Birds Insurance Policy. As per condition No.6 of policy; complainant was under obligation to keep all essential records about mortality of birds; as per clause 13 of policy, he was to give immediate information about death of bird in writing/telegram, but in this case, complainant has failed to follow these terms and conditions of insurance policy, so his claim does not lie. As per exclusion clause (d); no claim lies due to loss/death due to natural mortality and non-specified or unknown disease or reasons. Birds had died due to not providing proper feed and not due to any disease. Claim of complainant has been rightly repudiated.
6. Complainant and OP No. 1-insurer to this lis led their respective evidence; oral as well documentary.
7. By critically analyzing the same, learned District Consumer Commission-Sirsa vide order dated 30.01.2017 has dismissed complainant’s complaint; thereby giving rise to filing of this appeal.
8. Learned counsel for complainant/appellant and OP No.1/insurer has been heard at length. Record of complaint has also been perused.
9. Learned counsel for the appellant has urged that impugned order 30.01.2017 is illegal and arbitrary. 15 pairs of Emu Birds were purchased for Rs.6.00 lacs and all pairs were aged about 42 months. Price of birds was to be paid by appellant to OP No.2 @Rs.1200/- per egg for 10 years and rate after 10 years would be as per market rate or as per mutual consent. Insurance of all 15 pairs of birds were conducted by OP No. 1 which was effective from 02.10.2012 to 01.10.2013 and sum insured was Rs.3,75,000/-. 17 Birds out of 15 pairs died from 28.12.2012 to 27.09.2013. Insurer was timely informed about death of these birds. Requisite formalities for disbursement of insurance claim were done by appellant, but insurer failed to discharge its legal liability, despite verifying all facts. On these pleas learned counsel for appellant-complainant has prayed for acceptance of appeal.
10. On the other hand, learned counsel for respondent No. 1-insurer has urged that: impugned order dated 30.01.2017 does not warrant any interference, on legal or factual front. There was violation of terms and conditions of insurance policy by appellant. There was no prompt intimation regarding death of birds to insurer. Post-mortem examination of dead Emu Birds was conducted by Veterinary Surgeon on same day of death of Emu Bird, as it is so visible from post-mortem reports Ex.C-11 to Ex.C-14, Ex.C-16 to Ex.C-17 and Ex.C-19 to Ex.C-29. It is urged that: Emu Birds had suffered death as they were not provided proper feed. Birds did not die due to any disease. Hence, as per contention, insurer has rightly repudiated the claim of appellant under policy Ex.C-5/Ex.R-12.
11. On analyzing rival contentions put across by learned counsel for complainant/appellant and learned counsel for insurer/respondent No.1; this Commission is of firm opinion that: impugned order dated 30.01.2017 passed by learned District Consumer Commission-Sirsa does not contain any illegality. Reasons are obvious. Out of 15 pairs of Emu birds; 17 allegedly had suffered death on different dates. One Emu bird died on 28.12.2012 of the age 45 months; one bird died on 29.07.2013 of age 50 months; two birds died on 06.08.2013 each of age of 50 months; two birds died on 09.09.2013 each of age of 50 months; two birds died on 13.08.2013 each of age of 50 months; one bird died on 17.08.2013 of age of 50 months; one bird died on 20.08.2013 of age of 50 months; one bird died on 22.08.2013 of age of 50 months; one bird died on 31.08.2013 of age of 50 months; one bird died on 02.09.2013 of age of 50 months; two birds died on 21.09.2013 of age of 50 months and 51 months respectively and two birds died on 27.09.2013 each of age of 51 months.
12. Each dead bird was subjected to post mortem examination. Ex.C-11 is post mortem report of one bird died on 28.12.2012 which reflects that bird died due to ‘pneumonia’ and lungs are congested filled with fluid. Ex.C-12 to Ex.C-14 three post mortem reports of birds that died on 29.07.2013 (single death) and 06.08.2013 (two deaths). Their post mortem report recites that the cause of death is due to ‘cholera/salmonella’. Ex.C-16 & Ex.C-17 are two post mortem reports of two birds that died on 09.09.2013; their cause of death is due to ‘typhoid’. Ex.C-19 and Ex.C-20 are two post mortem of two birds died on 13.08.2013; their cause of death is due to ‘asphyxia/pneumonia’ and ‘Nodules in lungs’ has been noticed therein. Ex.C-21 is post mortem report of one bird that died on 17.08.2013 and lungs of this bird had been found congested. Ex.C-22 & Ex.C-23 are two post mortem reports of birds that died on 20.08.2013 & 22.08.2013; their cause of death is due to ‘Fowl Typhoid’. Ex.C-24 to Ex.C-27 are four post mortem reports of birds died on 31.08.2013 (one bird), 02.09.2013 (one bird), 21.09.2013 (two birds) respectively. Their respective cause of death is acute ‘pneumonia and Fowl Typhoid’. Ex.C-28 and Ex.C-29 are two post mortem reports of two birds that died on 27.09.2013; their respective cause of death is ‘pneumonia and Foul Typhoid’. In medical terminology; ‘Cholera/ Salmonella or Salmonellosis’ is defined as an acute diarrhoeal infection, caused by ingestion of food or water contaminated with the bacterium Vibrio cholerae. Similarly, Salmonella infection (salmonellosis) is a common bacterial disease that affects the intestinal tract. Salmonella bacteria typically live in animals. This infection is most frequently through contaminated water or food. In medical terminology, ‘Lung nodules’ are defined as small clumps of cells in the lungs. Fowl typhoid (FT) is septicaemic disease, primarily of chickens and turkeys, caused by Gram negative bacteria, Salmonella Gallinarum and S. Pullorum. Pneumonia, in medical terminology is defined as an infection that inflames the air sacs in one or both lungs. The air sacs may fill with fluid or pus. This Commission is of opinion that only because of reasons so stated in post mortem reports; insurer has set up a case that complainant/appellant should fulfill formalities by providing it: daily mortality record, feed record, treatment record, purchase bill and remaining birds maintained in farm, but complainant did not respond and not provided desired details. Palpably, the formalities as detailed above and desired by insurer from complainant could not be fulfilled, due to non-maintenance of essential record about Emu birds’ mortality by complainant thereby violating term and condition No. 6 of policy. Insurer’s investigator/surveyor namely Royal Associates has also submitted its report-Ex.R10 dated 04.03.2014 and opinion therein runs as under:-
“On the basis of above said findings and documentary evidence, we are of the opinion that Gill EMU Farm is situated at Village Dhanur (Sirsa). As per statement of insured they could not give proper food (Meal) to these birds and due to this these birds died. So this is gross negligence on the part of insured, which is not covered under policy. Insurer may deal with claim as per terms and conditions of policy, in view of above said findings. This report is issued without prejudice.”
13. Above report Ex.R-10 dated 04.03.2014, of insurer’s surveyor/investigator depicts about the horrible situation of Emu Birds, at spot of Gill Emu Farm-complainant. There is no reason before this Commission to brush aside and ignore this factual report Ex.R-10 of insurer’s surveyor/investigator. Based on its surveyor’s/investigator’s opinion; insurer has closed the claim file vide its registered communication dated 07.04.2014-Ex.R-6. Divisional Manager of insurer in his duly sworn affidavit Ex.R-1 has testified in para No. 4 about repudiation of claim. This quality oral version of insurer’s Manager, on oath, certainly transpire credence in legal parlance which would disentitle the complainant from relief. Matter does not end here. 17 Emu birds had suffered death from 28.12.2012 to 27.09.2013 as explained above. There is no credible evidence available on record showing that insurer has been timely intimated about deaths of these birds by insured which is violation of condition No. 13 of policy. The learned District Commission has rightly observed on this scenario that complainant/appellant has violated the conditions 6 & 13 of EMU Birds Insurance Policy-Ex.R-12/Ex.C-5. Clause-D of this policy-Ex.R-12/Ex.C-5, which talks of loss/death due to natural mortality, in explicit and unambiguous terms, excludes the insurer from its liability under policy. Insurer has rightly invoked exclusion clause D of policy.
14. From detailed discussion of all relevant facets of this case it is established that loss and death is due to natural mortality. This fact gain stimulus, if case is analyzed from yet another angle. There is statement dated 26.02.2014 of Gursewak Singh S/o Sh. Baldev Singh. The conclusion which can be carved out from reading of this statement is that: feed had not been provided to Emu birds. Complainant cannot wriggle out from legal import flowing from this statement. This statement was suffered by Gusewak Singh before insurer’s investigator and same find reference in investigator’s report Ex.R-10 dated 04.03.2014. This being the position apparent on record; it is observed that: complainant has been rightly non-suited by learned District Consumer Commission-Sirsa through its observation in impugned order dated 30.01.2017 that complainant is not entitled to any claim from insurer.
15. This Commission does not find any justifiable ground to upset the well reasoned finding recorded by learned District Consumer Commission-Sirsa through its order dated 30.01.2017 and to interfere in same. Resultantly, impugned order dated 30.01.2017 is maintained, affirmed and upheld. Present appeal of complainant, being devoid of any substance is dismissed.
16. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
17. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
18. File be consigned to record room.
Date of pronouncement: 10th January, 2024.
Naresh Katyal
Judicial Member
Addl. Bench-II
