STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 04.05.2017
Date of final hearing: 21.11.2023
Date of pronouncement: 10.01.2024
First Appeal No.603 of 2017
IN THE MATTER OF :-
M/s HDS Emu Farm Kuttabadh through its Prop. Devender Singh S/o Sh. Jarnail Singh, R/o Village Kuttabadh, Tehsil Ellenabad, District Sirsa (Haryana). ....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 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 Nali, Tehsil and District Sirsa. …..Respondents
Note: In the proceedings of complaint before District Consumer Commission; respondent No. 2 herein/OP No. 2 was given up while respondent No. 3 herein/OP No. 3 were proceeded against ex-parte as it is apparent from impugned order dated 30.01.2017.
CORAM: Sh. Naresh Katyal, Judicial Member
Argued by:- None for appellant.
Sh. B.R. Madan, counsel for respondent No. 1.
Services of respondent No. 2 and 3 already dispensed with vide order dated 28.06.2017 (first order passed in this appeal by this Commission).
ORDER
NARESH KATYAL, JUDICIAL MEMBER:-
Delay of 61 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.603 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.66 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. OP No.2 also deals in business of sale/purchase of Emu 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 25 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 20-35 eggs in a year and average will be 25 eggs per pair. As per contract, requisite price of birds 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 25 pairs was conducted by OP No.1 after medical checkup of birds vide policy No.469443 w.e.f. 04.10.2012 to 03.10.2013. Out of 25 pairs of birds; 5 Emu birds died. On 02.03.2013 (one bird died), on 23.05.2013 (two birds died), on 29.05.2013 (one bird died) and on 31.05.2013 (one bird died). Their post-mortems were conducted on date of their death. After death of Emu birds within the period of insurance, complainant approached office of OP No.1 for disbursement of claim amount i.e. sum assured as per insurance policy issued by OP No.1 and also supplied all documents to appointed Agent/Surveyor of OP No.1. However, OPs failed to make payment of sum assured against each and every deceased bird, though it is its legal liability, as well as, of OPs No.2 & 3 because they got insurance of Emu birds from OP No.1 and also assured for disbursement of claim/compensation in case of any casualty of birds within insurance period. Legal notice was issued by complainant to OPs and he is entitled to Rs.65,000/- 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. Complainant also sent letter dated 10.07.2013 to Sh. D.P. Singh- Branch Officer of insurer and also sent e-mails regarding his grievance to authorized officer insurance of company, but of no avail. 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.3,00,000/- 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 estopped 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. This appeal was filed by appellant through Sh. Vikas Bishnoi, Advocate whose power of attorney dated 02.05.2017 is on record. He appeared only once on 28.07.2017 (i.e. first date fixed in this appeal). Thereafter, either his proxy was appearing, or there was no representation on his behalf. As a matter of fact, after 25.04.2018, nobody has appeared on behalf of appellant/complainant in this appeal. Position was same even on 21.11.2023 when arguments on behalf of OP No.1-insurer were heard and concluded in this appeal. Above facts clearly reflect a pathetic state of affair so far as prosecution of this appeal by appellant is concerned.
9. In wake of above situation; this Commission has perused memorandum of appeal filed by complainant/appellant, wherein it is pleaded that impugned order 30.01.2017 is illegal and arbitrary. 25 pairs of Emu Birds were purchased for Rs.10.00 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 25 pairs of birds were conducted by OP No. 1 which was effective from 04.10.2012 to 03.10.2013 and sum insured was Rs.6,50,000/-. 5 Birds out of 25 pairs died from 02.03.2013 to 31.05.2013. 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 liability, despite verifying all facts. Although, it is not been pleaded in the complaint that insurer obtained signature of appellant on discharge voucher of Rs.9,800/- through its false representation, yet, this fact has been asserted in Para No. 13 of memorandum of appeal. Criminal case was registered against OPs No. 2 and 3. On these pleas taken in memorandum of appeal, 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-6 to Ex.C-10. 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-5.
11. On analyzing grounds taken in memorandum of appeal of appellant and rival contentions put across by 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 25 pairs of Emu birds; five allegedly suffered death on different dates. One Emu bird died on 02.03.2013 of the age 45½ months. Post-mortem Ex.C-6 of this bird was conducted on the same day. Cause of death was: bird had died due to severe pneumonia. 2 Emu Birds of the age of 51½ months had died on 23.05.2013. Post mortem examination of these two Emu birds was conducted on same day i.e. on 23.05.2013 and Ex.C-7 & Ex.C-8 are the post mortem reports. Cause of death of these 2 causalities was similar i.e. due to severe enteritis. One Emu bird of the age of 51½ months had died on 29.05.2013. The post mortem examination report-Ex.C-9 of this bird too reflects that cause of death is due to acute type of severe enteritis. One Emu bird of the age 51½ months had died on 31.05.2013 and Ex.C-10 is the post mortem report of this bird which was conducted on the same day. Cause of death was: bird had died due to acute enteritis. In medical terminology; Enteritis is inflammation of small intestine. Most common causes are viral and bacterial infections. Enteritis can also include stomach (Gastroenteritis) or Large Intestine (Enterocolitis). Enteritis caused by infection is often Gastroenteritis. Common examples are food poisoning and the stomach flu”. Post Mortem Reports Ex.C-6 to Ex.C-10 of all five birds i.e. one who died on 02.03.2013, two who died on 23.05.2013, one who died on 29.05.2013 and one bird who died on 31.05.2013 speak in one language that: Intestines has been found congested. Only because of this reason 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.R2 dated 10.02.2014 and opinion therein runs as under:-
“On the basis of above said finding and documentary evidence, we are of the opinion that HDS Emu Farm is situated at Village Kutagadh (Distt. Sirsa). Farm started in August 2012. Twenty Five Pairs of birds were purchased at that time. Loan was sanctioned from Co. Op. Bank. Plastic Tags were not put in legs of these birds by officials of insurance Company. Tags were given in hand of insured which are still lying with them. Insured himself confessed the same in his statement. Tag was not intact in leg of birds. Moreover insured himself confessed in his statement that birds died due to non-proper feeding. Proper feed was not being provided to birds as they are not having sufficient money to purchase feed, it is also gross negligence on the part of insured. Claim is not admissible under both conditions. Insurer may deal with claim as per terms and conditions of policy, keeping in view of above said findings. This report is issued without prejudice.”
12. Above report Ex.R-2 dated 10.02.2014, of insurer’s surveyor/investigator depicts about the horrible situation of Emu Birds, at spot of HDS Emu Farm-complainant. There is no reason before this Commission to brush aside and ignore this factual report Ex.R-2 of insurer’s surveyor/investigator. Based on its surveyor’s/investigator’s opinion; Senior Manager of insurer has testified in his duly sworn statement Ex.R-1 (para no. 4 thereof) that insurer has repudiated the 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. One Emu bird had died on 02.03.2013, two Emu birds had died on 23.05.2013, one Emu bird died on 29.05.2013 and one another Emu bird had died on 31.05.2013. There is no evidence on record led at the behest of complainant thereby showing that intimation about death of Emu bird was instantly, promptly and immediately given to insurer either on same day of death, or within short proximity to that ill-fitted day(s). This too is clear violation of terms and conditions (condition No.13) of insurance 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-5. Clause-D of this policy-Ex.R5, 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.
13. 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 12.11.2013 of Devinder Singh S/o Sh. Jarnail 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 Devinder Singh before insurer’s investigator and same find reference in investigator’s report Ex.R-2 dated 10.02.2014. 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.
14. 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.
15. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
16. 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.
17. File be consigned to record room.
Date of pronouncement: 10th January, 2024.
Naresh Katyal
Judicial Member
Addl. Bench-II
