| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 104 of 21-04-2017 Decided on : 16-01-2018 Kuldeep Singh aged about 45 years S/o Sh. Gursewak Singh, R/o Kothe Kaur Singh Wala, Tehsil Phul, District Bathinda. …...Complainant Versus Oriental Insurance Company Limited, Branch Office, having its Divisional Office, 4501 Bank Bazar, Bathinda, through its Manager Oriental Insurance Company Limited, A-25/27, Asif Ali Road, New Delhi 110 002 through its Managing Director .......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986. Quorum : Sh. M.P.Singh. Pahwa, President Sh. Jarnail Singh, Member Smt. Sukhwinder Kaur Member Present : For the complainant : Sh. Harraj Singh, Advocate. For the opposite parties : Sh. M L Bansal, Advocate. O R D E R M. P. Singh Pahwa, President Kuldeep Singh, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Oriental Insurance Company Limited & another (here-in-after referred to as 'opposite parties'). Briefly stated, the case of the complainant is that he is owner of six cows. He got them insured with the opposite parties vide Cover Note/Policy No. 233200/47/2017/260 dated 2-1-2017 for the period from 2-1-2017 to 31-1-2020, on payment of requisite premium of Rs.17,280/- with the opposite parties for sum assured of Rs. 3,60,000/-. The opposite parties inserted Ear Tag/Chips inside the insured cows. It is further pleaded that at the time of obtaining insurance cover note, the insurance adviser of the opposite parties had obtained signatures of the complainant on various blank printed forms and documents without explaining contents of the same. As per complainant due to his bad-luck, one of his cow bearing Tag No. Chip No. 990000001100741 died on 11-1-2017. The complainant intimated the opposite parties about the death of Cow. The opposite parties appointed their surveyor who visited the house of complainant and inspected dead cow. He also recovered Tag/Chip from the dead cow, in order to establish identity of dead cow. Thereafter complainant lodged insurance claim with the opposite parties vide Claim No. 233200/47/2017/000027 and supplied copies of the relevant documents to them but to the utter dismay and surprise, the opposite parties have repudiated the claim of the complainant vide letter dated 1-3-2017 on the ground that as per policy exclusion, the claim is not payable if cattle died due to disease within 15 days of the inception of the policy. In this case, the policy incepted on 2-1-2017 and the insured cattle had died on 11-1-2017. So as per policy exclusions, the claim is not payable and is repudiated. The complainant has pleaded that repudiation letter dated 1-3-2017 is totally wrong, illegal, null and void, arbitrary, nonest and is against the principles of natural justice. The cow had died on 11-1-2017 i.e. much later from the date of purchase of insurance policy which was purchased on 2-1-2017. The cow was insured w.e.f. 2-1-2017 on which date, the opposite parties had received premium from the complainant. In the policy schedule issued to the complainant, there was no mention of any such condition that no claim is payable in case of death of insured cow within 15 days from the date of inception of the policy nor it was disclosed to the complainant by the insurance advisor. The complainant has pleaded that he is entitled to the insurance claim of Rs. 60,000/- from the opposite parties on account of death of his insured cow. It is further pleaded that due to said act of the opposite parties, the complainant is suffering from great mental tension, agony, botheration, harassment, humiliation and huge financial loss. He has claimed compensation to the tune of Rs. 20,000/- for this harassment etc., in addition to insurance claim of Rs. 60,000/- and Rs. 5500/- as litigation expenses. Hence, this complaint. Upon notice, the opposite parties appeared through counsel and contested the complaint by filing written reply. In written reply, the opposite parties raised legal objections that complaint has been filed only to injure the reputation of the opposite parties. The complaint is false, frivolous and vexatious to the knowledge of the complainant. The opposite parties are entitled to special costs to the tune of Rs.10,000/- under Section 26 of the 'Act'. That intricate questions of law & facts are involved in the present complaint, which require voluminous documents and evidence. That the complainant has concealed material facts and documents from this Forum. He is not entitled to any relief. The opposite parties have pleaded that true facts are that on receipt of claim, regarding death of insured cattle, the claim was processed. It was found that the policy was effective from 2-1-2017 whereas insured cattle has died on 11-1-2017. As per policy exclusion, the claim is not payable if cattle died due to disease within 15 days of the inception of the policy. Since the claim of the complainant has arisen within 15 days of the inception of the policy, it is not payable. Accordingly, claim has been repudiated by competent authority and an intimation in this regard was given to the complainant vide registered letter dated 1-3-2017. The further legal objections are that the complainant is not consumer as defined under the 'Act'. That the complainant has no locus standi or cause of action to file the complaint. That the complaint is not maintainable in its present form. That there is no deficiency in service or unfair trade practice on the part of the opposite parties. The claim has been repudiated after thorough investigation. That this Forum has got no jurisdiction to try and entertain the complaint and it is liable to be dismissed. On merits, it is not denied that complainant got his cows insured but it is denied that signatures of the complainant were obtained on any blank printed forms and documents. It is not denied that one of the cow died on 11-1-2017. Regarding repudiation of claim, the opposite parties have reiterated their version as taken in preliminary objections and detailed above. It is also asserted that claim has been repudiated as per terms and conditions of the policy. After controverting all other averments, the opposite parties prayed for dismissal of complaint. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit dated 3-8-2017 (Ex. C-1), photocopy of letter (Ex. C-2), photocopy of security form (Ex. C-3), photocopy of report (Ex. C-4), photocopy of insurance particulars (Ex. C-5), photocopy of cancelled cheque (Ex. C-6), photocopy of claim form (Ex. C-7), photocopy of valuation certificate (Ex. C-8), photocopy of postmortem certificate (Ex. C-9), photocopy of policy schedule (Ex. C-10), photocopy of schedule of premium (Ex. C-11), photocopy of health certificate (Ex. C-12) and photocopy of letters (Ex. C-13 & Ex. C-14). In order to rebut this evidence, opposite parties have tendered into evidence affidavit dated 1-6-2017 of R L Bleem (Ex. OP-1/1), photocopy of policy schedule (Ex. OP-1/2), photocopy of agreement (Ex. OP-1/3), photocopy of terms and conditions (Ex. OP-1/4) and closed the evidence. We have heard learned counsel for the parties and gone through the record. Learned counsel for complainant has submitted that material facts are not in controversy. It is not denied that complainant got insured his six cows from the opposite parties. Ex. C-4 proves this fact. The complainant has pleaded that one of his cow died on 11-1-2017. This fact is also not denied. The complainant has also placed on record survey report (Ex. C-5). In this report, it was concluded that recovery of chip from dead carcass confirms the identity of the insured cow. Cow is in good state of health yielding 15 Ltrs of milk and was insured on 2-1-2017. Colour and ID marks tally with those in the health certificate. It was observed that case is genuine and may be settled as per rules of the company. The survey report of the opposite parties (Ex. C-5) further confirms the genuineness of the claim. The opposite parties have repudiated the claim vide letter dated 1-3-2017 (Ex. C-2). The only ground for repudiation is that insured cattle died due to disease within 15 days of the inception of the policy. The complainant has pleaded in para No. 4 of complaint that that there was no mention of any such condition. It is also pleaded that such condition was not disclosed to complainant. There is no categorical denial to this averment. Therefore, it is to be accepted that no such exclusion clause was made known to the complainant. The opposite parties have received premium vide receipt (Ex. C-4). In this receipt also, there is no reference of any terms and conditions. Although the opposite parties have tendered into evidence copy of Market Agreement (Ex. OP-1/3) to take shelter of exclusion clause but there is no reference of this document in receipt issued to the complainant. Therefore, this document cannot be read against the complainant. It is further submitted by learned counsel for the complainant that even otherwise as per this condition, the claim is not payable if the death of insured animal is due to disease occurring within 15 days from the commencement of policy. When the opposite parties want to take shelter of this condition to avoid their liability, they are also required to prove that death of insured cattle was due to disease occurred within 15 days from the date of insurance but there is no evidence to prove any disease to the cattle within this period. In repudiation letter also, it is simply mentioned that claim is not payable if cattle died due to disease within 15 days but it is not mentioned that death of insured cattle was due to any disease. Therefore, claim of the complainant cannot be held excluded under this condition also. On the other hand, learned counsel for the opposite parties has submitted that complainant has not brought complete facts before this Forum. In the case of insurance, the matter is to be settled as per terms and conditions contained in the policy. The complainant himself has placed on record policy schedule (Ex.C-10 & Ex. C-11). Some conditions are incorporated in this document. It is categoricaly mentioned that insurance under this policy, in addition to special condition(s), is subject to general terms, conditions, clauses, warranties and also specifically applicable to cattle insurance as specified in the Livestock Insurance Policy attached hereto. Therefore, the version of the complainant that there is no mention of the terms and conditions stands belied from the documents produced by the complainant himself. When the documents relied upon by complainant himself prove that policy was subject to certain terms and conditions, the complainant cannot take any advantage from the fact that in pleadings the opposite parties have not categorically repudiated this averment. The opposite parties have also placed on record copy of Market Agreement on Cattle Insurance (Ex. OP-1/3). This agreement is applicable to all indigenous, cross-bred and Exotic cattle owner by/belonging to private owners and various financial institutions. Condition No. 15 of this agreement contains additional policy conditions which include 15 days waiting period. The complainant got insured cattle w.e.f. 2-1-2017. Therefore, the waiting period was upto 17-1-2017. The loss is of 11-1-2017 which is within waiting period. Hence, the claim stands excluded. The opposite parties are justified to repudiate the claim as per terms and conditions. There is no deficiency in service. The complaint be dismissed with special cost. We have carefully gone through the record and have considered the rival contentions. Some facts are not in dispute. It is not disputed that complainant got insured his six cows with the opposite parties. Ex. C-10 & Ex. C-11 prove this fact. One of the insured cattle died on 11-1-2017. Intimation was also given to the opposite parties. The opposite parties admittedly appointed surveyor. The report of surveyor is produced as Ex. C-5. The surveyor, surveyed on 11-1-2017 i.e. on the date of occurrence and physically verified dead cow. After survey, the surveyor has opined that cow is in good state of health. Case is genuine and may be settled as per rules of company. Although in the column Cause of Death, it is mentioned 'Aphysia due to Tympany, but there is no categorical conclusion of any disease being cause of death of cattle. Of course, it is mentioned that as per policy exclusion clause, claim is not payable if cattle died due to disease within 15 days of the inception of policy. It is further mentioned that in this case policy incepted on 2-1-2017 and the insured cattle had died on 11-1-2017. There is no categorical reference of any disease being cause of death of cattle. This order is based on the report of the Misc Accident Claim Scrutiny Form which is on the file as Ex. C-3. A perusal of this document reveals that in the column 'Department's Observation' it is mentioned that “On going through the claim papers, it is found that the damage has been occurred within the waiting period clause i.e. 15 days. So the claim may be repudiated and file may be approved for Rs. 1995/-.” On the basis of this remarks by 'Department's observation' Dy Manager further reported that “As per exclusion clause, claim is not payable if cattle died within 15 days of inception of the policy. In this case policy incepted on 2-1-2017 and insured cattle died on 11-1-2017. So the claim is not payable and may be repudiated. Investigation fee may be approved for Rs. 1995/- only.” The scrutiny of these reports coupled with letter of repudiation (Ex. C-2) reveals that it is clear that opposite parties have repudiated the claim not on the basis of any disease but on the ground of waiting period. Now the question is whether the complainant was made aware of this exclusion clause. Ex. C-10 & Ex. C-11 is the policy schedule. As per this document, period of insurance is from 2-1-2017 to midnight of 01-01-2020. In case there was any waiting period of 15 days, then the period of insurance was to be mentioned after excluding 15 days i.e. from 17-1-2017. In this document some conditions are specified which are as under :- No Tag No Claim Claim would not be admissible in the event of : (i) Theft, Clandestine State and Missing of Animal (ii) Insured not surrendering Eartag in respect of dead animal to the company There is no reference to any waiting period of 15 days as alleged by the opposite parties. Of course it is also mentioned that this policy is subject to general terms, conditions, clauses, warranties and also specifically applicable to Cattle Insurance as specified in the Livestock Insurance Policy. The opposite parties have not brought on record copy of any Livestock Insurance Policy. The opposite parties have tendered into evidence one Market Agreement on Cattle Insurance(Ex.OP1/3). Now it is to be seen whether terms and conditions mentioned in this agreement are applicable to the complainant. At the top of this agreement it is mentioned that :- “This is an agreement between the four subsidiaries of GIC of India in respect of Cattle Insurance business and shall be observed by all the four companies with regard to rates, terms and conditions prescribed by this agreement.” The beginning of this document reveals that it is agreement between four subsidiaries of GIC. There is nothing to show that it was made part of the policy. The opposite parties have tried to justify repudiation on the ground of condition No. 15 of this agreement, which is reproduced as under :- “15. Additional Policy Condition 'No tag – No Claim' and 15 days waiting period would be additional conditions hence forthwith. Wording may be as under :- (i) 15 days waiting period
The Company is not liable to pay the claim in the even of death of insured animal due disease occurring within 15 days from the commencement of risk.
(ii) No tag No Claim In the event of death of animals covered under the policy, claims shall not be entertained unless the ear tags are surrendered to the company. In the event of loss of ear tags, it is the responsibility of the insured to give immediate notice to the company and get the animal retagged.'
A perusal of this condition also reveals that 15 days waiting period will be applicable only in the event of insured cattle died due to disease occurring with 15 days from the commencement of risk. Therefore, as per this clause also, the opposite parties were to prove that death of insured animal was due to any disease occurred within 15 days. There is neither averment nor any evidence to prove that death of insured animal was due to any disease occurring within 15 days from the date of inception of policy. Therefore, this exclusion clause is also not applicable to justify repudiation. For the reasons recorded above, this complaint is partly accepted with Rs. 4,000/- as cost and compensation. The opposite parties are directed to pay to complainant Rs. 60,000/- with interest @ 9% p.a. from the date of repudiation i.e. 1-3-2017 till payment, being the sum insured of cow in question.
The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 16-01-2018 (M.P.Singh Pahwa ) President (Jarnail Singh ) Member
(Sukhwinder Kaur) Member | |
