KERALA STATE CONSUMER DISPUTES             REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL. 497/2010

JUDGMENT DATED 28.02.2011

PRESENT:-

SMT. VALSALA SARANGADHARAN       :     MEMBER

SHRI.  M.V. VISWANATHAN                      :  JUDICIAL MEMBER

 APPELLANT

The Manager,

New India Assurance Co. Ltd.,

Trivandrum.

                               (Rep. by  Adv. Sri. Sreevaraham G. Satheesh)

                                     Vs                          

 RESPONDENT

 S. Edwin Jose,

 GMS bunglow, Govinda Mangalam,

 Trivandrum.

.                   (Rep. by Adv. Sri. K.K. Rajeev Punnapuram)

JUDGMENT

SMT. VALSALA SARANGADHARAN      :     MEMBER

          This appeal is preferred from the order dated 30.6.2010 of CDRF, Trivandrum in O.P. 110/04.  The appellant herein was the opposite party and the respondent was the complainant.  The complaint was filed alleging deficiency in service on the part of the opposite party in repudiating the insurance claim put  forwarded by the complainant with respect to the insured cow. 

          It is the case of the complainant that he had purchased a cow and it was insured with the opposite party on 7.10.2003 for a sum of Rs. 20,000/-  But within a few days of purchase its lactation started decreasing day by day and come down to 500ml. per day.  On examination by the doctor, it is revealed that the cow was suffering from recurrent mastitis of short duration resulting in damage to lactiferous tissue and hypoagalatia and was under treatment of the said doctor from 16.10.2003 to 9.11.2003 and the doctor certified that the cow is permanently disabled.  The complainant informed this to the opposite party and fulfilled all the formalities and claimed the insured amount.  But his claim was repudiated on the ground that the illness/disease occurred within 15 days from the commencement of the policy.  According to the complainant, the said policy condition is applicable only to animals died due to disease contracted within 15 days of commencement of the policy, but his cow is still alive.  So he is eligible for benefits under the policy.  Alleging that the repudiation of his claim by the opposite party amounts to deficiency in service and unfair trade practice, he filed complaint before the Forum.

          The opposite parties filed version contenting that the disease of the cow was contracted within 15 days of the commencement of the policy and show under the exclusion clause 11 of the policy the claim is not sustainable.  Thus the opposite party is justified in their action in repudiating the claim and thus he prayed for dismissal of the complaint.

          We heard the learned counsel for the appellant/opposite party.  There was no representation for the respondent/complainant.  The learned counsel for the appellant argued for the position that the claim made by the complainant was repudiated on sustainable ground as the claim is hit by exclusion clause 11 of the conditions of the policy.  He has relied on clause 11 of Ext. D1 policy.  As per this clause, death or permanent total disability of the animal due to disease contracted within 15 days from the date of commencement of the risk is not covered by the policy.  He submitted that the disease contracted within 15 days from the commencement of the policy.  So it is excluded from the purview of the policy.  He further submitted that the respondent/complainant produced Ext. P7, the policy condition and as per Exclusion Clause11 of the policy,  death of animal due to disease contracted within 15 days from the date of commencement of risk  is not covered by the policy.  In the instant case the cow is alive and the respondent alleged that the cow is permanently disabled.  But as per the clause 11 of the Ext. P7, policy, there is no coverage for permanent total disability.  Thus in effect the respondent/complainant is not entitled the benefit under the policy if Ext. D1 or P7 is taken into consideration.  Thus he argued for the position that there was no deficiency in service on their part and  prayed for setting aside the impugned order passed by the Forum below. 

          On hearing the learned counsel for the appellant/opposite party and on perusing the records we find that the Exclusion Clause 11 of the D1 policy would support the case of the appellant that if the permanent total disability was due to disease contracted within 15 days of the policy, there is no coverage, and the claim can be repudiated.  On the other hand the policy condition which is  alleged to have been issued to the respondent/complainant would show that death due to disease contracted within 15 days from the commencement of the policy is excluded.  In the instant  case the cow is alive.  So as per Clause 11 of Ext. P7 Policy, the respondent/complainant is not entitled to the benefits.  The coverage is only for death and not for permanent total disability.  The available evident on record would show that the cow is permanently disabled due to disease and that disease was contracted within 15 days from the commencement of the policy.  Hence the order of the Forum below in directing the appellant/opposite party to give the benefits under the policy cannot be upheld.  Hence the same is set aside.

In the result, the appeal is allowed.  The impugned order dated 30.6.2010 of C.D.R.F., Trivandrum in C.C. 110/2004 is set aside.  As far as the present appeal is concerned, there shall be no order as to costs.

                          VALSALA SARANGADHARAN     :    MEMBER

                              M.V. VISWANATHAN        :  JUDICIAL MEMBER

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