BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 110/2004 Filed on 08.03.2004

Dated : 30.06.2010

Complainant:

Dr. S. Edwin Jose, G.M.S. Bunglow, Govinda Mangalam, Ooruttambalam P.O, Thiruvananthapuram.

(By adv. K.K. Rajeev Punnapuram)

Opposite party :

The Senior Branch Manager, New India Assurance Co. Ltd., T.C 42/82-OO, II Floor, Government Press Road, Thiruvananthapuram.

(By adv. Sreevaraham G. Satheesh)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 14.02.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 18.05.2010, the Forum on 30.06.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Facts of the case are as follows: Complainant had purchased a Bovini H.F Cow on 05.10.2003 from one Sukumaran Nair, for Rs. 23,000/-, the colour of which is black and white, bearing Tag No. 54227 and which is 3 years and 6 months of age. The same was purchased by the complainant for his domestic use. Complainant had insured the said cow with the opposite party on 07.10.2003 for Rs. 20,000/- vide policy No. 760502/47/03/00589. The above said cow was purchased by the complainant for milching purpose and milk yield of the cow at the time of purchase was 25 litres per day. But to the utmost surprise of the complainant after a few days of purchase of the cow, its lactation started decreasing day by day and ultimately the milk yielding came down to 500 ml per day. Complainant immediately took the said animal to Dr. Jacob Alexander, Veterinary Surgeon, Veterinary Dispensary, Thiruvananthapuram on 16.10.2003. On examination, the said doctor informed the complainant that the animal is suffering from recurrent mastitis of short duration, resulting in damage to lactiferous tissue and hypoagalatia. The animal was under the treatment of the said doctor from 16.10.2003 to 09.11.2003, for the above disease. Complainant states that the doctor has certified that the animal is permanently disabled. It is further stated that immediately after the receipt of the above said report, the complainant had contacted the opposite party fulfilling all the formalities and claimed the insured amount from the opposite party. But to the complainant's great dismay his claim was repudiated by the opposite party on the ground that since the illness/disease occurred within 15 days from the commencement of the above policy, they are not in a position to entertain the same. It is highly note worthy that as per the terms of the policy, the company is not liable to pay the claim only in the event of death of the insured animal due to disease occurring within 15 days from the commencement of the risk. The complainant states that his cow is still alive and hence the said policy condition is applicable only to animals dead due to disease. The act of the opposite party in repudiating the claim of the complainant is against law and amounts to deficiency in service and unfair trade practice.

In this case, opposite party, the New India India Assurance Co. Ltd., filed their version. Opposite party admitted the insurance policy and the alleged illness and permanent disability to the cow. The opposite party processed the claim and as the same was not payable as per the policy conditions, the same was repudiated and the complainant was informed of the fact of repudiation by letter dated 19.12.2003. The policy commences from 07.10.2003 and the illness started on or before 16.10.2003. This is within 15 days of the commencement of the policy. The exclusion clause II of the policy clearly states that “Notwithstanding anything contained herein to the contrary, it is hereby declared and agreed that no claim in respect of Animal(s) covered by this policy shall be payable in the event of death/permanent total disability of the animal(s) due to the disease contracted within 15 days from the date of commencement of risk”. In the light of the above policy condition, the complainant's claim is not payable and hence rightly repudiated by the opposite party and the matter was informed to the complainant. When a claim does not fall within the purview of a policy or when there is a clear exclusion clause for the claim, the opposite party can only repudiate the same. This is not a deficiency of service or unfair trade practice as alleged by the complainant.

In this case both partied filed proof affidavit. Complainant has been examined as PW1 and he has produced 8 documents to prove his contentions. From the side opposite party 3 documents were marked.

The points that arise for consideration are:-

1. Whether there is deficiency in service or unfair trade practice occurred from the side of opposite party?

2. Whether the complainant is entitled to get the reliefs?

Points (i) & (ii):- Complainant had insured his cow with the opposite party on 07.10.2003 for Rs. 20,000/- vide policy No. 760502/47/03/00589. Due to the illness the animal is permanently disabled and the milk yielding capacity of the cow has lost. The cow was under treatment from 16.10.2003 onwards. Immediately after the receipt of the report of the veterinary doctor the complainant contacted the opposite party and claimed the insured amount. But the claim was repudiated by the opposite party on the ground that since the illness/disease occurred within 15 days from the commencement of the policy, they are not liable to pay the amount. Complainant argued that as per the terms of the policy the company is not liable to pay the claim only in the event of death of the insured animal due to disease occurring within 15 days from the commencement of risk. To prove their contentions both parties filed proof affidavit and filed documents. The document marked as Ext. P1 is the copy of policy schedule and payment schedule. As per this document we can see only one exclusion clause. As per this clause “ the company is not liable to pay the claim in the event of death of insured animal due to disease occurring within 15 days from the commencement of risk”. There is not any other conditions. This is the copy issued by the opposite party to the complainant. Ext. P2 is the document issued by the opposite party to the complainant with endorsement wording “It is hereby declared and noted that the tag No. 3644 is lost and new tag bearing No. 54227 is retagged”. Ext. P3 is the copy of veterinary certificate regarding the disability of the cow along with claim form. Ext. P4 is the claim repudiation letter dated 19.12.2003. In that letter opposite party stated that 'since the illness/disease occurred within 15 days from commencement of the above policy, we are not in a position to entertain your claim'. Ext. P5 is the copy of letter issued by Consumer Protection Council to the opposite party on behalf of the complainant dated 07.01.2004. Ext. P6 is the copy of acknowledgement card signed by the opposite party. Ext. P7 is the copy of the clause attached with Ext. P1. In Ext. P1 document it is stated that “cattle claim attached”. From the documents adduced by the complainant there is no such exclusion clause that total disability of the animal within 15 days of commencement of the policy is excluded. In this case the opposite party contended that Ext. P7 is a photocopy of proposal cum policy and it is not actual proposal submitted by the complainant. But in our opinion Ext. P7 is the part of Ext. P1 policy schedule and receipt. To prove their contention, opposite party has produced Ext. D1 document. Ext. D1 is the proposal cum policy with receipt and veterinary certificate. In that document the complainant has not signed in the declaration form. Hence that document is not a valid document. It is true that in Ext. D1 document there are terms and conditions of the insurance policy and as per clause 11 of the policy it is stated that “Notwithstanding anything contained herein to the contrary, it is hereby declared and agreed that no claim in respect of Animal(s) covered by this policy shall be payable in the event of death/permanent total disability of the animal(s) due to the disease contracted within 15 days from the date of commencement of risk”. Opposite party stated that Ext. D1 is the proposal cum policy with the conditions on its reverse side. But nowhere in the document the complainant has signed. How the opposite party can issue insurance policy on the basis of this unsigned declaration form of the policy proposal. Hence we cannot accept the genuineness of Ext. D1. Ext. D2 is the copy of repudiation letter dated 19.12.2003. Ext. D3 is the copy of letter issued by the opposite party to the Consumer Protection Council informing their inability to settle the claim.

We have carefully examined all the documents and other evidence submitted by both parties. But there is no such exclusion clause in the policy issued to the complainant by the opposite party and there is only one exclusion clause specifically mentioned in Ext. P1 policy. At the time of argument opposite party argued that if the claim was valid, then he is entitled for 75% of claim and not the full amount. On the basis of that argument we find that it is reasonable to allow 75% of the insurance amount to the complainant. Hence the complaint is allowed.

In the result, opposite party is directed to pay Rs. 15,000/- to the complainant along with 9% annual interest from the date of complaint i.e; 08.03.2004 till the date of realization. Opposite party shall also pay Rs. 1,500/- as costs. No compensation allowed. Time for compliance one month from the date of receipt of the order. Thereafter 12% annual interest shall be paid for the entire amount.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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O.P. No. 110/2004

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Edwin Jose

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of policy schedule.

P2 - Copy of receipt issued by New India Assurance Co. Ltd.

P3 - Photocopy of livestock claim form.

P4 - Photocopy of the letter dated 19.12.2003 issued by New India Assurance Co. Ltd.

P5 - Photocopy of notice dated 07.01.2004 issued to opposite party

P6 - Copy of acknowledgement card

P7 - Photocopy of policy conditions

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Photocopy of proposal-cum-policy with receipt and veterinary certificate.

D2 - Photocopy of repudiation letter dated 19.12.2003.

D3 - Photocopy of letter issued by the opposite party.

PRESIDENT

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