ORDER
(Per: Mrs. Veena Sharma, Member):
In this appeal The Oriental Insurance Company Ltd.-appellant through its Senior Divisional Manager, Udhamsingh Nagar has challenged the judgment and order dated 19.11.2010 passed by the District Forum, Udhamsingh Nagar in consumer complaint No. 64 of 2008, whereby the District Forum has directed the opposite party-appellant to settle the claim within one month and to pay to the complainant claim amount together with interest @ 6% per annum from the date of filing the consumer complaint till the date of actual payment and Rs. 500/- for mental agony and Rs. 500/- towards cost of litigation.
2. Brief facts in nutshell are that the complainant-Sh. D. N. Jaiswal had purchased a cow and the same was comprehensively insured under Pashudhan Bima Scheme with The Oriental Insurance Company Ltd.–opposite party for the period from 14.05.2007 to 13.05.2008. The said cow bearing tag No. 13364 policy No. 253803 year 2008/141. The said cow died on 08.09.2007 due to illness, therefore, the complainant has informed the insurance company and Veterinary Doctor, Sadar, State Veterinary Hospital, Rudrapur, Udhamsingh Nagar. The death certificate of the deceased cow was issued by Veterinary Doctor and Panchnama was prepared in the presence of complainant’s neighbours and Senior Vice-President, Nagar Palika Parishad, Rudrapur (U.S.N.). The complainant had submitted all the original documents with the opposite party relating to the insurance claim, but the insurance company repudiated the complainant’s claim on 08.08.2008, stating that there was no tag on the ear in photograph of deceased cow. The complainant is a law abiding person. The opposite party does not want to pay insured amount, therefore, the complainant is suffering from mental agony and financial loss. The complainant is a consumer of the opposite party, therefore, he is entitled to get claim amount. The cause of action arose on 08.09.2007 on death of complainant’s cow and also on 08.08.2008, i.e. date of repudiation of the complainant’s claim. The complainant apprised that on 08.09.2007 it was IInd Saturday and the next day was Sunday. Due to this, the complainant could not inform the opposite party timely, rather he informed the Veterinary Doctor, Udhamsingh Nagar in this regard and all the formalities were completed in the presence of Veterinary Doctor. Alleging deficiency on the part of the opposite party, the complainant filed a consumer complaint before the District Forum, Udhamsingh Nagar.
3. The opposite party-The Oriental Insurance Co. Ltd. has pleaded in its written statement that the present consumer complaint is false, frivolous, misconceived in nature and has been filed with the sole motive of obtaining claim from the insurance company. The complainant has concealed and suppressed material facts with the malafide intention to mislead the District Forum. The complainant had not given any intimation to the insurance company within the stipulated time frame of 24 hours and the insurance company cannot be held for not complying with the mandatory requirement in clear contravention to the policy conditions. The complainant had deposited the tag to the insurance company long after the death of the cow that too without the part of the ear as per the mandatory requirement of the insurance policy and, hence, the complainant is not entitled for the claim as per the terms and conditions of the policy. The complainant had sent the intimation regarding the death of the said cow long after its death for which the insurance company cannot be held liable. The “No Claim” was done on the valid grounds when the photographs presented to the insurance company did not prove the death of the animal insured. The complainant had never complied with the formalities. The timely intimation is must so as to enable the insurance company to investigate regarding the reasons for the death of the animal and to identify the animal. The complainant had informed the insurance company long after the death of his cow even after the disposal of its dead body. As per the photographs made available by the complainant to the insurance company the tag is not shown in the ear of the deceased cow, but the same can be seen in the live cow standing near the deceased cow. For the reasons aforesaid the complainant is not entitled for any relief as claimed by him. Therefore, the consumer complaint filed by the complainant is liable to be dismissed.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 19.11.2010. Aggrieved by the said order, the opposite party has filed the present appeal.
5. We have heard learned counsel for the parties and have also perused the record.
6. The first and foremost argument forcefully advanced by learned counsel for the appellant that the deceased cow had no tag on her ear. The second major argument that the contract of insurance was based on the doctrine of “uberrimae fide” (of the utmost good faith) and that the terms and conditions of such contract is binding on both the parties. He forcefully contended that in the present case, the complainant has not approached this Commission by clean and clear hands and was guilty of suppression of material. Learned counsel emphasized that the claim of the complainant is rightly rejected by the insurance company and the grounds of repudiation have been elaborately disclosed in its letter dated 08.08.2008 (paper No. 49). Under these circumstances there was no deficiency of service nor adoption of unfair trade practice on the part of the appellant. For this reason the consumer complaint was liable to be dismissed. He further argued that there has been violation of the conditions of the insurance policy. In as much as the insurance company was informed by the complainant by a letter after 7 days’ lapsed. The condition of the insurance policy in enjoins upon the insured, to have informed the insurer immediately after the incident.
7. On the other hand, the learned counsel for the respondent argued that the respondent was not aware that he needs to give this information to the insurance company. He was advised by the Veterinary Doctor to intimate the insurance company for the claim of his cow. Delay to inform the appellant-insurance company, was due to the fact that the insured was not aware that he had to inform the insurance company-appellant immediately after the death of insured cow (cattle).
8. From the perusal of the order passed by the District Forum and the evidence filed by both the parties on record and submissions raised by the learned counsel for the parties, it is evident that a letter dated 08.09.2007, which was addressed to the Branch Manager, The Oriental Insurance Co. Ltd.-appellant, was sent by the respondent-Sh. D.N. Jaiswal in regard of the death of his cow, but the same was received by the insurance company on 14.09.2007. A Panchnama dated 08.09.2007 is filed at paper No. 18, wherein it is mentioned that the cow of Sh. D.N. Jaiswal-respondent has been died on 08.09.2007 at 04:00 a.m. The deceased cow was of black colour. Photograph of the deceased cow was taken in the presence of Ward Members. The death certificate of the deceased cow has been issued by Veterinary Doctor, Veterinary Hospital, Rudrapur Sadar, Udhamsingh Nagar (paper No. 19). On the back side of paper No. 20 (Post-mortem report), it is verified by Veterinary Doctor that at the time of death, the tag was in the ear of deceased cow. The report of Sh. U.C. Joshi, Surveyor and Loss Assessor is filed at paper No. 21. In his investigation report, he has mentioned that according to the insured/respondent the cow was insured under ULDB scheme and number of ear tag was 13364. The deceased cow was 5 months pregnant and was ill for 4 days from her death, and was under treatment of Veterinary Doctor, Rudrapur and died on 08.09.2007. The respondent informed the Veterinary Doctor, Rudrapur about the death of the said cow. According to the insured, he was not aware that the information of the death of cow should be given to the insurance company immediately. On advice of Doctor, the respondent took the photograph of the deceased cow and put off the tag from her ear. He further stated that he does not know that the ear should be cut alongwith tag. Without cutting the ear, the respondent disposed of the dead-body of the cow in the forest. After 4 days of the death of cow, the complainant informed the insurance company. The respondent has stated the surveyor that photograph, ear tag etc. had been deposited with the insurance company. Atlast the surveyor had given his report to the insurance company that the respondent-insured had a cow which was insured under ULDB scheme and was died on 08.09.2007. He further stated that a report should be asked from the Veterinary Doctor. In statement dated 07.02.2008 (paper No. 23) Sh. D.N. Jaiswal-respondent has also stated that his cow, which was insured under ULDB scheme, was died on 08.09.2007 and he gave the information to the Veterinary Doctor, but he was not aware that the insurance company should also be informed immediately. On Doctor’s advice he took the photograph of the deceased cow and took out the tag from her ear. An affidavit of Sh. U.C. Joshi, Surveyor and Loss Assessor is filed at paper No. 25. An affidavit of Sh. A.K. Saxena, Senior Divisional Manager, Oriental Insurance Co. Ltd., Rajpur Road, Dehradun has been filed at paper Nos. 27 to 28. A registered letter dated 07.04.2008 of The Oriental Insurance Co. Ltd.-appellant, was sent to Veterinary Doctor, Rudrapur, Udhamsingh Nagar in which the company inquired from the Doctor that “has he done the post mortem of the complainant’s cow or not? During post mortem, was the deceased cow bearing the ear tag No. 13364 or not?” A reply letter dated 14.04.2008 sent by the Veterinary Doctor to The Oriental Insurance Co. Ltd. in which Veterinary Doctor has apprised that in the claim form the above questions have been answered. The insurance company asked the respondent that the deceased cow was expired on 08.09.2007 and the respondent intimated the insurance company on 14.09.2007, thus, there is delay of 6 days’ which is violation of the policy’s condition. They further asked that the tag was in two pieces and in the photograph there was no tag in the ear of deceased cow. In short reply of this letter, the respondent sent a letter dated 27.12.2007 (paper No. 48) to the insurance company stating therein that he was not aware about the intimation to the insurance company immediately and he had no contact number of insurance company. The Veterinary Doctor advised him to cut the ear, so he cut the ear of the deceased cow and separated the tag. The report of the Veterinary Doctor is an authentic report to verify the deceased cow. In the death certificate of the deceased cow, the Veterinary Doctor has stated that during insurance the medical check-up was conducted by him and he knows the deceased cow. He further stated that on the basis of the medical report, he came to know that the cow was insured. The insurance company has not rebutted the Veterinary Doctor’s statement.
9. Learned counsel for the appellant has cited a decision of this Commission in the case of New India Assurance Co. Ltd. vs. Sher Singh; III (2003) CPJ 319. In this case, no tag in the ear of deceased mule, compensation denied. As per agreement the insurance company was not liable to pay compensation in absence of ear tag. In the present case, the Veterinary Doctor has proved on medical report that he knows that the cow was insured. At the time of death, the cow was bearing ear tag. So this citation is not applicable in the present case.
10. There is no dispute with regard to the fact that the complainant-respondent had took the insurance for his cow from the opposite party-appellant under the ULDB scheme. The only dispute is that the deceased cow in question was insured or not. As the insurance company has alleged that the deceased cow, which was died on 08.09.2007, was not insured by the insurance company, but they have not filed any rebuttal of Veterinary Doctor’s report. On the other hand the respondent has disclosed this fact that he was not aware that he has to give the intimation to the insurance company-appellant. After knowing it, the respondent had immediately informed the insurance company and had submitted the ear tag and photograph of the cow to the insurance company.
11. There was a delay of 4 to 5 days to intimate the insurance company (by only unawareness) it cannot be construed as the violation of the terms of the insurance policy. In the said case, as per the post mortem report, the cow was bearing the ear tag. We do not find any evidence on record which indicates that the Veterinary Doctor’s report is challenged. On the other side, the respondent does not have any contact number of the appellant-insurance company. There were two holidays in between. So the respondent could not contact the insurance company on time.
12. After perusal of the report, evidence and oral submissions raised by the learned counsel for the parties, we are of the view that the District Forum has properly considered the facts and circumstances of the case and has rightly allowed the consumer complaint as per impugned order. We do not find any illegality, irregularity and jurisdictional error in the impugned order and the District Forum has rightly grant the maximum award to the complainant-respondent. Rs. 500/- towards mental agony and Rs. 500/- for litigation expenses awarded by the District Forum are perfectly justified, therefore, there is no question of interest on the claim amount and as such the interest awarded by the District Forum is liable to be set aside. Thus, the appeal succeeds partly and the order impugned is to be modified accordingly.
13. For the reasons aforesaid, the appeal is partly allowed. The impugned order dated 19.11.2010 passed by the District Forum, Udhamsingh Nagar, is modified and the insurance company-appellant is directed to pay the claim amount to the complainant–respondent and also to pay Rs. 500/- towards mental agony and Rs. 500/- for litigation expenses. The award of interest @ 6% per annum passed by the District Forum is hereby set aside. Cost of the appeal is made easy.
