Between

The  New India Assurance Company Ltd.,
rep. by its Divisional Manager, Rajahmundry

                                                                Appellant/opposite party

                                                        A N D

Shri Satyanarayana Poultries
rep. by its Partner Sri Ch.Ramanna
Vemulappali, Dwarapudi, E.G.Dist-533341
E.G.District

                                                                Respondent/complainant

Counsel for the Appellants            Sri Naresh Byrapaneni

Counsel for the Respondent          Sri P.Ramesh Babu

 QUORUM:                  SRI SYED ABDULLAH, HON’BLE MEMBER

      &

                            SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

WEDNESDAY, THIS THE TWENTY SEVENTH DAY OF OCTOBER TWO THOUSAND TEN

Oral Order ( As per R.Lakshminarsimha Rao, Member)
           ***

1.     The parties are referred to as they have been arrayed in the complaint.  The factual matrix of the case is that the complainant farm, a partnership firm doing poultry business insured 16,690 poultry birds with the opposite party insurance company by paying premium amount of `61,445/-.  Comprehensive poultry insurance policy bearing No.476 120 010 1287 dated 29.9.1998 for the period from 29.9.1998 to 19.1.2000 was issued in favour of the complainant.  The policy covers the risk of death of birds due to diseases of various kinds and other perils.  The birds were attacked with a disease for which the complainant got them treated by a qualified veterinary doctor, but 5709 birds died from 19.5.1999 to 8.6.1999. The complainant requested the opposite party insurance company to depute a surveyor to assess the loss.  The complainant has to inform every day the mortality of the birds due to disease to the opposite party insurance company and the opposite party insurance company has to send surveyor to count the dead birds which are required to be burnt in his presence, to prevent and control of the spreading of disease to other birds.  But as per the procedure of the opposite party insurance company, the dead birds are to be kept separately till the surveyor inspected them.

2.     The complainant informed the mortality daily to the opposite party insurance company.  The opposite party insurance company did not depute a surveyor on 27.5.1999, 29.5.1999, 30.5.1999 and 3.6.1999 due to which the complainant was compelled to keep the dead birds till the arrival of the surveyor.  The dead birds were burnt in the presence of the surveyor.  The disease spread over and the complainant farm sustained heavy loss due to non-deputation of surveyor in time by the opposite party insurance company.  The total number of birds died due to disease during the period from 19.5.1999 to 8.6.1999 was 5709.  The valuation of the birds by the opposite party insurance company is unreasonably less than the actual cost incurred by the complainant.  The surveyors had taken the photographs of the dead birds and also the scene of burning the dead birds.  The complainant lodged claim for `3,31,122/- at the rate of   `58/- per bird for the total number of dead birds 5709, but the opposite party failed to process the claim for which the complainant made several representations.  In the month of December 1999, the complainant called for furnishing of irrelevant details to cover up the lapse on its part in settling the claim.  The complainant got issued notice dated 20.9.2000 for which there was no response from the opposite party insurance company. 

3.     The opposite party insurance company resisted the claim.  It was contended that the opposite party insurance company issued the insurance policy covering 16,690 birds. On report of the mortality of the bird by the complainant, the surveyor deputed by the opposite party insurance company inspected the insured farm and on it physical verification, he had found that the complainant obtained several insurance policies from different offices of the opposite party and branches of the National Insurance Company.  The policies were obtained on different age group of birds.  The complainant has not maintained live stock register, mortality register, day to day register, invoice wise, batch wise for each policy.  The complainant should not shift the insured batch birds from one shed to another and should not mix one batch with the other.  The officials of the opposite party and the surveyor found that the complainant mixed different batch birds, mixed the batches insured with different companies and started shifted the birds from one cage to another.  The complainant deliberately prevented the officials and the surveyor from taking physical count and from verifying the relevant records and registers. 

4.     The complainant did not furnish any information as to how many birds died during the entire day and covered under which insured policy or from which of the batches.  The complainant has not furnished information whether the birds died due to a particular disease or normal mortality.  The opposite party requested the complainant to permit the surveyor to inspect the mortality of the birds daily from the date of reporting whereas the complainant insisted that the surveyor should sent only after the mortality is stopped.  The complainant did not segregate the each batch of the insured birds under different policies but mixed them and made it impossible for the insurance company to count the dead birds and to note down whether they were insured with it or not.

5.     The complainant has filed his affidavit.  Exs.A1 to A5 had been marked on his side.  Affidavit of any officers of the insurance company was not filed, Exs.B1 to B11 had been marked on behalf of the opposite party company.    

6.     The District forum has allowed the complaint directing the opposite party to pay `2,90,264/- with interest and costs.

7.     Both parties have  filed their respective  written arguments.

8.     The point for consideration is whether the impugned order suffers from misappreciation of fact or law?

9.     The opposite party issued insurance policy on 26.9.1998 covering the life of the birds for the period from 29.9.1998 to 19.1.2000.  The policy, exhibited as Ex.A1 contains a clause that the claim would be admissible only if the mortality in the flock exceeds beyond the limit, 5% of the population in each lot in case of one day old to eight weeks old layers, 3% of the population in each lot in case of the layers within the age group of nine weeks to 20 weeks and 1% of the population in each month for the birds within the age group of 21 to 72 weeks.  The claim of the complainant, as such is governed by the admissibility clause of the insurance policy.

10.    The opposite party through its letter dated 27.3.2000 sought for the details of  total number of batches and number of birds in each batch, 2.  date of hatching of the birds for all batches, 3, location of sheds, 4.  the name of insurance company with which the batches were insured, 5.  claims preferred on the batches, 6.  details of postmortem report, 7.  lab investigation report, 8.  Certificate of symptoms of disease observed by the doctor.    The postmortem certificate issued by Dr.Mankena Venkateswarlu, Veternary Assistant Surgeon Amaravathy to establish that the birds died from 19.5.1999 to 8.6.1999 due to fowl cholera and sunstroke. 

11.    The Surveyor had submitted its report after inspecting the farm.  The surveyor had submitted various reports subsequent to his inspection of the insured farm.  The complainant has got issued notice stating that the claim was lodged along with PM certificate but it was not settled though several reminders were sent by the complainant farm.   

12.    The complainant has not declared number of uninsured birds which actually crossed the age of insurance.  According to the surveyor the age of the birds cannot be identified in relation to the various insurance policies obtained from the opposite party insurance company and its branch as also from the National Insurance Company Limited.   Taking into consideration of the fact that the dead birds included those which was insured with the other branch of the opposite party company and the National Insurance Company Limited and  taking into consideration of the age of the birds and also the incalculable number of dead birds which were covered by the other insurance policies, we assess the value of the claim payable at 50% of the claim.  The amount payable to the complainant farm would be   `1,65,561/-. 

13.    The learned counsel for the complainant farm relied upon the decision of the Hon’ble National Commission in Vallarupalli Vanaja Vs New India Assurance Company Limited reported in IV (2006) CPJ 94 (NC).    In that case the age of the birds was categorically mentioned but there was no circumstance where the mixing up of birds covered under the insurance policy and those not covered as also those birds which are alive. The opposite party insurance company rendered deficient service by not settling the claim despite receipt of the surveyors’ reports and the investigator’s report as well. The opposite party is liable to pay an amount of `1,65,561/-.    

In the result the appeal is allowed in part.  The order dated 5.5.2008 of the District Forum is modified.  The opposite party directed to pay  an amount of    1,65,561/- with interest @ 9% per annum  from the date of complaint till payment along with costs of   2,000/-.  Time for compliance four weeks.

                                                                MEMBER

                                                                MEMBER

                                                              Dt.27.10.2010

KMK*