CONSUMER DISPUTES REDRESSAL FORUM
Palakkad, Kerala
Dated this the 28th day of May 2014
PRESENT : SMT. SEENA. H, PRESIDENT Date of filing: 07/08/2013
: SMT. SHINY.P.R ,MEMBER
: SMT.SUMA K.P, MEMBER
CC/130/2013
Manual Koldy,
S/o. Mathew Manual ,
Managing Director,
Green Kerala Plantation(P) Ltd.,
Vannamada P.O,
Gopalapuram, Palakkad : Complainant
(By Adv. K.A Stanly James)
Vs
The Branch Manager,
United India Insurance Co. Ltd.,
Branch Office, 1St Floor,
St. Joseph’s Complex,
Ponkunnam, Kottayam - 686 506. : Opposite party
(By Adv. K. Lakshminarayanan)
O R D E R
By Smt. Shiny. P. R. Member.
Brief facts of the complaint: - The complainant is the Managing director of the M/S Green Kerala Plantations (P) Ltd, Malampuzha , Palakkad. Two Insurance policies bearing No 100502/47/11/41/00000033 & 100502/47/11/41/00000040 were taken by the complainant on 25-06-2011 and 15-07-2011 for 500 goats from the Opposite party paying an amount of Rs. 99,572/- as premium. Complainant is running the goat farm exclusively for his livelihood. The goats were looked after very well and were doing all periodical medical checkups. On 25-09-2011 first sign of diseases was noticed on goats and the complainant had informed the facts to the opposite party over phone. During the month of September, October 2011, 183 goats died due to disease. The death was reported to the opposite party immediately. The investigator of the opposite party had visited the farm and seen the carcass had verified the ear tags. The carcasses were buried after postmortem. Even though 183 goats died due to disease and since 46 tags were missing, the complainant preferred insurance claim for 137 goats only. Partial claim amount of Rs. 1,36,500/- for 39 goats was sanctioned. The claim for 98 goats was disallowed by the opposite party without any valid reason as the cause of death of all the goats was same. Aggrieved by the act of the opposite party the complainant filed complaint claiming an amount of Rs. 3,43,000/- for 98 goats @ Rs. 3,500/- per goat together with Rs. 10,000/- as compensation for mental agony caused to the complainant due to the deficiency in service of the opposite party.
Opposite party entered appearance and filed their version. Opposite party admitted the policy and submitted as follows: - Complainant is a limited company and the nature of the transaction is commercial. Company is not a consumer. Hence the complaint is not maintainable. The policies were issued subject to the conditions noted in the contract of insurance. In the claim form written and signed by the complainant it is stated that the disease was first noticed on 25-9-2011 and doctor has examined the animals for the first time on that day. But the blood report produced by the complainant shows that the blood test was conducted on 10-8-2011 and the doctor issued a report on 16-8-2011. This matter was suppressed by the complainant in the claim form. Policies were commenced from 15-7-2011 and therefore as per Exception clause No. 2 any illness contracted on or before 30-7-2011 will not be covered. The complainant has not given any notice in writing to the opposite party immediately on notice of illness as provided item No. 4 of the condition of policy. The complainant had not given an intimation about the illness and death of goat and had not given an opportunity to inspect the carcass of the goat as provided in item No. 8 of the conditions of the policy. The matter was intimated to the company over phone only on 7-10-2011 and on the same day itself an investigator of the company has inspected the farm. At that time the carcass of only one goat was there and the ear tag applied on the ear of that particular animal alone was seen by the investigator. On that day complainant informed the investigator that bodies of the 117 goats have been buried and only one goat is remaining to be buried . But the postmortem certificate of Dr. Ramankutty produced by the complainant shows that the death of 98 goats on which he conducted postmortem died during the period from 4-10-2011 to 13-10-2011. If the bodies were buried before 7-10-2011 then there is no question of conducting the postmortem thereafter. The statement of mortality of goats certified by Dr. Ramankutty shows that 33 goats died on 7-10-11, 11 goats died on 6-10-2011, 7 goats died on 10-10-2011, 5 goats died on 11-10-2011, 2 goats died on 12-10-11 and 1 goat died on 13-10-2011. Since the complainant has suppressed material fact, played fraud on the insurer, misrepresentation, violation of the policy terms and conditions. The opposite party has paid insured value of 39 goats amounting to Rs. 1, 36,500/- which are postmortem done by the government surgeon. Hence the complaint is to be dismissed with cost of the opposite party.
Both parties filed their chief affidavits. Ext. A1 to Ext. A6 were marked on the side of Complainant and Ext.B1 to Ext. B4 were marked on the side of opposite party.
The following issues are to be considered.
- Whether the complaint is maintainable?
- Whether the complainant is entitled to get the insurance claim and compensation as prayed for ?
- If so, what is the relief and cost?
ISSUES 1
Heard both parties: - We have perused the documents on record. The main contention raised by the Opposite party is that the complainant does not fall within the purview of consumer, as complainant is a Private limited company and goats are purchased for the sale. Pleadings of complainant clearly reveals that complainant was running goat farm exclusively for the purpose of earning lively hood. There is no merit in the above contention. The service accepted by the complainant from opposite party is not for making profit, to indemnify the loss. Therefore it is not a commercial transaction. Taking of insurance policy is for protection of the interest of the assured in the articles and goods and not for making any profit or trading for carrying on commercial purpose. A person who takes policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification of actual loss. It is not intended to generate profit. Consequently the complaint is maintainable.
ISSUES 2 & 3
Opposite Party admitted the policies. Policies were issued on 25-6-2011 and 15-7-2011. Prior to the issuance of policies Dr. Ramankutty who was given health report and accepting that report the insurance policies were issued. Opposite party submitted that as per Exception clause No. 2 any illness contracted on or before 30-7-2011 will not be covered. It is stated in Exception clause No. 2 of the policy that diseases contracted prior to commencement of risk and provided always that any claim arising out of disease or illness contracted by the animal during the first 15 days from the commencement of date of policy. On 25-9-2011 first sign of disease was noticed on goats. Opposite party further submitted that the blood test was conducted on 10-8-2011 i.e. after 25 days of commencement date of policy. So this contention could not be taken in to consideration. By sanctioning the claim of 39 goats, the opposite party is estopped from putting forward any conditions to reject the claim of 98 goats. No dispute regarding cause of the death of goats. Both postmortem reports confirm the cause of death of the goats was due to severe Anaplasma infection and Theileria infection and the subsequent de-hydreation . Ext.A1 and Ext.A2 shows that postmortem of 98 goats were done by Dr. N. Sivakumar and Dr. P. Ramankutty jointly. Dr. P. Ramankutty is a Joint Director (AH) Rtd. from government service of State of Kerala. He is a qualified person to conduct postmortem. Moreover there is no stipulation in the policy that the postmortem should be conducted by Government Surgeon. As per Ext. A3 ear tags of 117 goats were surrendered by the complainant. The opposite party has paid insured value of 39 goats amounting to Rs. 1, 36,500/-. Hence the complainant is entitled to get the claim of 78 goats @ Rs. 3,500/- per goats. The complainant being a partnership firm and, thus, a juristic person was not entitled to compensation for mental agony.
In view the above discussions, we are of the opinion that there is deficiency in service on the part of opposite party. Hence we allow the complaint partly. Opposite party is directed to pay Rs. 2, 73, 000/- for 78 goats @ Rs. 3,500/- per goat and Rs. 2,000/- as the cost of proceedings to the complainant within one month.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization.
Pronounced in the open court on this the 28th day of May 2014.
Sd/-
Smt. Seena. H
President
Sd/-
Smt. Shiny. P.R
Member
Sd/-
Smt. Suma. K.P
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Copy of Veterinary Certificate (Postmortem report) dated 14/10/2011
Ext.A2- Copy of Veterinary Certificate (Postmortem report) dated 22/10/2011
Ext.A3 - Acknowledgement of receipt of claim dated 17/10/2011
Ext.A4- Copy of letter sent by complainant to opposite party dated 07/01/2013
Ext.A5 - Replay sent by the opposite party to complainant dated 14/02/2013
Ext.A6 - Letter sent by opposite party to the complainant with acknowledgement card
dated 03/04/2013
Exhibits marked on the side of the opposite party
Ext.B1- True copy of Veterinary Certificate (Postmortem report) dated 14/10/2011
Ext.B2- True copy of Investigation Report No. UIICL/2012/02/110 dated 08/02/2012
Ext.B3- True copy of Insurance Policy No. 100502/47/11/41/00000040
Ext.B4- True copy of Insurance Policy No. 100502/47/11/41/00000033
Witness examined on the side of complainant
Nil
Witness examined on the side of opposite parties
Nil
Cost allowed
Rs. 2,000/- (Rupees Two Thousand only) allowed as cost of the proceeding.
