SMT. RAVI SUSHA: PRESIDENT

                Complainant filed this complaint against opposite Insurance company for getting an order directing opposite party to pay Rs.1,00,000/- to the complainant along with 12%  interest together with cost of the proceedings of this case. 

            In nutshell, the facts of the case are that the complainant is the owner of Female Balck CB mulching Cow aged 3 years and 2 months worth Rs.60,000/- with the ear tag No.420029/907124.  The cow was insured with the OP on 27/09/2019  and issued a policy No. 433104/47/2020/1147 of sum assured Rs.50,000/- with effect from 27/09/2019 to 26/09/2019 for a period of one year for which the complainant paid a premium f Rs.1785/-   including cess and tax.    In the month of June the cow delivered a calf and 15 liters of milk was yielding per day and thereafter on consecutive months the yielding decreased up to 12 litters just prior to the affect of Mastitis.  On the very same day the complainant brought the veterinary surgeon from Govt. Veterinary Dispensary, Paisakkari and after a thorough examination the surgeon informed the complainant that the udder was caused Acute Mastitis, a sort of inflammation of glands.  As advised by him started the medicinal treatment and proper care.  The treatment was continued from 12/01/2020 to 16/01/2020.  But even after the required treatment the udder of the cow became fibrosis and milk yielding was permanently stopped.  Even after the treatment of acute Mastitis of cow the lactation completely stopped and thereby the complainant sustained a huge monetary loss.  There after immediately the complainant has submitted claim application before the OP along with the medical and treatment certificate issued by the Veterinary surgeon along with the other related documents sought by him.   There after one of the officers of the OP approached in the house of the complainant under the guise of investigation purpose and after detailed enquiry he removed and taken away the ear tag of the cow.  The OP dated 12/03/2020 rejecting the claim stating the reason that the cow was under treatment prior to the date of commencement of policy and as per provisions of cattle insurance company, the policy does not cover ‘ accident or diseases contracted prior to commencement of risk’.  Further the complaint submitted the clarification to substantiate the claim and of that also the complainant could not produce more materials since the being a layman.  So the OP has issued another letter dated 05/06/2020 to produce the lab report of the cow which is to be confirmed the cause of loss is due to mastitis.  The medical certificate and treatment certificate which is issued by the Veterinary surgeon go toe shows that the cause of loss of milk was due to acute mastitis and treatment started from 12/01/2020 onwards.  The reasons stated in the repudiation letter are knowingly to reject the complainant’s claim in order to get unlawful gain to the OP, the Insurance Company.  The rejection of claim is highly illegal and against the natural justice.  It is submitted that the complainant caused to send a lawyer notice to the OP on 14/08/2020 to pay Rs.1,00,000/- to the complainant called upon to pay the compensation.  The OP received the same on 17/08/2020 and send a false frivolous reply.  Hence the complaint.

            After receiving notice OP filed vakkalath of their counsel and also written version.  The contentions OP are that   OP filed version admitted that Sri. Augusty Chamomikkal had taken livestock (cattle) Insurance policy vides NO. 443401/47/2020/1147 covering the period from 27/09/2019 to 26/09/2020.  The scope of coverage is basic coverage + permanent Total Disability cover and for that basic premium is a sum of Rs.10,000/-  and the premium for permanent Total Disability is Rs.500+GSD.  OP denies all the allegations of the complainant raised in the complaint.  OP submitted that at the time of taking the policy, this OP had given a policy certificate which contains different condition and exclusions.  As per Serial No.2 of the provision of the cattle insurance policy, policy does not covers the accident or disease contracted prior to commencement of the risk.  That means any        pre-existing disease is not covered by the Livestock (cattle) insurance policy.  The complainant availed the policy by suppressing the material facts. The cow was suffering from mastitis even prior to availing the policy.  Insurance coverage was availed one month after detecting the decease and two weeks after calving knowing full well that the insured cow is suffering from mastitis.  So as per Sl. No.2 of the proviso of the cattle insurance policy, policy does not cover diseases contracted prior to commencement of the risk.  The disease of the cow for which complainant availed treatment prior to the commencement of the policy is hit under serial No.2 of the proviso of the policy.  Therefore the claims purely falling within the serial No.2 of the provisos.  The OP has not taken final decision in the claim submitted by the complainant.  The cow was suffering from pre-existing diseased when the policy was taken. This OP further submits that in spite of the repeated request made by this Op, the complainant did not furnished the blood test report of the cow to this Op, which is mandatory requirement for claim settlement.  So the claim made by the complainant without furnishing the above report is liable to be rejected on that score alone.  There is no deficiency of service on the part of this OP to attract jurisdiction of this Hon’ble commission.  The complainant obtained the policy by suppressing the material facts.   In the proposal form dated 19/09/2019, the complainant declared that the cow delivered 4 months back.  That means calving may be in the month of May.  In the claim form dated 17/07/2020, the same doctor certified that the date of last calving was six and half months back.  That means in the month of July.  The date of delivery delivered by the insured to the investigator is 19/08/2019.  That itself shows that the claim is a malafide one by suppressing material facts.  The date of detection of calving mentioned in the claim form as well as in the proposal form are different.  That itself shows that the claim is a malafide one by suppressing the material facts.  The claim submitted by the complainant has not been repudiated finally by this OP till this time.  In spite of letters dated 12/03/2020 and 05/06/2020, the complainant has not complied the request containing the above letters to submit the lab report of the cow, which is a important document in taking a decision in the claim submitted by the complainant.  The OP  further submits that the legal liability of this OP as per policy condition, in a case of permanent Total Disability (PTD) is 75% of the sum insured minus meat value, ie. Rs.22,500/- (Rs37,500+Rs.15000).  The sum insured is Rs.50,000/-.

            Both parties led their own evidence and also evidence of witnesses.  Complainant has filed his proof affidavit and has been examined as Pw1, marked Ext.A1 to A5.  From the side of complainant, Dr. Johnson PM, veterinary surgeon, who had treated the cow during the relevant period of its disease has been examined as Pw2.  The treatment certificate and valuation certificate issued by him in relation to the cow in dispute were also marked as Ext.A1 and ext.A2.  Both witnesses were thoroughly cross-examined by the learned counsel of OP.  On the side of OP, two witnesses including Deputy Manager of Op Insurance company Mr. Anoop B Tilak has examined as Dw1 and Ext.B1 to B12 were marked.  The investigation appointed by the Insurance company on the basis of the claim form submitted by the complainant, to OP Company, Mr.  V Surendran also was examined as Dw2.  Dws 1 and 2 were subjected to cross-examination for the complainant.  After that the learned counsels of complainant and OP, made oral argument.

            Complainant’s allegation is that though the subject cow had valid insurance policy at the time of incident as alleged in this and at the time of filing claim application, the insurance company without any valid reason repudiated the genuine claim of the complainant.  According to the complainant the insured cow had no pre-existing disease at the time of giving proposal form.  Complainant submitted that he had submitted proposal form with the certificate of veterinary Doctor, who has expected the cow and issued certificate and the OP Company issued policy to the cow on the basis of the certificate issued by the veterinary surgeon.  So the action of OP in repudiation of the complainant’s claim, amounts to deficiency in service as well as negligence.

             Contention of OP is that report of Mr. V Surendran (Dw2) who was appointed as Investigator, by the insurance company.   His report is produced by OP and marked as Ext.8.  The investigator also is examined as Dw2.  In the report, the investigator has come to the conclusion that since the proposal form was filled suppressing the material fact of pre-existing disease in the cow, He has also pointed out that the deposition given by insured complainant that the cow has sustained Mastitis prior of taking policy and it was cured on the treatment an affected again on December 2019, then the yielding of mild became very weak and also the deposition given by the veterinary doctor who treated the cow are not same and suppressed the actual facts and further the documents given are fake documents.  On the basis of these finding, he recommend that claim does not come under the terms of the policy.

            We find that Mr. Surendran who was appointed as Investigator by the Insurance company, is a retired employee from police department and has not been duly licensed by anybody constituted under any law or any enactment.  He is working in his private capacity as Insurance Investigation for the Insurance Company.  He has attached two statements of the complainant and the veterinary doctor in his report.  The complainant was examined was Pw1 and the veterinary doctor was examined as Pw2.  Both witnesses denied the contents in the statement as submitted by the Investigator along with his report.  On perusal the statements does not contain the signature of the persons who gave deposition and date of recording it.  More over the investigators report also does not bears date.  It appears that what even conclusions are drawn by him in the report, are his personal opinions and he has expressed his opinion to decide the case.  In the whole of his report, he has not been mentioned anywhere as to whether he is giving laboratory report to support his conclusion that the insured cow had pre-existing disease.  Without any supporting material evidence, he being a retired employee of the State government, is doing job  of insurance investigator for the insurance company has given simply a report, support the interest to of the insurance company.  On the other hand the veterinary doctor surgeon, Govt. Veterinary Arabi Dispensary, Uliyikkal, who is a responsible employer of the State Government and was working in the Govt. Veterinary Dispensary Paisakkari (PO) as a veterinary surgeon, who also attended the cattle at the time of its insurance and fixed the tag in the ear of cattle, which has been mentioned in the insurance policy.  In the report of veterinary surgeon it is stated that he examined the cattle before giving proposal form, and certified that the cattle had no disease and was in a healthy condition.  Further he has given the valuation certificate of the cow ie Rs.50,000/-.  From the evidences of the veterinary doctor and from Ext.B2 treatment certificate issued by veterinary doctor, the treatment for mastitis on the cow has been started from 12/01/2020 till 16/01/2020. Doctor deposed that the decease seen in the cow was acute mastitis.  The documents and deposition of veterinary doctor gave more important and reliable than the report of the investigator of the insurance company.  Report of the veterinary surgeon who was performing all acts in his official capacity and is discarding the report of the investigator, who was working as Insurance Investigator for the Insurance company.  With regard to Lab report of the blood of the cow, OP could have taken steps to the concerned lab and could have proved its contentions. 

            Therefore, we are of the view that there is deficiency in service on the part of Insurance Company, the repudiation made by OP company is unjustifiable.  Hence complainant is entitled to get relief.  Here the veterinary doctor has given statement that the meat value of the cow was Rs.15,000/-.  No dispute that the sum assured is Rs.50,000/-.

            Considering the above facts and circumstances of the case, complaint is allowed in part.  Opposite party is directed to pay Rs.50,000-15000=35,000/- to the complainant with interest @4% per annum from the date of complaint till realization.  Opposite party is also directed to pay Rs.10,000/- towards compensation and Rs.5,000/- towards cost of the proceedings.  Opposite party shall comply the order within one month from the date of receipt of the certified copy of this order.  Failing which Rs.35,000/-  carries interest @ 9% per annum from the date of the complaint till realization.  Complainant can execute the order as per the provisions in Consumer Protection Act 2019.

Exts.

A1- Photo copy of treatment certificate (subject to proof)

A2- Valuation certificate

A3- Lawyer notice

A4- Acknowledgment card

A5- Reply notice

Pw1- Complainant

Pw2- Dr.Johnson PM-Witness of complainant

B1-Proposal cum veterinary certificate

B2-Treatment certificate

B3-Cattle insurance policy form

B4- Claim form

B5- Repudiation letter dated 12/03/2020

B6- Lawyer notice dated 14/08/2020

B7- Reply notice

B8-Investigation report (subject proof)

B9- Deposition of Dr. Johnson (subject proof)

B10- Deposition of complainant before investigator (subject proof)

B11- Acknowledgement card of Dw1

B12-Policy schedule

Dw1-Anoop B Tilak-Witness of OP

Dw2- Surendran V- Witness of OP

 Sd/                                                                             Sd/                                                        Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar