By. Sri. A. S. Subhagan, Member:-

This is a consumer complaint filed under section 35 of the Consumer Protection Act 2019.

2.  Facts of the case:-  The complainant had insured his cow on 27.04.2018 with an amount of Rs.85,000/-.  The veterinary doctor had issued a Certificate showing infertility to the cow and suggesting that as the cow had the disease of infertility it can be killed or sold.  Considering this, the Complainant sold the cow for Rs.12,000/-.  Subsequently, the Complainant on 06.09.2018, submitted all the required documents for insurance claim to the Mananthavady Milk co-operative Society.  But till date the Complainant did not get the amount of insurance.  The order of the Manager New India Insurance Company is arbitrary and prejudiced.  Hence, the Complainant prays to direct the Opposite Party to pay Rs.1,00,000/- as compensation and Rs.85,000/- as the value of the cow totalling Rs.1,85,000/-.

3.  On getting notice from the Commission the Opposite Party appeared and filed version.  The contents of version are as follows:-  The opposite party submits that the complaint is not maintainable as per law, facts and circumstances of this case. The complainant filed the complaint in an experimental nature without any bonafides. There is no deficiency of service on the part of the Opposite Party.  It is true that the cow bearing Ear Tag No.420014/449791 was insured with the Opposite Party as per the Cattle Policy No.76130047 180400000172 for the period from 27-04-2018 to 26-04-2019. The sum insured was Rs.85,000/-.  The policy was issued in the name of the Mananthavady Milk Producers Co-operative Society Limited. The policy was issued as per Milma Pasumithra Suraksha Scheme. The complainant purchased the Cow during June 2016 for Rs.85,000/-. The cow had 2 delivery. Last delivery was May 2016. Thereafter the insured cow was inseminated many time but not conceived. The animal is not observed in Oestrus even after 7 months from calving. Treatments are given by Dr. Vijin. V. L, Veterinary Surgeon, Kattikulam with heat regulating heart inducing Antibiotic, Hormonal, Intra (Herine I) ouch, Vitamins and mineral supplements. On 10-06-2018 heat inducing injection given. On 17-06-2018 heat regulating hormone injection, given. On 22-06-2018 artificial insemination with heat inducing injection were given. On 05-09-2018, on examination found negative pregnancy. Artificial Insemination were done earlier on 29-03-2018. 21-04-2018, 08-05-2018 still the animal not responding to the treatment and not came to heat cycles. The cow was calved 12 months ago. Now the cow is in permanently infertility condition resulted in defective reproductive system. The cow was insured on 27-04-2018. Though artificial inimical was done on 29-03-2018, 21-04-2018, 08-05-2018 and on 05-09-2018 and continued treatment for infertility before insuring the cow. Hence there is a pre-existing disease to the insured cow. The cow was treatment for infertility before commencement of insurance. Hence this Opposite Party repudiated the claim on 02-04-2019. As per the exclusion clause clear of the policy of Insurance “the Policy does not cover death directly or disease contracted prior to the commencement of risk”. And every animal must be sound and perfect health at the time of insurance. Infertility is a disease of reproductive system and results in disability.  This Opposite Party submits that the complaint is not entitled to get sum of Rs.85,000/- towards the value of the cow and Rs.1,00,000/- towards compensation.  The Complainant specifically stated that he had sold the Cow of Rs.12,000/-.  The Complainant has not shown the correct value of the cow, received by him at the time of sale.  Hence prayed before this Commission to dismiss the complaint with compensatory cost of this Opposite Party.

4. Chief affidavit was filed by the Complainant, Exts.A1 to A5 were marked from his side and he was examined as PW1 on 22.02.2023.  From the side of the Complainant, one George. P. J. was examined as PW2 on 10.05.2023.  Another witness Veterinary Dr. Vijin. V. L was examined as PW3 from the side of the Complainant on 19.10.2023.

5.  One Gireesh Babu Livestock Inspector was examined as OPW1 from the side of the Opposite Party and One Sabu Joseph was examined as OPW2 from the side of the Opposite Party.  Exts.B1 and B2 were marked from the side of the Opposite Party.

6. Considering the complaint, version and documents marked, affidavits filed and the depositions of PW1 to PW3 and OPW1 and OPW2, Commission raised the following points for consideration.

1. Whether there has been unfair trade practice or deficiency in service from the part of the Opposite Party?
2. If so, whether the Complainant is entitled to get the insurance claim amount and compensation as prayed for?

7.  The Cattle Insurance Policy has been admitted by the Opposite Party in version. The allegation of the Complainant is that though he had a Cattle Insurance Policy the Opposite Party repudiated his claim on the ground of pre-existing disease to the cow, which is deficiency in service for which he is entitled to get amount of insurance claim and compensation.  The contentions of the Opposite Party  are that:-

1. The cow was last delivered in 2016.
2. The cow was calved 12 months ago.
3. It was insured on 27.04.2018.
4. Artificial inseminations were given to the cow on 29.03.2018, 21.04.2018, 08.05.2018 and on 05.09.2018.
5. Treatments to the cow for infertility was continued before commencement of insurance policy and hence
6. The cow had pre-existing disease and therefore the claim was  repudiated.

8.  PW1 has submitted in evidence that

1. The cow was purchased on 02.04.2015,
2. When the cow was purchased it was milching
3. It had fetched 22 litres of milk
4.  The cow had no disease
5. The cow had weighed 90 kg
6. It was sold for Rs.12,000/-.

9.  In examination of PW2 has deposed that

1. He had sold the cow to Wilson
2. The cow was sold to the Complainant after looking after the cow for 2.5 years
3. In the meantime the cow had delivered
4. It was delivered about one month before the date of sale.
5. The cow was sold in 2018

10.  PW3 has also stated that

1. The cow was milching
2. The cow had infertility
3. This disease might have been affected suddenly
4. It has no previous history
5. This cow was milching and had calf
6. The cow was delivered 12 months before
7. In this case my treatment was started on 16.05.2018
8. It is not aware that the Complainant had treated the cow before
9. The first injection was given on 10.06 as directed by the Complainant.
10. It is not understood that AI was done on 29.03.2018, 21.04.2018 and 08.05.2018.
11. The cow in this case had a meat value of Rs.10,000/- to Rs.15,000/-

11.  In cross-examination of OPW1 he has stated that the cow was milching at the time of AI.  A minimum of 3 times of injection shall usually be given.  In cross-examination OPW2 has deposed that there are no documents to prove that the three dates which are taken and shown in Ext.B2.  At the same time in further chief examination he has deposed that he is used to keep register showing artificial insemination and on the basis of that the certificate B1 was issued.  The deposition given by OPW2 and the depositions given by him in further chief examination are not matching but contradictory and hence it is proved that PW2 is not a credible witness. Hence as the evidence adduced by OPW2 is not creditworthy it is discarded.  And therefore the Ext.B2 document issued by OPW2 is also discarded.

12.  As stated, the contention of the Opposite Party is that the cow had pre-existing disease for which artificial inseminations were given to the cow on 29.03.2018, 21.04.2018, 08.05.2018 and on 05.09.2018. It is clear that the insurance policy was taken with effect from 27.04.2018.  The Opposite Party argues that treatment for infertility was started on 29.03.2018 and as the cow was insured with effect from 27.04.2018, which is after the date of starting artificial insemination on 29.03.2018, and therefore the cow had infertility which was suppressed by the Complainant at the time of taking the policy, which amounts to suppression of pre-existing disease and hence the Complainant is not entitled to get the relief as prayed for.  Anyway it is clear that the cow was delivered previously and it was milching.  PW3, who is a Veterinary Doctor, who has deposed that his treatment of infertility was started on 16.05.2018, which is after the taking of the cattle insurance policy. He has also stated that the cow was milching and it had infertility and added that this might have been affected suddenly and stated that it had no previous history.  He has also deposed that he had no awareness as to whether the Complainant had treated the cow before.  He has further stated that he had not understood whether AI was given on 29.03.2018, 21.04.2018 and 08.05.2018.  Ext.B1 document was issued by Livestock Inspector ICDP, Sub-centre, Payyampally town reveals that artificial insemination was given to the cow by OPW1 on 21.02.2018.  In cross-examination OPW1 has stated that there is register in the Veterinary sub-centre adding that the particulars of that register shall not be seen in the Ext.B1 document.  That register has not been produced before the Commission to ensure the sanctity of Ext.B1 and hence Commission is not able to ensure the reliability of Ext.B1 document.  In oral examination, OPW1 has also deposed that Ext.B1 is not a Certificate but it is a document issued to the Party.  But it has not been stated in the document that to which party that document is issued. 

13.  Ext.B1 document reveals that the cow was given AI on 21.02.2018.  Ext.B2 document issued by Sabu Joseph AI Technician states that the cow was given injection on 29.03.2018, 21.04.2018 and 08.05.2018.  It can be seen that the date shown in Ext.B1 is the date before taking the insurance policy.  From available information it is reveals that the cow was purchased by the Complainant which had calf and which was milking.  The opposite party stated in version that the cow had two deliveries and the last delivery was in May 2016.  But no document has been produced to show that the cow was last delivered in 2016.  PW2 in oral evidence has stated that the cow was sold in 2018 and in re-examination he has deposed that the cow was delivered during the month of March 2018.

14.  Anyway, if it is admitted that the cow was given artificial insemination before taking the cattle insurance policy.  It does not mean that the cow had infertility at the time of commencement of the first instance of giving artificial insemination. It is quite natural that the cow shall be given artificial insemination for the next pregnancy. Moreover, no evidence on record has been adduced by the Opposite Party to prove that the Complainant was aware of the cow having pre-existing disease before taking the policy.  Only after giving artificial insemination for a number of times it can be understood that the cow had pre-existing disease.  In addition, the infertility which is suddenly happened as deposed by PW3, Veterinary Doctor, after two deliveries, without having awareness to the Complainant regarding this, cannot be attributed to be the suppression of pre-existing disease.

15.  From the above discussion and the available evidences, Commission is of the view that the Complainant has not suppressed pre-existing disease at the time of taking cattle insurance policy.  Circumstances being so the repudiation of the cattle insurance claim to the Complainant without valid and reasonable grounds amounts to deficiency in service.  So, here there has been deficiency in service on the part of the Opposite Party for which they are liable to compensate the Complainant. The only allegation regarding the amount of insurance claim raised by the Opposite Party is that as per the policy condition, in case of PTD claims are limited to 75% of sum insured and as to the sale value of the cow for Rs.12,000/-.  The Opposite Party says that the Complainant has not shown the exact value of the cow, received by him at the time of sale.  But PW3, the Veterinary Doctor, in cross-examination has deposed that “the cow in this case shall fetch a meat value of Rs.10,000/- to Rs.15,000/-”.  The Complainant says that the cow was sold for Rs.12,000/-; so, Commission views that considering the deposition of PW3, the sale value stated by the Complainant is reasonable and hence it need not be disbelieved.  Moreover, the Opposite Party has not produced any evidence to prove that the cow was sold for a higher amount.

16.  According to the Opposite Party the PTD claim in this case is 75% of the sum insured.  The sum insured was Rs.85,000/- of which 75% comes to Rs.63,750/-. From this, the meat value of sale of cow Rs.12,000/- can be deducted.  Hence the net amount of claim due to the Complainant comes to Rs.63,750 – 12,000 = Rs.51,750/-.

In the result, the complaint is partly allowed and the Opposite Party is directed to

1. Pay Rs.51,750/- (Rupees Fifty One Thousand Seven Hundred and Fifty Only) being the eligible amount of insurance claim due to the Complainant.
2. To pay Rs.30,000/- (Rupees Thirty Thousand Only) as compensation to the Complainant.

The above amounts shall be paid to the Complainant within 30 days from the date of receipt of this Order, failing which the amounts will carry interest @ 9% per annum from the date of this Order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 9^th day of August 2024.

Date of Filing:-16.12.2020.

PRESIDENT   : Sd/-

MEMBER       : Sd/-

MEMBER       : Sd/-

APPENDIX

Witness for the Complainant:-

PW1.              Wilson. P. D.                                                            Agriculture.

PW2.              George. P. J.                                                            Agriculture.

PW3.              Dr. Vijin. V. L.                                              Veterinary Doctor.

Witness for the Opposite Party:-

OPW1.          Gireesh Babu. K.                             Livestock Inspector.

OPW2.          Sabu Joseph.                                   Artificial Inseminator (AI

Technician).

Exhibits for the Complainant:-

A1.                  Copy of Cattle Insurance Policy for the period of 27.04.2018 to

26.04.2019.

A2(a).                        Copy of Cattle Claim.                                             Dt:06.09.2018.

A2(b).                        Copy of Post-Mortem Report.                            Dt:06.09.2018

A2(c).             Copy of Valuation Certificate.

A2(d).            Copy of Details of AI Done as per AI Register of Veterinary

Hospital.

A2(e)              Copy of Certificate.                                                Dt:6.05.2018.

A3.                  Copy of Live Stock Claim Form.

A4.                  Claim Repudiation Letter.                                    Dt:02.04.2019.      

A5.                  Agreement.                                                              Dt:02.04.2018.

Exhibits for the Opposite Party:-

B1.                  AI details issued from Veterinary Sub-Centre, Payyampally Town,

Payyampally.  Dt:15.01.2019.

B2.                  AI details issued by AI Technician.                     Dt:19.01.2019.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-