Karnataka

Belgaum

CC/216/2015

Mahadevi A Khanappanavar - Complainant(s)

Versus

The Divisional Manager United India Insurrance Co Ltd - Opp.Party(s)

Y J Ankalekar

25 Nov 2016

ORDER

                

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.216/2015

                     Date of filing: 22/04/2015

                                                                  Date of disposal: 25/11/2016

 

P R E S E N T :-

 

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

COMPLAINANT

-

Smt.Mahadevi D/o Adiveppa Khanappanavar, Age: 35 Years, Occ: Agriculture & Household, R/o: Maladinni, Tq: Gokak.                     (Rep. by Sri.Y.J. Ankalekar, Adv.)

- V/S -

 

OPPOSITE PARTY

-

The Divisional Manager, United India Insurance Co. Ltd., “Seeta Smriti” 2nd Floor, P.B.No.156, 1568, Maruti Galli, Belgarum.                             (Rep. by Sri.V.B.Malannavar, Adv.)

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) directed to pay the insurance amount of Rs.30,000/- to the plaintiff by way of damages on account of death of cattle i.e. she-buffalo of the complainant alongwith interest @ 18% p.a. from 05.04.2014 to till the date of realization and any other reliefs etc.,

 

2.      The facts of the case in brief are that;

 

           The case of the complaint is that, she had a cattle ‘she buffalo’ and the same was insured with Op insurance company bearing Identification Tag No.11005 on 18.03.2014 and OP insurance company was accepted and issued policy No.240100/47/13/01/ 00007658 and she has paid premium also and list of the beneficiaries are sent by the veterinary officer mamadapur and the name of complainant is shown at Sl.No.1 in the beneficiaries list.

 

          It is contended that, the complainant and OP were agreed by all terms and conditions of the policy and thus the complainant is eligible and complainant is entitle to claim the compensation. Unfortunately cattle of the complainant i.e. she buffalo was died due to enterotoxaemia on 05.04.2014 at 4.00 A.M. at maladinni village and also post mortem was conducted by Veterinary Officer. The complainant had submitted all the necessary documents alongwith photo copies of the P.M report of the cattle alongwith the CATTLE CLAIM FORM to Op and the same have forwarded a letter to the veterinary officer on 10.04.2014. 

 

It is further contended that, as per the request of the Op insurance company, the Veterinary Officer Mamadapur has submitted all the necessary documents alongwith claim form of insured animal belonging to the complainant on 24.04.2014. But, on 26.05.2014 the Op insurance company has send a letter to the veterinary officer of mamdapur refusing to consider the claim as the death of the cattle falls within a waiting period of 15 days. The Op insurance company has no right to refuse and deny the claim, because when the complainant has insured her cattle with Op insurance company, the OP insurance company is liable to pay the insurance policy amount to the complainant and there is no any negligence pertaining to the cattle or no any fraud or mischief made by the complainant to get insurance. When the OP insurance company has refused and not settle the claim of the complainant, it amounts to deficiency of service on the part of OP, so the complainant has issued a legal notice through her advocate to the OP insurance company calling upon him to make payment of insurance amount within 15 days from the date of receipt of legal notice on 28.08.2014. But, the Op insurance company has replied on 05.09.2014 stating that, the Op is not liable to pay the claim in the event of death of insured animal due to disease occurring within 15 days from the commencement of risk.

 

It is further contended that, non-payment of insured amount is grave deficiency of services of the Op, forcing the complainant to knock the doors of the Hon’ble Forum. The non-remittance of insured claim amounts to unfair trade practice and harassments of the OP to the complainant. Hence, this complaint.

 

3.      After issue of notice to the Opponent, the Op has appeared through his Counsel and resisted the claim of the complainant. The contents of para No.1 is true and correct, it is true that the complainant and the Op are under obligation to fall in line with the terms and conditions of the policy in question. The OP also admits that, the insured cattle i.e. she buffalo owned by the complainant died on 05.04.2014 at 4.00 a.m. at Maladinni village and P.M. was conducted by Veterinary Officer of Mamadapur.

 

          It is also contents of para No. 3 & 4 also true and correct. The opponent denies the contents of para No.5.    It is contended that, the complainant approached through proper channel for risk coverage of the cattle i.e. she buffalo owned by her, the OP company after conducting due diligence with regard to health condition of the cattle has issued a policy bearing No.240100/47/ 13/01/00007658 w.e.f. 21.03.2014 to 20.03.2015. This policy was issued in the name of the Project Director Karnataka Livestock Development, Bangalore as a blanket policy covering the risk of the cattle as per the list furnished by the said insured and the cattle owned by the complainant is one such cattle insured under this policy. As per the terms of the policy the company is not liable to pay the claim in the event of death of insured animal due to disease occurring within 15 days from the commencement of risk.

 

          It is further contended that, the risk commenced w.e.f 21.03.2014, as per the report of the Veterinary Officer, Mamadapur, he has first seen the animal in illness condition on 04.04.2014 on his visit to insured’s stable as per the request sent by the insured dtd:03.04.2014 and the animal was found sick on 03.04.2014. Further as per the report of the veterinary officer, the cattle died on 05.04.2014 at about 4.00 a.m. and the cause of death is “due to enterotoxaemia” (overrating disease). Enterotoxaemia is a type of infection caused by Clostridium perfringens which is the most common bacterial agent for gas gangrene, which is necrosis, putrefaction of tissues, and gas production. It is caused primarily by Clostridium Perfringens Alpha Toxin. The gases form bubbles in muscle (crepitus) and the characteristic smell in decomposing tissue. After rapid and destructive local spread (which can take only hours), systemic spread of bacteria and bacterial toxins may cause death. Clostridium perfringens grows readily on blood agar plate in anaerobic conditions and often produces a double zone of beta
hemolysis.

 

          Therefore, within 15 days from the commencement of the risk, the animal became sick and succumbed to death such sickness. Therefore, the Op Company is not liable to indemnify the insured in this regard. As such the Op Company has rightly refused to honor its obligation under the policy. Knowing full well all these terms and conditions, the complainant has unnecessarily rushed before this Hon’ble Forum just to cause harassment and embarrassment to the Op Company. Hence, the complaint may kindly be dismissed with compensatory costs of Rs.10,000/-.

 

4.      Both parties have filed their affidavit in support of their case, and on behalf of complainant has produced 11 documents which has marked as Ex.P-1 to Ex.P-11, for shake of our convenience we have marked P & R series. On behalf of the Op has also filed 06 documents and same are marked as Ex.R-1 to Ex.R-6.

 

          Both sides have submitted the written arguments wherein they have put forward very same contention, which they have urged in complaint, written version and respective affidavit evidence and oral arguments of both sides have also been heard.

 

Now on the basis of these facts, the Points that would arise for our consideration are as fallows;

 

1.  Whether the complainant has proved that there is deficiency in service on the part of the OP for not settling the death claim of she-buffalo?

 

 

2.  What order?

 

5.       Our findings on the above points are as fallow;

 

 

1.  Affirmative.
2.  As per final Order.

 

 

REASONS:-

 

6.      Point No.1: After detail perusing the pleadings of the parties, evidence, written arguments and documents on records. It is evident from pleadings  of parties that, it is admitted fact that, the complainant had a cattle of she-buffaloes and the same was insured with OP insurance company and the Op insurance company has accepted the policy and the complainant has paid premium of the said policy and which is in the list, the same are marked as Ex.P-1 & 2.  The complainant has further contented that, certain documents i.e. Proposal Form for Cattle Insurance, Claim Form duly signed by insured and bank, Veterinary Certificate in Company’s Form, P.M. Report and Health Certificate of the animal issued by the veterinary Doctor which are marked as Ex.P-3 & P-4, the complainant has claim insurance of death claim in respect of she-buffaloes. Though the complainant has complied as per policy conditions by submitting all necessary documents before the OP, those documents are already marked as Ex.P-1 to Ex.P-11, inspite of that, the OP has not indemnify the insured, but issued a letter dtd:05.09.2014 stated that, the death of cattle within 15 days from commencement of risk and further stated that, the company is not liable to pay the claim in the event of death of insured animal due to dieses occurring within 15 days from the commencement of risk which is marked as Ex.P-9 with this letter the OP has not settled the claim of the complainant.

 

The case of the complaint is that, the cattle she-buffalo was insured with the OP and it is mandatory duty of the OP to indemnify the insured/complainant by way of giving compensation of  death claim insured amount and there was no any disease to the She-buffalo as alleged by the OP and further contended that, at the time of taking policy, the OP’s have taken report from the veterinary doctor the health certificate issued on dated:10.04.2014  as marked as Ex.P-4, the she buffalo possessed sound health and was fit for milk productions  and further contented that the said veterinary doctor has given proposal form for cattle insurance which is already marked as Ex.P-3, wherein the content mentioned in the veterinary surgeon’s certificate issued by veterinary doctor, mamadapur as fallow; 

 

a) in Sl.No.7 mentioned as - Are the animals proposed in sound heath and good condition? 

-   Answer is Yes

 b) in Sl.No.8 are the animals well cared and regularly fed?

 – Answer is Yes

c) in Sl.No.12 do you/veterinary doctor recommend risk

    normal?

– Answer is Yes.

 

When such is the factual situation, now the OP cannot take shelter as the she buffalo suffers from disease due to this
she-buffalo died, so the contention taken by the complainant are acceptable and proved by giving evidence and produced the material document which is marked as Ex.P-3 and further contented that at the time of taking premiums for the she-buffalo there were no any disease as alleged by the OP, under such circumstance not settling the death claim of the complainant  by the insurer is not justifiable and not proper, for that proposition of law the complainant counsel relied a decision of Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in Appeal No.38/2015 disposed on dtd:9^th March 2015. The New Assurance Co. Ltd., V/s. M/s. Valecha Agri-Venture and another decision relied by complainant, the Hon’ble State Consumer Disputes Redressal Commission, Hariyana, Panchkula in Appeal No.734/2014 disposed on 21^st April – 2014, wherein the Hon’ble State Commission observed that, buffalo died on 05^th march of 2010 and P.M. examination of the dead buffalo was conducted by veterinary surgeon and openion given that, the buffalo died due to acute Tyampany about 12.00 hours, in that case the complainant has filed claim with insurance company, and the company has repudiate the claim, the Hon’ble State Commission has observed that, tyampany is not a disease and death may occur quickly but, usually does not take place until 2-4 hours after the on-set of bloat, when the bloat became severe enough, the animal collapses and dies quickly, almost without struggle death is likely cause by suffocation, with this observation the Hon’ble State Commission reject the Appeal filed by the insurance company. In the light of observation made by Hon’ble State Commission is aptly applicable to this case also.

 

And further complainant contended that, cattle claim form issued by veterinary doctor which is marked as Ex.P-4. Looking to the facts & documents available in the complaint. Complaint made several attempts to get genuine claim, but the Op’s without reasonable cause not settling the death claim of She-buffalo, this act of Op going to show that deficiency of service on the part of OP.

 

The complainant contended that, as per P.M. report, cause of death is may be “due to enterotoxaemia” and further contended that, the Op taken contention in written version in para No.12 as contended that, “ Enterotoxaemia is a type of infection caused by Clostridium perfringens which is the most common bacterial agent for gas gangrene, which is necrosis, putrefaction of tissues, and gas production. It is caused primarily by Clostridium Perfringens Alpha Toxin. The gases form bubbles in muscle (crepitus) and the characteristic smell in decomposing tissue. After rapid and destructive local spread (which can take only hours), systemic spread of bacteria and bacterial toxins may cause death. Clostridium perfringens grows readily on blood agar plate in anaerobic conditions and often produces a double zone of beta hemolytic. The OP has not substantiate the contention in the written version by way of affidavit evidence of doctor, to hold that, the above contention is relates to the disease. Therefore, in our consider view, the OP has failed to substantiate the same.

 

The OP himself contended in written version that, Enterotoxaemia is a type of infection then it is not a disease, how  the OP has stated that the enterotoxaemia is diseased and how could we construe the enterotoxaemia is diseased, without leading the evidence of a veterinary doctor in respect of disease, as alleged by the OP, merely pleading cannot be hold that, the said she-buffalo died due to diseased within 15 days from the date of risk, admittedly death of she-buffalo is on 05.04.2014 and as per policy condition it has not come under the purview of the policy terms and conditions, for the reason that, death is happened on 05.04.2014 and it is after 15^th day of risk and death is not due to any disease and the same is not established by the OP. Therefore, the contention of the OP not accepted and the said contention has no merit at all.

 

          No-dought it is true that, she-baffalo died on dtd:05.04.2014 at 4.00 A.M. at Maladinni Village and Post Mortem was conducted and even the Post Mortem also not revels that, the death of she-buffalo is caused by diseased but, the P.M. shows that, “death is caused  may be due to enterotoxaemia” and the opinion given by the doctor also revels in Ex.P-4. After going through above reasons and available documents it is evident from the provision of the policy incorporated in the policy, which is marked in Ex.P-1. Wherein it is mention that, the company is not liable to pay the claim in the event of death of insured animal due to disease occurring within 15 days from the date of commencement of the risk. But in this case the death occurred after 15 days not within 15 days as alleged by OP and further in our consider view the OP has not substantiate with cogent, acceptable affidavit evidence of doctor and with material documents to show that, death due to disease and hence the contention raise in the written version is not believable. Therefore, not settling the claim of the complainant by the OP is amounts to deficiency of service and repudiate the claim of the complainant is not proper, under such circumstances we award the compensation of Rs.30,000/- towards the death claim of she-buffalo proper and meets ends of justice. Hence, we answer to the above point No 1 in affirmative.  Hence, we proceed to pass the following order.

 

O R D E R

For the reason discuss above, the complaint filed by the complainant U/s 12 of the C.P. Act – 1986 is here by partly allowed with costs.

 

The Opposite party is ordered to pay of Rs.30,000/-
(Rs. Thirty Thousand  only) towards sum assured.

 

The Opposite Party is ordered to pay of Rs.3,000/-
(Rs. Three Thousand only) towards mental agony and litigation cost.

 

The OP is granted 08 weeks time for compliance of this order, failing to which the OP is liable to pay together with interest @ 9% p.a. from the date of complaint i.e., 22/04/2015 to till realization.

 

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 25^th day of November, 2016).

 

 

Sri. A.G.Maldar,     President.

Smt. J.S. Kajagar,    Lady Member.