BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
O.P. No. 365/2001 Filed on 07.09.2001
Dated : 31.01.2011
Complainant:
Joyce. C, Changavila Veedu, Nalloorvattom, Kulathoor, Uchakkada P.O.
(By adv. C.S. Raj Mohan)
Opposite party:
The Divisional Manager, M/s New India Assurance Co. Ltd., Kottarathil Buildings, Palayam, Thiruvananthapuram.
(By adv. Sreevaraham G. Satheesh)
This O.P having been heard on 17.12.2010, the Forum on 31.01.2011 delivered the following:
ORDER
SMT. BEENAKUMARI.A: MEMBER
Brief facts of the case are as follows: The complainant in this case is having 3 cows. She had insured her cows with the opposite party vide policy No. 4776140109592 dated 09.02.2001. The proposal for the said policy was submitted much earlier than that date. The cow was insured for a sum of Rs. 12,000/-. On 10.02.2001 the cow was afflicted by serious illness. The cow was nursed with due care by the Veterinary Surgeon. Even after all efforts the cow died on 11.02.2001. The Veterinary Surgeon reported that the cow died due to heart failure. The postmortem was also done by Dr. M. Sathyaraj and that also shows that the cow died due to acute heart failure. The milk yield of the cow per day was 15 litres. The cow was treated by Dr. Sathyaraj from 10.02.2001 to 11.02.2001. He issued the Veterinary Certificate to the opposite party on 27.02.2001. After the death of the cow the complainant filed application before the opposite party claiming the sum assured. But the opposite party rejected the claim raising false and frivolous contentions. Hence on 18.06.2001 complainant caused to issue a legal notice demanding the payment of the sum assured. For that the opposite party issued a reply stating false and flimsy allegations. The complainant states that the opposite party is purposefully and illegally denying the payment. As a consumer who availed the service of the opposite party, the complainant is entitled to prompt service from the opposite party and also entitled to recover the sum assured. Hence this complaint.
Opposite party filed version stating the reasons for the repudiation of the claim of the complainant. The opposite party admitted that the complainant insured her cow with the opposite party on 09.02.2001. A claim was made by the complainant alleging that the cow fell ill on 10.02.2001 and died on 11.02.2001. Immediately on receipt of the claim opposite party deputed an independent licensed investigator to conduct an investigation into the alleged claim. The investigation revealed that the said cow was ill even prior to the date of insurance and the cow was under treatment from 06.02.2001 onwards. The Proviso No. 2 of the terms and conditions of the policy is very clear that the policy does not cover death directly or indirectly due to or arising out of or resulting from diseases existing prior to the inception of the policy. Hence the claim of the complainant was not payable and the fact was intimated to the complainant. The opposite party denied the averment that the proposal was submitted much earlier. The further allegation that on 10.02.2001 the cow was afflicted by serious illness is not correct. The cow was under treatment even from 06.02.2001 onwards. The claim was rejected on valid ground that the disease was existing even prior to the inception of the policy and as per policy conditions the claim is not payable. The legal notice sent by the complainant was also replied explaining the reason for the rejection of the claim. There is no deficiency of service on the part of the opposite party. The opposite party states that the opposite party has only acted legally and as per the conditions and provisions of the policy. The complainant has taken the policy without disclosing the illness of the cow and without good faith.
Complainant filed affidavit and Exts. P1 to P5 were marked from her side. The opposite party also filed affidavit and Exts. D1 to D4 were marked. One witness was examined from opposite party's side as DW1.
Points that would arise for consideration are:-
Whether there is deficiency in service from the side of opposite party?
Whether the complainant is entitled to get the reliefs sought for?
Points (i) & (ii):- It is the admitted fact that the cow was insured with the opposite party on 09.02.2001. The complainant stated that the cow fell ill on 10.02.2001 and died on 11.02.2001. But the opposite party rejected her claim on the ground that the illness of the cow started from 06.02.2001 onwards, i.e; prior to the commencement of the policy. To prove their contentions, both parties filed proof affidavits and documents. The case of the complainant is that the illness of the cow started from 10.02.2001. To prove that she has produced Ext. P1, the certificate issued by the Veterinary Surgeon who treated the cow. In that document he certified that he had treated the cow on 10.02.2001 at 12 a.m and 11.02.2001 at 6 a.m. Ext. P2 is the copy of veterinary certificate dated 27.02.2001. In that document the doctor certified that he attended the cow from 10.02.2001 to 11.02.2001. Ext. P3 is the copy of advocate notice dated 18.06.2001 issued by the complainant to opposite party. Ext. P4 is the copy of reply notice dated 06.08.2001. Through that reply notice the opposite party clearly stated the reason for rejection of the claim of the complainant that it was revealed that the cow was ill even prior to the date of taking insurance policy. Ext. P5 is the photocopy of claim form. The documents produced by the opposite party were marked as Exts.D1 to D4. Ext. D1 is the copy of proposal cum policy with receipt and veterinary certificate. As per this document period of insurance is from midnight on 09.02.2001 to midnight on 08.02.2004. The exclusion clause 2 of the policy reads as follows: “Diseases contracted prior to the commencement of risk”. The opposite party rejected the claim of the complainant on this ground. As per the opposite party the illness of the cow was existing prior to the contract of insurance. They proved their contention through Ext. D2 copy of investigation report. Ext. D3 and D3(a) are the bills issued by Trinity Medicals to the complainant. Ext. D3 is the cash bill No. 1101 and Ext. D3 (a) is cash bill No. 1097. Ext. D3 is dated 10.02.2001. Ext. D3(a) is dated 06.02.2001, but it is corrected as 11.02.2001. The opposite party cited the proprietor of the medical store as DW1 and he deposed that Exts. D3 and D3(a) were issued by him. In his deposition he further stated that “Ext. D3(a)-യില് തീയതി 6 എന്ന് എഴുതിയത് വെട്ടി 11 എന്ന് എഴുതിയിട്ടുണ്ട്. ആ തീയതിയിലെ correction, bill കൊടുത്തപ്പോള് ഞാന് ചെയ്തതല്ല. ഞാന് D3(a) bill 06.02.2001-ല് ആണ് കൊടുത്തത്”. From this deposition it is clear that the complainant purchased the said medicine on 06.02.2001. That means the illness of the cow started from 06.02.2001. On examining the serial number of Ext. D3 (1101) and D3(a) (1097) also it can be seen that Ext. D3 (a) receipt No. is prior number than Ext. D3. The bills were produced before the opposite party by the complainant herself along with claim form. From the above mentioned reasons it is clear that the illness of the cow was in existence prior to the commencement of the policy i.e; before 09.02.2001. Hence as per the exclusion clause No. 2 the claim is not payable. On that ground the opposite party issued Ext. D4 to the complainant. Hence we are of the view that rejection of the claim by the opposite party is lawful and there is no deficiency of service from the side of opposite party. Hence the complaint is dismissed.
In the result, the complaint is dismissed.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31st day of January 2011.
BEENAKUMARI. A : MEMBER
G. SIVAPRASAD : PRESIDENT
S.K. SREELA : MEMBER
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O.P. No. 365/2001
APPENDIX
I COMPLAINANT'S WITNESS :
NIL
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of certificate issued by the Veterinary surgeon.
P2 - Copy of veterinary certificate dated 27.02.2001
P3 - Copy of advocate notice dated 18.06.2001 issued by the
complainant to opposite party.
P4 - Copy of reply notice dated 06.08.2001
P5 - Photocopy of claim form.
III OPPOSITE PARTY'S WITNESS :
DW1 - Sivanandan
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Copy of proposal cum policy with receipt and veterinary certificate.
D2 - Copy of Investigation Report.
D3 - Copy of cash bill No. 1101 dated 10.02.2001
D3(a) - Copy of cash bill No. 1097.
D4 - Copy of letter addressed to the complainant.
PRESIDENT
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