DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  5^th  day of December,  2023

Present      :   Sri. Vinay Menon V.,  President

                  :  Smt. Vidya A., Member                        

                  :  Sri. Krishnankutty N.K., Member                                Date of Filing: 06/03/2020    

     CC/40/2020

Saravanan K.,

S/o. Krishnamoothan,

29/224, Temple Street,

Karnaki Nagar, Vadakkanthara

Palakkad – 678 012.                                                   -           Complainant

(By Adv. M/s  C. Madhavankutty & S.I. Shanawas)

                                                                                                Vs

            The Manager,

United India Insurance Company,

11/82, 3^rd Floor, Malabar Fort Building,

G.B. Road, Palakkad – 678 001                                   -           Opposite parties  

(By Adv. Ajitha A.)        

O R D E R

By Sri. Vinay Menon V., President

1. Gist of the pleadings, essential for adjudication, is that the complainant, owner of an  elephant that died due to multiple organ failure received only Rs. 3,00,000/- as insured amount, whereas the complainant was entitled to Rs. 8,50,000/- being the insurance coverage. Complaint is filed seeking Rs. 5,50,000/- for which amount, the complainant pleads entitlement.  
2. Opposite parties filed version. Per O.P.’s pleadings, the elephant was insured for Rs. 8,00,000/- covering 08/04/2019 to 07/04/2020 for death due to accident or disease. During the previous year, ie. from 08/04/2018 to 07/04/2019 the said elephant was insured for a sum of Rs. 3,00,000/- at the Ernakulam branch, wherein the insured was named as Jogish Jacob, Kottayam. The elephant was very weak and was undergoing prolonged treatment and it was without disclosing these facts that the elephant was insured for a higher amount by the complainant. The elephant was under treatment from 03/04/2019. Insurance was availed on 08/04/2019. Post Mortem Report and Histo-pathological Report showed that the elephant was suffering from prolonged diseases to its internal organs. Considering the condition of the elephant, the O.P. had paid the amount insured for the previous year. Complaint was only to be dismissed.  
3. The following issues arise for consideration:

1. Whether the complainant’s elephant was suffering from prolonged disease?
2. Whether the elephant was over-valued?
3. Whether there is any deficiency in service/unfair trade practice on the part of the opposite parties in repudiating the claim ?

4.         Whether the complainant is entitled to any of the reliefs sought for?

5.         Any other reliefs ?

4.         (i)     Evidence comprised of proof affidavit and Exhibits A1 to A5 marked through proof                                   affidavit. Complainant was examined as PW1. Addl. Documents A6 to A10 were                                    marked through examination of PW1.

            (ii)    O.P. filed proof affidavit and marked Exts. B1 to B8. Witness for O.P. was examined                    as DW1.

5.         Since some of the dates are relevant for consideration, they are scheduled herein            below:

Issue No.1

6.         Complainant’s case is that he is entitled to receive Rs. 8,50,000/- being the insured amount. O.P. paid only Rs. 3,00,000/- considering the fact that the elephant was previously insured for only Rs. 3,00,000/- and that the elephant was suffering from physical weakness and prolonged diseases of internal organs.

7.         Ext. A3 is the Post Mortem Report issued by a panel of veterinary experts who carried out the necropsy. As per Ext. A3, the elephant was aged 55 years. Relevant portions in Ext. A3, necessary to answer this issue, are as below:

            Page 1:  “Ante-mortem clinical history: Animal was under treatment for age related debility and weakness for nearly two months prior to death.”

            Page 2:  “Inference on the cause of death: Considering the above mentioned …………….. (indecipherable word) and the histopathology report, we are of the opinion that the death occurred due to shock resulting from multiple organ failure associated with general weakness and debility”

8.         To counter the conclusion based on Ext. A3 report that the elephant was suffering from debility and that the elephant was undergoing prolonged treatment and that the elephant died of multiple organ failure, complainant produced Exts. A6 to A10 in evidence. Exts. A6 to A10 are 5 health certificates issued by veterinary experts stating that the elephant was of good health. Said certificates are issued based on external observations like the conditions of Trunk, Tusks, Oral Cavity, Eyes, Temporal Glands, Limbs, Nails, Feet/pad, Wounds/Chain wounds and Dung/Urine abnormalities.

9.         Exts. A3 and Exts. A6 to A10 stand on entirely different footing and one cannot be a substitute for the other. Contents in Exts. A6 to A10 relates to the external condition of the elephant whereas Ext. A3 pertains to the tests conducted upon the internal organs. Exts. A6 to A10 does not disclose any material facts pertaining to the conditions of the internal organs of the elephant.

                                    When two sets of documents, issued by equally competitive experts, like those who issued Exts. A3 and Exts. A6 to A10, contain such divergent observations/findings, it was incumbent on the complainant to prove his case that the elephant was of good health so as to disprove the contents of Ext. A3 and validate Exts. A6 to A10,  by examining experts in the relevant field.  

                                    Thus, we are unable to ascertain conclusively that the elephant in question was enjoying good health, based purely on Exts. A6 to A10.

10.       The complainant has, therefore, failed to prove that the elephant was in good health.   

Issue No.2

11.       Ext. A1/ Ext. B1, as already stated supra, is the policy schedule pertaining to the elephant in question. We went through the document. It covers the elephant “Prithwiraj” for a period from 08/04/2019 to 07/04/2020. In the schedule attached to Ext. B1, Coverage for Death of the elephant due to accident/disease is shown as Rs. 8,00,000/-. Further Ext. Ext. B3 claim form also reveals that the Sum Insured in Rs. 8,00,000/-.

                        Therefore, the maximum claim the complainant can raise is for Rs. 8,00,000/- and not Rs. 8,50,000/-.

12.       Ext. B8 proposal form shows the date of purchase to be 05/07/2018. Complainant has deposed that he had taken the tusker for 11 programs. So, between 05/07/2018 to 17/05/2019, the elephant had 11 programs. But he has not adduced any documentary evidence, to prove that fact. Thus the complainant has failed to conclusively prove that he had taken the elephant for any programs.

13.       Though it would not form part of the pleadings of the O.P., the complainant has suppressed the material fact regarding ill-health of the tusker on two occasions.

                        In page 2 of Ext. B8 Proposal Form For Elephant Insurance dated 08/04/2019, to question no. 10 that whether the elephant was in sound health, the complainant had answered in the affirmative, when the elephant had already been under treatment for 5 days.

                        In page 3 of the Elephant Claim Form, to query VII(2),  the complainant has answered that he had first noticed the injury sustained/illness on 17/05/2019, when the elephant was already under treatment from 03/04/2019.

14.       The nature of the evidence that the complainant ought to have put forward is that there is a change in the factors that caused availing of policy for Rs. 3,00,000/- during the previous year and that at present such a change in those factors warranted availing of  policy for enhanced amount. Complainant has failed to lead such an evidence. On an overall appreciation of the evidence adduced before us, we find that the evidence adduced by the complainant is not enough to prove that the enhancement of policy amount was justified and that the elephant was in a better condition and in a healthier state than the period covered under Ext. B2, the previous policy, to avail insurance for an enhanced sum of Rs. 8,00,000/-.

15.       We find that the policy was over-valued.

            Issue Nos. 3 & 4

16.       Consequent on the findings in issue nos. 1 and 2,  we find that the O.P. was justified in paying the insurance claim based on the coverage of previous year. There is no deficiency in service or unfair trade practice on the part of the O.P.

17.       We hold that the complainant is not entitled to any of the reliefs sought for.

            Issue No. 5

18.       In the facts and circumstances of the case parties are directed to suffer their respective costs. 

19.       With the above findings, this complaint is dismissed.

Pronounced in open court on this the 05^th  day of  December,  2023.         

                                                                              Sd/-                                                                                                   

                                                                                             Vinay Menon V

                                                      President

                                                             Sd/-

   Vidya.A

                       Member        

         Sd/-                                                                   Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1   -   Copy of Elephant Insurance  Policy certificate and terms and conditions   

Ext.A2  –  Copy of Death Certificate of Elephant

Ext.A3   -  Copy of PMR bearing No.64/2019

Ext.A4  -  Copy of  Lawyer’s notice dated 21/1/2020

Ext.A5  –  Original reply notice dated 1/2/2020

Ext.A6 – Copy of health certificate dated 3/2/2019

Ext.A7 – Copy of health certificate dated 3/3/2019

Ext.A8 – Copy of health certificate dated 1/4/2019

Ext.A9 – Copy of health certificate dated 14/4/2019

Ext.A10 – Copy of health certificate dated 2/5/2019  

Exhibits marked on the side of the opposite party:

Ext.B1 –   Copy of Elephant Insurance  Policy certificate and terms and conditions  

Ext.B2 –   Copy of previous Elephant Insurance  Policy certificate and terms and conditions  

Ext.B3 –   Copy of Elephant Claim Form

Ext.B4  –  Copy of  Death certificate

Ext.B5  –  Copy of  disease and treatment record

 Ext.B6 – Indecipherable copy of PMR bearing No.64/2019

Ext.B7 – Copy of histopathological report dated 26/6/2019

Ext.B8 –Copy of proposal form for elephant insurance

Court Exhibit:  Nil

Third party documents:  Nil

 Witness examined on the side of the complainant

PW1 -  Saravanan K (Complainant)

Witness examined on the side of the opposite party

DW1 – Jayasree Senior, Divisional Manager (OP)

Court Witness: Nil

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.