DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

RUPNAGAR, PUNJAB

Amrit Singh son of Jarnail Singh, resident of Village Samrauli, Tehsil Morinda, Distt. Rupnagar.

…………………..Complainant

VERSUS

1. The Oriental Insurance Co.Ltd., Registered Main office A-25/27, Asaf. Ali Road, New Delhi-110 002, through its Principal Officer.
2. The Oriental Insurance Co. Ltd., Business Centre, 1st Floor, Indra Electricals, Adj.

Allahabad Bank, Chandigarh Road, Kurali, Tehsil Distt. SAS Nagar (Mohali).

3. Fedral Bank, Kurali through Manager

…………… Respondents.

Complaint u/s 35 of Consumer Protection Actas amended upto date.

QUORUM:

Hon’ble Ms. RANVIR KAUR, MEMBER

Hon’ble RAMESH KUMAR GUPTA, MEMBER ARGUED BY:

For complainant       :                  Sh. H. S. Kang Advocate

For OP No.1 & 2     :                  Sh. Rajesh Sharma, Advocate For OP No.3                   :                  None

ORDER

1. The instant complaint is filed by Shri Amrit Singh (hereinafter referred to as the complainant) against The Oriental Insurance Co.Ltd. New Delhi (hereinafter referred to as the OP1) 2. The Oriental Insurance Co. Ltd., Mohali (hereinafter referred to as

the OP2) and Fedral Bank, Kurali through Manager (hereinafter referred to as the OP3) under the Consumer Protection Act (for short the Act).

2. The present complaint has been filed by the complainant and made averments in his complaint as under:-
   1. That the complainant had got insured four Nos. of milch cow vide insurance Policy No. No.231492/47/2021/45 valid from 02.12.2020 to 01.12.2021 and the cow in question which has died during insured period was having identification No./Microchip No. 990000003642791.
   2. That during the insurance period the cow in question died on 30.09.2021 and as per medical report the said cow died due to obstruction in blood circulation. Report of the CVH Boor Majra, is also attached.
   3. That the information was given to the concerned official of the OPS who visited the spot and was givon entire-information including the death certificate of the cow in question issued by the Veterinary Doctor who had investigated the cow.
   4. That thereafter the complainant lodged his claim against the insurance policy of the said insured deceased cow with the respondents vide claim No.231492/47/2022/000000/0 along with entire documents as demanded by them and the officials of the respondents had assured that they will settle the claim of the complainant shortly but they failed to do the needful.
   5. That the respondents wrongly and illegally vide letter dated 10.01.2022 repudiated the claim of the complainant by wrongly alleging that the claim not genuine.
   6. That the OP 1&2 said act and conduct are wrong and illegal and there is deficiency of service on the part of the OPS and also unfair trade practice.
   7. Lastly the complainant payed for the reliefs from OP 1&2 as under:-

1. That the OP be directed to Pay/Release an amount of Rs. 70,000/- as insured amount.
2. Pay Rs. 50,000/- to the complainant as compensation on account of mental agony, harassment physically and mentally and also interest on the said both amounts @ 12% per annum from 30.09.2021 till realization by way of acceptance of this complaint with costs in the interest of justice.

3. Upon notice, the OPS appeared and filed written reply as under:-.

OP. 1 & 2 submits as under

Preliminary Objection:-

1. That the present complaint is not maintainable in the present form. After receiving the intimation OPs insurance co. had deputed independent investigator Dr. N. K. Vohra who investigated all the points from every angle and gave report. As per report of the following point are come in to picture i.e.:-
   1. That insured cow lying out side the cattle shed. How the dead cow came out of cattle shed after the death.
   2. The insured cow was not given any treatment and all pervious claim taken by owner shows that the Animal die all of sudden without any sign of decease.
   3. The chip was inserted after the death as it was found on spot verification of the dead cow.
   4. The owner was asked to bring the Hospital record of the postmortem from vety. Hospital but he could not bring from the Hospital.
   5. The owner has taken unlimited cattle claims from different Insurance co. of Ropar , Chandigarh and Patiala which indicates that complainant is regularly got the fictitious claims as the record

shows.

6. The owner was unable to submit the loan Account Statement of loan account.
7. The dead cow was taken by Hadda-Rori men in fron of investigator without any postmortem.
8. The dead body of cow was Rotten and smelling badly which indicates that the animal had died 2-3 days back.
9. The owner was not given reply to investigator letter.

10. The owner was unable to produced the Purchase- Bill of cow in question.
11. The owner has already taken a cow-claim from this Branch on 31-05-2021.
2. That the OP 1&2 had repudiated the claim of the complainant after applying the mind, So there is no deficiency on the part of OP 1&2 .
3. That this Hon'ble court has no jurisdiction to decide the above said complaint, there are so many complicated facts are involved in the present case which can not be decided in the summary nature without recording the evidence and there cross examination, only Civil case as jurisdiction to decide the complicated facts and questions arising out of the complaint.

On Merits

4. On Merits OP 1&2 reiterated the averments of the preliminary objections which need not to be repeated here for the sake of brevity
5. Lastly the OP 1&2 prayed that the present complaint of the complainant be dismissed with costs.

4. On being called upon to do so, the counsel for the complainant tendered affidavit of the complainant Ex. C-1, various other documents Ex.C-2, Ex. to C-5 and closed the evidence. On the other hand, the learned counsel for the O.Ps. tendered affidavit of

Sh. P. S. Bhatia, Sr. Division Manager Oriental insurance, Ex. OP1, various other documents Ex. OP-2 to OP-3, and closed the evidence.

5. That as for as OP No. 3 is concerned complainant has nothing against OP No. 3 in the said complaint as such the OP No.3 cannot be held deficient in service and the facts of the case are also not sufficient for determining the liability of OPs No.3 under the C.P. Act. In these circumstances, we are of the view that the complainant is not the consumer of the OP.3 in the instant case.
6. The parties adduced evidence in support of their contentions and after going through the pleadings and the material placed before it, The important issue which has arisen before us for our consideration is as under:-

1. Whether the relief sought by complainant, as prayed for in the complaint, be allowed or not ?.
2. Whether the OP 1&2 is right in rejecting the relief sought by the complainant?.

7. We have given our thoughtful consideration to the contentions raised by the learned counsel for the complainant and the Ops and have gone through the facts and material placed on record. For proper appreciation of the matter, the bench has referred to the judgment of Hon'ble Supreme Court of India, Dated November 09, 2022, in the case titled as M/s Texco Marketing Pvt. Ltd. vs. TATA AIG General Insurance Company Ltd. & Ors. In CIVIL APPEAL NO. 8249 OF 2022 [Arising out of SLP (Civil) No. 25457 of 2019] while allowing the appeal, observed as under:-:-

“20. Allowing the claim, this Court held thus : (B.V. Nagaraju case (1996) 4 SCC 647] , SCC pp. 650-51, para 7)

“14. ... When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court

cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of “reading down” the exclusion clause in the light of the “main purpose” of the provision so that the “exclusion clause” does not cross swords with the “main purpose” highlighted earlier. The effort must be to harmonise the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The theory which needs no support is supported by Carter's “Breach of Contract” vide para 251. To quote:

“Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the “main purpose rule”, which may limit the application of wide exclusion clauses defining a promisor's contractual obligations. For example, in Glynn v. Margetson & Co. [1893 AC 351 (HL)] , AC at p. 357, Lord Halsbury, L.C. stated : (AC p. 357)

“... It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instrument, and seeing what one must regard ... as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.’

“Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House of Lords in Suisse   Atlantique   Societe      d'       Armement                         Maritime     S.A.       v.   N.V. Rotterdamsche Kolen Centrale (1967) 1 AC 361 : (1966) 2 WLR 944 (HL)] . Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract.”