ADV. RAVI SUSHA, MEMBER.
The complainant was one of the policy holders of the opp.party bearing No.RID/2004/403 for the period from 4..2..2004 to 3..2..2005 and hence the complainant was one of the consumers of the opp.party, that the complainant was the owner of an elephant “Ayyappan @ Bahadur” . The complainant purchased the said elephant on 17..11..2002 from one C.D. Vijayan, Chamakkala, Parimala Village, Thiruvalla Taluk, Pathanamthittah for consideration. While the said elephant, Ayyappan was in the ownership of the complainant, she sent the elephant to one C.A. Salam Rawther for wood work at Pathanadu, Kottayam Dist, on rent of Rs.500/- per day after receiving an advance amount of Rs.25,000/- from the said C.A. Salam Rawther, While the said elephant was working there it died on 5..9..2004 due to cardiac failure as a result of Septicemia. Before the death of the elephant the complainant had given much care and medical attention to save the life of the elephant but she could not save the life of the animal. The elephant was insured with the opp.party with the policy No.2004/403 for the period from 4..2..2004 to 3..2..2005. So immediately after the death of the elephant the complainant lodged a claim before the opp.party as claim No.2005/30. But the opp.party repudiates the liability by illegally invoking the exclusion numbers 1 and 7 of the policy. The complainant had not sold the elephant to anybody else but only to sent the elephant to Kottayam for work and during that time the complainant was keeping and looking after the animal with utmost care and the complainant had given much medical attention and made all the endeavors to save the life of the elephant and the complainant never treated the elephant maliciously or never caused any willful injury or neglect overloading unskillful treatment and for which there is no medical evidence Due to the above said illegal act of the opp.party the complainant suffered a lot of inconveniences, mental agony etc, and even now he is suffering the same. The above said illegal act of the opp.party is clearly a case of deficiency in service and also an unfair trade practice towards the complainant. In that circumstance the complainant is constrained to file this complaint to redress her grievances. Hence the complaint.
Opp.party filed version contenting, interalia, that the complaint is not maintainable either in law or on facts. This opp.party had issued an insurance policy in favour of the complainant for her Elephant named Ayyappan @ Bahadur for a sum of insured of Rs.2,00,000/- for a period from 4..2.2004 to 3..2..2005. The insurance coverage granted by this opp.party under the above policy is subject to the terms and conditions attached with the policy. This opp.party later on received a claim from the complainant claiming benefits under the policy for the death of the insured animal. The opp.party on receipt of the above claim intimation had deputed an investigation one Mr. Shibu Kuriakose for conducting investigation as to the genuiness of the claim reported by the complainant. The investigator appointed by this opp.party conducted a detailed investigation about the various aspects of the claim and submitted his comprehensive report dated 17..12..2004 with supporting documents for the same before this opp.party As per the details furnished by the complainant in his claim form, the insured animal was died on 5..9..2004 due to septicemia. From the investigation conducted bny Mr.Shibu Kuriakose it has been revealed that the complainant had already sold the insured animal to one Mr.C.A.Salam Rawther on 29..4..2004 and ever since the said date the insured animal is in the ownership possession and control of the transferee owner Mr.C.A Salam Rawther. It is also convinced from the investigation report which is further corroborated by various aspects that the insured animal was suffering from septicemia consequent to the malicious and willful injury inflicted by Mahouts appointed by the transferee owner Salam Rawther due to the disobedience of the instructions given by the Mahouts and due to the hesitation in doing any works as instructed by the Mahouts. It is a fact that the complainant sold the insured animal to Mr. Salam Rawther on 29..4..2004 after executing a sale agreement in a stamped paper duly signed by the transferor and transferee. It is pertinent to note that consequent to the death of the insured animal the transferee owner Mr.Salam Rawther caused to issue a registered legal notice to this opp.party on 1..2..2005 through is counsel MrC.K. Joseph claiming insurance benefits under the policy stating that he was the owner of the insured animal with effect from 29..4..2004 and the animal was died on 5..9..2004 when it was in his possession, control and ownership. It is further claimed in the above notice that Mr.Salam Rawther alone was the owner of the insured animal as on the date of death and nobody else is eligible to claim any benefits under the policy. It is a fact well known from the sale letter executed in between the complainant as well as the transferee owner Mr.Salam Rawther and from various newspaper reports, coupled with the legal notice issued by the transferee owner Mr.Salam Rawther against this opp.party that Mr.Salam Rawther alone was the owner of the insured animal as on the date of its death.. As per exclusion clause No.7 the insurance policy does not cover theft or clandestine sale of the insured animal. In the case it is obviously clear from the sale letter executed on 29..4..2004 that Mr. Salam Rawthen was the owner of the insured animal as on the date of its death and the fact of the sale was not informed to this opp.party in order to make the endorsement of transfer in favour of the transferee in the insurance policy. The complainant in this case has been ceased be the owner of the insured animal from 29..4..2004, the date on which she sold the animal and she had no insurable interest in the animal at the time of its death so as to claim any benefits under the policy. The change of ownership of the animal is quite evidence from the sale letter executed in between the complainant and Mr. Salam Rawther and from various other circumstances which conclusively shows the ownership and possession of the animal in the name of Mr. Salam Rawther as on the date of its death. The opp.party on the basis of the specific exclusion clauses of the insurance policy had repudiated the claim of the complainant and intimated the same to the complainant vide registered letter dated 18..2..2005. The claim of the complainant was repudiated on the basis of the specific conditions in the policy and the opp.party is purely justified in the repudiation of the claim on sound legal basis. There is no deficiency in service on the part of the opp.party. Hence the opp.party prays to dismiss the complaint with compensatory cost .
Points that would arise for consideration are:
1. Whether there is deficiency in service on the part of the opp.party?
2. Reliefs and costs.
For the complainant PW.1 to 3 were examined and marked Exts. P1 to P7
For the opp.party DW.1 was examined and marked Exts. D1 to D7
THE POINTS:
It is not disputed that the complainant has taken Ext. D3 policy and the policy was subsisting when the elephant named Ayyappan @ Bahadur died on 5..9..2004. The complainant submitted claim which was repudiated by the opp.party as per Ext. D7 on the ground that the death of the animal directly or indirectly due to or arising out of or resulting from malicious or willful injury or Neglect overloading unskillful treatment and also is clandestine sale of the insured animal which comes within the policy condition No. 2 and 9 of Ext. D3 policy condition.
Now the question is whether there is a clandestine sale is subsisting in respect of the insured animal as on the date of its death and whether the malicious or willful injury inflicted to the insured animal is the cause of death of the animal. According to the opp.party, Ext. D1 sale letter dated 29..4..2004 shows the clandestine sale of the animal. The execution of Ext. D1 sale letter was admitted and acknowledged by PW.3 in his cross examination before the Forum. In the oral evidence given by PW.3 in his cross examinations he admitted the execution of Ext. D1 sale letter dated 29..4..2004 executed between himself and the complainant for a total sale consideration of Rs.2,00,000/-. Moreover in Ext. D2 advocate notice issued by PW.3 he claimed his status as the owner of the elephant from 29..4..2004 till the date of death of the animal From Ext. D1 and D2 and from the cross examination of PW.3 the opp.party proved beyond any doubt that the secret sale of the insured animal was occurred between the complainant and PW.3. The next point to be decided is whether the malicious or willful injury inflicted to the insured animal is the proximate cause of death. In Ext.P4 postmortem report of the elephant the diagnoses is that the animal died due to cardiac failure consequent to septicemia. . More over opp.party produced Ext. D6 newspaper reports published by all Malayalam leading dailies. From Ext. D6 it is clearly proved that the Mahouts appointed by the Salam Rawther inflicted willful injury to the insured animal. The neglect and unskillful treatment given to the insured animal resulted to the cause of death. The death caused to the insured animal due to the malicious and willful injury inflicted by the mahouts and the neglect shown to the animal in giving proper food and care including treatment is not a risk covered under the policy as per condition No.2 of Ext. D3 policy. So the cause of death is not an insured cover as per the specific condition No.2 and 9 of the insurance policy and as such this opp.party has no contractual obligation to indemnify the complainant in this case. The opp.party had repudiated the claim of the complainant after considering the investigation report of the investigator which has been marked as Ext. D5 in this case. The investigator Mr. Shibu Kuriakose has given his definite finding that Mr.Salam Rawther was the owner of the elephant at the time of its death and the animal died due to the rigorous and brutal injury inflicted to the animal by the mahout. The validity of the investigation report produced and marked as Ext.D5 has not disputed at all by the complainant in this case . So Ext. D5 investigation report is remained as unchallenged.. It is specifically mentioned in Ext. D7 repudiation letter that the claim is repudiated by the opp.party based on the exclusion clauses mentioned in the Ext. D3 Policy.
In thee circumstances we are of the view that the repudiation of the claim under condition No.2 and condition 9 is proper. There is no deficiency in service on the part of the opp.party. Point found accordingly.
In the result, the complaint fails and the same is hereby dismissed.
Dated this the 30th day of June, 2012.
I N D E X
List of witnesses for the complainant
PW.1. – Padmaja
PW.2. – Muraleedharan Pillai
PW.3. – Salam Rawther
List of documents for the complainant
P1. – Policy certificate
P2. – Sale deed
P3. – Repudiation letter
P4. – Postmortem report
P5.series – Medical Bills
P6. – Daily statement
P7. – Goods vehicle record
List of witnesses for the opp.party
DW.1. – R. Ashokkumar
List of documents for the opp.party
D1. – Sale letter executed between Padmaja and Salam Rawther dt. 29.4.2004
D2. – Copy of Advocate notice dated 1..2..2005
D3. – Insurance policy with conditions
D4. – Proposal form and photograph of the insured animal
D5. – Investigation report of Mr. Shibu Kuriakose dt. 17..12..2004
Ext. D6. – Papper reports in Malayala Manoram Daily, Kerala Kaumudi Daily and Mathrubhoomi daily
D7. –Copy of repudiation letter dated 18..2..2005.
