Complainant by filing this complaint has submitted that complainant insured a black Bay Filly (a race horse) to the op no.1 on and from 19.03.2010 up to 18.03.2011 and the said Filly of the complainant was duly covered under the Bloodstock Insurance policy being policy No. 030500/46/09/02/00001229 which was issued in the name of the contemporaneous owner of the said Filly namely M/s. Nanoli Stud & Agricultural Farm and sum insured under the said policy was of Rs. 8,00,000/-.
It is further mentioned that the said policy was issued in the above mentioned contemporaneous owner because in usual course of business the incorporation of the name of the present owner in the passport of the said Filly is a time-consuming factor. Due to this reason inspite of selling out of the said horse to the present owner, the insurance policy was issued in the name of the contemporaneous owner of the said Filly, though the Filly was sold out to Mrs. Anne Wright on 22.09.2009 and in September 2009 the said Filly was sold out to the present complainant by equal share of 50 percent each and the copy of the registration of sale dated 19.06.2010 made by the contemporaneous owner to the complainant is also filed.
The entire fact was duly communicated to the Insurance Company vide their letter dated 22.06.2010 which was duly acknowledged by the ops on 22.06.2010 and on or about 19.06.2010 the name of the complainant was duly changed in the passport of the said Filly and subsequently the complainant duly informed the Insurance Company/op nos. 1 & 2 to incorporate the change of the ownership in the insurance policy and pursuant to the said representation made by the complainant, the Insurance Company duly changed the name of the owner in their policy and accordingly the insurance company duly acknowledged and apprised the incorporation of the present owner in the said insurance policy of the Filly instead of it’s contemporaneous owner.
Subsequently op nos. 1 & 2 duly informed the complainant that an endorsement would be passed and the necessary changes in the insurance policy would be affected by the ops and accordingly on 22.06.2010 the policy was transferred to the name of the complainants by the way of endorsement and by virtue of the said endorsement the present complainants have the insurable interest upon the said Filly.
Fact remains that on or about 22.12.2010 the said race horse died at the R.C.T.C. stables at Kolkata due to impaction which leads to cardio respiratory failure and subsequently on 30.12.2010 complainants duly lodged their claim before the ops and further submitted that vide their letter dated 16.08.2011 and 13.09.2011 the insurance company repudiated the insurance claim as lodged by the complainant in respect to the insurance policy being No. 030500/46/09/02/00001229 and claim No. 030500/46/10/02/90000012 for a sum insured of Rs. 8,00,000/-.
Complainant has alleged that the premium of the said insurance was duly paid before the authority concerned and the said authority concerned duly accepted the said premium of the said policy without raising any objection and already transferred the name of the owner in the said policy. But even then without any legal and justified ground, op repudiated the claim which is no doubt negligent and deficient manner of service for which the complainant has prayed for redressal.
On the other hand op by filing written statement submitted that practically blood stock insurance policy being ending No.1229 was issued in the name of M/s Nanoli Stud &Agricultural Farm for the period from 19.03.2010 to 18.03.2011 covering the risk of a Filly (horse), subject to its terms, conditions, exceptions and limitations.
On 23.12.2010, the Divisional Office at 25, Brabourne Road this op received intimation from Royal Calcutta Turf Club to the effect that the said Filly being dkb.f.2 Haphaphappy Day died on 22.12.2010. Subsequently on 30.12.2010 complainants submitted claim from and raised a claim of Rs. 8,00,000/- as sum insured value as per said policy and on receipt of the said claim form submitted by the complainant op engaged an independent licensed surveyor being Debashis Chowdhury to assess loss and who in turn submitted his report on 24.01.2011 remarking that the claim can be paid subject to satisfaction of terms and conditions of the policy of insurance.
After proper verification of the document it transpires that ownership of the race horses are recorded in the Stud book of Stud Book Authority of India, registered office where is lying and situated at Race Course, Mahalakshmi, Mumbai-400034 and Pune Office at 6, Arjun Marg, Pune- 411001. It is evident from the certificate dated 01.04.2011 issued by the said competent authority in this regard that originally the said Filly HaphaphappyDay was the property of M/s Nanoli Stud and Agricultural Farm and subsequently with effect from 22.09.2009, the ownership was changed to Mrs. Anne Wright and the endorsement was made in the passport in the month of April, 2010. So, it is evident that at the inception of the subject policy, on 19.03.2010, Mrs. Anne Wright was the owner of the said Filly and not M/s Nanoli Stud & Agricultural Farm.
The said factual matrix of change of ownership further finds corroboration by the extract of Register of India Stud Book Authority of India Stud Book, issued by Registrar of India Stud Book Authority of India and it shows that the said Filly was breaded by and was initially owned by Nanoli Stud & Agricultural Farm and thereafter the ownership was transferred on 22.09.2009 in the name of Mrs. Anne Wright for full share and subsequently on 19.06.2010 the ownership was further transferred in the names of the complainants for ½ share each.
The said Register of Stud Book clearly shows that during period from 22.09.2009 till 18.06.2010, Mrs. Anne Wright was the full owner of the said Filly and the date of inception of the subject policy was 19.03.2010 issued in the name of M/s Nanoli Stud & Agricultural Farm but on the record during this time Mrs. Anne Wright was the owner of the said Filly and therefore the said M/s Nanoli Stud & Agricultural Farm had no insurable interest and ownership right over the said Filly on the date of inception of the subject policy. So the the policy was taken in the name of M/s Nanoli Stud & Agricultural Farm on misrepresentation, mis-description and non-disclosure of material fact in violation of the conditions precedent to liability and further the subject policy stands void abinition from the date of inception of the policy for reasons that the insured was not at all owner of the said Filly (race horse) at the said material time of inception of policy and all those culminated into repudiation of the claim under the subject policy and this op having considered all the relevant documents finally repudiated the claim on 16.08.2011.
Further op clarified there stand on 13.09.2011 in report of repudiation of claim and no further document is forthcoming subsequent to such letter of this op which will so the joinder of causes of action in the instant complaint and for the above circumstances, the complaint is liable to be dismissed.
Decision with reasons
On an in depth study of the complaint including written version and also the document as filed by the complainant and op, it is undisputed fact that initially haphaphappy Day deceased Filly no doubt was the property of M/s Nanoli Stud & Agricultural Farm with effect from 22.09.2009 and thereafter that ownership was changed to Mrs. Anne Wright and the endorsement was made in the passport in the month of April, 2010, therefore it is admitted position that at the inception of the subject policy, on 19.03.2010 Mrs. Anne Wright was the owner of the said Filly. But truth is that there is some procedure for change of ownership of Filly and in this regard register of India Stud Book Authority is the authority for issuing such passport in respect of such transfer. So, some procedure is required. Though admitted position is that Mrs. Anne Wright purchased the said Filly on 22.09.2009. But the passport was issued by the India Stud Book Authority in the month of April-2010.
But fact remains that date of inception of the policy was 19.03.2010 and so prior to Mrs. Anne Wright no doubt M/s Nanoli Stud & Agricultural Farm was the owner of the Filly and during that period, the passport in respect of the Filly was not issued by Stud Book Authority for which registration was made in the name of the M/s Nanoli Stud & Agricultural Farm for the period 19.03.2010 to 18.03.2011. But it is undisputed fact that the said Filly died on 22.12.2010. But prior to death that Filly before the Stud Book Authority of India in respect of transfer of the Filly from Mrs. Anne Wright was duly endorsed and it is admitted by Stud Book Authority of India that the said haphaphappy day (Filly) was the property of M/s Nanoli Stud & Agricultural Farm and subsequently with effect from 22.09.2009 the ownersjhip was changed to Mrs. Anne Wright and endorsement was made in the passport in the month of April-2010.
Thereafter Mrs. Anne Wright transferred the same to Mr. H.H. Sookies and Mr. Naresh Kumar and that was also registered by the said authority on 19.06.2010 and it is evident from the passport issued by Stud Book Authority of India Royal Calcutta Turf Club Ltd. of this matter is discussed and op has admitted that fact.
So considering all the above fact, it is clear that transfer and right in respect of deceased Filly from M/s Nanoli Stud & Agricultural Farm to Mrs. Anne Wright was registered at late and therefore the present two complainants have no fault and in this regard there is no legal defect about the ownership of the present deceased Filly till 22.12.2010 because on the particular date that is on 22.12.2010 that Filly expired which was reported by the Royal Calcutta Turf Club to that effect. Further it is evident from the document on the death of that Filly as per rules post mortem was done by Dr. S. Kar and report of post mortem examination on animal was also completed on 23.12.2010 at 8:00 AM and copy of report is also filed regarding holding of post mortem on 23.12.2010 is also unchallenged.
So, considering all the above facts and materials, we are convinced to hold that the present complainants were the last owners in respect of the deceased Filly till 22.12.2010. On proper evaluation of the documents and materials evidence on record including the argument as advanced by the Ld. Lawyers of both the parties, we are convinced that the complainants submitted claim form against that dead horse on the basis of the insurance policy which was issued by the op being No. 030500/46/09/02/00001229 on 30.12.2010 and it is admitted fact that sum insured of the said insurance policy is Rs. 8,00,000/-.
From the insurance policy it is clear that the policy was initially issued in the name of M/s Nanoli Stud & Agricultural Farm for the period from 19.03.2010 to 18.03.2011. But the Ld. Lawyer for the op submitted that when the insurance policy was issued that was issued in the name of M/s Nanoli Stud & Agricultural Farm for the period from 19.03.2010 to 18.03.2011. But in fact at the relevant time the said race horse (Filly) had been sold to Mrs. Anne Wright and that sale was made by the M/s Nanoli Stud & Agricultural Farm to Mrs. Anne Wright on 22.09.2009 that is long before issuance of the said policy. So, policy became void for non-disclosure of the fact that the said Filly never belonged to M/s Nanoli Stud & Agricultural Farm with effect from 22.09.2009 because it was sold to Mrs. Anne Wright on 22.09.2009 and that fact was not disclosed for which the policy as issued in the name of M/s Nanoli Stud & Agricultural Farm is void because on the very date of issuance of insurance policy M/s Nanoli Stud & Agricultural Farm was not the owner of the dead horse.
In this respect we have gone through the passport of the horse issued by the Stud Book Authority of India and as per Stud Book Authority of India rules until and unless passport is issued by the authority the sale of horse by any owner to 3rd party cannot be validated and from the passport of the said authority it is clear that endorsement of transfer of right from M/s Nanoli Stud & Agricultural Farm to Mrs. Anne Wright was issued in the month of April-2010 and from that passport it is also proved that Mrs. Anne Wright purchased it on 22.09.2009, but actually passport was finally issued, on verification in the month of April-2010. So without a valid passport the transferees right cannot be established and insurance company has also no such authority to endorse the name of Mrs. Anne Wright without the valid passport and fact remains at the time of opening the present insurance policy the passport was in the name of the first owner that is M/s Nanoli Stud & Agricultural Farm was there. So, insurance policy was issued in the name of M/s Nanoli Stud & Agricultural Farm. But it must not be kept in our mind that it is a peculiar policy and the policy is called Blood StockInsurance policy covering the risk of the horse not covering the risk of the owner.
So, as per law on the date of death of the horse if it is found that the name of the horse is noted in the insurance policy the entire amount shall be paid to that fellow whose name as noted as owner in the policy. In this regard it is admitted fact that the policy covers the risk of that Filly and it is clear that op issued the policy after change of name of the owners and issued rectified and modified policy in respect of Blood Stock Insurance in respect of the present Filly and in the said policy it is specifically noted and same is endorsed especially and it is also noted that policy was issued on 19.03.2010 and endorsement effected from 22.06.2010 and policy expired on 18.03.2011. Further it is noted in the said policy that the reason cause of endorsement is for change of ownership.
Another cause of endorsement wording attached to and forming part of original policy is also noted that the two years old this Filly has been sold to Mr. Naresh Kumar and Mr. H.H. Sookias. So, considering that document which has not been challenged by the op, we find that ownership was duly changed in the name of the complainants that has been affirmed by the op’s endorsement certificate as issued and effect of endorsement is from 22.06.2010 and policy expiry date is 18.03.2011 and fact remains from that this horse died on 22.12.2010. So apparently we have gathered that there is no technicalities or illegalities in respect of change of name because as and when the passport of the said deceased Filly was received by the complainant, they submitted it when the Filly was alive, thereafter op after considering all the materials changed the name of the complainant owner of said Filly and endorsed with the original policy that has been specifically mentioned in the endorsement schedule of the policy. Regarding endorsement schedule of the policy op has no denial and they have stated invariably they have issued. Now the legal question as pointed out by the op’s Ld. Lawyer is that it is proved that Mrs. Anne Wright purchased that horse from M/s Nanoli Stud & Agricultural Farm on 22.09.2009. But the policy was effected from 19.03.2010. So suppressing the fact of transfer in the name of Mrs. Anne Wright by the previous owner who purchased the policy and so the entire policy is void. Practically this is the only defence of the op in support of their repudiation. In this regard this Forum asked the Ld. Lawyer for the op whether the endorsement schedule was issued by the op or not. But the Ld. Lawyer for the op submitted no doubt the complainant submitted the entire passport of the deceased Filly and after proper consideration of those documents the endorsement schedule was issued for bring it as part of the original policy. When that is the fact then it is clear that the op authority after holding inspection investigation was confirmed that at the time of purchase of the said policy Mrs. Anne Wright had no passport and that passport in respect of Filly (deceased) had not been issued by complainant authority that is Stud Book Authority of India. It is clear that transfer of right of Mrs. Anne Wright was effected from the month of April-2010 after the issuance of the passport and no doubt prior to that M/s Nanoli Stud & Agricultural Farm was holder of the passport and legal proposition is that unless and until passport in respect of the policy is produced before the insurance company, insurance company shall not change the name of ownership. But as because Mrs. Anne Wright did not get the passport up to April-2010,so the insurance policy was purchased by the passport holder of the said Filly rightly by M/s Nanoli Stud & Agricultural Farm and this policy was issued and fact remains Mrs. Anne Wright sold to the complainant and the complainants names were registered in the said passport as owner on 19.06.2013 and that passport was filed along with application for change of name of the complainant that was considered by the op. Thereafter names of Naresh Kumar and H.H. Sookias were changed in the passport and endorsement schedule was issued by the op.
So, considering that fact it is clear that the ops authority on inspection and investigation considering the passport and other documents were satisfied that complainants were the owner of the Filly (since deceased) on the basis of assessed valid passport in the name of the complainants against that Filly. When that is the fact then question is how op can challenge thatthe insurance policy is void and in this regard we have asked the Ld. Lawyer for the op whether this declaration, issuance of endorsement of the policy changing the name of ownership in the name of the complainants is an act of the op or not. Ld. Lawyer for the op submitted no doubt it is op’s official act and it was issued. Then against that this Forum pointed out to the Ld. Lawyer then ops are legally to esstoped to challenge their own act as per provision of Section 115 of the Evidence Act. So in the present case principal of acquiescence is completely applicable.
Another factor is that this complainant submitted application with a prayer for change of names against the same policy which was initially issued in the name of M/s Nanoli Stud & Agricultural Farm and that was in the office of the op and if actually there was any illegality or deficiency or misrepresentation in that case at the time of changing the names of the complainants in respect of Filly op had their thousands scope not to enter their name on the ground that has been purchased by false representation as no ownership of Nanoil was there on the date of issuance of the said policy that means the scope was in the hand of the op to declare at that time of inception that the policy it was void and prayer of the complainant can be repudiated on that ground but that has not been done. Opis not artificial person but a public body and public body is not exempted from their liability to change of the names as owner of the horse.
Then op public body and their official authorities are estopped to challenge the authority of the present policy by any means whatsoever. Another factor is that at the time of considering the application of the complainant regarding change of ownership complainant submitted the original passport of the said horse in which the name of M/s Nanoli Stud & Agricultural Farm and Mrs. Anne Wright and 3rd this complainants were noted that means after verifying the entire insurance policy, ops as per rule changed the names of the complainants as owner of the present Filly since deceased and truth is that thereafter endorsement policy was issued and issued in the name of the complainants which became the part of the original policy as per the endorsement schedule and endorsement effected on and from 22.06.2010. So in the eye of law there is no legal defect in respect of the present policy and the question of declaring the policy void is no doubt illegal in nature anddefence as taken by the op for repudiation is completely against the spirit of law and ops are estopped to take such defence before this Forum or any Court of law by any means for which we are convinced to hold that as because the amount was Rs. 8,00,000/-. So, this type of technicalities were searched out to repudiate the claim which has become the practice of the New India Assurance Co. or United India Insurance Co. and particularly in this case with a specific motive this was repudiated was made which is baseless without any foundation and there is no legal ground to repudiaterather all legal provisions are in favour of the complainant.
Lastly after giving a thoughtful critical appreciation we have gathered that op have no plea in the written version that due to some factual procedure or for some false misrepresentation or malpractice endorsement schedule was issued and there is no such allegation. At the same time there is no allegation that complainants adopted unfair trade practice and by malpractice to procure that endorsement schedule. Then it is clear that ops are estopped by principal of estoppel acquiescence to challenge the validity of the policy.
Another factor is that after considering the total legal position in the particular case, it is clear that entire knowledge in respect of change of ownership and in respect of title of the Filly was known to the ops all officers from Branch Manager to dealing clerk because passport was in their hand. Now there is no scope on the part of the op to show that at the relevant time they were blind due to conjunctivitis. So, on careful consideration of the entire materials, legal position including the provision of section 115 of the Evidence Act we are convinced to hold that this policy was valid from its inception till the death of the Filly and the present complainants became the valid owners of the Filly with effect from 22.06.2010 as per policy conditions that endorsement schedule has been made part of original as per order of the op. So there is no defence of the op invariably for which complainants are entitled to get the entire amount when there investigator already submitted surveyor report stating that they are entitled to get the claim amount. In this case what we have gathered that the op insurance company probably did not get some extra money for which this claim was repudiated. Though there was no legal ground to repudiate the claim and nowadays it is often found that the surveyor made many reports on payment and if payment is not made then surveyor submits report against the insured and in the present case it is found that the op insurance company repudiated the claim. Then invariably this probable bookies failed to satisfy the Manager or staff for which with some false ground it is repudiated which is no doubt unfair trade practice and no doubt corrupt practice was adopted by the ops.
Most interesting factor is that the present policy covers the risk of Filly that is Blood Stock Insurance Policy admittedly the deceased Filly was insured one and fact remains in respect of that subject Filly and on its death invariably owners shall get the benefit. But owner is not the insured, probably considering this principal op’s Ld. Lawyer submitted that ownership was void. But in this regard the principal as laid down in so many judgement of the Hon’ble Supreme Court with transfer of the ownership of the subject or object which is insured insurance policy due to be transferred and the policy will not lapse even if intimation as required by the policy is not given to the insurer. At the same time once the ownership of the subject or object is admittedly proved to have been transferred the existing insurance policy in respect of same subject or object will also be deemed to have been transferred to new owner and the policy will not lapse even the intimation as required is not given by the transferee owner. In case of any insured or adopting of the subject or object, the beneficiaries shall be the owner whether it is recorded owner or if it is found at that time the subject or object the transfer, then the transferee owner is entitled to get the benefit. No doubt in the present case the insured Filly died on 22.12.2010 when already the present policy was transferred in the name of the actual owner, the present complainants as per passport of the said Filly issued by the competent authority i.e. Indian Stud Book Authority. Moreover it is found that at the time of filing application for transfer of name of owner made by the complainant such fees was accepted by the ops and on investigation and inception the names of the transferred complainants were endorsed in the policy giving effect of the same in respect of transferred complainants with effect from 22.06.2010. But the insured Filly died on 22.12.2010 when the present policy stood in the name of the present complainants as owner in view of the above legal position and findings we are convinced to hold that total defence of the op is groundless and having no legal foundation in the eye of law and so repudiation is also completely with some ulterior motive. So, in the above circumstances the allegation as made by the complainant in complaint is proved beyond any manner of doubt and for which repudiation as made by the complainants is found and motivated foundation on the part of the op. In this regard to come to this conclusion also we have relied upon one verdict of the Hon’ble Supreme Court of India, New Delhi in case of Mallamma (DLTR) –Vs – National Insurance Company Ltd. and Ors. and it is reported in CLT 2014 (3), Vol. 63, Page-1.
So the complainant is entitled to get the benefit of the insurance policy as per their claim as submitted on 30.12.2010. Most interesting factor is that without any legal and justified ground repudiation was made on 16.08.2011 and thereafter revision was submitted to the authority that was also rejectedon 13.09.2011 and for which invariably op shall have to give 8 percent interest p.a. over the said amount since 16.08.2011 till full satisfaction of the decretal amount to the complainant including litigation cost.
In the result, the complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against the ops.
Ops are directed jointly and severally to pay the same of Rs. 8,00,000/- the sum insured in respect of present policy to each complainant by dividing it into Rs. 4,00,000/- and also dividing the cost as awarded as 50 – 50 and also of the interest at the rate 8 percent p.a. over the same amount with effect from August-2011 till full satisfaction of the decretal amount.
The order of this Forum shall be complied and satisfied by the ops within one month from the date of this order failing which for non-satisfaction of the decretal amount, penal interest at the rate Rs. 500/- per day shall be assessed till full satisfaction of the decree and if the penal interest is collected it shall be deposited to the account of this Forum. But even if it is found that ops are reluctant to comply the order and disobey the Forum’s order in that case penal action u/s 27 of C.P. Act 1986 shall be imposed for which penalty and fine shall be imposed against them.
