BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA<br /> <br /> PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President,<br /> <br /> 2. M.N.MANOHARA, B.A.,LLB., Member,<br /> <br /> ORDER<br /> <br /> Complaint No.MDF/C.C.No.156/2009<br /> Order dated this the 31st day of May 2010<br /> <br /> COMPLAINANT/S<br /> <br /> Smt.Chikkasakamma<br /> W/o Late Nagaiah,<br /> R/o Yadaganahalli Village, <br /> Chikkarasinakere Hobli, <br /> Maddur Taluk.<br /> <br /> (By Sri.K.J.Nanjesh., Advocate)<br /> <br /> -Vs-<br /> <br /> OPPOSITE PARTY/S<br /> <br /> 1.The Secretary, Yadaganahalli Milk Producer Co-operative Society Niyamita, Yadaganahalli, C.A.Kere Hobli, Maddur Taluk.<br /> 2.The Managing Director, Manmull, Gejjalagere, Maddur Taluk.<br /> 3.The Manager, National Insurance Co., Ltd., Mandya Branch, No.1576, V.V.Road, Mandya.<br /> <br /> (By Sri.Chikkamari., Advocate for 1st O.P.,<br /> Sri.K.R.Keshava Murthy., Advocate for 2nd O.P. & <br /> Sri.S.Sudarshan., Advocate for 3rd O.P.)<br /> <br /> Date of complaint 14.12.2009<br /> Date of service of notice to Opposite parties 23.12.2009<br /> <br /> Date of order 31.05.2010<br /> Total Period 5 Months 8 Days<br /> Result The complaint is allowed partly, directing 2nd Opposite party to pay compensation of Rs.18,000/- to the Complainant with cost of Rs.1,000/- within two months. Complaint against Opposite parties 1 & 3 is dismissed. <br /> <br /> <br /> Sri.Siddegowda,<br /> President<br /> <br /> 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite parties claiming Rs.20,000/- and compensation of Rs.50,000/-. <br /> 2. The case of the Complainant is that the Complainant purchased a cow under Amrutha Yojana sponsored by 2nd Opposite party, by depositing Rs.8,000/- and obtaining loan of Rs.12,000/- from 2nd Opposite party, on 20.05.2009, through 1st & 2nd Opposite parties and on the same day, the said cow was insured with 3rd Opposite party by fixing ear tag to the cow. The purchased cow was healthy and pregnant and on 29.06.2009 at the time of delivery of the calf, the cow suffered trouble and in after treatment, the cow became healthy. On 15.07.2009, the cow died and the Complainant got done the post mortem report of the cow. When the Complainant made transaction with 3rd Opposite party claiming the insurance amount, the 3rd Opposite party replied to 2nd Opposite party stating that the insurance for the cow was obtained on 08.07.2009. But before the insurance, the cow was suffering from disease certified by the veterinary doctor and it is contrary to the policy terms and further within 15 days of the policy, the cow died and leave the claim will not be entertained and therefore, the insurance amount cannot be paid. The rejection of the insurance claim is not sustainable. Therefore, the 3rd Opposite party has committed deficiency in service. On these grounds, the Complainant has sought for the insurance claim of Rs.20,000/- with compensation.<br /> 3. The Opposite parties 1 to 3 were served and have filed version. The 1st Opposite party has pleaded that being the member of the 1st Opposite party, the Complainant has purchased the cow under Amrutha Yojane Scheme and the said cow was insured. The 1st Opposite party is not concerned with the reply of 3rd Opposite party. The 1st Opposite party is not responsible for the complaint allegations and the 1st Opposite party is to be deleted from the case.<br /> 4. The 2nd Opposite party has filed version admitting that it has introduced scheme Amrutha Yojane under this scheme the beneficiary deposits Rs.8,000/-, the 2nd Opposite party advances Rs.12,000/- and cow worth of Rs.20,000/- will be given. Under the scheme, the Complainant deposited Rs.8,000/- before the 1st Opposite party and 2nd Opposite party paid Rs.12,000/- and out of the total amount of Rs.20,000/-, on 20.05.2009 cow worth of Rs.18,000/- was given to the Complainant in the presence of the officials of 2nd & 3rd Opposite parties and on the same day Rs.2,000/- was paid towards the premium for insurance of the cow and ear tag was fixed to the ear of the cow. The 2nd Opposite party is not aware of the claim made by the Complainant before 3rd Opposite party or repudiation. Since, the Complainant alleged deficiency in service against the 3rd Opposite party, 2nd Opposite party is not at all a necessary party and complaint against 2nd Opposite party is not maintainable and complaint is liable to be dismissed.<br /> 5. The 3rd Opposite party has filed a version, admitting that the cow in question was insured with Opposite party for the period from 08.07.2009 to 07.07.2012 and 2nd Opposite party is the insured and Complainant is one of the beneficiaries under the policy and the sum assured under the policy is Rs.18,000/-. On 15.07.2009, officer of 2nd Opposite party vide a letter informed that the insured cow died on 15.07.2009. However, the Complainant filed a claim form on 17.08.2009 along with valuation certificate, treatment certificate and postmortem report. On perusal of these documents it revealed that the cow in question was suffering from diseases even prior to the commencement of the policy. Knowing full well that the cow was seriously ill, was got insured misrepresenting that the cow was healthy and it is responsibility of the 2nd Opposite party and as the 2nd Opposite party sent the proposal for insurance towards many such cows and there will not be any direct contact between the Complainant and 3rd Opposite party. Since, there is breach of one of the terms of the policy, the 3rd Opposite party informed to 2nd Opposite party vide letter dated 25.08.2009, stating that the claim cannot be granted that the cow was ill even at the time of insurance and also on the ground that the claim is within the waiting period of 15 days. Therefore, there cannot be negligence or deficiency in service on the part of the 3rd Opposite party. Denying all other allegations, the 3rd Opposite party has sought for dismissal of the complaint. <br /> 6. During trial, the Complainant is examined and Complainant has produced Ex.C.1 to C.12. The 2nd & 3rd Opposite parties are examined and Ex.R.1 to R.17 are marked.<br /> 7. We have heard both the sides.<br /> 8. The 3rd Opposite party has also filed written arguments.<br /> 9. We have perused the records.<br /> 10. Now the points that arise for our considerations are:-<br /> 1. Whether the repudiation of the insurance claim by 3rd Opposite party is justified?<br /> 2. Whether the 3rd Opposite party has committed deficiency in service?<br /> 3. Whether the Complainant is entitled to the insurance claim with compensation and against whom?<br /> 11. Our findings and reasons are as here under:-<br /> 12. POINTS NO.1 & 2:- The undisputed facts are that the Complainant is the member of 1st Opposite party Society and 2nd Opposite party is the Head of the 1st Opposite party Society. Under the scheme Amrutha Yojane sponsored by 2nd Opposite party, the 2nd Opposite party purchased a cow worth of Rs.18,000/- on deposit of Rs.8,000/- by the Complainant and 2nd Opposite party lent loan of Rs.12,000/- and the said cow was insured with 3rd Opposite party and Ex.R.7 is the policy issued by 3rd Opposite party in favour of 2nd Opposite party and Complainant is one of the beneficiary in this insurance and the cow of the Complainant is insured for Rs.18,000/-. The policy period is from 08.07.2009 to 07.07.2012 and the said cow died on 15.07.2009 and Ex.R.5 is the post mortem report. The Complainant preferred the claim as per the application Ex.R.2, submitting the papers and 3rd Opposite party has sent reply as per Ex.R.1 dated 25.05.2009 to 1st Opposite party repudiating the claim stating that the insured cow was suffering from diseases prior to obtaining the insurance policy and further, the cow died within 15 days of the policy in waiting period and the insurance amount cannot be paid.<br /> 13. Now, the Complainant has challenged the same and alleged the deficiency in service against 3rd Opposite party.<br /> 14. According to the complaint, the cow was purchased on 20.05.2009 and it was insured on the same day. According to the 2nd Opposite party, the cow was purchased on 20.05.2009 and on the same day, it was insured and ear tag was fixed to the cow. According to the evidence of the Complainant, the cow given to the Complainant was purchased from one Siddaramaiah of Kurumande Village and it was pregnant at that time. But, as per Ex.R.12, the cow was purchased from one Javaregowda of Hosahalli, Channapatna Taluk on 01.05.2009 and the cow was testing by the Veterinary doctor belonging to 2nd Opposite party on 01.05.2009 and according to the certificate, the cow was healthy and it is in advance pregnancy. As per Ex.R.16, it is admitted that the 2nd Opposite party has deposited Rs.9,600/- to 3rd Opposite party without stating the reason for payment. Admittedly, the policy was issued as per Ex.R.7 by 3rd Opposite party in the name of 2nd Opposite party and there are 8 beneficiaries under this policy and the policy period is 08.07.2008 to 07.07.2012. Admittedly, the cow died on 15.07.2009, so within 8 days from the commencing of the policy, the cow died and Ex.R.8 cattle insurance scheme conditions state that if the death of the animal due to the diseases within 15 days from the inception of the policy, insurance cover is excluded. As per the evidence of the Complainant, the cow died within a week from issue of policy. Further, before death of the cow, they provided treatment 4 or 5 times. Ex.R.9 reveals that the treatment to the cow on 29.06.2009 and on 05.07.2009 as per Ex.R.10 and on 06.07.2009 as per Ex.R.11. So, before issue of policy, the cow was suffering from diseases and treated and on 15.07.2009, the cow died, it is within a week from commencement of the policy. It is admitted by the Complainant that before death of the cow 4 or 5 times treatment was provided to the cow. So, these materials established that within 15 days from the commencement of the policy, the cow suffered with diseases and later died. The evidence of 2nd Opposite party, the cow suffered illness due to improper treatment by in certified doctor at the time of the delivery of the calf and he has also admitted that within a week of commencement of the policy, the cow died. But, Ex.R.5 the post mortem report does not prove that the infection arose due to improper treatment after delivery of the calf. So, under these circumstances, since the cow suffered illness and within 15 days from the date of policy died, the insurance cover is excluded. Further, the Opposite party has repudiated the claim on the ground that though the cow was suffering from diseases prior to the insurance, it was not disclosed and therefore, the issue of policy is against the conditions of the policy terms. As observed above, as per Ex.R.9, the cow was treated on 29.06.2009 and on 05.07.2009 as per Ex.R.10 and also on 06.07.2009 as per Ex.R.11, they are not disputed. These treatment records are earlier to the policy date 08.07.2009. So, though the Complainant and mainly 2nd Opposite party are aware of the illness of the cow, they have obtained the insurance policy on 08.07.2009. It is very well known that the insurance policy risk covers from the date of commencement of the policy. The contention of the Complainant that the insurance amount was deposited on 21.04.2009 as per Ex.C.16 and therefore, the insurance commences from that date. But, this contention cannot be accepted, because the details of the beneficiary and the cow and identified marks are not mentioned in the receipt. As contended by the learned counsel for the Opposite party, after furnishing of the health certificate, sale receipt and the identified marks of the cow by the Veterinary doctor of 2nd Opposite party. 3rd Opposite party has issued insurance certificate commencing from 08.07.2009 giving details of beneficiaries and identification of the cows and insured amount. The 2nd Opposite party has not furnished any document to prove on what date, it submitted sale receipt, health certificate of the cow with identification marks of the cow to 3rd Opposite party to issue of insurance policy, because in the name of 2nd Opposite party, the insurance policy is issued with list of beneficiaries and Complainant has no direct connection with the Insurance Company. The learned counsel for the Complainant contended that 3rd Opposite party should have produced the records to show on what date it received the sale certificate, health certificate and identification marks of the cow to the insured. The normal presumption is that when the policy was issued showing the date of commencement of the policy, the insured should have questioned the same pleading that it has deposited the amount earlier and particulars are furnished earlier and why the policy issued showing belated date. Admittedly, the 2nd Opposite party has not questioned the date of issue of policy. The burden is on the Complainant and 2nd Opposite party to prove that in spite of furnishing the sale certificate, health certificate of the cow with identification marks, the insurance company has issued insurance certificate showing the belated date. Nothing prevented, 2nd Opposite party to produce the documents to prove the date on which it furnished the details of the cow to the Insurance Company to issue insurance certificate. Under these circumstances, we have to hold that the insurance policy commences from the date mentioned in the insurance policy, not from the date of receipt Ex.R.16 dated 21.04.2009, because at the time of issuing the policy, the 3rd Opposite party has generated separate receipt and separate receipt number is shown in the insurance policy Ex.R.7. Under these circumstances, the 3rd Opposite party is justified in repudiating the insurance claim of the cattle insurance claimed by the Complainant and Complainant has failed to prove deficiency in service by 3rd Opposite party.<br /> 15. POINT NO.3:- The Complainant has claimed cattle insurance amount of Rs.20,000/- with compensation of Rs.50,000/-. The Complainant has not pleaded any deficiency in service against 1st & 2nd Opposite parties. But, in the prayer column, the Complainant has claimed against all the Opposite parties. So, even though specific deficiency in service by 1st & 2nd Opposite parties is not pleaded by the Complainant, but in the circumstances of the case, we have to consider whether 1st & 2nd Opposite parties have committed deficiency in service. The evidence discloses that 1st Opposite party is not responsible for any dealings with insurance company on behalf of the Complainant, because it is the 2nd Opposite party sponsored the scheme and lent the loan and purchased the cow under Amrutha Yojane Scheme for the Complainant and other beneficiaries and paid the insurance premium to the 3rd Opposite party to obtain the policy. Though as per the documents produced by 2nd Opposite party. on 01.05.2009 the cow in question was purchased and on 20.05.2009 the cow was insured, but the policy is issued, commencing from 08.07.2009. Though, 2nd Opposite party has deposited the premium amount for all the beneficiaries on 21.04.2009 as per Ex.R.16, but the insurance company would issue policy on furnishing the value certificate of the cow, certificate of health and identification marks with list of beneficiaries of the cows. Admittedly, 2nd Opposite party has not produced any document to show as to on what date, it submitted those particulars to 3rd Opposite party to issue insurance certificate. The presumption that only after receipt of list of beneficiaries and identification marks of the cows and health certificate, the 3rd Opposite party has issued the insurance certificate. Surprisingly, 2nd Opposite party has not questioned the date of commencement of the policy, though according to the 2nd Opposite party, on 20.05.2009 the cow was insured by paying Rs.2,000/-. So, the version of 2nd Opposite party is contrary to the receipt Ex.R.16. Under these circumstances, the 2nd Opposite party has not exercised proper diligence and care in obtaining the policy by furnishing the list of beneficiaries and identification marks of the cow to the insurance company in time and had the 2nd Opposite party exercised proper diligence to obtain the policy in time immediately after purchase of the cow on 01.05.2009, there was no ground for 3rd Opposite party to issue policy mentioning the date of commencement as 08.07.2009 and Complainant would not have suffered the loss of claim. Therefore, the 2nd Opposite party is responsible for this loss of insurance due to negligence of 2nd Opposite party and hence, 2nd Opposite party has committed deficiency in service and 2nd Opposite party is liable to pay the insurance claim of Rs.18,000/-. <br /> 16. In the result, we proceed to pass the following order;<br /> ORDER<br /> The complaint is allowed partly, directing 2nd Opposite party to pay compensation of Rs.18,000/- to the Complainant with cost of Rs.1,000/- within two months. <br /> Complaint against Opposite parties 1 & 3 is dismissed. <br /> <br /> (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 31st day of May 2010).<br /> <br /> (PRESIDENT) (MEMBER)<br /> <br />