Punjab

Rupnagar

CC/15/5

Darshan Lal - Complainant(s)

Versus

ICICI Lombard General Insurance & Another - Opp.Party(s)

Sh. Ram Avtar, Adv

20 May 2015

ORDER

ORDER

                             MRS. NEENA SANDHU, PRESIDENT

                   Sh. Darshan Singh has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for the following reliefs:-

i)       To pay the insurance amount of Rs.48,750/- alongwith interest @ 12% P.A. from the date of death of the buffalo in question till realization,

 

ii)      To pay Rs.20,000/- on account of unnecessary harassment caused to him,

iii)     To pay Rs.20,000/- as litigation expenses,

iv)     To pay interest @ 18% on the above said amounts w.e.f. the date of death of the cow till realization,

v)      To award any other relief, which this Forum may deem fit, in the interest of justice.

 

2.                In brief, the case of the complainant is that he is engaged in dairy farming business for earning his livelihood, which is the only source to fulfill day to day needs of his family. At the time of starting the said business, he had taken loan of Rs.2,00,000/- from the O.P. No. 2 (wrongly written as O.P. No. 1) on 17.9.2012. The O.P. No. 1 is the sister concern of the O.P. No. 2. As per rules, regulations and directions of the said O.P. No. 2, the purchased animals i.e. 2 cows and 2 buffaloes, were got insured from the O.P. No. 1 for a sum of Rs.48,750/-  per animal, for the period from 17.9.2012 to 16.9.2015 and premium for the same to the tune of Rs.24,000/- was deducted from the loan amount itself. Separate tags were put on each animal by the O.P. No.1 for identification purpose. Out of the said insured animals, one buffalo bearing tag No.100018469 had delivered a calf on 27.9.2014 and Dr. Anant Ram of Govt. Veterinary Hospital, Nurpur Bedi had given the requisite treatment to the said buffalo at that time, but, unfortunately, the said buffalo fell ill in the morning of  29.9.2014. The complainant immediately called the above said Dr. Anant Ram, who started treatment and told that the said buffalo had come under the grip of Trypanosomiasis (Surra) i.e. blood protozoa disease and that chances of recovery from the said disease are very bleak because such kind of disease attacks brain of the affected animal and can occur at any stage or moment. Inspite of best efforts/treatment given by Dr. Anant Ram, the buffalo in question died on 30.9.2014 at about 2.00 A.M. Post mortem of the said buffalo was also conducted by Dr. Anant Ram, which confirmed that the buffalo had died due to Trypanosomiasis (Surra) i.e. blood protozoa disease. He has already repaid the loan amount to the O.P. No.2, which he had taken to start the above said dairy business. The claim was lodged with the O.P. No.1 in respect of the said buffalo and all the requisite formalities were completed on 5.11.2014, but the claim was repudiated vide letter dated 27.11.2014 on the ground that the death of the animal was due to the calf related disease, which amounts to deficiency in service on the part of the O.Ps., because they cannot be allowed to go against the opinion of an expert i.e. Dr. Anant Ram, the Government Veterinay Docotor, Government Civil Veterinary Hospital, Nurpur Bedi. Hence, this complaint.

 

3.                On being put to notice, the O.P. No. 1 filed written statement taking preliminary objections; that the complainant is not ‘consumer’ as he has been running the dairy farming business for selling the milk on large scale, which is an commercial activity; that the complaint being frivolous, vexatious & abuse of process of law is not maintainable and is liable to be dismissed under Section 26 of the Act, as the complainant has failed to make out any case of deficiency in service, as alleged or otherwise; that the claim is not payable to the complainant, there being violation of terms & conditions of the policy, because the animal in question (wrongly written as cow) had died due to calving related disease and as per the policy clause, the Company is not liable for compensating the insured for any loss or damage in the event of calving related disease; that the damages claimed are arbitrary & without any basis, as the complainant has failed to set up nexus between the damages claimed and the damages suffered by him and that the complaint be dismissed without going into merits of the case. On merits, it is admitted that the animals were got insured by the complainant with the answering O.P. by paying an amount of Rs.21,910/- towards insurance premium, but it is stated that the insurance was subject to the terms & conditions of the policy. It is further stated that the O.P. No. 1 & O.P. No. 2 are separate business entity. After receipt of information regarding the death of the animal in question from the complainant Claim No.GEN000135724 was allotted. After perusing the documents i.e. postmortem report & treatment certificate it transpired that apart from Trypanosomiasis, in the post mortem report in column No. 8 (i) “Uninvoluted uterus” has been mentioned by the doctor , which is indicative of recent parturition. As per treatment certificate, date of last calving was 27.09.2014 and the animal had died on 30.09.2014. Inspite of 3 days following parturition, during post mortem, a prominent uninvoluted uterus was observed, which directly relates to reproductive abnormalities, because normally, within 2 days after parturition, there is a rapid reduction in the diameter of the cervix & constant reformation of cervical folds. Since the animal in question had died due to calving related disease, which is not covered as per clause 8 of the policy wordings, therefore, the claim was rightly repudiated as per terms & conditions of the policy and intimation regarding the same was given to the complainant vide letter dated 27.11.2014. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, with costs.

 

4.                The O.P. No. 2 filed a separate written statement taking preliminary objections; that the complainant is not ‘consumer’ as defined in the Act as he is running a big diary farm and selling the milk on large scale which is a commercial activity; that he has unnecessarily dragged the answering O.P. into this uncalled for litigation, as the answering O.P. has no role to play in settling or paying of the claim amount to the complainant; that the insurance policy in question was issued by O.P. No.1, therefore, the liability, if any, under the said policy is that of O.P. No.1, therefore, the present complaint against the answering O.P. is liable to be dismissed. On merits, it is stated that the insurance of the animal in question was done by the O.P. No. 1 and the premium amount of Rs.21,910/- was paid through DD No. 863407 dated 30.8.2012 in favour of O.P. No.1. The O.P. No. 1 and the answering O.P. are separate business entity. It is denied that the complainant had paid the entire amount of loan to the answering O.P. It is stated that he was yet to pay an amount of Rs.7992/- as on 9.3.2015. There is no deficiency in service on the part of the answering O.P. and the claim amount, if any, under the policy is to be paid by the O.P. No.1, being the insurer, therefore, the complaint against the answering O.P. is liable to be dismissed with costs.

 

5.                On being called upon to do so, the learned counsel for the complainant tendered affidavit of the complainant, Ex. C1, photocopies of documents Ex.C2  to Ex.C9 and closed the evidence. On the other hand, the learned counsel for the O.Ps. tendered affidavit of Ms. Meenu Sharma,  Legal Manager of O.P. No.1, Ex.OP-1, photocopies of documents Ex.OP-2 to Ex.OP-5, Ex. OP-7 & OP-8, affidavit of Sh. Arshdeep Kumar,  authorized signatory of O.P. No. 2, Ex.OP-6  and closed the evidence.

 

6.                We have heard the learned counsel for the parties and gone through the record of the file, including the written arguments filed by the learned counsel for the O.Ps., carefully.

 

7.                The learned counsel for the complainant submitted that the complainant is running dairy farming for earning his livelihood and after taking loan from the O.P. No.2 had purchased four animals i.e. two cows & two buffaloes on 17.9.2012 and got them insured with the O.P. No.1 for the period from 17.9.2012 to 16.9.2015. For the identification purposes the O.P. No.1 had affixed tag on the ear of each animal. The buffalo bearing tag No.100018469 delivered a calf on 27.9.2014, but unfortunately, on 30.9.2014, the said buffalo died after having come under the grip of Trypanpspmosis (Surra) disease, as is evident from the Treatment Certificate (Ex. C5), postmortem report (Ex. C4), affidavit of Dr. Anant Ram. Veterinary Doctor (Ex. C9). The complainant had lodged claim with the O.P. No. 1 and submitted all the requisite documents, however, the O.P. No.1 had repudiated the genuine claim wrongly vide letter dated 27.11.2014  on the ground that the calving related disease is excluded from the cover under clause 8 of the policy. Hence, the O.Ps. are deficient in providing services and the reliefs, as prayed for, in the complaint be granted.

8.                On the other hand, the learned counsel for the O.P. No.1 i.e. ICICI Lombard General Insurance Company, had drawn our attention to the exclusion clause No. 12 of the policy in question and submitted that as per the said clause the company is not be liable to pay any amount under the policy, for compensating the insured for any loss or damage in the event of any calving related disease. As per treatment certificate (Ex. C5/Ex.OP-5), the date of calving was 27.9.2014 and the animal died on 30.9.2014 i.e. within 3 days following parturition, thus, it is clear that the buffalo in question had died in the calving period, and nothing is payable under the policy. The O.P. No. 1 has, thus, rightly repudiated the claim and the complaint is liable to be dismissed with costs.

 

9.                The learned counsel on behalf of the O.P. No.2, i.e. ICICI Bank Ltd., submitted that the insurance policy in question having been issued by the O.P. No.1, the claim, if any, is to be paid by the said O.P.  only and the O.P. No.2 has nothing to do with settling or payment of the claim. Thus, the complaint filed against O.P. No.2 is liable to be dismissed, being not maintainable.

 

10.              Admittedly, the buffalo in question had delivered a calf on 27.9.2014 and died on 30.9.2014 i.e. within 3 days thereafter. Perusal of the Post Mortem Report (Ex. C4/OP-4), reveals that in its column No. 8(i), the doctor concerned has mentioned that the buffalo in question suffered from “Uninvoluted uterus”. Further in its Column No. 10, under the head “Diagnosis (specifying reason of death)” the said doctor has mentioned “Trypanosmiasis”. Admittedly, the post mortem of the dead buffalo in question was conducted by Dr. Anant Ram, Veterinary Officer, I/C Civil Veterinary Hospital, Nurpur Bedi,(Ropar). In his affidavit (Ex.C9), Dr. Anant Ram, has deposed that he had treated the buffalo bearing tag No.100018469 of the complainant and he has further deposed that the disease “Trypanosmiasis (Sura)”, is blood protozoa, the chances of recovery from the said disease are very bleak because such kind of disease attacks the brain and that it is not related to the calving. There is no rebuttal to the said affidavit, on behalf of the O.Ps. In the post mortem report, it has been mentioned that death of the buffalo in question was due to Trypanosmiasis, whereas the O.P. No.1 has repudiated the claim on the ground that the buffalo died due to calving related disease, but as mentioned above, Dr. Anant Ram has clarified that Trypanosmiasis (Sura)”, is blood protozoa, and the same is not related to the calving. In this view of the matter, we are of the considered opinion that the O.P. No.1 has repudiated the claim of the complainant on the wrong ground, which is not tenable. Consequently, the O.P. No.1 is liable to pay the insured amount of Rs.48,750/- as mentioned in the insurance policy/certificate, Ex. C6/OP-3. Since the O.P. No.1 has failed to pay the said amount to the complainant, therefore, it is also liable to pay interest w.e.f the date of repudiation i.e. 27.11.2014 till realization and also compensation for mental agony & physical harassment alongwith litigation expenses.

 

11.              So far as the complaint filed against O.P. No. 2 is concerned, neither any deficiency in service on its part has been alleged in the complaint nor the same has been proved, therefore, complaint against O.P. No. 2 is liable to dismissed.

 

12.              In view of the aforesaid discussion, the complaint against O.P. No. 2 is dismissed and the same is allowed against the O.P. No.1 with the directions in the following manner:-

i)       To pay an amount of Rs.48,750/- to the complainant alongwith interest @ 9% P.A. from 27.9.2014 till realization;

ii)      To pay Rs.3000/- as compensation,

iii)     To pay Rs.3000/- as litigation expenses.

 

                   The O.P. No. 1 is further directed to comply with the order within 45 days from the date of receipt of certified copy of this order.

 

13.              The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to the Record Room.