SMT.MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 12 of the Consumer Protection Act 1986 for an order directing the OP to pay an amount of Rs.94,900/- as compensation to the complainant along with cost of litigation to the complainant for the deficiency of service on the part of OP.
The case of the complainant in brief:
The complainant is a cowherd women for last several years and maintaining her family based on the income derived from cowherd. The complainant owned and maintained a milch cow, aged 6 years of CBHF-Black& gray was insured with the OP as policy No.76130647160 400002D16 through Sreepuram Ksheerolpadaka Sahakarana Sangam Manakkadavu for an amount of Rs.60,000/- on 22/8/2016 for a period of one year. At the time of insuring the said cow it was hail and healthy and milking about 20 litres per day. Complainant had properly maintained the cow and administered all vaccination in time. But in the month of January 2017 the cow was infected with acute coliform mastitis. Immediately complainant took medical assistance for her cow from Dr.Bijoy Varghese, Veterinary doctor ,Govt. Veterinary hospital at Udayagiri. The same doctor has examined the cow at the time of insuring the same cow with OP and all the forms for applying the insurance was filled by him in the presence of the agent of OP. The above cow was totally disabled and the cow was treated by the same doctor in various occasions till 20/2/2017. At finally the doctor certified that the cow is not milk yielding one due to the disease and it is permanently disabled milking. Thereafter , then the complainant approached the OP with all relevant documents and certificate from doctor who attended the cow and put forward a claim. But the OP did not process the complainant’s claim. Then the complainant send a lawyer notice dtd.20/12/2017 to OP. But after receiving notice the OP sent a reply stating that the tag number of the insured cow is 420013/0475512. But as per the claim report submitted by Dr.Bijoy Varghese who treated the complainant’s cow is 420013/047512. OP further contended that the tag attached the deceased cow does not tally with the tag Number mentioned in the policy and the tag No.420013/0475512 is attached to another cow owned by the complainant. Due to the mismatching of the tag number with the policy the OP is not settling the claim. No other cow having a tag No.420013/0475512 with the complainant. The act of the OP is not settling the claim, the complainant caused much mental agony and financial loss. So there is deficiency in service and unfair trade practice on the part of OP. Hence the complaint.
After receiving the notice OP entered before the commission and filed his written version contending that the OP has never issued this policy to the complainant. The complainant has failed to disclose any specific cause of action against this OP. Thereafter the OP filed chief affidavit and to admit the cattle insurance policy of the complainant. The OP contended that the cattle are dead during the policy period 100% of the sum insured would be given to the insured where as if the milch cow is permanently disabled only 75% of the sum insured would be eligible to the insured. Moreover the tag on the cow was mismatched with the reported tag in the certificate of the veterinary doctor as well as the claim form. On the basis of the claim form and certificate of the treated doctor, the OP repudiated the claim of the insured. Moreover, the complainant was presenting the veterinary doctor in her favour and is not sustainable and not at par with the high standard of Govt. Officer and discarded in the interest of justice. Hence the complaint may be dismissed.
On the basis of the rival contentions by the pleadings the following issues were framed for consideration.
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant is entitled for any relief?
- Relief and cost.
The evidence consists of the oral testimony of PW s1&2 and marked Exts. A1 to A7. On OP’s side DW1 was examined and Ext.B1 marked.
Issue No.1:
The Complainant adduced evidence before the commission by submitting her chief affidavit in lieu of her chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. She was cross examined as PW1 by the OP. The documents Exts.A1 to A7 were marked on her part to substantiate her case. According to the complainant, Ext.A1 is the proposal cum veterinary certificate. It clearly shows that the complainant had insured the CBHF-Black and gray, aged 6 years milch cow. In Ext.A2 is the cattle insurance policy certificate. In Ext.A3 is the certificate issued by the Veterinary Dr.Bijoy Varghese. In Ext.A4 is the detail treatment certificate issued by Dr.Bijoy Varghese dtd.9/2/2017 to 15/2/2017. In Ext.A5 is the certificate issued by Dr.Bijoy Varghese dtd.20/2/2017 for issue a claim form for PTD purpose. In Ext.A6 is the lawyer notice sent by complainant to OP. In Ext.A7 is the reply notice send by OP’s counsel to complainant’s counsel.
As per the complainant’s case is that the complainant insured the 6 years of milch cow CBHF-black & gray with OP for an amount of Rs.60,000/- dtd.22/8/2016. Thereafter on January 2017 the cow was infected with acute coliform Mastitis and the cow was treated by Dr.Bijoy Varghese, the Veterinary Surgeon at Govt. hospital Udayagiri. The cow was totally disabled and the doctor treated the cow till 20/2/2017 and finally on 20/2/2017 . At that time the cow is not yielding and thereafter the cow died due to the disease. After getting certificate the complainant approached OP for the claim amount. But the OP denied the claim and stated that the tag number of the insured cow is 420013/0475512 and the claim report the tag number of the cow is 420013/047512. In order to prove the tag number of the complainant’s cow she examined PW2 before the commission. At the time of evidence PW2 stated before the commission that Ext.A1 ൽ കാണുന്ന ഒപ്പ് എന്ർറേതാണ്. Ext.A1 fill ചെയ്തത് ഞാനാണ്. ഈ policy പ്രകാരം പശുവിന് department supply ചെയ്ത tag പശുവിന്ർറെ ചെവിയിൽ ഘടിപ്പിക്കുകയും certificate ൽ ചേർക്കുകയും ചെയ്തിട്ടുണ്ട്.Ext.A4 certificate പ്രകാരം പശുവിന് പാൽ ലഭിക്കാത്തവിധം അസുഖം ബാധിച്ചിരുന്നു എന്നും policy പ്രകാരമുള്ള നഷ്ടം ലഭിക്കാൻ അർഹമാണെന്നും certify ചെയ്തിട്ടുണ്ട്. Ext.A1 certificate ൽ പശുവിന്ർറെ tag No.420013/0475512എന്നാണ് ചേർത്തത് ശരിക്കും ചേർക്കേണ്ട tag No.420013/047512 എന്നായിരുന്നു. ആയത് clerical mistake വന്നതാണ്. Ext.A3 യിൽ ശരിയായ tag number ചേർത്തിട്ടുണ്ട്. ആയതിൽ ഒപ്പിട്ടിരിക്കുന്നത് ഞാനാണ് . തെറ്റ് പറ്റിയ tag number പ്രകാരമുള്ള ഒരു പശുവിനെ ഞാൻ ചികിത്സിക്കുകയോ certificate issue ചെയ്യുകയോ ചെയ്തിട്ടില്ല . In cross examination PW2 stated that “ പരാതിക്കാരിയുടെ വീട്ടിലെ insure ചെയ്ത വേറെ പശുവിന്ർറെ tag number ആണ് ഇതെന്ന് പറയുന്നു? ശരിയല്ല. പരാതിക്കാരിയെ സഹായിക്കാൻ വേണ്ടിയാണ് ഇങ്ങനെ വന്ന് തെളിവ് കൊടുക്കുന്നതെന്ന് പറഞ്ഞാൽ? genuine case ആയതുകൊണ്ടാണ് “. In the evidence of PW2 he deposed that the difference in one digit in the tag number to the deceased cow in the policy is a mistake committed by him and PW2 communicated the mistake to the OP properly. In the evidence of DW1 who deposed before the commission that “ നിങ്ങൾ insure ചെയ്ത പശു രോഗം വന്ന് മരിച്ചത് എപ്പോൾ ആണെന്ന് മനസ്സിലായി? claim ചെയ്തത് permanent total disability യ്ക്കാണ്. മരണപ്പെട്ടു എന്നത് എനിക്കറിയില്ല. As per Ext.A4 detail treatment certificate issued by PW2, who clearly stated that on 9/2/2017,10/2/2017,11/2/2017,13/2/2017 ,14/2/2017 and 15/2/2017 continuous treatment given to the cow. Thereafter the cow died due to the disease. But DW1 contended that only the policy condition regarding the death during the policy period 100% of the sum insured whereas if the milch cow is permanently disabled only 75% of the sum assured will be eligible. In this case the OP offered 75% of the sum insured also. In the evidence of PW1, PW2 and DW1 and the documents of PW1 the commission opined that the OP is liable to compensate the complainant. So we hold that there is deficiency of service and unfair trade practice on the part of opposite party . Hence the issue No.1 found in favour of the complainant and answered accordingly.
Issue Nos.2&3:
As discussed above the OP denied the insurance claim of the complainant. As per the evidence of PW2 it is clear that the clerical mistake committed by him to write the difference in tag number. The only reason for rejecting the claim is difference in tag number. So the complainant is entitled to get the 75% of the sum insured would be eligible for Rs.45,000/- along with Rs.10,000/- as compensation for mental agony of the complainant and Rs.5000/- as litigation cost. Thus issue No.2&3 are also accordingly answered.
In the result the complaint is allowed in part directing the opposite party to pay an amount of Rs.45,000/- to the complainant along with Rs.10,000/- as compensation for mental agony of the complainant and Rs.5000/- as litigation cost within 30 days of receipt of this order. In default the amount of Rs.45,000/- carries 12% interest per annum from the date of order till realization. Failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.
Exts:
A1- Proposal cum veterinary certificate dtd.20/5/2016
A2-Policy certificate issued by OP
A3- veterinary certificate issued by Dr.Bijoy Varghese
A4- Treatment certificate issued by Dr.Bijoy Varghese
A5- certificate issued by Dr.Bijoy Varghese dtd.20/2/2017
A6- copy of lawyer notice dtd.20/12/17
A7-copy of reply notice
B1- Policy
PW1-Shylaja Mohanan- complainant
PW2- Dr.Bijoy Varghese-witness of PW1
DW1-K.Somanathan Nair- OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
