IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 23rd day of February, 2023.
Filed on 29.07.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.C.K.Lekhamma, B.A., LL.B (Member)
CC/No.186/2022
between
Complainant:- Opposite parties:-
Smt.Sunitha 1. The United India Insurance Co.Ltd.,
W/o Nissar, Regional Office,1st floor,
Kochuveettilpadeettathil PT Usha Road Jn.,
Arattupuzha muri, Opp.Kalyan Silks,
Arattupuzha Panchayat, Ernakulam-682011.
Karthikappally Taluk,
Alappuzha. 2. Director/Deputy Director,
Dairy Development Department,
(Adv.T.A.Venugopal) Pattom. Thiruvananthapuram-695004
(O.P.1 rep by Adv.Smt.S.Premalatha &
O.P.2 no representation)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
Material averments briefly stated are as follows:-
On 03.03.2020 complainant purchased a cow as per the programme of Government of Kerala and it was insured with the 1st opposite party M/s United India Insurance Company Ltd. for Rs.60,000/-. Complainant is a member of Arattupuzha milk Producing society and she used to sell milk to the said society. The cow purchased by the complainant was of bovine CV jersey species. An amount of Rs.750/- was paid to the first opposite party being the premium through the society for the period of insurance of one year from 22.03.2021.
2. While so the cow sustained infection and thereafter died on account of anemia on 17.05.2021. Post mortem was conducted by veterinary surgeon attached to Arattupuzha Veterinary hospital on 17.05.2021 and at the time of death the cow was 8 months pregnant. Intimation was given to the 1st opposite party within one week and entire documents were also submitted. However the insured amount was not disbursed so far and this amounts to deficiency of service. Complainant is entitled to realise the amount along with interest and is also entitled for Rs.25,000/- as compensation on account of deficiency of service. Hence the complaint.
3. 1st opposite party filed a version mainly contenting as follows:-
The complaint is not maintainable either in law or on facts. There is no deficiency of service on the part of this opposite party. It is admitted that the cow belonging to the complainant was insured for a period of one year from 21.03.2021 to 22.03.2022. Complainant has not submitted photographs of postmortem of the dead animal while submitting the claim. As per the memorandum of understanding clear colour photographs of the dead animal while doing post mortem with intact ear tag and detailed post mortem report is to be produced to identify the animal. As the complainant has not produced the above said photographs and thus violated the memorandum of understanding executed between Directorate of diary development department and this opposite party, they are not liable to pay compensation.
4. As per the condition of the policy the insured must inform this opposite party if any death occurred to the cattle insured. Intimation was not given to this opposite party and relevant documents were not submitted. There is no deficiency of service from the part of this opposite party. The complaint is frivolous and vexatious. Complainant is not entitled for any amount and hence the complaint may be dismissed with cost and compensatory cost.
5. 2nd opposite party remained exparte.
On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service from the part of opposite parties as alleged?
- Whether the complainant is entitled realise an amount of Rs.60,000/- along with interest from the opposite parties as prayed for?
- Whether the complainant is entitled realise an amount of Rs.25,000/- as compensation from the opposite parties as prayed for ?
- Reliefs and costs?
6. Evidence in this case consists of the oral evidence of PW1 to PW4 and Ext.A1 to A4 from the side of the complainant. Opposite parties have not adduced any oral evidence. Ext.B1 and B2 were marked from the side of 1st opposite party. Ext.X1 series was produced by PW3.
7. Point Nos.1 to 3
PW1 is the complainant. She filed an affidavit in tune with the complaint and marked Ext.A1 to A4.
8. PW2 is working as Veterinary surgeon attached to veterinary government hospital Arattupuzha panchayath. On 17.05.2021 he conducted post mortem examination of a cow belonging to PW1 and issued Ext.A3 certificate. It was aged about 6 years and was pregnant. The ear tag number was 420038537753. The cow died due to anemia.
9. PW3 is working as diary extension officer at Muthukulam block. PW1 is a member of Arattupuzha APCCS. The cow belongs to PW1was insured with the 1st opposite party. The cow died and claim form was furnished by PW1 along with connected records. The copy of documents are marked as Ext.X1 series. Normally documents such as X1 are furnished for claim. The claim was repudiated for want of post mortem report.
10. PW4 is the secretary of Arattupuzha APCCS. PW1 is the member of the society. When a cow belonging to PW1 died insurance claim was furnished through the society. The cow was brown in colour and the tag number was 420038537753.
11. PW1, the complainant is conducting a small scale dairy farm. One of her cows was insured with the 1st opposite party M/s United India Insurance Co. Ltd. for a period of one year from 23/3/2021 to 22/3/2022. The insurance policy was taken through 2nd opposite party M/s Diary Development Department. She is a member of Arattupuzha Milk Producing Society having No. A11(D)- APCOS. The ear tag number allotted to the cow was 420038 537753. While so the cow fell ill and on 17/5/2021 it died due to anemia. A post mortem was conducted by the veterinary surgeon attached to the Arattupuzha veterinary hospital. PW1 filed a claim petition through the milk society claiming an amount of Rs. 60,000/- which was the insured amount. However her claim was repudiated on a contention that photograph of postmortem examination was not produced along with records. Aggrieved by the same the complaint is filed claiming an amount of Rs. 60,000/- which is the assured amount and Rs. 25,000/- as compensation on account of deficiency of service. 1st opposite party filed a version admitting the policy. It was also admitted that the cow died. The only contention raised in the version is that as per the Memorandum Of Understanding (MOU) entered between insurance company and the Directorate of Diary Development Department. (OP2), photograph of the postmortem examination is a mandatory document for claiming compensation. Since it was not produced the claim was repudiated. It was contended that there was no deficiency of service from their part and so the complaint is only to be dismissed. 2nd opposite party remained exparte. Complainant got examined as PW1 and marked Ext.A1 to A4. PW2 to 4 were also examined from her side and PW3 produced Ext.X1 series. No oral evidence was adduced from the part of 1st opposite party Ext.B1 policy copy and Ext.B2 copy of Memorandum of Understanding (MOU) was marked from their side. Relying upon the oral evidence of PW1 to 4 coupled with the documents marked the learned counsel appearing for the complainant pointed out that the complaint is proved as per law and so complainant is entitled for assured amount of Rs. 60,000/-. It was also pointed out that without any valid reason a genuine policy was repudiated and the complainant had to run from pillar to post to get the amount and so she is entitled for compensation. Per contra the learned counsel appearing for the 1st opposite party pointed out that as per Ext.B2 Memorandum Of Understanding (MOU) entered between the opposite parties, production of photograph of postmortem examination of the cow is a mandatory document and since it is not produced the claim was rightly repudiated and so no interference is required.
12. As discussed earlier the fact that PW1 had insured her cow with the 1st opposite party for a sum assured of Rs. 60,000/- is not in dispute. It is also an admitted case that the ear tag number allotted to the cow of PW1 is 4200 38 53 7753. The evidence of PW2 the veterinary surgeon conducted the postmortem examination will show that the cow died due to anemia. Ext.A3 is the postmortem record issued by him after conducting postmortem on 17/5/2021. The ear tag of the cow is shown in Ext.A3 postmortem record as 420038 537753. Evidence of PW3 coupled with Ext. X1 series documents shows that claim petition along with connected records were submitted before the 1st opposite party within time. Evidence of PW4 shows that PW1 is a member of their society and the claim petition was forwarded through them. She also stated that the tag number allotted to the cow of PW1 was 420038 537753. Ext.X1 series are the copies of documents furnished before the 1st opposite party through them. Ext.X1 (d) is the cattle claim repudiation letter dtd. 19/1/2022. The claim was repudiated due to “no postmortem photo”. From the evidence on record and from Ext.X1 series it is pellucid that all the relevant records except the postmortem photograph was furnished to the 1st opposite party. Ext.X1 (h) is the photograph of PW1 standing near the carcass of the animal. The claim was repudiated on the basis of a clause in Ext.B2 memorandum of understanding which reads as follows:- (3) Cattle Insurance.
(c) Clear colour photograph of the dead animal while doing postmortem with intact ear tag and detailed Postmortem report.
13. It has come out in evidence that complainant had submitted all the relevant documents including postmortem report conducted by PW2 veterinary surgeon attached to the Govt. Hospital, Arattupuzha. PW2 had stated that he had identified the cow as per ear tag No. 420038 537753. Now the only question to be considered is whether repudiation of the claim of PW1 on account of clause in Ext.B2 Memorandum of Understanding (MOU) can be accepted. First of all it is noticed that Ext.B2 Memorandum of Understanding(MOU) is entered between Directorate of Dairy Development and the 1st opposite party. It is not known whether the terms and conditions of Ext.B2 Memorandum of Understanding(MOU) were made available to PW1 who is a small scale dairy farmer. As discussed earlier the entire documents relevant for the purpose of claim petition was furnished by PW1 through PW4 and PW3 except the photograph of the postmortem. The identity of the animal is clearly revealed by the tag number and Ext.A3 postmortem report conducted by PW2. PW2 stated that at the time of postmortem examination ear tag was available. He is not aware about the Memorandum of Understanding(MOU) . The photograph just before the postmortem examination was taken. He doesn’t know whether photograph of postmortem examination including ear tag is to be taken. So we cannot expect a fact to be known to the complainant which is even not known to PW2 who is a veterinary surgeon. One and the only contention taken by the 1st opposite party for repudiating the claim is due to the non availability of photograph of doing the postmortem examination. Now the only question to be considered is repudiation of the claim by the 1st opposite party on account of non submission of photograph can be accepted.
14. The law in this regard is well settled by various judicial pronouncements. It was held by the Hon’ble Supreme Court in Md. Kamgarh Shah Vs. Jadish Chandra (AIR 1960 SC 953)
“Where there is an ambiguity it is the duty of the court to look at all the parts of the document to ascertain what was really intended by the parties. But even here the rule has to be borne in mind that the document being the grantor’s document it has to be interpreted strictly against him and infavour of the grantee.”
Here in this case Ext.B2 Memorandum of Understanding (MOU) is entered between the Directorate Dairy Development Department and the 1st opposite party insurance company. PW1, the complainant who is a small scale dairy farmer is not a party to MO2. So even if there is a clause of production of photograph regarding postmortem examination we are of the opinion that since the identity of the animal is not disputed by the 1st opposite party repudiation of the claim only for the non submission of photograph cannot be accepted, especially when PW1 is not a party in Ext.B2 Memorandum of Understanding(MOU). It is to be remembered that identity of the animal is not at all disputed by the 1st opposite party and it is proved by oral evidence of PW2 who conducted postmortem examination.
15. It was held by the Hon’ble Supreme Court in United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers (AIR 2004 SC 1700).
“ It is also settled position in law that if there is any ambiguity or a term is capable of two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken, namely, to cover the risk on the happening of certain event.”
16. The same view was reiterated by the Hon’ble Supreme Court in Sangrur Sales Corporation Vs. United India Insurance Company Ltd & Anr. ( 2020 (2) KHC 244 (SC))
“ It is well-settled that in the event that the two constructions are possible or in the event of an ambiguity, that construction which is beneficial to the insured should be accepted consistent with the purpose for which the policy was taken, namely to cover the risk on the happening of a certain event.”
17. As held by the Hon’ble Supreme Court in Om prakash Vs. Reliance General Insurance on 4/10/2017 in Civil Appeal No. 15611 of 2017.
“Rejection of the claim on purely technical grounds in a mechanical manner will result in loss of confidence of policy – holders in the insurance industry. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.”
18. Here in this case the identity of the animal is not in dispute since it is proved by the number of the ear tag. The evidence of PW2 who conducted postmortem examination shows that on 17/5/2021 the animal died due to Asphyxia and Anemia. He had clearly identified the animal by the ear tag number. 1st opposite party had no dispute that at the time of death of the animal the policy was inforce. Hence applying the principles laid down by the Hon’ble Supreme Court in the decisions referred above we are of the opinion that repudiation of a genuine claim by the 1st opposite party on flimsy grounds is not at all justifiable and so the complainant is entitled to realise the assured amount of Rs. 60,000/-.
19. Admittedly the cow died on 17/5/2021 and from Ext.X1 series it is seen that claim petition was filed on 4/10/2021. It was repudiated by the 1st opposite party as per Ext.X1 (d) letter dtd. 19/1/2022. The complaint is filed on 29/7/2022. Complainant is claiming an amount of Rs. 25,000/- as compensation on account of deficiency of service. Evidence on the records shows that there was delay and deficiency of service from the part of 1st opposite party and the claim was repudiated without valid reason even though the identity of the animal was not in dispute. As discussed earlier it is not known whether the clause of Ext.B2 by which the claim was repudiated was communicated to PW1. In said circumstances complainant is entitled for compensation and we are limiting the same to Rs. 15,000/-. These points are found infavour of the complainant.
20. Point No.4:
In the result complaint is allowed in part.
a) Complainant is allowed to realize an amount of Rs. 60,000/- along with interest @9% per annum from 19/1/2022 ( Ext.X1(d) date of repudiation) till realization from the 1st opposite party.
b) Complainant is allowed to realize an amount of Rs. 15,000/- as compensation from the 1st opposite party.
c) Complainant is allowed to realize an amount of Rs. 5000/- as cost from 1st opposite party.
d) Complaint against 2nd opposite party is dismissed.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 23rd day of February, 2023.
Sd/-Sri.S.SanthoshKumar(President)
Sd/-Smt.C.K.Lekhamma(Member)
Appendix:-Evidence of the complainant:-
PW1 - Sunitha (complainant)
PW2 - Dr.Binil B Chandran (Veterinary Surgeon)
PW3 - Priya (Dairy Extension Officer)
PW4 - Subha V.(Secretary APCOS)
Ext.A1 - Application for cattle compensation
Ext.A2 - Veterinary Certificate
Ext.A3 - Post mortem record
Ext.A4 - CDIS Enrollment Form
Ext.X1 - Report and other details submitted by Ksheeravikasana Officer
Evidence of the opposite parties:-
Ext.B1 - Insurance Policy
Ext.B2 - Memorandum of Understanding (MOU)
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Comp.by:-
