Before the District Consumer Disputes Redressal Forum, Mandi, H.P.
Complaint Case No.269 /2008
Date of Institution 16-9-2008
Date of Decision 30-4-2009
Shobha Ram son of Sh. Kaul Singh resident of village Nehra , Post Office Pandoh, Tehsil Sadar, District Mandi, H.P.
…Complainant
V/S
ICICI Lombard, Mandi, Town , District Mandi, H.P. through its Branch Manager.
…..Opposite party
For the complainant Sh. Noor Ahmad, , Advocate
For the opposite party Sh. Sandeep Bhardwaj, Advocate
Complaint under Section 12 of the
Consumer Protection Act, 1986.
ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party .The case of the complainant is that he purchased a jersey cow in the month of February 2008 in the sum of Rs.10,000/-. The said cow was insured with the opposite party under master cattle insurance policy vide cover note No.0058212 valid w.e.f. 1-2-2008 to 6-2-2011. Tag No. 58512 was allotted to the insured cattle . On 21-5-2008 due to some unknown disease the cow died and post mortem of the said cow was conducted on 23-5-2008 by the Veterinary Doctor at 11.30 AM. Death of the cow was duly intimated to the opposite party . The complainant submitted all the documents to the opposite party including the ear tag which was allotted to the cow by the opposite party for early settlement of the claim. It had been alleged that the opposite party had repudiated the claim of the complainant illegally and value of the cow has also been reduced by the opposite party without application of mind as well without any rhyme and reason. The complainant had suffered mentally due to the act of the opposite party. On these facts , the complainant has sought a direction to the opposite party to pay Rs.10,000/- , the assured sum of the cattle with interest at the rate of 12% PA from the date of death and also to pay Rs.10,000/- as compensation , and also to pay costs of complaint at Rs.5,000/-.
2. The opposite party has resisted the complaint and raised preliminary objections that there is no deficiency in service on its part , that the complaint is not maintainable that the opposite party has insured the cattle subject to certain limitations , exceptions and conditions and if these terms and conditions are not complied with ,the insured is not entitled for any compensation, that negligence is one of the exceptions and the same is not covered under the policy of insurance, that the cattle died due to negligence on the part of the complainant as no treatment was given to the cattle under insurance . The disease which was diagnosed by the doctor is not an incurable disease and it is not such a disease which did not give time for the treatment . It has been averred that if the cattle had been treated in time it could have survived as the cattle fell ill on 16-5-2008 and died on 21-5-2008. No treatment was given to the cattle as per the post mortem report which shows negligence of the owner , that the complainant is guilty of suppression of material facts , that the complainant has misrepresented the facts and played fraud upon the opposite party simply to extract money from it and that the complaint is not maintainable as its contents are contradictory. On merits , the opposite party had denied the insurance of the cattle with it . The opposite party has denied the contents of para No.1 to 5 of the complaint in totality. The opposite party had prayed for dismissal of the complaint.
4. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.
5. We have heard the ld. counsel for the parties and have carefully gone through the record of the case . It is admitted case of the opposite party that the animal in question was insured with it and it died during the currency of the insurance policy. The identity of the animal is also not in dispute . However , the claim of the complainant has been repudiated only on the ground that the animal died due to the negligence on the part of its owner as no treatment was given to the animal .
6 Now the question which arises for consideration before this forum is as to whether the opposite party was justified in repudiating the claim only on this ground . The onus was upon the opposite party to prove that the animal
died due to negligence on the part of its owner . The opposite party had placed reliance on the photocopies of treatment certificate issued by Veterinary Doctor Annexure R-2 as well as post mortem report Annexure R-4 to prove its case wherein it has been recorded “no treatment was given to the animal. However, in our opinion these documents are not sufficient to establish negligence on the part of the owner of the animal. It was incumbent upon the opposite party to place on record the original treatment certificate as well as post mortem report and also the affidavits of the concerned veterinary Doctors who had issued the said certificates to establish that no treatment was given to the animal during the period of illness but the same had not seen the light of the day. There is no concrete material on record on the basis of which it can be concluded that the complainant was negligent in not giving treatment to the animal during the period of illness .In the absence of any satisfactory evidence with respect to negligence on the part of the complainant, we have no hesitation to conclude that the complainant has proved that the opposite party had been deficient in providing service. As per the cover note Annexure C-1,the cattle was insured in the sum of Rs.10,000/- on 7-2-2008 with the opposite party. Hence the complainant is held entitled to Rs.10,000 /- on account of death of the insured cattle.
7 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay Rs.10,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. Apart from this the opposite party is also directed to pay to the complainant Rs.2000 /- on account of compensation for harassment suffered by him and also to pay a sum of Rs.1,500/- as costs of litigation.
8 Copy of this order be supplied to the parties free of cost as per Rules.
9 File, after due completion be consigned to the Record Room.
Announced
30-4-2009 (Sushil Kukreja ) President
DKM
( Lal Singh ) ( Alkananda