Before the District Consumer Disputes Redressal Forum, Mandi, H.P.
Complaint Case No.281/2008
Date of Institution 1-11-2008
Date of Decision 30-6-2009
Mohamad Ali son of Yusuf Resident of village DudluNala, Post Office Kautla, , Tehsil Sadar, District Mandi, H.P.
…Complainant
V/S
ICICI Lombard General Insurance Ltd through its Manager ,C/0 Sahib Complex Ist Floor Plot No.118/9 College Road, Mandi, H.P.
…..Opposite party
For the complainant Sh. Abhisek Pal , 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 was owner of buffalo which was got insured with the opposite party vide policy No. 4057/0000098 Annexure C-1 and tag No 148934 for the period from 27-3-2008 to 26-3-2011. During the currency of the policy, the buffalo died . The complainant reported the matter to the Veterinary Doctor and post mortem of the dead animal was conducted there. It has been averred that the matter was thereafter reported to the opposite party for settlement of the claim and all the requisite documents were also supplied. It has been alleged that the opposite party has repudiated the claim vide letter dated 23-8-2008 Annexure C-2without any reasonable ground . The complainant has alleged that the repudiation of the claim is arbitrary, without application of mind and amounts to unfair trade practice as well as deficiency in service on the part of the opposite party. On these facts , the complainant has sought a direction to the opposite party to pay Rs.14,000/- , the assured sum of the cattle with interest at the rate of 12% PA from the date of death and also to pay Rs.5500/- as litigation charges and Rs.5000/- as compensation.
2. The opposite party 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 claim has been repudiated after having given a deep thought to it, that the animal had died in an accident i.e. falling from a height while leaving the buffalo for grazing and it was the duty of the owner to take due care and caution and the owner was negligent while leaving the buffalo for grazing . Also it was the duty of the insured to make better arrangements to feed the animal in tough circumstances . On merits , it has been admitted that the cattle was insured with it and rest of the allegations have been denied . It has also been averred that the complainant must be put to strict proof whether the buffalo which has died in accident was the same buffalo which was insured with it or some other cattle . It has further been averred that the claim submitted by the complainant was rightly repudiated . It has been averred that no cause of action accrued in favour of the complainant to file the present complaint . 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.. 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 it died of an accident on account of falling from a height and it was the duty of the owner to keep the animal away from heights .
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 . . However , no material has been placed on record by the opposite partyto show that the owner of the cattle was negligent . It was incumbent upon the opposite party to place on record statements of witnesses or their affidavits to establish negligence on the part of the complainant 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 the absence of any 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.14,000/- on 27-3-2008 with the opposite party. Hence the complainant is held entitled to Rs.14,000/- 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.14,000/- 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 due to deficiency in service and also to pay a sum of Rs.1500/- 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
( Lal Singh ) ( Alkananda) Members