State Consumer Disputes Redressal Commission
The Manager, National Insurance Co Ltd vs Ramachandrappa on 30 March, 2023
Daily Order Date of Filing : 29.11.2016 Date of Disposal :30.03.2023 BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) DATED: 30.03.2023 PRESENT Mr K B. SANGANNANAVAR: PRI. DIST & SESSIONS JUDGE ( R )-JUDICIAL MEMBER
Mrs DIVYASHREE M: LADY MEMBER APPEAL NO.3099/2016 The Manager National Insurance Co. Ltd., I Floor, Krishna Building P.B.Road, Haveri Now represented by Regional Manager National Insurance Co. Ltd., Regional Office, Subharam Complex 144, M.G.Road Bangalore-560 001 (By Mr. A.N.Krishna Swamy, Advocate) Appellant
-Versus-
1. Mr.Ramachandrappa S/o Mr Siddappa Hegde Now aged about 36 years Occ: Agriculture R/o Kamanahally, Hanagalla Haveri District (By Mr Basavarapabhu Hosakeri, Advocate)
2. Manager State Bank of India Hanagal Branch Haveri District Respondents (Ex-parte)
-:ORDER:-
Mr K B. SANGANNANAVAR: JUDICIAL MEMBER
1. This is an Appeal filed by OP2 aggrieved by the Order dated 29.09.2016 passed in Consumer Complaint No.21/2015 on the file of District Consumer Disputes Redressal Forum, Haveri (for short, the District Forum).
2. The Commission examined the grounds of Appeal, impugned order, appeal papers and heard the arguments.
3. The brief facts of the case of the Complainant before the Forum below was that as he had availed loan from OP1 Bank and had purchased 100 EMU birds and were been insured with OP2 for the period commencing from 30.04.2013 to 29.04.2014. He has made all necessary facilities for protecting Emu bird forming and had fenced to protect the birds with supervision of watchman to whom a house was provided. However, in between 8PM 09.07.2013 and 6 am on 10.07.2014 some miscreants poisoned Emu birds as a result 93 birds were died. The miscreants poisoned the water and the maize feed. In this regard a police complaint came to be lodged in Crime No.144/2013 with concerned Police Station, however the police submitted C-Report and when a claim made to OP2/Appellant insurer, it was repudiated as per letter dated 15.04.2015. In this regard a consumer complaint was raised before District Forum by the complainant/respondent. It was contested by both Ops. According to complainant the bank was a formal party, since complainant availed money from the said Bank to purchase the birds. The insurer/appellant submitted that insured violated policy conditions and he is not entitled for any amount of compensation from insurer. In view of rival contentions of the parties to the complaint, the Forum below held an enquiry by receiving affidavit evidence of Complainant along with Ex-C1 to C3 and evidence of Assistant Manager of OP2, Branch Manager of OP1 along with Ex-R1 to R11 and while in appreciating material placed on record allowed the complaint in part, directed OP2 to pay Rs.13,95,000/- along with interest at the rate of 6% per annum from the date of complaint till realisation within 30 days, failing which, amount so awarded carry interest at the rate of 12% per annum and awarded Rs.10,000/- as compensation towards mental agony and expenses incurred by him and no order has been passed against OP1, as such, we have to construe complaint raised came to be dismissed as against OP1. It is this order being assailed in this Appeal contending that Forum below failed to appreciate policy conditions and materials placed on record by the parties, resulting thereby passing impugned order does not sustainable is liable to be set aside.
4. Let us come to examine Ex-R1, the policy issued by Insurer in the name of OP1 and the complainant, as OP1 advanced loan to complainant, which in act is not disputed. The period of insurance coverage commenced from 30.04.2013 till 29.04.2014 mid night to cover the risk of 100 EMU birds. It is not in dispute as to the value of each EMU bird at Rs.15,000/- and they were insured for Rs.15 lakhs, since Rs.1,01,124/- premium amount was paid. It is not disputed policy was issued in the name of complainant and OP1 his banker subject to policy terms and condition attached. The policy bearing No.610502/47/13/9400000002. Let us examine the conditions and we skip condition Nos.1 and 4 to 7 and make mention herein Condition No.2, for better understanding "the Exclusions are Malicious, Damage and Transit by any means, theft, cannibalism, malnutrition etc.,". Condition No.3 refers to excess clause 25% of the assessed loss per bird. In consideration of the facts narrated by complainant in his complaint as EMU birds were poisoned by somebody and to that effect, a criminal case has been filed by Hanagal Police. Therefore, condition No.2 attached to the policy would play vital role to decide on the case in question. Even in Ex-R2 EMU bird (Poultry) Insurance Policy could see malicious/wilful injury, neglect, improper management (including overcrowding) are excluded. The insured shall at all times exercise all reasonable care and diligence in the selection of employee and shall cause every bird insured to have sufficient and proper balanced standard food, water & shelter and shall keep secure all fences, yards, sheds & cages and shall use and exercise every precautions in every manner provide the same care and attention as if no insurance had been effected. This clause we could found at Para 13 (11) on page 3 of Ex-R2, Ex R3 is a Fire registered in Crime No.144/2013 by Hanagal Police dated 10.07.2013, wherein Mr Ramachandra Siddappa Hegde, the complainant herein gave First Information about the death of 99 EMU birds in his EMU poultry farm maintained by him availing loan from OP1 bank insured with OP2. In his FIR, he gave information that 93 EMU birds were died and only 6 were alive when he saw at 6 am on 10.07.2013 and gave further information that somebody administered poison in the maize feed and in the plastic tubes meant for drinking water. He had seen water found in tubes turned to butter milky colour and he alleged some miscreants with an intention to kill EMU birds administered poison not only in the drinking water but also in the maize fodder. It is found from the enquiry file as to drawing of panchanama by the police, recording of statement of Siddappa Hegde, the father of complainant. Ex-R7 is a final report submitted by Police wherein could see as to the cause of death on the basis of environmental evidences observed PM lesions and lab report, Emu birds died of Asphyxia due to poisoning. Thus, the report of FSL corroborates the information of complainant that EMU birds were killed due to poisoning by miscreants. However, police could not traced the culprits submitted C- Final report. Ex-R9, 9(a) are produced to show live EMU birds, while 9(b) to show how poison was administered in drinking water while Ex-9 (c) to show as to how EMU birds were dead lying on the ground in the farm of complainant. Similarly, we could see from 9(d) and 9(e) photographs about the Emu birds are lying dead in the field/farm.
5. In Ex-R10, Central Poultry Development Organisation and Training Institute furnished information sought by one Mr.Guddappa, S/o Marthandappa, that EMU birds are being reared for various purposes viz., for meat, skin, oil, feather etc; however, in the referred case, observed that salvage for the bird alone could have been the skin of EMU birds, which should have been preserved either with salt treatment or refrigeration condition and the value as per the market value for the skin process at Rs.500/- to 1,000/- per skin. In Ex-C1, the insurer addressed a letter to complainant as to the short comings to settle the insurance claim, they are, the policy covers the risk of fire, lightening, flood, cyclone, famine, strike, riot and civil commotion or diseases contracted or occurring and not the poisoning of the bird.(Bold is mine)
6. Thus from the documents submitted by complainant including his claim petition prima-faice discloses and confirm EMU birds died due to poisoning by someone or some miscreants made out a case of negligence or miss-supervision of the insured to manage the Poultry. It is not that one or two birds were dies but almost all birds died due to poisoning by someone amounts to malicious act and neglect of the insured and in such situation insured bound from exclusion clause of the policy terms and it amounts to gross violation and negligence on his part was not at all properly perceived by the Forum below as contended by learned counsel for Appellant has some considerable force in view of the policy condition attached to and forming part of EMU birds covered under the policy stated above, in particular, second condition which provides for exclusion or malicious damage and clandestine and mal nutritious. Herein this condition materials placed by the Complainant prima-faice establish the death of EMU birds was due to malicious damage which being excluded from the risk coverage, as such OP2 insurer has to be held justified to repudiate the claim of the complainant. In other words the Forum below has to be held lost sight to appreciate the attached policy conditions forming part of the EMU birds covered under the policy in question. In such view the Forum below is wrong in accepting the case of the complainant that he has not received the terms and condition No.2, from OP1, the banker. In our view, the banker/OP1 is none other the financier to Complainant to purchase the Emu birds and the policy was issued not only in the name of OP1 but, also the complainant as already stated above. Further to be observed herein notice of the terms and conditions by OP1 has to be held complainant had notice. In other words contention that complainant had no notice of the attached terms and condition is not available was wrongly accepted perceived by the Forum is not sustainable.
,
7. Further to note herein that merely because the police have submitted C-Report to the Court and the Court issued C-Summary is not a ground to hold that complainant had fulfilled all the conditions to claim for settlement, since the materials on record establish that insured has violated the fundamental terms and conditions of the policy as stated above.
8. In so far as the contentions of the Complainant's Counsel that the Emu birds were killed by poising by miscreants and not by insured and to this contention learned counsel for Appellant insurer would rightly submitted not necessary to prove that complainant himself administered the poison to kill the EMU birds could be acceptable in view of the policy attached terms and conditions and submits that even the insurer herein is not alleging against the complainant that it is he who was administered poison to kill the EMU birds but, facts remain that he has neglected to supervise properly though kept a watchman to look after the poultry.
9. In the above such conclusion and in view of discussions made above since insured shown to be violated fundamental conditions of the policy and even the materials establishes the death of EMU birds was due to malicious damage, being excluded risk coverage findings recorded by the Forum below has to be held contrary to the facts and law is liable to be set aside. Accordingly, we proceed to allow the Appeal. Consequently, set aside the impugned order dated 29.09.2016 passed in Consumer Complaint No.21/2015 on the file of District Consumer Disputes Redressal Forum, Haveri and as a result complaint is hereby dismissed with no order as to costs.
10. Amount in Deposit is directed to be returned to the Appellant with proper identification by his Advocate.
11. Return the LCR forthwith to the Commission below.
12. Send a copy of this Order to the District Commission as well the parties concerned, immediately for needful.
Lady Member Judicial Member *s