State Consumer Disputes Redressal Commission
Rajesh Ramchandra Shinde & Anr. vs Vinayak Sadashiv Dixhit, ... on 21 March, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal No. A/12/554
(Arisen out of Order Dated 17/09/2011 in Case
No. 43/2011 of District Satara)
1. RAJESH RAMCHANDRA
SHINDE
PASARANI TAL VAI
SATARA
MAHARASHTRA
...........Appellant(s)
Versus
1. VINAYAK SADASHIV
DIXHIT, ADMINISTRATOR THE ORIENTAL INSURANCE CO LTD
BEFORE COLLECTOR
OFFICE POVAE NAKA SATARA
SATARA
MAHARASHTRA
...........Respondent(s)
First Appeal No. A/12/555
(Arisen out of Order Dated 17/09/2011 in Case
No. 44/2011 of District Satara)
1. SHASHIKANT TUKARAM
SHINDE
AT/POST HOLICHA MAL
TAL KHATAV
SATARA
MAHARASHTRA
...........Appellant(s)
Versus
1. VINAYAK SADASHIV
DIXHIT, ADMINISTRATOR THE ORIENTAL INSURANCE CO LTD
BEFORE COLLECTOR
OFFICE POVAE NAKA SATARA
SATARA
MAHARASHTRA
...........Respondent(s)
BEFORE:
HON'BLE MR. Dhanraj
Khamatkar PRESIDING MEMBER
HON'BLE MR. Narendra
Kawde MEMBER
PRESENT:
Mr.P.D. Pise, Advocate
for the appellant.
None present for the
respondent.
ORDER
Per Shri Narendra Kawde, Honble Member Both these appeals are directed against the order in consumer complaint No.43/2011 (Rajesh Ramchandra Shinde V/s. Shri Vinayak S. Dixit, Manager, Oriental Insurance Co. Ltd.) and consumer complaint No.44/2011 (Shashikant Tukaram Shinde V/s. Shri Vinayak S. Dixit, Manager, Oriental Insurance Co. Ltd.) decided on 17/09/2011 by District Forum, Satara, thereby dismissing the consumer complaints filed by the present appellants/complainants. District Forum dismissed both the consumer complaints on the point of limitation.
2. Aggrieved thereby appellants/org.
complainants preferred separate appeals bearing Nos.554/2012 & 555/2012 against the impugned order on the ground that the point of limitation to file claim was not properly appreciated by the District Forum though the claim of the complainant was repudiated by the respondent/opponent-Insurance Company on the ground of limitation and on the policy condition directing submission of ear-tag of the insured animal after death.
3. We heard Advocate Mr.P.D. Pise for the appellant in both the appeals.
However, respondent/Insurance Company or their Advocate preferred to remain absent at the time of hearing.
4. Undisputed facts are that the appellant/complainant in both appeals subscribed to insurance policy bearing No.STRA-103931 and STRA-109288 to provide insurance cover to Bovine Cow separately with sum insured of `35,000/- and `20,000/- respectively to each of the cow. The cow insured under policy No.STRA-103931 died on 13/07/2008. However, cow insured under policy No.STRA-109288 died on 08/05/2008. These incidents were reported to the respondent/opponent-Insurance Company. Respondent/ opponent-Insurance Company deputed their Surveyor who visited and carried out inspection of dead cows. Thereafter, claim payable under policy Nos.STRA-103931 and STRA-109288 were filed along all the required papers, mainly, Postmortem Report of Government Veterinary Doctor, Cattle Valuation Certificate signed by Govt. Veterinary Doctor, Certificate of Sreenath Milk Co-op. Society and Death Certificate of cow. However, respondent/opponent-Insurance Company repudiated the claim on the ground that ear-tag along with piece of ear of the insured dead cow was not sent.
Aggrieved thereby, the consumer complaint Nos.43 & 44/2011 were filed before the District Forum, Satara.
5. District Forum, Satara, as already observed, dismissed these consumer complaints on the point of limitation stating that claim was not preferred within a period of twelve months from the date of repudiation of insurance claim i.e. on 27/04/2009 in respect of policy No.STRA-103931 and on 30/08/2009 in respect of policy No.STRA-109288. The cause of action in these cases arose from the date of death of the cows as reckoned by the District Forum. Relying on this provision of limitation, consumer complaints came to be dismissed.
6. Appellant/complainant submitted insurance claim under both policies promptly after occurrence of death of Bovine cows and the Insurance Company repudiated the insurance claim payable under the policy No.STRA-103931 on 27/04/2009 and under policy No.STRA-109288 on 30/08/2009 on the ground that ear-tag of dead cow was not sent together with piece of ear of dead cow citing the alleged condition of the policy. There is no other ground mentioned in the policy for resorting repudiation of the claim under both these policies. Terms and conditions under the policy printed overleaf on the document referring to condition No.8 which reads as follows :-
No claim in respect of death of animal/s covered under the policy shall be entertained unless the ear tags in respect of animals is/are in an intact condition at the time of death of animals and is/are surrendered to the company and get the animals retagged at his own cost and submit the retagging certificate to the Insurance Company.
7. On careful reading of the stipulation of condition, it is no where inferred that ear-tag is required to be sent along with piece of ear of the dead animal.
Appellant/complainant has complied with all the pre-requisite formalities for settlement of the claim including dispatch of ear-tag in respect of both dead cows.
Respondent/opponent-Insurance Company repudiated the insurance claim referring to stipulation of condition No.8 to send ear-tag along with piece of ear of dead cow is detrimental to the interest of the insured and on plain reading of this condition no inference can be drawn as presumed by Insurance Company. Therefore, repudiation based on this condition cannot be justified, hence it is arbitrary.
8. The point discussed in the impugned order by the Learned District Forum pointing on limitation for preferring the claim within twelve calendar months pertains to a civil suit which is not applicable to the consumer complaint as consumer complaint is not a civil suit as held by the Supreme Court in the case of E.I.C.M. Exports Ltd. V/s. South Indian Corpn. (Agencies) Ltd. & Anr., III(2009) CPJ 73 (SC).
District Forum made a grave error in applying the point of limitation to the claim of the complainant and therefore, both these appeals have been preferred.
9. So far as point of limitation dealt with by the District Forum is concerned, the District Forum has erroneously relied on disclaimer condition No.12 of the policy. Disclaimer clause provides for filing a suit in the Competent Court of law for claiming benefits under the policy within twelve calendar months from the date of disclaiming the liability by the Insurance Company. However, it is well settled principle of law that the consumer complaint is not covered under the definition of suit. Therefore, District Forum has grossly erred by interpreting provision on account of disclaimer clause.
10. In so far as limitation under Section 24-A of the Consumer Protection Act, 1986 is concerned, it is found that death of cows occurred on 13/07/2008 and 08/05/2008 respectively. The insurance claim filed under both these policies came to be repudiated by the Insurance Company on 27/04/2009 and 30/08/2009. Cause of action to file the consumer complaint commence from the date of repudiation as recently held by the National Commission in First Appeal No.518/2011 in the case of M/s.Hitesh Jewellers V/s. Manager, Oriental Insurance Co. Ltd. & Anr. decided on 21/01/2013. Therefore, both these consumer complaints have been filed well within a period of two years from the date of repudiation of the claims. In view of this, we hold that consumer complaints have been filed well within limitation.
11. Respondent/opponent-Insurance Company arbitrarily repudiated the insurance claim relying on terms and conditions of the policy as explained in Para-7 of the order. District Forum erroneously held that the consumer complaints are not filed within limitation though cause of action is reckoned in this case from the date of repudiation of insurance claim. Both these appeals are having substantive merit. We hold accordingly and pass the following order :-
-: ORDER :-
1.
Appeal Nos.554 & 555/2012 are allowed. The impugned order dated 17/09/2011 is set aside.
2. Respondent/opponent-Insurance Company is directed to pay `35,000/- to the appellant/complainant in Appeal No.554/2012 under policy No.STRA-103931 and `20,000/- to the appellant/complainant in Appeal No.555/2012 under policy No.STRA-109288 with interest @ 12% p.a. from the date of repudiation till its realization within period of sixty days from the date of this order, failing which penal interest @ 6% p.a. will be payable on the amount ordered to be paid with effect from the date of repudiation.
3. Respondent/opponent-Insurance Company to bear its own cost and pay amount of `2,500/-
as cost to the appellant/complainant in each appeal.
4. Copies of the order be furnished to the parties.
Pronounced Dated 21st March 2013.
[HON'BLE MR. Dhanraj Khamatkar] PRESIDING MEMBER [HON'BLE MR. Narendra Kawde] MEMBER dd