State Consumer Disputes Redressal Commission
Oriental Insurance Company Limited vs Sh. Harish Giri Goswami And Others on 31 January, 2006
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARANCHAL - 2 - STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARANCHAL DEHRA DUN APPEAL NO. 463 / 2004 Oriental Insurance Company Limited ......Appellant Versus Sh. Harish Giri Goswami and Others .....Respondents Present: - Justice Irshad Hussain, President Ms. Luxmi Singh, Member Advocate for Appellant: Smt. Savita Sethi None for Respondents JUDGMENT
Mr. Justice Irshad Hussain, President - This is an insurance company's appeal against the judgment and order dated 02.09.2004 passed by the District Consumer Forum, Bageshwar.
2. The respondent No. 1/ complainant Sri Harish Giri Goswami purchased a cow on 28.02.2003 by availing loan facility of Rs. 10,000/- under the project of the Integrated Mini Dairy of respondent No. 2. The cow was insured with the appellant under insurance policy No. 127. The insured cow died on 18.07.2003. The claim made by the respondent No. 1 / complainant was repudiated by the appellant insurance company on "No Tag No Claim" basis. The respondent No. 1 / complainant therefore filed the complaint under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service by the appellant insurance company.
3. The claim was contested by the insurance company on the grounds, inter-alia, that since the ear tag of the cow was not submitted, it was not possible to fix the identity of the deceased cow; that the insurance company was well within its right to repudiate the claim of the insured for breach of the terms of the policy and that there was no deficiency in service and the claim of the insured required rejection.
4. The District Consumer Forum on appreciation of the matter on record was of the view that though the respondent No. 1 / complainant failed to deposit the ear tag of the deceased cow but still it was proved beyond doubt that the complainant had only one cow which was insured and which died on 18.07.2003 and the insurance company was not justified in repudiating the claim of the complainant and went on to allow the complaint and to order the appellant insurance company to pay Rs. 10,000/- as compensation together with interest @9% p.a. per judgment and order under appeal.
5. The submission of the Learned Counsel for the appellant may be divided into following points for determination of this appeal:
Whether the finding of the District Consumer Forum that the insurance company was not justified in repudiating the claim on the ground of No Tag No Claim when by the matter on record it is sufficiently established that the complainant's cow which was insured died on 18.07.2003 is legally incorrect?
Whether there was breach of the terms and conditions of the insurance policy and the District Consumer Form was not justified in allowing the claim of the respondent No. 1 / complainant?
6. Point No. (I)
- It was not in dispute that the respondent No. 1 / complainant failed to submit the ear tag of the deceased cow despite the reminder sent by the appellant insurance company to settle the claim made under the insurance policy. There was also no doubt that the respondent No. 1 / complainant failed to establish that the ear tag of the deceased cow which was according to him later on traced was not found to have been submitted in the office of Mini Dairy, the respondent No. 2. However it was of significance that the dead cow was subjected to postmortem by the Medical Officer, Department of Animal Husbandry and postmortem report was filed on record. The copy of the postmortem report (Paper No. 28 & 29) has endorsement at Sl. No. 15 that the cow had mark of ear tag, although the tag itself was not there in the ear. This postmortem report also contained complete profile of the cow. As per its prominent features, the colour was black, horns were small, tale was about 80 cms, it was a cross breed animal, aged about 5 years. These characteristics fully tally with the characteristics and profile of the animal mentioned in the insurance policy No. 127 (Paper No. 36 & 37). There was thus no difficulty in fixing the identity of the deceased animal as the one which was insured. The claim was submitted through the Medical Officer (Paper No. 30) with these very particulars of the cow and the appellant insurance company has had an occasion to verify the claim made and also to fix the identity of the insured animal by inviting a report of its own surveyor. Strangely enough the insurance company did not obtain any report of the surveyor but repudiated the claim on "No Tag No Claim" basis. We are convinced that the insurance company was not justified in repudiating the claim without obtaining the report of its surveyor particularly when the documents submitted sufficiently establish that the cow which was insured, had in fact died and was subjected to postmortem by the Medical Officer whose bonafides and credibility could not have, in the face of these circumstances, been disputed.
7. The Learned Counsel for the appellant persuasively argued that the onus to prove that the insured cow had in fact died lay upon the respondent No. 1 / complainant and the insurance company was not legally obliged to call for a report from its surveyor and that in the totality of the circumstances of the case, the District Consumer Forum was not justified to make capital out of this omission on the part of the insurance company and to record a finding that the insured animal had in fact died on 18.07.2003. We see no merit in this argument because even in the absence of ear tag, the insurance company was obliged to verify the correctness of the claim made by the respondent No.1 / complainant instead of repudiating the claim on "No Ear Tag No Claim" basis.
8. It was also submitted by the Learned Counsel for the appellant that the District Consumer Forum wrongly observed that admittedly the respondent No. 1 / complainant had got only one cow, which in fact was insured and had died in as much as the averments of the complaint were comprehensively denied and disputed in the written statement of the insurance company. The observation made by the District Consumer Forum can not be taken to assail its finding when it was sufficiently established by the evidence on record that the cow which was insured, had in fact died and the claim was thus legally made by the respondent No. 1 / complainant under the insurance policy.
9. We also cannot loose site of the fact that the claim was not rightly repudiated merely on the basis of failure to prove that the ear tag was later on searched and submitted with the respondent No. 2. However in the face of the facts of the case, mere non-production of ear tag could not have been taken as a ground to reject the claim against the insurance company. In other words, the finding of the District Forum cannot be said to be incorrect and it was rightly held that the cow insured had died and claim of the respondent No. 1 / complainant was wrongly repudiated by the appellant insurance company.
10. The point is answered accordingly.
11. Point No. (II)
- The Learned Counsel for the appellant placed reliance on the decision of the Hon'ble Apex Court in the matter of United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, reported in IV (2004) CPJ 15 (SC), to bring her point of view that the insurance policy being a contract between the parties, they are bound by the terms of the contract and in the case of breach of the terms and conditions of the policy by the party, the claim of such party under that contract cannot be legally maintained. The Learned Counsel for the appellant then referred to two conditions at Sl. No. 3 & 4 on the reverse of the insurance policy (Paper No. 37) and one of the condition at Sl. No. 4 pertained to "No Tag No Claim"
which has been the subject matter of the discussion under Point No. I and it need no repetition.
12. It will be suffice to say that in the circumstances of the case, non-submission of the ear tag could not have debarred the respondent No. 1 / complainant from getting the compensation under the insurance policy. In so far as the condition at Sl. No. 3 was concerned, we are inclined to take into account the fact that the respondent No. 1 / complainant is an illiterate person of a remote village in the hills of District Bageshwar who could not understand and take seriously the need to at once inform the insurance company about the death of his cow and this was the reason that he was able to report the matter on 21.07.2003 after 3 days vide telegram of the said date (Paper No. 25). The Hon'ble Apex Court in the reported decision also laid stress that the terms of the insurance contract may be construed liberally but not to the extent of substituting the words which are not intended by the terms of the contract. Since there was no deliberate delay in giving information of the death of the cow to the insurance company, the above condition of the insurance policy could reasonably be construed to mean that it was intended that the information of the death shall be given as expeditiously as possible so that there may not be any occasion for manipulation or concoction of the facts for making false claim against the insurance company. As we have found that the respondent No. 1's / complainant's cow had died and it was subjected to postmortem also by a Govt. doctor, we do not think that there were any manipulations and the District Forum was thus justified in not disputing the claim under the policy on the basis of some delay in giving information of the death of the cow. We are also convinced that it was not a case of breach of the terms and conditions of the contract policy and therefore the finding of the District Forum cannot be said to be illegal and unjustified.
13. The point is answered accordingly.
14. The District Forum has rightly found that there was deficiency in service on the part of the appellant insurance company in repudiating the claim of the respondent No. 1 / complainant and it was justified in allowing the complaint to the tune of Rs. 10,000/- against the insurance company together with interest @9% and therefore the findings of the District Forum required no interference. There being no merit in this appeal, the same is liable to be dismissed.
15. The appeal is dismissed. No order as to costs.
(MS.
LUXMI SINGH) (JUSTICE IRSHAD HUSSAIN)
Member President
Date: 31.01.2006
The judgment, order, signed, dated &
pronounced today.
(MS.
LUXMI SINGH)
(JUSTICE
IRSHAD HUSSAIN)