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3. The complaint was contested by the OP by taking preliminary objections that the complaint was false and frivolous, liable to be dismissed under Section 26 of the Act; the Hon'ble District Forum had got no jurisdiction to try and decide the complaint as there was no deficiency in services on the part of the OP. After receipt of the report of Dr. A.P. Singh dated 7.1.2008 and after scrutinizing the claim file, the claim of the complainant was repudiated vide letter dated 28.3.2008 on the grounds that the death of birds occurred due to mis-management in keeping the birds, non-submission of health certificate from Veterinarian; that the parent stock was free from disease. The complainant intimated the start of mortality of birds w.e.f. 8.6.2007 whereas as per claim bill, he had claimed the mortality from 10.5.2007. The complainant had sent reply to the repudiation letter by taking false and frivolous pleas after considering his letter dated 20.8.2008. The opposite party had sent a detailed reply on 2.11.2008 clearly stating that the Investigator of the Company had revealed that the proper care has not been taken to control the disease from 10.5.2007 till October, 2007 as per the report of University GADVASU, Ludhiana, despite the fact that facility of Thermo regulation to control the temperature and humidity and even then if the temperature goes up causes mortality, which shows that there was either failure of equipment of overcrowding of birds inside FIRST APPEAL NO. 190 OF 2011 the shed, which caused mortality or the mismanagement on the part of the complainant. The sterilization of the farm was compulsory and need of the hour after the disposal of each flock, in case of prevalent of any disease but that was not adhered to. The terms and condition No. 10(8) of the policy has not been fulfilled. The certificate issued by Dr. K.S. Dhillon at the time of pre-inspection of the risk is of no help if policy conditions were breached. It was submitted by the complainant that all type of vaccination was done but as per the post mortem report issued by the Department of Vety. Pathology, College of Vety Medicine on 2.7.2007 according to which except for the vaccination detailed in certificate dated 2.7.2007 no other vaccination was done. Ideal management for control of IB includes strict isolation and repopulation following cleaning and disinfection of poultry house, which shows that vaccination against disease IB had not been done, which caused the mortality. Further the complainant had not submitted the Veternary Certificate from Veterinarian that parent stocks were free from disease alongwith the proposal of each flock and the complainant had agreed to the objections of the Ops. Dr. A.P. Singh had personally seen the birds at Govt. Lab at Ambala and conducted the Post Mortem of 189 birds on 11.6.2007 and the Department had confirmed the death of the birds due to CCRD, which is specific exclusion Clause and is covered only if the birds are successfully inoculated against these disease, which was confirmed by the complainant that IB disease was not done. The mortality reports reveal the vaccination of birds with the infectious birds, which has caused rise in mortality and a part of mis-management, therefore, FIRST APPEAL NO. 190 OF 2011 the claim was rightly repudiated. Then the complainant had shown the mortality of 31140 birds starting from 10.5.2007 to 3.7.2007 whereas the complainant had reported the outbreak of the disease from 8.6.2007, therefore, 4109 birds were added to enhance the claim amount; the complainant was estopped by his act and conduct from filing the present complaint; he had not come to the Forum with clean hands and concealed the material facts from the Hon'ble Forum by using fraudulent means and devices to exaggerate his claim and committed the breach of terms and conditions of the insurance policy; the complainant was not a consumer as the complainant was commercial organization running the business on commercial lines, complicated questions of law and facts were involved, which cannot be decided in the summary proceedings, therefore, the matter be relegated to the Civil Court. Same averments were reiterated on merits and it was submitted that the complaint was without merit and it be dismissed.

4. You have not taken proper care to control the disease that comes due to vertical transmission as well as mismanagement as the authorized person did not perform the proper vaccination."

14. The terms and conditions of the Poultry Insurance claim are Ex. R-83. Exclusion 'K' refers as under:-

"(k) Marek's disease, Ranikhet disease, Fowl Pox and Infectious Bronchitis. These diseases are covered by the policy if the birds are successfully inoculated against these diseases and the necessary veterinary certificate to that effect is supplied to the company. Coccidiosis and other diseases are covered only if preventive and curative measures are taken from time to time."

FIRST APPEAL NO. 190 OF 2011

15. It further make it clear that these diseases are covered if the birds are successfully inoculated against these diseases and necessary certificate to that effect is supplied to the Company. Clause 8 refers to the Veterinary Examination wherein it has been referred that Veterinary Certificate from qualified Veterinarian of insured is necessary. In Clause 10 (g), it has been mentioned that the farms should not resort to replacement of chicks in the affected sheds after claim is reported due to diseases and according to Clause 10(i) any change of birds should be informed immediately to the concerned office and new birds should pass through Veterinary Examination. The post mortem of the birds was conducted by Department of Veterinary Authority, the College of Veterinary medicines, GADVASU, Ludhiana Ex. R-179, which is silent about the symptoms of the disease and treatment if any given with regard to 1,50,000 birds. During the course of arguments, the counsel for the complainant was unable to place on the record any Veterinary Certificate from a qualified Veterinary to show that when the birds were purchased, they were subject to vaccination and free from any disease. The matter was thoroughly investigated by Dr. A.P. Singh, his report is Ex. R-14, which makes it clear that according to the Post Mortem report submitted by the claimant under the signatures of Dr. S.K. Khanna, disease suspected due to heat stroke, complicated with CCRD. Then he had personally seen the birds at Govt. Lab at Ambala and conducted the post mortem of 189 birds on 11.6.2007 and in his opinion, the said birds died due to heat stroke with CCRD. The claimant is silent against the vaccination of the disease IB. The team FIRST APPEAL NO. 190 OF 2011 of Doctors also visited at the Globle Poultry Farm and they were also suggestive of CCRD with PM Lesions and detail of CCRD has been given that it is commonly referred to infection of birds caused by combinations of E.Coli, mycoplasma, Newcastle disease virus (NDV), complicated by environmental stress factors. E. Coli infection of respiratory tract of birds can be reduced by raising mycoplasma free birds and reducing exposure of birds to virus causing respiratory tract diseases and proper ventilation will reduce respiratory tract damage and exposure.