INDIAN OVERSEAS BANK vs Mathura Mohan De

BY this complaint under Section 12 of the Consumer Protection Act, 1986, the complainant has claimed compensation for an amount of Rs. 7,76,670/ - alongwith interest @ 18% per annum till actual payment for the loss caused to him due to death of German Angora Rabbits which were insured with the respondents (hereinafter to be referred to as the opposite party).

THE brief relevant facts set out in the complaint are that the complainant had opened a Rabbit Farm of 450 Rabbits for the production of Angora Wool to be obtained from German Angora Rabbits in Village Tharas, P.O. Hurla, Tehsil Kullu, District Kullu, H.P. and for this purpose, he secured finances from the Land Development Bank, Kullu. The said Rabbits were insured by the complainant with the opposite party through its Branch Manager, Mandi Branch, Hospital Road, Mandi vide insurance policy No. 4735140201164 effective from 24.7.90 to 24.7.91 for a sum of Rs. 4,01,100/ - and he had also paid the premium of Rs. 28,077/ - to the opposite party. According to the complainant, the following rabbits were insured after due verification on the spot under the said policy: (i) 87 No. German Angora Rabbits, one year old, male, white colour, having identification Mark Tag Nos. 1 to 87 on rabbit ears @ Rs. 1,000/ - each Rabbits (Mark on right ear). (ii) 13 No. German Rabbits Angora 4 -6 months old, white colour. Male Identification Mark Tag. Nos. 88 to 100 on Rabbit ears, @ Rs. 700/ - per Rabbit (Mark on right ear). (iii) 150 Nos. German Angora 4 -6 months old, white colour female identification Mark 301 -450 on Rabbit ears, @ Rs. 700/ - per Rabbit (on left ear). (iv). 200 No. German Angora one year old, female white colour Identification Mark Tag Nos. 101 to 300 on left ear, @ Rs. 1,000/ - each. The Angora Farm was being properly managed, supervised and looked after by the complainant and the Rabbits were fed and given due medical care. According to the complainant, on the night intervening 30th/31st December, 1990, 23 Rabbits died and the remaining 427 Rabbits died on the night of 1.1.91 and 2.1.91. The F.I.R. to this effect was lodged in the Police Station and the telegram was also given to the opposite party No. 2 which admittedly has been received by the opposite party. The claim was preferred with the opposite party. On 6.1.91, one Shri Sanjay Sood, Surveyor inspected the site of the Farm in the absence of the complainant and asked for submission of certain documents which were sent by the complainant to the abovesaid Surveyor. However, the opposite party started making irrelevant and unnecessary queries to side -track the issue with an intent to frustrate the general claim of the complainant. The complainant, as required by the opposite party, supplied the following documents:

(i) Policy cover note of Insurance. (ii) Copy of the F.I.R. (iii) Statements of witnesses from the Illaqa. (iv) Details of the death of the Rabbits date -wise. (v) Documents of maintaining the Rabbit farm. (vi) Panchayat Certificate. (vii) Veterinary Doctors Certificate. Inspite of the compliance of the requirements by the opposite party, the claim arbitrarily has been rejected by the opposite party. The complainant has suffered heavily because of the rejection of his legitimate claim in an arbitrary manner inasmuch as he had to pay the interest on the loan borrowed by the complainant from the Land Development Bank, Kullu. Since the complainant has not been able to repay the loan because of the death of the Rabbits and consequently on non -payment of the legitimate claim by the opposite party, the recovery proceedings against the complainant have been initiated by the Land Development Bank and even the date for sale of the immovable property of the complainant was fixed for realisation of the loan. The loan amount payable by the complainant to the Bank by 19.3.92 was worked out to Rs. 1,11,244.00. The complainant had to arrange for certain amount and pay to the Bank with a view of avoid auction of his immovable property. Inspite of the fact that the complainant approached the opposite party time and again to settle his claim and also served a notice on 1..3.93 for payment of the amount but of no use. The complainant, therefore, has been constrained to file the present complaint wherein he has claimed the amount of Rs. 7,76,670.00 on account of insurance claim, damages and compensation for non settlement of his claim, interest for the period 1.1.91 to 31.5.93, costs etc. and also the future interest @ 18% per annum till actual payment, the details of which have been given in paragraph 15 of the complaint.

In reply, the opposite party has controverted the allegations of the complainant and raised various objections which includes preliminary objections that the complainant has made incorrect statement at the time of subscribing to the insurance policy inasmuch as the market price of the Rabbits i.e. German Angora was around Rs. 400/ - to Rs. 500/ - per Rabbit whereas the complainant has stated that he had purchased the rabbits @ Rs. 1,000/ - or Rs. 700/ - per rabbit. Since the contract is based on good faith and the facts have been suppressed by the complainant, no benefit can be claimed by the complainant under the contract of insurance. The complainant is also estopped from raising the claim as there was complete lack of cooperation from his side. No doubt, the complainant had reported the death of the Rabbits to Mandi Branch of the opposite party on 1.1.91 and his telegram was received on the same day and a written intimation on 1.8.91. The opposite party deputed a Surveyor Mr. Sanjay Sood on 6.1.91 for the spot assessment of loss/damage. Due to non -co -operation of the complainants, the Surveyor could not get post -mortem examination report, ear tags, dosing/vaccination and treatment charts etc. which were necessary for determining the claim of the complainant in terms of the policy. According to the opposite party, no post mortem was ever conducted. The Investigator was not even shown the site where such a large number of Rabbits were dumped, buried or disposed of. Still, in order to ascertain and verify the claim, another Surveyor Mr. Satish Saxena was deputed on 17.1.91 who confirmed about non -submission of post -mortem examination report, ear tags and claim of value of the Rabbits on higher side. According to the opposite party, even the capacity of the farm to house these Rabbits was not sufficient and no cages were shown to the Investigator. Further, according to them, in the animal insurance, the insured is bound to provide sufficient accommodation/space/shelter to the animals and also to take care of food, water and timely medication of the animals so as to provide protection against disease. The Rabbits were alleged to have died of Enteritis i.e. Diarrohea which disease was not covered under the insurance until or unless proper medication or precautions were taken. The opposite party has summed up the grounds on the basis of which the claim of the complainant has been repudiated: (i) Non -submission of death certificate from Vety. Doctor and post -mortem examination report. (ii) Non -submission of ear tags. (iii) Non -submission of treatment/dosing and vaccination charts or bills of medicines purchased. (iv) Proof regarding care and management of Rabbits like watch/ward, fencing of farm premises, housing capacity etc. (v) Non -submission of purchase certificate proof regarding breed of Rabbits etc.

The complainant, according to the opposite party, is also time barred. At any rate, according to the opposite party, the controversy involves complicated questions of facts and law which cannot be determined in the summary proceedings under the Consumer Protection Act.

THE rejoinder has been filed by the complainant and the position as taken in the complaint has been reiterated by the complainant. It has been again emphasized in the rejoinder by the complainant that he had supplied all the documents as asked for by the opposite party from time to time alongwith ear tags and other relevant documents but the opposite party unnecessarily has sit over the matter.

BOTH the parties have filed evidence. We have heard learned Counsel for the parties.

THE undisputed facts which emerge are that the complainant had opened a Rabbit farm for the production of Angora Wool and the said Rabbits were insured by the complainant with the opposite party for the relevant period from 24.7.90 to 24.7.91 for a sum of Rs. 4,01,100/ - and a premium of Rs.28,077/ - had also been paid by him to the opposite party. However, according to the opposite party, the number of Rabbits shown by the complainant as actually purchased is wrong and the price of the Rabbits has also been given on higher side and according to them, the contract of insurance was not entered into in good faith. In order to substantiate that the complainant''s claim is covered by the insurance cover, the complainant has produced the insurance cover note, Annexure P.I alongwith the Schedules attached to and forming a part of the policy in which the number of Rabbits insured and market value have also been shown. Annexure P. 1 clearly shows that the Rabbits were insured for Rs. 4,01,100/ -. According to Schedule attached No. 1, species and breed of the Rabbits have been shown as German Angora, Adult above 1 year old (87 Nos.), Male Rabbits, white colour and the price of the Rabbits has been shown as Rs. 1,000/ - per Rabbit. The Schedule attached No. 2 shows the species and breed of the Rabbits as German Angora, aged 4 to 6 months (13 Nos. Male white colour and the market value of the Rabbits as Rs. 700/ - per Rabbit and the Schedule attached No. 3 shows the breed of the Rabbits as German Angora, female white colour/ age 4 to 6 months (150 Nos.) and the market value has been shown as Rs. 700/ -per Rabbit and lastly according to Schedule attached No. 4, the breed of the Rabbits has been shown as German Angora, adults, above 1 year old (200 Nos.), female, white colour and the market value has been shown as Rs. 1,000/ - per Rabbit. It has also been shown that an amount of Rs. 28,077/ - has been paid as premium.

ALONGWITH the documents filed by way of evidence, the complainant has also filed an affidavit in support of his claim of one Dr. R.K. Gupta, Veterinary Officer, Incharge, Civil Veterinary Hospital, Bhunter. Tehsil and District Kullu. According to Dr. R.K. Gupta, who has performed the post mortem of the Rabbits has referred to the disease on account of which the Rabbits have died, which will be discussed later. However, the price of the Rabbits Insured has been given by him the same as is covered by the Insurance cover. Dr. R.K. Gupta, at the relevant time, was posted as Veterinary Officer, Incharge, Civil Veterinary Hospital, Bhunter, District Kullu and the Rabbit farm of the complainant fell within his jurisdiction. The value of the Rabbits has been assessed by Dr. R.K. Gupta on the basis of prevailing rates. Dr. R.K. Gupta, being a Government Officers has conducted the post -mortem of the Rabbits and there is no reasons to disbelieve his version. Further more, at the time of insurance the opposite party presumably must have ensured the correctness about the market value of the Rabbits and their number as shown in the insurance cover and they must not have entered into the insurance contract blindly and without verification. These circumstances, stand further substantiated by the affidavit of the complainant himself. In view of the aforementioned circumstances, we have no doubt in our mind that the Rabbits farm was insured for Rs. 4,01,100/ - and that the number and price of each Rabbit as shown in the insurance cover are correct.

MR . R.L. Jain, Divisional Manager of the opposite party has filed an affidavit by way of evidence controverting the averments made in the complaint stating thereby that the rates of German Angora Rabbits were Rs. 400/ - and Rs. 500/ - each for adult male and female Rabbits respectively and have attached Annexure R -l dated 6.3.91 alongwith the reply whereby the District Animal Husbandry Officer, Mandi has given his assessment that the cost of male adult Rabbit is Rs. 400/ - and that of female adult Rabbit is Rs. 500/ - .

WE regret we are unable to accept this averment of the Divisional Manager of the opposite party. No doubt the rates of German Angora Rabbit have been given as Rs. 400/ - and Rs. 500/ - each at Annexure R -l dated 6.3.91, but it does not show the cost of Rabbits of different ages which were insured by the complainant with the opposite party. Moreover, the price of the Rabbits also depends upon the quality and state of health of the Rabbits and other factors and it cannot be said that the cost of the male German Angora Rabbit and that of such female Rabbit irrespective of the age and other factors aforementioned is Rs. 400/ - and Rs. 500/ - respectively and such blanket costing of the Rabbits as given out vide Annexure R -l dated 6.3.91 cannot be accepted. In view of the affidavit filed by the complainant coupled with the documents placed on record alongwith the copy of Insurance cover and the affidavit filed on behalf of Dr. R.K. Gupta, as discussed above, we are of the opinion that the complainant has fully substantiated that 450 Rabbits were insured with the opposite party for a sum of Rs. 4,01,100/ - and the price of the Rabbits as given in the Schedules attached to the Policy Cover Note Nos. 1 to 4 is correct. Further, we have no doubt in mind that the insured Rabbits have died which is evident from the post -mortem report, Annexure P -5 and also from the certificate given by the Pradhan, Gram Panchayat, Rot, District Kullu, Annexure P -4. This finds corroboration from the fact that F.I.R. was also lodged immediately which is at page 14/14 -A, Annexure P -2.

THERE is no dispute that on the death of such Rabbits, the claim was preferred by the complainant on the basis of the insurance policy which has been rejected by the opposite party. We may at this stage refer to the grounds on which the claim of the complainant has been rejected by the opposite party. According to them, the complainant has failed to furnish the documents namely; Death Certificate from the Veterinary Doctor and Post Mortem examination report, ear tags, treatment/dosing and vaccination charts, proof regarding care and management of Rabbits, purchase certificate and proof regarding breed of Rabbits etc.

IN this context we may notice that the terms and conditions under heading "CATTLE INSURANCE POLICY" of the insurance policy, Annexure R.2/A have been relied upon by the opposite party. Apart from Condition No. 5, main reliance has been placed on Condition No. 6, which may be reproduced below: "In the event of the death of the insured animal the Insured/Bank shall give notice thereof to the policy issuing office of the Company as early as possible and shall also furnish within 30 days of the occurrence the following requirements: (a) Duly completed claim form with ear tag wherever applicable. (b) Certificate of death from a qualified Veterinarian. (c) Post -mortem report, it conducted. According to the opposite party, the complainant has not complied with the conditions as contained in Clause 6 of the insurance policy, as no ear tags, certificate of death from Veterinary Doctor, post -mortem reports etc. have been made available. Even Condition No. 5 has not been complied with as the complainant had not ensured sufficient and proper feed, water and shelter and given due care and attention to the animals and there was no proper medication.

We are doubtful that the conditions as provided under the Cattle Insurance Policy, Annexure R.2/A would cover the insurance of Rabbits also.

MR . Ajay Goel, learned Counsel for the complainant has produced Rural Insurance Scheme for Rabbits which is placed on the file. Prima facie, we are inclined to believe that it is Rabbit Insurance Scheme which should govern the case. However, we are examining the case in the light of the Cattle Insurance Policy, Annexure R -2/A as relied upon by the opposite party itself. There is no dispute that the claim forms duly completed have been submitted by the complainant. However, there is serious dispute whether the ear tags of the Rabbits were furnished by the complainant to the opposite party. In the rejoinder, it has been specifically stated by the complainant that the complainant has cooperated fully with the opposite party and he had supplied all the documents as asked for by them from time to time alongwith ear tags. Rejoinder is also a part of pleadings. The opposite party could have filed a sur -rejoinder with the permission of the Court which they have not done. Even otherwise, it has not been shown that furnishing of the ear tags in case of Rabbits was mandatory. The claim forms, duly completed in accordance with Condition No. 6(a) of the Cattle Insurance Policy, have to be furnished with ear tags wherever applicable. Since nothing has been shown in the evidence that furnishing of ear tags alongwith the claim forms was mandatory, it cannot be said that non -furnishing of ear tags is fatal to the case, more particularly when according to the rejoinder of the complainant, the ear tags have already been furnished to the opposite party, to which there is no rebuttal. The post -mortem was conducted by the Veterinary Surgeon on the Rabbits on 31.12.90, Annexure P -6, much earlier in point of time to the repudiation of the claim and this post -mortem report on the death of the Rabbits as given by the Veterinary Officer, I/C Civil Vety. Hospital, Bhunter, District Kullu, H.P., we can safely assume must have been given by the complainant to the opposite party. This report of Veterinary Doctor also mentions the date of the death of Rabbits and the cause of their death etc. Therefore, the certificate of death of the Rabbits, the cause of their death and post -mortem report have been duly furnished alongwith duly completed forms by the complainant. The testimony of the opposite party, therefore, in fact does not inspire confidence in the face of these documents filed by the complainant and in our opinion the requirements have been adequately met with by the complainant.

WE may also notice at this stage that in the Rural Insurance Scheme for the Rabbits, claim procedure has been provided in Clause -IX which provides that: "In the event of death the following should be submitted: (a) Duly completed claim form. (b) Veterinary Death Certificate giving reason for death/outbreak. (c) Post -mortem report if required by the Company. It may be noticed that in case of Rabbits, furnishing of ear tags has not been made mandatory under the claim procedure.

Even otherwise, the furnishing and providing of ear tags is essential for the purpose of identification of the Rabbits. If there is evidence available on the record which could indicate that these are the same Rabbits which were insured and have died, then in such a situation, the ear tags will loose their significance. The complainant has apart from his evidence and the evidence of Dr. R.K. Gupta, Veterinary Surgeon, who performed the post -mortem of Rabbits has placed on record the photographs of these dead Angora Rabbits. Mr. R.K. Gupta, Veterinary Doctor also has sworn that the Angora Farm was being maintained by Shri Tej Singh Paul, the complainant and he was giving treatment to such Rabbits and he was informed by the complainant about the dying of Rabbits on 31.12.91 and 2.1.91 and consequently he visited the Farm and found the Rabbits dead and performed the post -mortem. According to this report the Rabbits died all of a sudden due to infections disease known as Acute infections enteritis. Not only this, the Pradhan of Gram Panchayat, Rot, District Kullu (Annexure P 5) has also certified that the Rabbits of the farm of the complainant died all of a sudden from 30.12.90 to 1.1.91. Since this Pradhan belongs to that very area and he had given this certificate after verification on the spot, there is no reason to disbelieve his version. Furthermore, the residents of the area by way of their statement vide Annexure P -4 have clearly stated that Tej Singh Paul, the complainant had a Rabbit farm and these all Rabbits died with effect from 30.12.90 to 1.1.91. The version of these witnesses, Pradhan and the residents of the area, leaves no scope of doubt that the complainant was maintaining a farm of Rabbits and the Rabbits died with effect from 30.12.90 to 1.1.91 on account of certain disease. Nothing has been shown by the opposite party that the Rabbits of the farm of the complainant are still alive and no evidence, whatsoever, has been given in rebuttal that the statements made by the residents of the area and that of the Pradhan of Gram Panchayat, Rot are incorrect.

IN the face of this voluminous evidence produced by the complainant, we are satisfied that the Rabbits which have died are the same Rabbits which are covered under the insurance scheme and, therefore, the furnishing of ear tags, in these facts and circumstances, ceases to be relevant. We are of the opinion that the documents which are mandatory, have already been furnished by the complainant to the opposite party. The complainant has not only furnished the aforementioned documents but also provided further evidence -the policy cover note copy of the F.I.R., statement of witnesses from the area, details of death of Rabbits date -wise, documents of farm maintenance, Panchayat Certificate etc.

ANOTHER argument was raised by the opposite party that the complainant has failed to show that he has complied with the Condition No. 5 of the Policy Annexure R -2/A that the animals had sufficient and proper feed, water and shelter. Again, according to the opposite party, the complainant has not shown the record treating the Rabbits. We may again refer to the affidavit of Dr. R.K. Gupta, who is Incharge of Veterinary Hospital, Bhunter, District Kullu, within those jurisdiction the farm of the complainant fell, wherein he had clearly stated that the complainant was maintaining the farm properly and he used to visit the Farm and proper medical treatment was being given to the Rabbits as required from time to time. The farm was being maintained properly by providing proper housing, light ventilation, sanitation and the Rabbits were fed properly and were in good condition of health. On the death of Rabbits, he performed post -mortem of the Rabbits which had died suddenly due to infectious disease.

NO doubt, one Dr. Daleep Pandita has filed an affidavit dated 25.7.96 and has tried to rebut the evidence filed by way of affidavit by Dr. R.K. Gupta, but according to us, such testimony does not inspire any confidence as he has been posted as Assistant Administrative Officer (Veterinary) of the opposite party and is an interested party and his evidence is further not corroborated by any independent evidence. Further more, since the Rabbits died suddenly because of the disease, no occasion arose for maintaining of the record about their disease which the Rabbits suffered and the treatment given to the Rabbits by the Doctor.

HAVING regard to the evidence produced and discussed above, we have no hesitation to hold that the complainant has fully complied with the requirements of furnishing documents to the opposite party and the repudiation of the claim of the complainant is wholly arbitrary and untenable in the eyes of law. In the light of what is discussed above, the complaint is allowed and that the opposite party is directed to pay to the complainant a sum of Rs. 4,01,100/ - - the insured amount - to compensate the loss caused to the complainant by death of Rabbits. The complainant shall also be entitled to interest @ 18% per annum on the amount awarded from the date of filing of the complaint i.e., with effect from 4.6.93 till actual payment. The cost of Rs. 1,000/ - is also awarded in favour of the complainant. Complaint allowed with costs.