C.D. 37/99 :

Mr. Justice P. Ramakrishnam Raju, President—The complainant is the proprietrix of a poultry farm which contains grower sheds, layer sheds, poultry birds both layers and growers. She insured 12,500 birds under policy bearing No. 4761080000927 on 3.2.1998 till the age of 72 weeks for the birds. The birds are ‘Layers Bovans’.

2. According to the policy conditions, no claim can be made during the waiting period from 3.2.1998 to 17.2.1998 and thereafter the liability of the company is to indemnify the complainant to an extent of 80 per cent of the value of the birds if death occurs during the period of coverage.

3. While so the birds were healthy upto 24th week and during 25th week i.e., between 8.3.1998 and 14.3.1998, 480 birds died. The same was informed to the opposite party. Again during the next week i.e., from 15.3.1998 to 21.3.1998, 2717 birds and from 22.3.1998 to 28.3.1998, 497 birds died, on all the occasions due to ‘fowl cholera’ and the opposite party was informed on all occasions. A surveyor was appointed who inspected the dead birds and submitted his report.

4. Again during the 39th week i.e., from 17.5.1998 to 23.5.1998, 2669 birds died due to sun-stroke. The same was intimated to the opposite party. Surveyor as well as the Divisional Manager of the opposite party inspected the sheds on 19.5.1998. In the 40th weeks i.e., from 24.5.1998 to 30.5.1998, 385 birds died due to sun-stroke and 1322 birds in the 41st week and 1068 birds in the 42nd week for the same reason and accordingly the opposite party was intimated and the surveyor of the opposite party inspected and submitted his report. As the summer during 1998 was very severe and the temperature was between 42 and 49 degrees Centigrade, it resulted in the death of the birds. In all, the complainant lost 9,138 birds, as the claim was not settled, she claims at the rate of Rs. 75 per bird which comes to Rs. 5,48,280/- to be paid with interest at 24 per cent per annum from 10.6.1998 till payment together with damages of Rs. 1,00,000/- and costs of Rs. 5,000/-.

5. In the written version filed by the opposite party while admitting that it issued the policy bearing No. 4761080000927 and the same is in force from 3.2.1998 but denied that death of the birds was due to ‘fowl cholera’ or due to ‘sun-stroke’. It appointed a Surveyor and basing on his report, the claim was repudiated. An investigator was also appointed who submitted his report on 28.10.1998. As per his report there are altogether 5 policies in National Insurance Company Limited, Divisional Office at Eluru and one policy with United India Insurance Company Limited, Nidadavolu. According to the complainant she has purchased 12,500 birds of 20th week under the policy in question from Mr. Ethara Krishnaiah but according to the latter the complainant got only the capacity for 2,100 birds and he has not sold any birds to anyone since January, 1997. The complainant has not produced the records maintained by her showing day-to-day mortality, culling vaccination particulars, feed consumption, egg production, de-beaking and de-worming particulars. The investigator further observed that the insured lodged claims with all companies filed false/fake purchase letters and invoices. She submitted false statements to different companies in different manner on different dates regarding stock position and insurance particulars. The birds insured with the opposite party are not existing as no proof is submitted for purchase of the birds.

6. The complainant filed Exs. A1 to A4 besides filing her affidavit and the opposite party filed Exs. B1 to B8 besides filing the affidavit of the opposite party through its legal officer/manager.

7. Now the point that arises for consideration is whether there is any deficiency in service on the part of the opposite party in repudiating the policy?

8. The insurance policy marked Ex. B1 which is valid from 3.2.1998 upto 72 weeks is not disputed. Total number of birds covered und