D.O.F. 28.01.2010 D.O.O. 19.04.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri. K.Gopalan : President Smt. K.P.Preethakumari : Member Smt. M.D.Jessy : Member Dated this the 19th day of April, 2011. C.C.No.39/2010 Shailaja M.K., W/o. Late M. Padmanabhan, Mundakkath House, Kottakkeel, : Complainant Ezhom P.O., Kannur District. (Rep. by Adv. P.V. Sreedharan Nambiar) 1. Mathrubhumi Daily, Kozhikkode, (Rep. by Adv. M. Karunakaran Nambiar) 2. National Insurance Company, Calcutta, Through its divisional office - : Opposite parties Ajay Vihar, M.G. Road, Cochin. (Rep. by Adv. V.K. Rajeev) O R D E R Sri. K. Gopalan, President This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay ` 1,00,000 insurance amount together with interest and cost. The case of the complainant in brief is thus : The husband of the complainant Mr. M. Padmanabhan was a member of Mathrubhumi Family Insurance Scheme for accidental death. It was a jointly floated scheme with 2nd opposite party, National Insurance Company Limited. Opposite parties issued receipt cum certificate. The sum assured is ` 1,00,000. Complainant’s husband happened to die due to an accident fall in a well on 27.06.2008. The claim of the complainant of the complainant repudiated by 2nd opposite party on the ground that the death occurred whilst the insured was under the influence of intoxicating liquor. It is false to say that he was under the influence of alcohol. The doctor who conducted the post mortem in his certificate and the FIR speaks that his fall was accident. The fall was accidental and he could not be treated as under the influence of alcohol. The complainant is entitled for the claim. Denial of claim is deficiency in service. Hence this complaint. Pursuant to the notice opposite parties entered appearance and filed version denying the main allegations of complainant. The contentions of 1st opposite party in brief are as follows : Mr. Padmanabhan, husband of the complainant was a member of the Family Insurance Scheme floated jointly by 1st and 2nd opposite party. As per the terms of Memorandum of Understanding between the 1st opposite party and 2nd opposite party dated 12.07.2006, the 2nd opposite party is the “insurer” and the subscriber of the Scheme are “the insured” and if during the policy period, an insured sustain any bodily injury which results in the death of the insured, the insurer shall pay to the assignee the capital sum insured setforth in the receipt cum certificate. Therefore in case of any claim the 2nd opposite party is the final authority for settling and paying the claim amount to the assignee on satisfying the terms of the policy and their decision in the matter is final. This opposite party forwarded the claim documents immediately after receiving it from the complainant to the 2nd opposite party for scrutiny and settlement. 2nd opposite party rejected the claim on the basis of the postmortem report of the Police Surgeon. They repudiated the claim on the ground that the stomach of the deceased contained 200 ml of watery fluid with a strong smell of toddy. As the claim arisen out of the above scheme it is to be finally settled by 2nd opposite party and their decision in the matter is final. This opposite party is not liable to pay any amount by way of concession or claim to the complainant. If any liability aroses out of the above claim 2nd opposite party alone is liable to met the burden. The complainant is not entitled for any relief from this opposite party and hence to dismiss the complaint as against this opposite party. 2nd opposite party filed version separately denying the main allegations of complainant and contending as follows : 2nd opposite party issued a group of personal insurance policy for the period from 17.05.2008 to 16.05.2009. As per the conditions, upon the event of accident death of the insured person, the insurer is liable to pay 1,00,000 subject to the terms and conditions. The claim was rejected by 2nd opposite party for the reason that the death of the insured was caused under the influence of intoxicating liquor or drugs. Hence repudiation of claim is not a deficiency in service. On the above pleadings the following issues have been taken for consideration. (1) Whether there is any deficiency in service on the part of the opposite parties? (2) Whether complainant is entitled to get any relief as prayed for? (3) Relief and cost? The evidence consists of the oral testimony of PW1, PW2, DW1, Ext.A1 to A6 and B1 and B2. Issues No.1 to 3 Admittedly a group personal accident insurance policy was issued by 2nd opposite party. The insurance policy was issued as per the Family Insurance Scheme of 1st opposite party, Mathrubhumi Daily. The claim was repudiated by 2nd opposite party on the ground that the death of the insured was taken place whilst the insured was under the influence of the intoxicating liquor or drugs. The main point that arise for consideration is whether there is any violation of the conditions of the policy for repudiating the claim or not. Complainant’s case is that the death of her husband, occurred due to accidental fall in water. Ext.A3 is the FIR which reveals thus “27.06.2008 XobXn Dt±-iT D¨¡v 12.45 aWn¡v FT. ]ß-\m-`³, S/o. tKmhn-µ³, h: 48-/08, ap-h-f-¸n (H), tFtgmT AT-i-T, tIm«-¡oÂ, sN¯p sXmgn-emfn F¶-bmÄ ho«n-¶-Sp¯ t{]a³ F¶-bm-fpsS ]d-¼nse BÄa-d-bn-Ãm¯ InW-än F§n-s\tbm A_-²-¯n hoWv Kpcp-X-cm-h-Ø-bn ]cn-bm-cT saUn-¡Â tImtf-Pn F¯n¨p. tUmIvSÀ ]cn-tim-[n-¨-Xn ac-W-s¸-«p-sh¶v……” It is clear that as per FIR the death occurred due to accidental fall. The most important document on the point is Ext.A4 postmortem certificate issued by the Professor of Forensic Medicine and Police Surgeon. He certified that he has conducted postmortem and the examination revealed the finding that scalp and skull and brain were free of any injuries. Air passages contained profuse leathery forth, lungs were voluminous, pale, pitting on pressure and exuding blood stained frothy fluid on section walls, chambers and valves of the heart were normal, coronaries patent, stomach contained 200 ml of watery fluid with a strong smell of toddy. All other internal organs were congested, otherwise normal.” It is pertinent to note that the opinion as to the cause of death shown is ‘died of drowning’. Dr. S. Gopalakrishna Pillai MD, LL.B, Professor of Forensic Medicine and Police Surgeon, Academy of Medical Sciences, Pariyaram, Kannur who issued the postmortem certificate which was forwarded to Sub Divisional Magistrate, Thalssery and the copy of which was sent to Sub Inspector of Police, Payangadi was examined before the Forum as PW2. He deposed that “At±-l-¯nsâ hb-än 200ml IÅnsâ aW-ap-ff fluid Ip. 200 ml IÅnsâ aW-ap-ff fluid I At±-lT under the influence of alchohol BsW¶p ]d-bm³ ]än-Ã. acWT ap§n-a-c-W-am-sW-¶mWp I-Xv.” In cross examination he has categorically deposed that “shÅ-¯n hoWv shÅT IpSn¨p Ign-ªm press sN¿p-t¼mÄ hcp-¶Xv izm-k-tIm-i-¯n Ib-dnb shÅ-amWv. izm-k-tIm-iT hoÀ¯n-cp¶p F¶-XpT ]X hb-än \n¶p h¶-Xp-amWv drowningsâ e£-W-am-bn«p ]d-bp-¶-Xv.” The evidence of PW2 reveals that the cause of death was drowning. Ext.A4 clearly shown the opinion as to the cause of death as ‘died of drowning’. Ext.A4 is a reliable document by which the cause of death can be ascertained. PW2 did not say the insured was under the influence of alcohol. Though he was cross examined at length by the learned Counsel for the opposite parties nothing has been brought out to make even a suspicion that the alcohol played any role in the case of death of the insured in any respect. Opposite party contended that the insured has violated the policy condition in the sense that he was under the influence of alcohol. But they have not produced any evidence to come into such a conclusion that he was under the influence of alcohol. Even if the insured has taken alcohol, that does not mean that he was under the influence of alcohol. That is what is deposed by PW2, Doctor in his evidence. It has to be taken into account that a toddy taper has to climb a coconut tree 3 time a day. It is a matter of common experience which needs no special evidence. A fact which is known to everybody need not be proved by special evidence. ‘Custom is the best interpretation of the law’. In the present case opposite party has no case that it is an attempt to suicide. Death occurred at 12.45. A toddy taper who is under influence of alcohol will not be able to climb coconut tree in the evening trip. In the usual course a tapper climb the tree in the evening also for tapping the toddy. So in the ordinary course of life a toddy taper will not be under the influence of alcohol in the day time. Even if this fact is discarded opposite party is bound to prove that the insured was under the influence of alcohol at the time of accident. Moreover it is also important to take into consideration that the same Insurance Company has given the insurance amount of ` 1,16,900 to the complainant, the wife of insured under the group insurance taken for constructing a house. It is proved by Ext.A6. Ext.A6 is admittedly DW1. If the complainant is eligible for receiving the insurance amount in the above said policy what is the logic behind the repudiation of claim in the other policy by the same insurer. There is no whisper about this aspect from the side of 2nd opposite party, who happened to treat these two policies in different way without any basis. Complainant if legible for getting insurance amount in one policy there is no justification in denying the amount in the other policy, when other remaining the same. In the light of the above discussion we find that the repudiation of the claim of the complainant is a deficiency in service on the part of opposite parties. Complainant is entitled for the insurance amount ` 1,00,000 and also an amount of ` 1,000 as cost of this proceedings. Thus as per the agreement Ext.B2 2nd opposite party is the insurer. The insurer agrees to provide insurance cover to the subscribers of Mathrubhumi Daily and their named family members against accidental death. Hence 2nd opposite party is liable to pay this amount. Thus the issues No.1 to 3 are found in favour of the complainant and the order passed accordingly. In the result the complaint is allowed directing the 2nd opposite party to pay an amount of ` 1,00,000 (Rupees One lakh only) as insurance amount and ` 1,000 (Rupees One thousand only) as cost of this proceedings within one month from the date of receipt of this order failing which complainant is entitled for 10% interest from the date of order till realization of the amount. The complainant is entitled to execute the order after the expiry of one month as per the provisions of Consumer Protection Act. Dated this the 19th day of April, 2011. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1. Receipt cum Certificate dated 15.05.2008. A2. Letter dated 31.12.2008. A3. Copy of FIR. A4. Post mortem certificate. A5. Letter dated 09.01.2009. A6. Copy of Form ACL-10(1) Exhibits for the opposite parties B1.(a) & (b). CD Debit/Credit advice and Personal Accident Insurance Policy. B2. Copy of Agreement. Witness examined for the complainant PW1. Complainant PW2. Dr. S. Gopalakrishnapillai. Witness examined for opposite party DW1. T.A. Sankarankutty. /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
