KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.337/04
JUDGMENT DATED 17.9.2010
PRESENT
SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA -- MEMBER
The Divisional Manager,
National Insurance Co.Ld. -- APPELLANTS
Kannur.
(By Adv.Saji Isaac.K.J)
Vs.
1. C.K.Ajith,
W/o Late M.Ramashan,
Jibin Nivas, P.O.Kooyode,
Kannur 670 621.
2. Jilna,
D/o Late M.Rameshan,
Thro’ Guardian C.K.Ajitha,
Jibin Nivas, P.O.Kooyode. -- RESPONDENTS
3. Jibin,
S/0 D/0 Late M.Rameshan.
Thro’ Guardian C.K.Ajitha,
Jibin Nivas, P.O.Kooyode.
4. Morayi Panchu,
Morayi house, Chala East.P.O
Chala East 670 621.
(By Adv.Raju Radhakrishnan)
JUDGMENT
SRI.M.V.VISWANATHAN,JUDICIAL MEMBER
Appellant was the opposite party and respondents were the complainants in OP.395/01 on the file of CDRF, Kannur. The complaint therein was filed alleging deficiency in service on the part of the opposite party National Insurance Company Ltd. in repudiating the Insurance claim for Rs.1 lakh. The opposite party entered appearance before the Forum below and filed written version denying the alleged deficiency in service. They contended that the death of the life assured M.Remesan was suicidal and so the complainants being the legal heirs of the life assured Remesan are not entitled to get the insurance benefit under the personal accident insurance policy.
2. Before the Forum below, the first complainant was examined as PW1 and Exts.A1 to A15 were marked on the side of the complainants. From the side of the opposite party B1 to B6 documents were marked. On an appreciation of the evidence on record, the Forum below accepted the case of the complainants and thereby passed the impugned order dated 2nd December 2003 directing the opposite party/Insurance Company to pay Rs.1 lakh as insurance claim with interest at the rate of 12% per annum from the date of the complaint till realization with cost of Rs.2000/-. Hence, the present appeal by the opposite party/National Insurance Company Ltd.
3. We heard both sides.
4. The learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He relied on A4 FIR, A12 final report and B3 investigation report and argued for the position that the death of the life assured Remesan was not accidental death, but it was suicide. It is further submitted that as per Clause 5 of the B2 Personal accident insurance policy death by suicide is excluded by the Personal accident insurance policy. Thus, the appellant/opposite party prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the respondents/complainants supported the impugned order passed by the Forum below. He relied on the documentary evidence available on record and argued for the position that the materials available on record would show that the insured died by accidentally falling into the well. It is further submitted that the appellant/opposite party has not succeeded in establishing their case that the death of the insured Ramesan was not an accidental death. Thus, the respondents prayed for dismissal of the present appeal.
5. There is no dispute that the respondents/complainants are the legal heirs of insured M.Ramesan. He had the insurance coverage of B2 Personal accident insurance policy, which was issued by the appellant/opposite party National Insurance Company Ltd. Ext.B2 and A1 are copies of the said Personal Accident Insurance policy issued by the appellant/opposite party Insurance Company in the name of the insured M.Ramesan. A1 and B2 copy of the insurance policy are not disputed by the parties to the complaint in OP.395/01.
6. Admittedly, the insured M.Ramesan died on 20.3.01. The death of the insured was due to drowning. Ext.A4 FIR and A5 Postmortem certificate would make it clear that the insured M.Ramesan died due to drowning. There can be no doubt about the fact that death by drowning can be treated as an un-natural death. A4, FIR itself was lodged under the caption unnatural death. Thus, the death of the insured can be treated as an unnatural death.
7. The case of the appellant/opposite party Insurance Company is that the insured died due to drowning as he committed suicide. It is the definite case of the appellant/opposite party Insurance Company that the insured intentionally jumped into the well for committing suicide and it resulted in his death by drowning. On the other hand, respondents/complainants would contend that the insured M.Ramesan had an accidental fall into the well and thereby he died due to drowning. The definite case of the complainants is that the said death by drowning was an accidental death.
8. Ext.B2 is copy of the Personal accident Insurance (individual) policy issued by the appellant/opposite party Insurance Company in the name of the insured M.Ramesan. As per B2 policy on the accidental death of the insured, the nominee or the legal heirs of the insured are entitled to get the insured amount of Rs.1 lakh. But there are exceptions to the said insurance claim. The appellant/opposite party Insurance Company relied Clause 5 (a) of the exceptions. It would show that the Insurance Company shall not be liable under this policy for payment of compensation in respect of death, injury or disablement of the insured from intentional health injury, suicide or admitted suicide. There can be no doubt about the fact that the burden is upon the insurer (Insurance Company) to establish the case that the case will fall under any of the exception clause of the policy. If that be so, the appellant/opposite party insurance company is bound to establish their contention that the insured Ramesan had a suicidal death or that the insured committed suicide.
9. The appellant/opposite party Insurance Company relied on B3 investigation report submitted by the Private investigator T.V.Lakshmanan. Ext.B3 investigation report dated 30.8.01 has not been proved by examining the investigator who submitted the said report. B3 investigation report would make it clear that the private investigator conducted the investigation of the scene of occurrence on 11.8.01. In fact, the incident of drowning of the insured occurred on 20.3.01. The private investigator had no direct knowledge or information about the death of insured Ramesan. A perusal of B3 report would show that the said report was filed based on some presumptions and assumptions. It is also to be noted that nobody has seen Ramesan committing suicide by jumping into the well situated in Rajalekshmy Textiles Finishing Mills compound. It can very safely be concluded that B3 report was filed based on surmises and conjectures. The Forum below has rightly not relied on B3 investigation report. More over, no reason or ground is stated by the appellant/opposite party for their failure in examining the private investigator T.V.Lekshmanan who submitted B3 investigation report dated 30.8.01. The opposite party/Insurance Company in their petition dated 28.10.02 has categorically stated that summons is to be issued only to the witnesses shown at Sl.Nos.3 to 13. The Private investigator Mr.T.V.Lakshman is shown as the second witness in the list of the witnesses filed by the opposite party/Insurance Company. But no reason or ground is stated for the failure to examine the investigator who submitted B3 report.
10. The appellant/opposite party has got a case that they were not given sufficient opportunity to adduce evidence by examining the witnesses shown as Sl.No.3 to 13 in the witness schedule. But, it is to be noted that the opposite party/Insurance company did not take any steps for issuance of summons to the witness shown as Sl.Nos.3 to 13. On the other hand, the opposite party/Insurance Company had taken steps to issue summons to the Station House Officer, Kannur Town Police Station for production of the case diary in Crime No.186/01. In pursuance to the summons the Station House Officer had also filed the case diary. Thus, it can be seen that the appellant/opposite party Insurance Company failed to prove their case regarding the alleged suicidal death of the insured Ramesan.
11. A perusal of the case diary in the aforesaid Crime No.186/01 would also make it clear that there was no eyewitness to the incident of death by drowning. It can be seen from the case diary that the insured M.Ramesan was residing with his wife and children in the newly constructed house and he was leading a peaceful life. It would also show that he was employed as a driver in the school bus owned by Bharathiya Vidhya Bhavan. It is also stated by the witnesses that they were not having any knowledge about any financial problem or difficulty for deceased Ramesan. No witness could give any reason or ground for the alleged death by suicide. On the other hand, the circumstances available on record would give an inference that the insured M.Ramesan had an accidental fall into the well and it resulted in his death by drowning. Thus, the materials on record would only give an inference that the insured Ramesan had an accidental death. There is no contra evidence available on record. It is also to be noted that the first informant was also not sure about the cause of death. The first informant had only seen the deceased lying in the well. He had no occasion or circumstance to see the insured Ramesan jumping to the well. So, the statement of the first informant that the deceased committed suicide is made without any basis. On the other hand, it can be seen that the first informant was employed in the Rjalekshmy Textile Finishing Mills. So, in order to avoid further complication or difficulties he might have given the statement to the effect that Ramesan committed suicide. No reliance can be placed on the first information given by the first informant. He had only the information regarding the death of Ramesan due to drowning. Thus, the investigating officer who submitted the final report in the criminal case is perfectly justified in coming to the conclusion that deceased Ramesan had an accidental death by drowning. The Forum below is also perfectly justified in coming to the conclusion that insured Ramesan had an accidental death and his death is covered by the personal accident insurance policy. If that be so, the appellant/opposite party Insurance Company is legally bound to disburse the insured amount to the complainants being the legal heirs of insured M.Ramesan. The Forum below is also justified in awarding interest at the rate of 12% per annum from the date of the complaint in OP.395/01 till realization with cost of Rs.2000/-. There can be no doubt about the fact that there was deficiency in service on the part of the appellant/opposite party Insurance Company. Thus, the impugned order is confirmed. The present appeal deserves dismissal. Hence we do so.
In the result, the appeal is dismissed. The impugned order dated, 2.12.03 passed by CDRF, Kannur in OP.395/01 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V.VISWANATHAN -- JUDICIAL MEMBER
M.K.ABDULLA SONA -- MEMBER
s/L
