Sri.K. GOPALAN: PRESIDENT<br /> This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to grant the assured sum of Rs 1,00,000/- and to pay Rs 10,000/- as compensation to the complainant.<br /> The case of the complainant in brief is as follows: The deceased V.V. Sreenivasan was a registered fisherman . He registered at Kerala Fishermen’s Welfare Fund Board having membership no.23. The first opposite party has insured the entire fisherman including the deceased Sreenivasan with opposite party no.2under group insurance policy. As per the terms and conditions of the policy the 2nd opposite party undertakes to indemnify all the risk involved arising out of any accidental death and accidental injuries to its members and their legal heirs. On 8.7.2003 the deceased V.V. Sreenivasan went for fishing in a fiber country boat . While he was catching fishes he tried to pull the fishing net and then accidently fell in the country boat and sustained some injury. The boat was returned to the shore. Sreenivasan was taken to Hospital and there he was declared as dead. The reason for death was Myocardiac infraction since he pulled the fishing net with fish by applying great force. Actually the death of Sreenivasan occurred only due to marine accident as the sea was very rough at the time of incident and it was due to the sudden rolling of the country boat that Sreenivasan was constrained to apply force accidently. Sreenivasan was a healthy person even prior to the accident and was not suffering from any pre-existing physical ailments or any complaints. He was engaged in fishing for the last many years. As per the group insurance policy the complainants are entitled to get an amount of Rs 1,00,000/- with interet since the death of Sreenivasan was occurred due to accident while engaged in fishing. First complainant duly filed claim form before the opposite parties. The claim was repudiated on the ground that as per the FIR statement and the postmortem report the death was primarily due to myocardiac infraction, which is not covered under insurance policy. Complainant issued lawyer notice dated 23.1.04 but replied denying the claim. Since the repudiation amounts to gross deficiency of service and also liable for causing mental injury. Hence prays for an order to grant the assured sum and compensation.<br /> Pursuant to the notice issued by the Forum, opposite parties filed version denying the allegations and averments in the complaint. The contentions of the opposite parties in brief are as follows: The complaint isnot maintainable. The Group Insurance Scheme (2. Scheme ) is for providing financial aid/help to the L.Rs of the fisherman died during the course and immediately after the employment and not due to accident. Sreenivasan was a registered fisherman and entitled to get benefits under the scheme applicable. The Welfare Board is not collecting any consideration or premium from the fishermen for providing benefits to the members except the yearly contribution to the Welfare Fund. The benefits are being allowed and paid to the eligible members and their L.Rs as per the terms and conditions laid down in the scheme. The deceased Sreenivasan went for fishing on 8.7.2003 and at about 7.a.m he felt dizziness and he felt chest pain. He could not carry the work. The co-workers taken the boat to the shore and he was admitted in the hospital and found he was no more. It was found that the death was due to heart attack. Postmortem conducted and the cause of death was shock due to the Myocardial infraction. His wife Rema submitted application as per the scheme on 12.9.2003. The commission after thorough enquiry issued the order allowing the maximum amount Rs 20,000/-. Rema received the amount and issued the receipt for the said amount. The death of Sreenivasan was due to heart failure. It is very clear that this is not an accidental death. The welfare scheme is framed to give financial aid . Accidental death covers scheme no.1. Scheme no.1 is not applicable in this case. Only scheme no.2 is applicable in this case. Under scheme no.2 maximum amount payable is Rs 20,000/-. The said amount is paid to the complainant. Hence to dismiss the complaint.<br /> <br /> On the above pleadings the following issues were taken for consideration.<br /> 1. Whether there is any deficiency on the part of opposite parties?<br /> 2. Whether the complainants are entitled for the remedy as prayed in the complaint?<br /> 3. Relief and cost.<br /> <br /> The evidence consists of oral evidence of PW1 to 3 and documentary evidence Exts. A1 to A3. <br /> <br /> ISSUES 1 to 3:<br /> Admittedly the deceased V.V. Srenivasan, husband of the first complainant is a registered fisherman. The averment of the complainant that he was engaged in fishing for the last many years were also not denied. Oppoiste party produced the Welfare Scheme Guidelines & Rules 2005 prepared by P. Rajagopal( Jr. Executive) compiled by K. Anitha(Secretary)Edited and published by P.A. Khalid(commissioner). The special characteristics Group Insurance Scheme explained under scheme –Code No.1 thus:<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> The Kerala Welfare Fund Board was constituted under the Kerala Fishermen Welfare Fund Act 30/1985 for the purpose of providing aid to the welfare of the actual fisherman. Individual fisherman need not pay the premium amount separately so as to be insured under the scheme except the yearly contribution to the Welfare Fund. Each and every member of the board will be insured. Premium will be given by the State and Central Government. Hence the deceased Sreenivasan was a member insured under Group Insurance Scheme.<br /> The claim of the applicants were repudiated on the ground that the death of Mr. Sreenivasan was not due to accident.Opposite party has no complaint of claim form or of documents. The doctor’s opinion as to the cause of death was shock due to the Myocardial infraction. No placement could be seen anywhere in the exclusion clause for shock due to the Myocardial infraction. In the cross examination the PW3 was asked why it is happened? His specific answer was “ I cannot say”.<br /> Dr. K.V. Krishnadas (formerly Director and Professor of Medicine, Medical College Hospital, Trivandrum) in his book “ A short Text Book on Medicine in page 501 under Section 13 Cardiology chapter 141 with the heading “ Disease of the Myocardium” has written “ The Myocardium may be the seat of damage in a wide variety of conditions” and also pointed out in causes clause that “ In many cases no cause may be evident”. PW3 doctor has admitted in his cross examination that stress and strain is a cause of miocardiac due to strenuous work. It can very well assume that fishing on high seas is a strenuous work. The incident took place when Mr. Sreenivasan was doing his work in high seas.<br /> What is meant by the word ‘ accident’ has not been explained in exclusion clause or in anywhere in the Welfare Schemes Guidelines & Rules 2005. As per meaning given in Diget N.C. & S.C on Consumer Protection Law 2008 page 1578” violent means and includes any external , impersonal cause, such as drawning, or the inhalation of gas, or even undue exertion on the part of assured. The word violent is merely usd in antithesis to without any violence at all”<br /> Similarly ‘ external ‘ is used to express anything which is not ‘ internal’ and any cause which is external in this sense is also visible within the meaning of an accidental policy. These words refer to the accident , not the injury, and are used to distinguish injuries covered by the policy from those due simply to such causes as disease or senility which arise in the body of the deceased’. “ Thus the words by violent, external, and visible means ‘ add little if anything to an accident policy’<br /> In the light of the above discussion it can only be concluded that the death of Sreenivasan has taken place during the course of employment out of accidental incident. The scheme is introduced for the welfare of the fishermen and their families. As a welfare measure the authorities are expected to be free from the clutches of traditional conservative out look of technicalities so as to extend the fruits of welfare measures and relief to the bottom of the society as far as possible. The accidental death covers shceme no.1 and we are of opinion that scheme no.1 is applicable in this case. Rs 20,000/-under scheme 2 has been paid to the complainants. That is not denied by the complainants. Since the death of Sreenivasan found accidental the rejection of the claim is a deficiency of service and opposite parties re liable to grant the assured amount Rs 1,00,000/-. But the complainant is liable to return Rs 20,000/- which was received earlier under the scheme no.2. Hence the opposite party is entitled to deduct Rs 20,000/- and liable to pay a sum of Rs 80,000/-to complainant. Complainant is also entitled for a cost of Rs 1000/- towards the cost of this proceedings. Thus issues 1 to 3 are found in favour of complainants and orders passed accordingly.<br /> In the result, the complaint is allowed directing the opposite parties to pay Rs 80,000/-( Rupees eighty thousand only) to complainants with an interest @ 8% p.a. from the date of order till the payment of amount together with a sum of Rs 1000/-(Rupees one thousand only) as the cost of this proceedings within one month from the date of receipt of this order, failing which the complainants are at liberty to execute the order under the provisions of Consumer Protection Act.<br /> Sd/-MEMBER Sd/- MEMBER Sd/-PRESIDENT<br /> <br /> APPENDIX <br /> Exhibits for the complainant<br /> A1. Copy of the lawyer notice dt. 23.1.2004 sent to the opposite parties<br /> A2(a). Letter dt. 10.2.2004 sent by the opposite party.<br /> A2(b). Postal acknowledgement card signed by the opposite party.<br /> A3. Copy of the letter dt. 10.12.2003 sent to the Fisheries Officer, Kannur.<br /> Exhibits for the opposite party – NIL<br /> Witness examined for the complainant<br /> PW1. Rema.A.<br /> PW2. P.P.Nazar.<br /> PW3. Dr. K.V. Mukundan.<br /> Witness examined for the opposite party – NIL<br /> Forwarded/ by order <br /> SENIOR SUPERINTENDENT<br /> <br />