Date of filing : 29-05-2012
Date of order : 22-02-2013
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.184/2012
Dated this, the 22nd day of February 2013
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT. K.G.BEENA : MEMBER
1. Prema, D/o.Ambady. : Complainants
2. Prajina, W/o. Praveen Kumar
3. Prajisha
Nos 1 to 3 are r/at Fishermen colony,
Adkathbail beach, Po.Kasaragod. 671121.
(Adv.K.Rajesh, Kasaragod)
1. The Commissioner, : Opposite parties
Kerala Fishermen’w Welfare Fund Board,
Head Office, Thrichur.2.
(In Person)
2. The Managing Director,
Matsyafed, Kamaleswaram, Manacaud.Po.
Thiruvananthapuram. 695009
(In Person)
3. The Director of Insurance,
Kerala State Insurance Department,
Thiruvananthapuram.
(Addl.Govt.Pleader)
4. The Divisional Manager, United Insurance.Co.Ltd,
Thrissur.
(Adv.C.Damodaran, Kasaragod)
5. The Divisional Manager, National Insurance Co.Ltd,
Kannur.1. P.B.No.40, Bank Road, 670001.
(Adv.Balagopalan, M, Kasaragod)
O R D E R
SRI.KT.SIDHIQ, PRESIDENT
Bereft of unnecessaries the case of the complainants is as follows:-
The complainants are the legal heirs of deceased Upendran who died on 18-12-2010. Sri.Upendran was a member of Kasaba Fishermen Village and he is issued with membership No.513 and he was also a member of Kottikulam Kasaba Fishermen Welfare Development Co-operative Society Ltd. On 18-12-2010 while Upendran was engaged in fishing, suddenly sustained chest pain. Though he was immediately brought to sea shore and taken to Govt. General Hospital, the duty doctor declared him dead. Sri. Upendran was very hale and healthy. The sudden death, unexpectedly occurred during the course of employment without any disease is an accident. Though a claim is preferred, 1st opposite party as per letter dt.5-01-2012 has repudiated the claim of the complainant. Hence the complaint claiming the assured amount. As per the group insurance policy the 1st opposite party is liable to pay Rs.2,00,000/- and 2nd opposite party is liable to pay Rs.3,00,000/- and opposite parties 3 to 5 are vicariously liable to pay compensation. Hence the complaint.
2. Version of 1st opposite party
According to opposite party No.1 Commissioner, Kerala Fishermen Welfare Fund Board, during the subsistence of policy during the period 7-12-2010 to 6-12-2011, heart attack while fishing was not covered. The Insurance Policy Coverage was for accidental death and it is clearly indicated in the agreement executed. The 1st opposite party can only act upon the policy condition, and then only submit the claim to insurance company.
3. Version of Opposite party No.2 Managing Director Matsyafed
All the documents pertains to the death of Upendran, S/o. Shankunni were submitted to the National Insurance Company (5th opposite party) on 29-01-2011 and opposite party No.5 sanctioned the claim amount of Rs.3,00,000/- to opposite partyNo.2 The said amount has been released to the 1st complainant on 17-05-2012. Hence they are to be exempted.
4. Version of opposite party No.3 Director of Insurance, Kerala State Insurance Department, Trivandrum
The opposite party No.3 is an unnecessary party to the case. Opposite partyNo.3 has not issued any policy in favour of the deceased Upendran, S/o.Shankunny. Hence opposite party No.3 has no liability to pay any amount. Therefore the complaint is liable to be dismissed with costs.
5. Version of opposite party No.4.
The complaint is unsustainable since no claim is preferred with opposite party No.4. They are not liable to render any service in the absence of any claim. Since the death of fisherman was due to heart attack and not an accidental death, the same is outside the purview of policy. Hence opposite party No.1 has rightly repudiated the claim and there is no deficiency in service on the part of opposite party No.4. Hence the complaint is liable to be dismissed.
6. Version of opposite party No.5.
The complaint is false, frivolous and vexatious and not maintainable in law. They have already issued a cheque dated 27-03-2012 for Rs.3,00,000/- in favour of Matsyafed towards the full and final satisfaction of liability of the 5th opposite party. Hence they are liable to be absolved from any liability.
7. Ist complainant filed proof affidavit. Exts A1 to A6 marked on her side. Complainant cross-examined by counsels for opposite party No.4 & 5. Opposite party No.4 produced Ext.B1 copy of the agreement executed between 4th opposite party and 1st opposite party. Both sides heard and the documents perused.
8. In the affidavit the complainant claims Rs.2,00,000/- from 1st opposite party and interest for 3,00,000/- from 2nd opposite party. In the complaint the claim is for Rs.3,00,000/- from 2nd opposite party. But it is pertinent to note that complaint is filed on 29-05-2012 suppressing the fact that she has received the cheque for Rs. 3,00,000/- from opposite party No.5 through District Manager, Matsyafed, District office, Kasaragod. The complainant had not claimed any interest in the complaint for the said amount of Rs.3,00,000/-.
9. Regarding the claim against opposite party No.1 and their insurer opposite party No.4 the learned counsel for opposite party No.4 Sri.C.Damodaran has produced Ext.B1 the copy of agreement executed between United India Insurance Company and opposite party No.1. In Ext.B1 it is specified in the schedule that accidental death includes any type of accident, Death due to dog/snake bite, due to lighting, train accident (excluding suicide) and due to any unforeseen causes.
10. According to learned counsel for opposite party No.4 the death of the victim (insured) was due to CAD Myocardial Infraction with Cardiac Arrest and it cannot be considered as can accidental death and hence the complainant’s are not entitled for the death claim as it is not covered by the policy.
11. But the said contention is not acceptable. It is not in dispute the death of Sri. Upendran was caused while he was on high seas with his avocation of fishing. Had he been aware of myocardial infraction and cardiac arrest before going for fishing, he should not have gone for fishing. So the death of the insured was definitely due an unforeseen cause which squarely comes within the purview of the policy.
12. The word ‘unforseen’ means accidental, sudden, surprise, unanticipated, undesigned, unexpected unheralded, unpredicted and unthought of etc. The death of fisherman in the highseas during fishing due to myocardial infraction coupled with cardiac arrest is an unforeseen accidental death.
The Hon’ble National Consumer Disputes Redressal Commission in RP No.973/2007 decided on24-10-2007 in the case of RITA DEVI @ Rita Gupta V National Insurance Co. Ltd had exhaustively considered the word meaning of ‘accident’ and an ‘accidental death’ and held that death which does not occur in the usual course or natural course of events or events/causes which could not be reasonably anticipated is considered to be accidental one.
13. In view of the above judgment it can be concluded that the death of Sri. Upendran was an accidental death due to unforeseen cause. Hence opposite party No.4 is liable to indemnify the complainant’s for the death of Sri. Upendran, one of the beneficiary of the Group Insurance Policy issued by opposite party No.4 to Opposite party No.1. Therefore opposite party No.4 is liable to pay Rs.2,00,000/- to the legal heirs of the deceased Upendran.
14. But it is seen that complainants unnecessarily impleaded opposite parties 2, 3 & 5. In fact at the time of filing the complaint itself, the complainants were in receipt of the compensation due from opposite parties 2 & 5. The complaint nowhere discloses about the receipt of Rs.3,00,000/- from opposite party No.5 who is the insurer of opposite party No.2. Further the opposite party No.3 has not issued any policy either to the complainant or to any one with respect to the insurance cover of the accidental death of complainant. Therefore we are of the view that opposite parties 2, 3 & 5 are quite unnecessary party to these proceedings and they are unnecessarily faced an unwanted litigation. The complainants are therefore liable to pay costs of opposite parties 2, 3 and 5.
In the result, complaint is allowed in part and opposite party No.4 is directed to pay Rs. 2,00,000/- to the legal heirs of the deceased Sri. Upendran on production of the legal heirship certificate showing that they are the legal heirs of deceased Upendran. Time for payment is 30 days from the date of receipt of copy of the order. Failing which opposite party No.4 shall be further liable to pay interest @ 9% for Rs.2,00,000/- from today till payment. Complaint against opposite parties 2, 3 and 5 stands dismissed and complainants are directed to pay Rs.3000/- each to opposite party No.2, 3 and opposite party No.5.
Sd/- Sd/-
MEMBER PRESIDENT
Exts.
A1.Photocopy of F.I.R.
A2. Photocopy of Post-mortem Certificate
A3. Photocopy of Death Certificate
A4. 12-03-10 Photocopy of receipt issued by Kottikulam Kasaba Malsyathozhilali
Vikasana Kshema Sahakarana Sangam.
A5. 02437 photocopy of pass book of Upendran issued by Kerala Malsaythozhilai
Kshemanidi Board, Trissur.1.
A6.5-1-12 letter issued by Kerala Malsyathozhilali Kshemanidi Board Trissur to Prema.
B1.Copy of Group Accident Insurance (Agreement)
PW1. Prema
Sd/- Sd/-
MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
