KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.199/2021

JUDGEMENT DATED: 26.09.2023

(Against the order in C.C.No.213/2018 of the DCDRC, Kollam)

PRESENT:

APPELLANT:

(by Adv. S. Rajeev)

Vs.

RESPONDENTS:

(by Adv. Dinesh Sajan)

(by Adv. Pallichal S.K. Pramod)

JUDGEMENT

SRI. K.R. RADHAKRISHNAN : MEMBER

          This is an appeal filed under Section 15 of the Consumer Protection Act, 1986 against the order in C.C.No.213/2018 of the Consumer Disputes Redressal Commission, Kollam (District Commission for short).  As per the order dated 31.03.2021, the District Commission allowed the complaint on the following terms:  “Exhibit A6 repudiation letter dated 24.07.2017 stands set aside and the 4^th opposite party is directed to reconsider the claim lodged by the complainants and sanctioned the insurance claim amount of Rs.5,00,000/-(Rupees Five Lakhs) and funeral expenses to the tune of Rs.2,500/- (Rupees Two Thousand Five Hundred) within forty five days from the date of the order.  The 4^th opposite party was further directed to pay compensation to the tune of Rs.25,000/-(Rupees Twenty Five Thousand) to the legal heirs of the deceased Vishnu within forty five days from the date of receipt of a copy of the order.  The 4^th opposite party is further directed to pay costs of Rs.5,000/-(Rupees Five Thousand) to the legal heirs of the deceased Vishnu.  Opposite parties 2 and 3 are directed to render necessary assistance for the speedy disposal of the claim by the 4^th opposite party, collect the policy amount, funeral expenses and costs, handover the same to the legal heirs of the deceased without delay.  If the 4^th opposite party fails to comply with the directions in the order the legal heirs of the deceased Vishnu are entitled to recover Rs.5,27,500/-(Rupees Five Lakhs Twenty Seven Thousand Five Hundred) with interest @9% per annum along with costs of Rs.5,000/-(Rupees Five Thousand) from the date of complaint till realisation from the 4^th opposite party and its assets”. The appeal is filed by the 4^th Opposite party insurer.

          2.       The case of the complainants in brief is as follows:  The complaint is filed by the parents of the deceased Vishnu who died in a road traffic accident on 03.06.2017.  He was a fisherman and also was working as a temporary priest in a temple.  The deceased was a member of the “Vellanathuruth – Pandarathuruth Matsya Thozhilali Vikasana Kshema Sahakarana Sangham Ltd.No.F.Q.13, bearing membership No.MNC-925.  On 27.03.2017 he remitted Rs 178/- towards membership fees and premium for insurance under Group Personal Accident Insurance Scheme. A policy bearing No.270202/42/17/8200000006 w.e.f. 01.04.2017 to 31.03.2018 was issued by the 4^th opposite party. It was taken in the name of first opposite party through second and third opposite parties for the benefit of its members. Complainant’s son passed away in the road traffic accident on 03.06.2017. They submitted the required documents to the 4^th opposite party through other opposite parties to get the insurance claim. They repudiated the claim vide their letter dated 24.07.2017 on the ground that the deceased was not covered under the policy as it was issued to cover bonafide fishermen only.  It was further stated that the deceased was a poojari of a temple for last two years and he was not a member of the Fisherman Welfare Fund Board.  According to the complainants the deceased Vishnu was a fisherman and was a member of the 1^st opposite party society and he was performing the duty of a poojari temporarily, as a service without any remuneration for three days in a week as a substitute of the regular poojari of the temple.  He was a member of the Group Personal Accident Insurance Scheme and his death is covered by the policy issued by the 4^th opposite party as per the terms and conditions stipulated in it. So the claim of the complainants are genuine and they are entitled to get all the benefits under the Insurance Policy from the 4^th opposite party.  Hence the complainants, who are the legal heirs of the deceased Vishnu, filed the complaint before the District Commission for getting the insurance claim with compensation and costs.   

3.       The first complainant filed proof affidavit in lieu of chief examination. He was examined as PW1 and Exhibits A1 to A7 were marked on his side. First and fourth opposite parties did not appear and were set exparte. 2^nd and 3^rd opposite parties entered appearance and filed their joint written version. They admitted the case of the complainants in their version.  On the basis of the evidence adduced the District Commission passed the impugned order. Aggrieved by the said order of the District Commission, the 4^th opposite party has filed the appeal.

          4.       Heard and perused the records.  The learned counsel for the appellant submitted that the 4^th appellant was declared exparte by the District Commission.  The notice intimating the hearing of the case was received by the appellant/4^th opposite party’s office and the file was kept for appointing a counsel for appearing before the District Commission.  But due to the inadvertent mistake happened on the side of the office staff, it was omitted to entrust the case to a counsel and the District Commission declared the appellant/4^th opposite party exparte.  The 4^th opposite party had repudiated the claim on the ground that the policy was issued to cover bonafide fisherman only and on investigation it was found that deceased Vishnu was a poojari of a temple for the last two years and he was not a member of the fishermen’s society. Complainants had not produced legal heirship certificate of the deceased.  As the deceased was not covered under the policy the claim was repudiated on 24.07.2017. The learned counsel further argued that, no reasonable opportunity was afforded to the appellants to put forward their case before the District Commission.  It was submitted that the appellants have cogent evidence to prove their case and therefore, it is necessary that an opportunity is provided to them to place and prove their case.  There is no deficiency or unfair trade practice on the part of the appellants.  The learned counsel for the appellants prayed for setting aside the impugned order and remand the case and allow them to file version and defend their case before the District Commission.

5.       The learned counsel for the first and second respondents/complainants submitted that the deceased was a fisherman and he was performing the duty of a poojari temporarily as a service without any remuneration for 3 days in a week as a substitute of the regular poojari of the temple. He was a bonafide fisherman and was a member of the welfare society who has taken the policy for the benefit of its members. He had paid the required premium of Rs.178/-(Rupees One Hundred and Seventy Eight) on 27.03.2017 and is covered under the insurance policy as Sl. No.639. An agreement was executed between the 3^rd opposite party and the 4^th opposite party before issuing the policy. It was intended to cover the accidental death of the members of Fisherman Welfare Societies all over Kerala under Group Personal Accident Insurance Scheme as per the enrolment list submitted by Matsyafed.  Accordingly, the deceased was covered for accidents under the Group Personal Accident policy issued by the appellants. The claim is genuine and the appellants have arbitrarily repudiated the claim.  Hence the learned counsel prayed for dismissal of the appeal with costs.

6.       We have considered the submissions on both sides and examined the records. The District Commission has elaborately discussed various aspects of the case with the evidence available on record. Matsyafed is a federation of cooperative societies formed for the welfare of the fishermen. It is not disputed that an agreement (Exhibit A3) was executed between the second opposite party, District Manager, Matsyafed and the fourth opposite party insurer which provides accidental death coverage to the fishermen included in the schedule attached to the policy for the period from 01.04.2017 to 31.03.2018. Thus, the beneficiary of the group insurance is the members enrolled by remitting prescribed premium as per the enrolment list submitted by Matsyafed.

7.       An important point in this case is whether the deceased can be considered as a fisherman as per the agreement between Matsyafed and the insurance company. He was a member of the fishermen co-operative Society and he has paid the required premium for joining the group personal accident insurance policy and he was included as Sl. No.639 in the policy schedule. Payment of the premium by the deceased is proved by receipt No 9539 dated 27.03.2017 (Exhibit A4) and his accidental death is proved by FIR (Exhibit A1) and postmortem certificate (Exhibit A2). The fourth and fifth respondents filed their version endorsing the claim of the complainants/1^st and 2^nd respondents. The job of a fisherman is not like a permanent job where he may not be allowed to work elsewhere when he is otherwise free. There is nothing in evidence to prove that the deceased was not a fisherman. If at all he was working as a poojari during his spare time, the insurance company is not absolved from their liability.

8.       Another contention of the appellants is that the claimants have not produced legal heirship certificate. This is only an administrative requirement as the claim was filed by his parents. There is no evidence before us to show that this requirement was properly conveyed to the claimants. The available evidence itself proves that the claim comes within the purview of the group insurance policy issued by the appellant/4^th opposite party. Reasons stated in Exhibit A6 letter are not sufficient grounds to repudiate the claim. Hence, there is no merit in the contentions put forward by the appellants and hence we do not find any infirmity in order of the District Commission.

9.       This is a case in which the 4^th opposite party/appellant did not appear before the District commission and file their version despite receipt of notice. The District commission declared them as exparte as per Section 13(2) (b) (ii) of the Consumer Protection Act, 1986, which is reproduced below:

“13 (2) The District commission shall, if the complaint admitted by it under section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services,-

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;

(b) where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the district Forum shall proceed to settle the consumer dispute –

1. on the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegations contained in the complaint, or
2. ex-parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take any action to represent his case within the time given by the Forum.”

In view of the above specific provision, we do not find any error in the exparte order of the District Commission.  The order of the District Commission is as per the provisions of the Act and we do not find any reason to interfere with the order of the District Commission. 

10.     As already discussed, this is a case in which no version has been filed by the appellant, though they had received notice from the District Commission.  Therefore, in view of the dictum laid down by the Constitution Bench of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757, it is not possible for them to file a written version now and hence no purpose will be served if the case is remanded to the District Commission. Hence this appeal is devoid of merits on this account as well.

11. This case was filed prior to the above judgment of the Constitution Bench. Applicability  of the decision in the  cases prior to the said judgment is discussed by the apex court in  M/s Daddy Builders Pvt Ltd & Another Vs Manisha Bhargava {SLP (Civil) No 1240 of 2021dated 11.02.2021. In this case the apex court have observed that consumer Commissions have no jurisdiction to accept written statement filed beyond the statutory period even in cases prior to the decision dated 04.03.2020 in New India Assurance Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757 and the exemption is available only in those old cases where the delay in filing the version was already condoned. Para 4 and 5 of the order of the apex court are reproduced below:

“4. Having heard learned counsel appearing on behalf of the petitioners and so far as the question whether the date on which the State Commission passed the order, then on that date, whether the State Commission has the power to condone the delay beyond 45 days for filing the written statement under Section 13 of the Act is concerned, as such, the said issue whether the State Commission has the power to condone the delay beyond 45 days is now no tres integra in view of the Constitution Bench decision of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. reported in (2020) 5 SCC 757. However, it is submitted by the learned counsel appearing on behalf of the petitioners that as in paragraph 63 it is observed that the said judgment shall be applicable prospectively and therefore the said decision shall not be applicable to the complaint which was filed prior to the said judgment and/or the said decision shall not be applicable to the application for condonation of delay filed before the said decision.

However, the aforesaid cannot be accepted. It is required to be noted that as per the decision of this Court in the case of J.J. Merchant v. Shrinath Chaturvedi, reported in (2002) 6 SCC 635, which was a three Judge Bench decision, consumer fora has no power to extend the time for filing a reply/written statement beyond the period prescribed under the Act. However, thereafter, despite the above three Judge Bench decision, a contrary view was taken by a two Judge Bench and therefore the matter was referred to the five Judge Bench and the Constitution Bench has reiterated the view taken in the case of J.J.Merchant (supra) and has again reiterated that the consumer fora has no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all. However, it was found that in view of the order passed by this Court in Reliance General Insurance Co. Ltd. (supra) dated 10.02.2017, pending the decision of the larger Bench, in some of the cases, the State Commission might have condoned the  delay in filing the written statement filed beyond the stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected, this Court observed in paragraph 63 that the decision of the Constitution Bench shall be applicable prospectively. We say so because one of us was a party to the said decision of the Constitution Bench.”

“5.  ………………..In any case, in view of the earlier decision of this Court in the case of J.J. Merchant (supra) and the subsequent authoritative decision of the Constitution Bench of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757, consumer fora has no jurisdiction and/or power to accept the written statement beyond the period of 45 days, we see no reason to interfere with the impugned order passed by the learned National Commission.”

12.     From the above observations it is evident that the Constitution Bench decision of apex Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd   shall be applicable to the complaints which were filed prior to the said judgment as well.  The prospective application of the decision in old cases is relevant only in those cases where the delay in filing the version was already condoned as per the decision of the apex court in the case of Reliance General Insurance Co. Ltd. v. M/s Mampee Timbers & Hardwares Pvt. Ltd. (Diary No. 2365 of 2017 decided on 10.02.2017). Hence, in this case the appellants cannot be permitted to file their written version now

13.     In view of the foregoing discussion, we do not find any merit in the appeal. We concur with the finding of the District Commission that there is deficiency in service on the part of the Appellants /Opposite Parties.  Hence the appeal is liable to be dismissed. 

In the result the appeal is dismissed and the order dated 31.03.2021 of the District Commission is confirmed.  There is no order as to costs. 

SL