DOF.5.2.2005

DOO.1.10.2010

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 1^st   day of October  2010

C.C.No.34/2005

1. Jayasheela, W/o.Late Swamidasan,

   Pookkantavida, Thalayi, Thalassery.

  (Rep. by Adv.Sajithkumar Chalil)

2. Sumith.P., S/o.Late Swamidasan

3. Sangeetha.P., D/o.Late Swamidasan

  Puthiyapurayil House, Palissery, P.O. Thalassery.                    Complainant

1. The District Manger,

  Matsyafed,

  Kannur Dist.

  (Rep. by Adv.P.P.Venu)

2. The Divisional Manger,

   Oriental Insurance Company,

  Kannur.

  (Rep. by Adv.K.Reghunathan)

3. Lakshmi.P.

  Pokkayintavida House,

  Temple Gate P.O.,

  Thalayi, Thalassery.                                                                Opposite party

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 the insurance coverage amount with interest at 12%.

            The complainants’ case in brief is as follows: 1^st Complainant is the wife of a fisherman, Mr.Swamidasan, who was a member of Mariamma Group boat .On 24.10.04 the deceased Swamidasan, Harish and Umesh were engaged in fishing. Suddenly he got a chest pain and due to intolerable pain he fell down from the boat and on account of the chest pain he was not able to swim but started drowning. The follow  workers saved him  and taken to shore and admitted in the Govt. Hospital, Thalassery. The doctor after examination declares him dead. He died on account of an accident sustained in the course of his employment. He is a registered fisherman and a member of Fisherman welfare Fund. His membership No. is 332. Immediately after the death FIR was registered for unnatural death as crime No.805/03. In the postmortem it was clearly stated that this was a death due to asphyxia. Claims was submitted before 1^st opposite party. But it was refused stating that it is a natural death. The refusal to grant insurance amount is illegal and without any justification. Since the post mortem report clearly reveals that it is an accidental death and hence 2^nd opposite party is liable to pay the insurance amount. The denial of claim is a deficiency of service on the part of opposite parties. Hence this claim.

            Pursuant to the notice opposite parties entered appearance and filed version. The brief facts of the contentions raised by the 1^st opposite party are as follows: The complaint is not maintainable against 1^st opposite parry. The premium amount collected from the Fishermen through the Primary Co. operatives of Matsyafed (FDWCS) remitted to the insurance company without charging any margin. Since they are charging any remuneration they are not liable to pay any compensation. Compensation if any has to be found payable that has to be paid by the insurance company. Written notice has been given to Insurance Company. The duly filled claim form forwarded with recommendation. The claim was rejected by insurance company stating that the death of Swamidasan was occurred due to chest pain as per the investigation report and police report. 1^st opposite party has informed the rejection of claim. Matsyafed has no role in sanction of claim. Insurance company is the authority to sanction the claim. Hence to dismiss the claim against  1^st opposite party.

            2^nd opposite party filed version separately denying the main allegation of complainant. 2^nd opposite party admits that Group Personal Accident Insurance Policy No.203/92 has been issued by them. But denies the  liability to pay compensation on the ground that the death was not due to drowning. As per terms and conditions the liability arises only if death was accidental. The enquiry proves that the death was not due to drowning but due to heart attack. Claim repudiated on that. The allegation that Mr.Swamidasan died out of drowning etc. are false. It is false to say that Mr. Swamidasan died out of accident in the course of employment. There is no deficiency on the part of this opposite party.

            On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite parties?

2. Whether the complainant is entitled for the relief as prayed?

3. Relief and cost.

            The evidence consists of the oral evidence of PW1, DW1, DW2 and Exts.A1to A4 and B1, B2.

Issues 1 to 3

            Admittedly 1^st complainant’s husband Mr.Swamidasan was a member of Fisherman Welfare Fund and his membership number is 332. 1^st opposite party is the District Manager of Matsyafed. 2^nd opposite party is the Insurance company who issued Group Personal Accident Insurance policy bearing No.203/92. 3^rd opposite party is the mother of Swamidasan who was impleaded afterwards.

            Complainant filed proof affidavit in tune with the pleadings. Ext.A1 to A4 marked on the side of the complainant. The case of the complainant is that the death of Swamidasan is an accidental death in the course of employment. The postmortem report clearly establishes that it is an accidental death due to asphyxia-pulmonary edema due to drowning.

            2^nd opposite party is the main contestant in this case. 1^st opposite party contended that they have completed all the legal responsibilities by informing the death and then forwarding claim form with necessary documents. The Insurance Company is the authority to sanction the claim and 1^st opposite party has no role in it. The contention raised by opposite party has been challenged neither by the complainant nor by other opposite parties. It is true that the circumstances and available evidence make it clear that 1^st opposite party has no role in granting the claim in this case. 3^rd opposite party is only a legal heir of Mr.Swamidasan, the husband of the complainant.

            2^nd opposite party  the insurance company is the main contestant who has to sanction the claim. The case of opposite party is that the enquiry proves that the death of the party was not due to drowning but due to the heart attack. The allegation that the death occurred due to drowning is false. 2^nd opposite party filed chief affidavit in tune with their pleadings and exts.B1 and B2 also marked on the side of 2^nd opposite party. Ext.B1 is the FIR , K.Umeshan is the informant. The deceased Swamidasan was engaged in fishing together with Harish and Umesh as per the complaint. Hence it is evident that Mr.Umesh who is the informant is one of the persons who were with Swamidasan at the time when he breathed his last. He narrated the incident before the police immediately after removing the dead body to mortuary. It is he who reported the matter to police. What he has stated to the police is very material. His statement reads thus: “  C¶v ]peÀs¨ kpamÀ Hcp aWn¡v amc-y½ F¶ {Kq]v#nsâ tXmWn-bn Xembn IS-¸p-d¯v \n¶v  Rm\pT kzm-an-Zm-k-\p-T, lco-jpT IqSn aÕ-yT ]nSn-¡m³ t]mbn.. ]peÀt¨ kpamÀ 2 aWn-k-a-b¯v  IS-en tXmWn-bn sh¨v kzm-an-Zm-k\v s\©p-th-Z\ A\p-`-h-s¸-«p. R§ÄXn-cn¨v Xem-bn IS-¸p-d-t¯¡v h¶p. Ime¯v kpamÀ 7 aWn-tbmsS tUmIvSsd ImWn-¡p-¶-Xn-\mbn Xe-tÈcn Kh¬saâv Bip-]-{Xn-bn sIm­p-h-¶p. tUmIvSÀ ]cn-tim-[n-¨-Xn kzm-an-\m-[³ ac-W-s¸-«-Xmbn ]d-ªp. kzm-an-Zm-k\v s\©p-th-Z-\-bpT Xe¡v Ft´m tcmK-hp-ap-­v. B-b-Xns\ XpSÀ¶p-ff tcmKT Imc-W-T-s\-©p-th-Z\ h¶p ac-W-s¸-«-Xm-Wv. ac-W-Im-c-y-¯n aäp kT-i-b-sam-¶p-an-Ô.

It is a very relevant point to be decided whether the death of Swamidasan is accidental or otherwise? FIR reveals that it is a death due to heart attack. The informant is the person to whom with he had been fishing. If Swamidasan was fallen down to see what is the need  to conceal this fact before police is a question to be answered.

            Ext.A3 is the final report submitted by the police before Sub-Divisional  Magistrate. This report contains the statement that“Cu tIÊn  Fsâ CXp-h-sc-bp-ff At\-z-j-W-¯n-epT kT-`-h-k-a-bT IqsS-bp-­m-bn-cp¶ km£n-samgnI-fn \n¶T t{]XT Iodn-]-cn-tim-[n¨ tUmIvS-dpsS samgn-bn \n¶pTIodn-]-cn-tim-[n-¨-Xn-\p-ff kÀ«n-^n-¡äv lmP-cm-¡n-X-¶Xv ]cn-tim-[n-¨-Xn-epT Cu tIÊn ac-W-s¸« kzm-an-Zm-k-\pT Iq«-cpT 24.10.2003 \v cm{Xn aÕ-yT ]nSn-¡m-\mbn am¡q-«T IS-¸p-d¯v \n¶pT kp-amÀ 20 In.an ZqcT hcp¶ IS-e-bn t]mbn he Cf-¡n-s¡m-­n-cns¡ Snbm³amÀt]mb adn-b-½-F¶p t]cp-ff  ss^_À tXmWn-bn \n¶pT F§-s\tbm A_-²-¯n IS-en hoW-Xn izm-kT ap«n-a-cn-¨-XmWv F¶p shfn-hm-Ip-¶-Xn-\m Rm³ Cu tIÊv                                                     (Accidental death by drowning) A_-²-¯n IS-en hoWv acn¨ Hcp tIÊmbn IW-¡m¡n Cu XoÀ¨ dnt¸mÀ«v _lp-am-\-s¸« tImS-Xn-ap³]msI kaÀ¸n-¨p-sI.-f-fm-¶p”.                The investigating officer reached to a conclusion that the death of Swamidasan is due to drowning. He reached to such a conclusion based on the statements by the persons who were with him at the time of incident and also of the statement of the doctor who has done the postmortem and his certificate.

            2^nd opposite Zarty did not place any evidence to prove that deceased was died out of heart attack. No previous records also available before the Forum to conclude that the death of the deceased was due to heart attack. Ext.A2 the certificate issued by the doctor, Assistant surgeon, General Hospital, Thalassery quite clearly written the cause of the death due to Asphyxia due to drowning. There is no need to disbelieve the doctor in the usual course. If the opposite party was succeeded in proving that the deceased was heart patient the things would have been different. Opposite party also failed to prove FIR.DW2 deposed in cross examination that he has not given before the police such a statement saying that Swamidasan has suffered chest pain. Ext.B1 cannot be bellied under this situation. The case of 2^nd opposite party is that facts collected on enquiry prove the fact that the death was not due to drowning but due to heart attack. But opposite party could not prove those facts before the Forum. Ext.A3 final report of the police and also ext.A2 the medical report leads the evidence conclude that the death of deceased is due to drowning. Hence we are of opinion that the repudiation of claims is a deficiency in service on the part of 2^nd opposite party and the complainant is entitled for the insurance amount. The complainants are also entitled for a sum of Rs.1000/- as cost of these proceedings. Hence the issues 1 to 3 are answered in favour of complainants.

            In the result, the complaint is allowed directing the Insurance company 2^nd opposite party to sanction the insurance amount and also to pay an amount of Rs.1000/- (Rupees One thousand only) as cost of this proceedings to the complainants within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against 2^nd opposite party under the provisions of consumer protection Act.

                     Sd/-                          Sd/-                             Sd/-

            President                      Member                       Member

APPENDIX

Exhibits for the complainants

A1.Copy of the FIR

A2.Copy of the medical report of Swamidasan

A3. Final report submitted by the police.

A4.Letter dt.17.5.04 sent by OP1

Exhibits for the opposite parties

B1.FIR in Cr.No.805/03 of Thalassery police station

B2.Copy of the policy

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties

DW1.T.G.Sreenivasan Nair

DW2.K.Umesan                                  /forwarded by order/

          Senior Superintendent

Consumer Disputes Redressal Forum, Kannur.