BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
C.C. No. 252/2006 Filed on 16.09.2006
Dated : 30.11.2010
Complainant:
Stella, W/o late Thomas, T.C No. 47/167, Pallivilakom Purayidom, Poonthura P.O, Thiruvananthapuram.
(By adv. K.N. Justin)
Opposite party :
The Divisional Manager, National Insurance Company Ltd., Parameswaran Pillai Bhavan, Hospital Road, Kollam-691 001.
(By adv. S. Rajeev)
This O.P having been heard on 30.09.2010, the Forum on 30.11.2010 delivered the following:
ORDER
SMT. BEENAKUMARI.A: MEMBER
The complainant's husband was a fisherman by profession and was engaged in fishing activities in and around and in the vicinity of Poonthura sea shore and having professional experience of more than 30 years. The opposite party is Insurance Company who failed to disburse insurance amount even after repeated request. Complainant's husband is a member of the Poonthura Fishing village and the Reg. No. is 350. He is also a member of Poonthura Fishing Development Welfare Co-operative Society No. F(T) 33 with his registration No. as 2352. He has been regular in paying the annual insurance premium and paid till 2002 without any fault. Due to shortage of job opportunities the said S. Thomas started working in a fishing trawler “Shree Dashami” owned by Mr. Chandrahas Amin. On 01.04.2001, as usual the said Thomas along with 7 other crew members had gone for fishing in the deep sea on the fishing trawler “Shree Dashami” about 150 km away from Panaji (Malim Fisheries Jetty), Goa coast. Unfortunately on 02.04.2001 between 2100 hrs and 2400 hrs the said Thomas was found missing from the trawler in the Arabian sea while fishing. In this connection missing person report dated 04.04.2001 stands registered at Porvorim Police station in state of Goa. Wireless messsages were sent to neighbouring states of Karnataka and Maharashtra and coastal police stations on the same day. On 03.04.2001 the owner of the fishing trawler “Shree Dashami” gave an account/report about the missing S. Thomas to Porvorim police station. All earnest efforts were initiated by the concerned authorities, but all efforts are in vain and till date no information has been received about the whereabouts of this missing person nor was his dead body recovered till date. There are eye witnesses who have seen the said Thomas on board on the fateful day. In all probabilities and from evidence one could conclusively establish and prove that the missing person is no more and not alive. Further this matter was reported in the Malayalam daily with his photograph. On 28.12.2001 a certificate of man missing (S. Thomas) while engaged in sea fishing was given by the Sub Divisional Magistrate, Thiruvananthapuram. Complainant submits that she has filed petition after petition before the opposite party claiming the insurance amount owing to man missing claim/death claim of Sri. S. Thomas, her husband. But her grievances were not redressed by telling some lame excuses one after another. On 01.09.2005 the opposite party informed the complainant through the General Manager, Kerala State Co-operative For Fishing Developments Kowdiar that they are unable to entertain her claim on the basis of some unacceptable and unbelievable flimsy grounds with the sole intention of repudiating the legal eligible claim. On 30.05.2001 the complainant caused to issue a legal notice to the opposite party calling upon him to release the entitled claim amount with interest from 2001 onwards. But instead of disbursing the insurance amount, the opposite party sent a reply stating some untenable contentions. It has been conclusively established that on the fateful day of 02.04.2001 the said Thomas was on board the fishing trawler “Shree Dashami” between 2100 hrs and 2400 hrs and the said trawler was about 150 km away from the Panaji coast of Goa. The reports submitted by the Sub Inspector of Police Porvorim police station (Goa) would lead to the unavoidable conclusiveness of the unfortunate death of S. Thomas and the complainant is entitled to get man missing claim/death claim. Complainant is a consumer and has hired the service from the opposite party by taking group insurance policy on payment of premium and for that service it has been charged and paid. Opposite party had violated the conditions of the insurance policy and is in default in paying insurance claim amount and is liable to pay the insurance amount of Rs. 1,50,000/-. Hence this complaint.
Opposite party in this case is National Insurance Company Ltd. they have filed version stating the reason for the repudiation of the claim of the complainant. Opposite party states that the complaint is not maintainable since the complainant is not a consumer as contemplated in the Consumer Protection Act. There is absolutely no bonafides in the allegations made by the complainant against the opposite party. There is no deficiency of service towards the complainant from the opposite party since she has not hired any service for consideration from the opposite party. From the averments in the complaint, it is seen that the husband of the complainant is alleged to have been engaged in fishing activities in and around the vicinity of Poonthura seashore. But it is further alleged in the complaint that the facts are in relation to a person who died at Panaji-Goa. In this connection there is no evidence at all to the effect that the complainant's husband M. Thomas, who was on board the F.T Shree Dharshini on 02.04.2001 before the said trawler left for sailing the Malim Jetty at Betim, Goa. There is no eye witness regarding the same. Hence opposite party denied the entire allegations regarding the same. The opposite party can act only as per the conditions stipulated in the Insurance Policy. In this case there is no evidence how and when the alleged incident happened. In the absence of such evidences the opposite party is not legally bound to entertain the claim application submitted by the complainant. They also submit that the claim of the complainant is against the terms and conditions stipulated in the policy and hence the repudiation of the claim by the opposite party is according to law only. The insurance company repudiates the claim based on the following:- (a) There was no eye witness who had seen so called Mr. Thomas on board in the F.T Shree Dharshini on 02.04.2001 before it sailed off Malim Jetty. (b) There was no records/statement of any crew member of F.T Shree Dharshini recorded by Porvorim Police Station that there were eye witness that Mr. Thomas was on the F.T Shree Dharshini on 02.04.2001. The opposite party further states that there is no documentary evidence to prove that when the deceased fisherman went to Goa or started working in the fishing trawler Shree Dharshini owned by Mr. Chandrahas Amin, S/o Mutappa Amin, R/o Flat No. 27 Fermina Apartments, St. Mary Colony, Miramar, Panaji, Goa. Regarding the membership in the Poonthura Fishing Development Co-operative Society No. F(T) 33 and other previous details of the deceased, complainant had to substantiate their claim through documentary evidence. The above said society and also the owner of the fishing trawler is not impleaded in this case and hence the complaint is bad for non-joinder of necessary parties. The opposite party conducted a thorough investigation regarding the alleged incident and on the basis of the investigation report and perusing the other available documents the opposite party come to the conclusion that there was no eye witness to see that the so called Thomas was on board in the trawler on 02.04.2001. They further state that if any policy is issued by the opposite party, it is subject to the conditions stipulated in the said policy and only fulfilling these conditions the complainant is entitled for the insurance claim. The opposite party has not violated any of the policy conditions as stated in the complaint. There is no illegal act committed by the opposite party as stated in the complaint. The complainant is not entitled to any reliefs prayed in the complaint and the amount claimed is without any basis.
In this case the complainant has filed proof affidavit in lieu of chief examination and the opposite party cross examined the complainant. The opposite party has also filed counter affidavit and examined the opposite party as DW1 and the private investigator of opposite party was examined as DW2. From both sides documentary evidences were produced and marked.
The points that would arise for consideration are:-
Whether the claim of the complainant repudiated by the opposite party is in accordance with the policy conditions?
Whether there has been deficiency in service from the side of opposite party?
Whether the complainant is entitled to get the benefits of the insurance policy as per the policy conditions?
Points (i) to (iii):- The case of the complainant is that her husband was one of the members of the Poonthura Fishing Development Welfare Co-operative Society No. F(T) 33 with his register No. as 2352. He has been regular in paying the annual insurance premium and paid till 2002 without any fault. Due to shortage of job opportunities her husband started working in a fishing trawler Shree Dharshini owned by Mr. Chandrahas Amin, Miramar, Panaji, Goa. On 01.04.2001 as usual the said Thomas along with 7 other crew members had gone for fishing in the deep sea on the fishing trawler about 150 km away from Panaji, Goa coast. Unfortunately on 02.04.2001 between 2100 hrs and 2400 hrs the said Thomas was found missing from the trawler in the sea while fishing. In this connection missing person report dated 04.04.2001 stands registered at Porvorim police station in Goa. All earnest efforts initiated by the concerned authorities were in vain. In furtherance of that incident the complainant submitted an insurance claim petition before the opposite party amount owing to man missing claim/death of Sri. Thomas, her husband. But the opposite party, the insurance company did not allow the claim by telling some excuses. The complainant argued that she is entitled to get the insurance benefit as per the insurance policy. To prove her contention the complainant has filed proof affidavit and produced 14 documents as Exts. P1 to P14. Complainant was examined as PW1. Ext. P1 is the I.D card of Thomas issued by Poonthura Fishermen Development Welfare Co-operative Society dated 31.01.1996. Ext. P2 is the insurance policy card of Thomas issued by Poonthura Fishermen Welfare Society. Ext. P3 is the photocopy of missing person report submitted by Chandrahasan, the boat owner before Porvorim police station dated 03.04.2001. In that report he stated that he has received a telephone message from his wife from Goa informing that one of their crew of the vessel Shree Dharshini was found missing from the vessel on 02.04.2001. Later it was revealed that the missing person was Mr. Thomas resident of Kochi, Kerala. But nowhere in the complaint it is stated that the said Thomas was a resident of Kochi. He was residing in Poonthura, Thiruvananthapuram District. Ext. P4 is the paper cutting in which the news of man missing with photo of Thomas was published. At the time of marking the Ext. P4 document, the counsel for the opposite party very strongly objected because that was only a piece of paper cutting. It was not a full paper. Ext. P5 is the certificate issued by the Fisheries Officer certifying that Thomas was a member of Poonthura Fisheries village and his Reg. No. is 350. Ext. P6 is the letter No. BC 19057/2001 issued by Sub Divisional Magistrate, Thiruvananthapuram to the Fisheries Officer, Poonthura. In that letter it is stated that a missing person report was registered in Porvorim police station, Goa as No. 14/01 dated 04.04.2001 and even after continuous investigation made by the Inspector of Police, Goa the whereabouts of Mr. Thomas are not known till 29.11.2001. There is no official seal seen in the letter. Ext. P7 is the certificate issued by the Revenue Divisional Office, Sub Divisional Magistrate, Tvpm stating that the complainant's husband Thomas is missing from 02.04.2001 onwards while engaged in sea fishing at Goa coast. A case U/c man missing has been registered in this regard by the Porvorim police, Goa and which was communicated to the Poonthura police. It is also reported that no credible information has been received on further investigation regarding the missing person till date. Ext. P8 is the photocopy of certificate issued by the police Sub Inspector, Porvorim dated 22.04.2001. In this certificate the Sub Inspector stated that a missing report No. 32/01 dated 04.04.2001 was registered in connection with the missing of complainant's husband. In that certificate he further stated that “during the course of inquiry, flashed wireless message to all sipots in Goa, Coastal P.S, Karnataka and Maharashtra state conducted enquiry into the missing person report, but nothing could be revealed about the missing person, neither anybody saw the incident of fall in the water nor his dead body was found anywhere till today. Further enquiry is in progress”. From that certificate itself we can see that nobody has seen the incident of fall in the water. In this case the owner of the vessel Shree Dharshini stated in his man missing report that Mr. Thomas was one of the crew of his vessel Shree Dharshini Fishing vessel. They went for fishing. But nobody has seen the incident that the said Thomas fell in the sea. There is no eye witness who has seen the incident and nobody has given any statement before the police authority or any other authority or before this Forum to prove that incident. Ext. P9 is the photocopy of letter sent by the police Inspector, Porvorim police station to the Police Sub Inspector, Poonthura police station. In that letter the Porvorim police inspector reported the missing of Thomas and about the enquiry they were conducted with regard to the incident. In that letter it is stated that not a single response received from any police station about his trace or about his death. The Porvorim police inspector further stated in the letter that the family members of the victim S. Thomas at Kochi, Kerala were informed by the informant privately. But the complainant and her husband are the residents of Tvpm. District. There is no pleading in the complaint nor any evidence regarding their connection with Kochi. Ext. P10 is also the missing report of Thomas issued by the Porvorim police station. Ext. P11 is the copy of lawyer's notice issued by the complainant to the opposite party dated 30.05.2006. Ext. P12 is the reply notice issued by the opposite party dated 02.07.2006. Through this letter the opposite party has repudiated the claim of the complainant on the following grounds. (a) There was no eye witness who had seen so called Mr. Thomas on board in the F.T Shree Dharshini on 02.04.2001 before it sailed off Malim Jetty. (b) There was no records/statement of any crew member of F.T Shree Dharshini recorded by Porvorim Police Station that there were eye witness that Mr. Thomas was on the F.T Shree Dharshini on 02.04.2001(date of accident). Ext. P13 is the copy of letter issued by the opposite party to the General Manager, Kerala State Co-operative For Fisheries Development Ltd. informing their inability to entertain the claim of the complainant. Ext. P14 is the reply letter issued by the police Inspector, Porvorim police station dated 20.08.2008 to the counsel of the complainant. In that letter the police inspector states that “no any charge sheet/final report is submitted/prepared in this respect and sent to the concerned authorities and no such practice exists, wherein if the missing person returns or found either dead or alive, then only the remarks to that effect is affected on register concern and on station diary”. From this letter we can understand that till now there is no final police investigation report prepared.
Contending the claim of the complainant the opposite party has filed counter affidavit and examined the administrative officer of the opposite party as DW1. The opposite party also cited the Investigation Authority as witness as DW2 before this Forum. Two documents were marked from the side of opposite party, i.e; Ext. D1 is the certified copy of policy and Ext. D2 is the investigation report prepared by private investigation agency appointed by the opposite party. As per Ext. D1 policy 'Claim for Fishermen missing while fishing at sea and presumed to be dead due to drowning shall be considered for settlement after two years subject to submission of the following documents. (a) Claim form (b) Police FIR and Final Police Investigation Report (c) Report of findings from Customs/Port Authorities (d) Affidavits from the nominee and others duly notarised (e) Certificate from Revenue Authority. At the time of cross examination DW1 clearly answered thatനഷ്ട പരിഹാര തുക കൊടുക്കാതിരിക്കാന് എന്തെങ്കിലുംകാരണമുണ്ടോ?കാരണം ഉണ്ട്. Policy issue ചെയ്യുന്പോള് തന്നെ conditions വ്യക്തമായി പറയുന്നുണ്ട്. അതിനു വേണ്ട supporting documents ആയ FIR, Death Certificate, Post Mortem Report/Port Authority-യുടെ Report ഇവയൊക്കെ വേണമായിരുന്നു. Claim-നോടൊപ്പം ആവശ്യമായ രേഖകള് ഹാജരാക്കിയിരുന്നില്ല. The counsel for the complainant further questioned that policy condition-ല് (Ext. D1 shown to the witness) last condition of the claim-ല് പറയുന്ന എല്ലാ documents-ഉം ഹാജരാക്കിയിട്ടുണ്ടോ? For which DW1 answered that “Death Certificate-ഓ police-ന്റെ final report-ഓ ഇല്ലാതെ claim settle ചെയ്യാന് കഴിയുകയില്ല. From the documents produced by the complainant we cannot see the final police report or any report from Port Authorities or the death certificate. It is specifically stipulated in the policy condition that to settle the claim the following documents will be submitted. (a) Claim form (b) Police FIR and Final Police Investigation Report (c) Report of findings from Customs/Port Authorities (d) Affidavits from the nominee and others duly notarised (e) Certificate from Revenue Authority. But complainant did not produce all these documents. As per policy condition it is necessary to submit all the documents stipulated in the policy conditions. There is no final Investigation Report from police authorities. There is no report of findings from Customs/Port Authorities. From the evidence adduced by the complainant it is seen that the investigation is going on even now (Ext. P14). And moreover in this case there is no evidence to show that the husband of the complainant is no more or still alive. And there is no clear evidence before us that the missing person was the complainant's husband Thomas or any one else. There is no eye witness to prove that Mr. Thomas fell into the sea. Nobody has given any statement before the police authorities witnessing the incident. No one of the crew has given any statement before any authority or before this Forum. The complainant has failed to prove the incident before this Forum through witnesses or documents. At the time of cross examination the complainant stated that “ടി Thomas Poonthura യിലാണ് മത്സ്യബന്ധനം നടത്തിക്കൊണ്ടിരുന്നത്. ഞാന് ടിയാന് boat-ല് കയറുന്നത് കണ്ടില്ല. ശ്രീദര്ശിനി എന്ന Boat Goa കടപ്പുറത്തുള്ളതാണ്. അതിന്റെ ഉടമസ്ഥനാരാണെന്ന് എനിക്ക് അറിയില്ല ". From the evidences adduced by the complainant it is evident that the complainant herself has no clear idea regarding the work of her husband at Goa. From the evidence and pleadings of the complainant, the complainant could not prove the incident. There was no eye witness who had seen Thomas on board in the FT Shree Darshini on 02.04.2001. There was no statement of any crew of F.T Sree Darshini recorded by Porvorim police station that there were eye witness that Mr. Thomas was on the vessel on 02.04.2001. As per the terms and conditions of the policy, the complainant has failed to submit all the documents before the opposite party to settle the claim. In this case the complainant has not produced the Final Police investigation report and report of findings from Customs/Port Authorities. Hence the complainant is not entitled to get the benefit of this insurance policy. The claim of the complainant is against the terms and conditions stipulated in the policy and hence the repudiation of the claim by the opposite party is according to law. Hence the complaint is dismissed.
In the result, the complaint is dismissed.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of November 2010.
BEENAKUMARI. A : MEMBER
G. SIVAPRASAD : PRESIDENT
S.K. SREELA : MEMBER
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C.C. No. 252/2006
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Stella
II COMPLAINANT'S DOCUMENTS :
P1 - Identity Card
P2 - Insurance policy card
P3 - Photocopy of missing person report.
P4 - Paper cutting
P5 - Certificate issued by Fisheries officer
P6 - Letter No. BC 19057/2001 issued by Sub Divisional
Magistrate, Thiruvananthapuram.
P7 - Certificate issued by Revenue Divisional Officer, Sub
Divisional Magistrate, Thiruvananthapuram.
P8 - Photocopy of certificate issued by the Police Sub Inspector,
Porvorim dated 22.04.2001
P9 - Photocopy of letter sent by the Police inspector, Porvorim
police station to the Police Sub Inspector, Poonthura police
station.
P10 - Missing report of Thomas issued by Porvorim police station.
P11 - Copy of lawyer's notice issued by complainant to opposite
party dated 30.05.2006.
P12 - Reply notice issued by the opposite party dated 02.07.2006
P13 - Copy of letter issued by the opposite party.
P14 - Reply letter issued by Police Inspector, Porvorim police
station dated 20.08.2008 to the counsel of the complainant.
III OPPOSITE PARTY'S WITNESS :
DW1 - Mallika Ganesan
DW2 - A. Santergon
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Certified copy of policy
D2 - Investigation report prepared by Private Investigation Agency.
PRESIDENT
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