ADV. RAVI SUSHA, MEMBER.

Complaint claiming Insurance  amount with interest, compensation costs etc.

           The averments in the complaint can be briefly summarized as follows:

          The complainants are the wife and children of the deceased Stephen who  was  a fisherman by profession.   The deceased was a member of the Fisherman Development Welfare Co-operative Society Ltd. No.FQ-23 from 28.5.1991 onwards.  The 2^nd opp.party had entered into a contract of insurance with the 1^st opp.party so as to get personal accident benefits cover for a sum of Rs.1,50,000/- to the fisherman who got entrolled in to the scheme after remitting premium amount of Rs. 40 + service tax as per the list of members to be submitted by the 2^nd opp.party to the 1^st opp.party.    As per the terms of the above contract the list of members of the fisherman who remitted the premium amount  of Rs. 40+ Service charges has to be remitted to the Insurance company before the risk is to be commenced   The policy period under the above scheme was for a period of one year commencing from 31.3.2003 to 30.3.2004..  The 2^nd opp.party paid a  premium amount of Rs.13,32,324/- on 31.3.2003 towards the initial instalment seeking insurance coverage for a specific number of 31,722 fishermen and the 2^nd opp.party paid the balance premium amount of Rs.66,616/- due for the above number of fishermen covered under the 1^st policy was paid by the 2^nd opp.party on 1.4.2003.    The 1^st opp.party accordingly issued an insurance policy to the 2^nd opp.party covering specific numbers of 31,722 fishermen commencing from 31.3.2003.       The 2^nd opp.party thereafter issued a letter to the 1^st opp.party on 30.5.2003 seeking insurance coverage for 14,193 additional fishermen along with their premium amount of Rs.6,43,794   The 1^st opp.party thereafter issued a policy to the 2^nd opp.party with a specific endorsement on 30.5.2003 including the risk of the fishermen subsequently enrolled.    The 2^nd opp.party again issued a letter to the 1^st opp.party on 10.7.2003 requesting insurance coverage for an additional 171 fishermen along with their premium amount Rs.7757/-  The deceased Stephen remitted the membership fee for his insurance coverage with the 4^th opp.party on 3.4.2003 ie. subsequent to the insurance of the 1^st insurance policy commencing from 31.3.2003 for a total number of 31,722 fishermen.  Though the deceased Stephen paid the membership fee with the 4^th opp.party/Primary Co-operative Society on 3.4.2003, they have remitted the above membership fee of deceased along with membership fee of 69 other fishermen in the office of the 3^rd opp.party only on 26.4.2003 as per receipt No.2621 dt. 26.4.2003 issued by the 3^rd opp.party.    The 2^nd opp.party requested insurance coverage for additional 14193 fishermen including the deceased Stephen only on 30.5.2003 before the 1^st opp.party and accordingly the 1^st opp.party issued an additional policy with a specific endorsement covering the risk of the additional fishermen from the date of the receipt of the premium for the same.    Hence the complaint.

          The first opp.party filed version contending, interalia, that the complaint is not maintainable either in law or on facts.    The 1^st opp.party is not at all a necessary party to this complaint and the complainants have impleaded this opp.party without any bonafides and they have no manner of cause of action against the 1^st opp.party in this case..  The 1^st opp.party entered into the contract of insurance with the 2^nd opp.party granting Group Personal Accident Insurance Coverage for the Fishermen those who have enrolled into the scheme after remitting the premium amount as per the procedure framed by them.  The 1^st opp.party cover the risk of the fishermen under the Personal Accident Insurance Scheme whose premium amount has  been paid by the 1^st opp.party as per the list submitted by them seeking insurance coverage for the fishermen those who enrolled into the schemem  The risk of the fishermen enrolled into the scheme of insurance will commence only from receipt of the premium amount by the1st opp.party as envisaged under the provisions of 64 –VB of the Insurance Act.    The 1^st opp.party remitted a premium amount of Rs.13,32,324/- towards the1st instalment seeking insurance coverage for a total number of 31,722fishermen who were enrolled into the scheme.    The premium amount collected by the 4^th opp.party will be accounted with the 2^nd opp.party and the 2^nd opp.party will pay the premium amount to the 1^st opp.party seeking insurance coverage for the fishermens listed by them   The balance premium amount of Rs.66.616/- due to 31,722 fishermen was remitted by the 2^nd opp.party on 305.2003 vide cheque No.37699 dt. 31.3.2003.    On 30.5.2003 the 2^nd opp.party made a written request to this opp.party seeking additional coverage for 14,193 fishermen who were enrolled into the scheme by remitting an additional premium amount of Rs.6,43,794/-  On 10.7.2993 the 2^nd opp.party as well give a written request before this opp.party seeking insurance coverage for an additional 171 fishermen who were enrolled later into the scheme subsequently by paying an additional premium of Rs.7,757/-  The opp.party accordingly issued another policy with a specific endorsement including the additional 171 fishermen as well covering a total number of 46,086 who were enrolled into the scheme by paying the premium during the month of June 2003.  The deceased Stephen had remitted an amount of Rs.45 vide receipt No.2949 with the 4^th opp.party on 3.4.2003 ie.  subsequent to the issuance of the 1^st insurance policy covering the risk of 31,722 fishermen as early on 31.3.2003.  The amount collected by the 4^th opp.party was accounted with the 2^nd opp.party only 26.4.2003  The deceased Stephen was not included into the insurance scheme as per the request given by the 2^nd opp.party on 30.5.2003 by paying additional premium amount of Rs.6,43,794/-  The opp.party has no contractual liability to indemnify the 2^nd opp.party or to compensate the applicant in this case in the absence of a concluded contract covering the risk of the deceased in this case.   Hence the opp.party prays to dismiss the complaint.

          The 2^nd and 3^rd opp.party filed a joint version contending,  as follows:  

The  deceased A Stephen was a Fisherman and a member of Vaddy FDWCS Ltd No. F[Q] 23 with  membership No.537 and he had remitted the Insurance premium for the year 2003-04 vide Rt.No.2949 dt. 3.4.2003 at Vaddy Thangassery FDWCS [Society].  The society had remitted the premium thus collected along with the lost of fishermen enrolled to the Matsyafed District Office only on 26.4.2003 which were in turn forwarded to the Insurance Company.  The Group Personal Accident Insurance Scheme 2003-04  was implemented by the Oriental Insurance Co. Ltd., as an Insurance Scheme for Fishermen who are the members of FDWCS affiliated to Matsyafed.    As per this scheme a member fisherman has to remit Rs.45/- per year and the dependent of the diseased will get Rs.1.5 lakh as compensation for the death of the insured person in any accident.   The commencement of this scheme  The deceased fisherman’s widow Smt. Glaris Stephen, has applied for insurance claim commenced on 1.4.2003 and ended on 31.3.2004.The deceased Stephen was engaged in fishing activity at sea on 25.4.2003 and he died due to lightning at sea.   The postmortem report also says that death was due to lightning.  The claim was forwarded by the District Manager, Matsyafed, Kollam to Matsyafed Head Office Thiruvananthapuram.   Claim received at the Head Office was forwarded to the oriental Insurance Company for final settlement.  But the Insurance company had rejected   Hence these opp.parties prays to dismiss the complaint.

Points that would arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.parties

2.     Reliefs and costs.

For the complainant PW.1 is examined.   Ext.P1 to P3 series marked

For the opp.parties DW.1 is examined.   Ext.D1 to D9 are marked.

POINTS:

4^th opp.party after receiving the notice from the forum remains  absent and not filed any version or adducing any evidence.  Only other opp.parties [opp.parties 1,2, and 3] conducted the case.  Accordingly to 1^st opp.party as per section 64 VB of the Insurance Act no risk will assume by the Insurance Company unless and until the premium amount for the risk insured ha been received by the Insurance company.  The 1^st opp.party entered into the contract of Insurance with the 2^nd opp.party granting Group Personal Accident Insurance Coverage for the Fishermen those who have enrolled into the  Scheme after remitting the premium amount as per the procedure framed by them.   For showing the procedure the 1^st opp.party produced Ext. D9 document.  In Ext. D9 document it has clearly stated that if any additional fishermen to be enrolled into the scheme can be covered on payment of additional premium along with the list of members and the risk for the additional members will commence from the date of receipt of additional premium only and their risk expires on the date of the expiry of the original policy.   Through Ext.D9 commencement and duration of risk under the scheme scope of granting coverage to additional fishermen during the period of the scheme and the commencement period of risk under the policy for the additional members who  enrolled into the scheme during the policy period and the validity period of additional members coverage are proved.   Ext. D2 [a] D3[a] D4[a] show that the 2^nd opp.party seeking additional number of fishermen with remittance of their corresponding premium.   That shows that the risk for the additional members will commence from the date of receipt of additional premium only and not from the date of inception of the 1^st policy period.   Ext. D5 and Ext.P2 shows that the deceased Stephen had remitted the membership fee  with the 4^th opp.party on 3.4.2003.   Ext. D8 receipt shows that the 4^th opp.party had remitted the premium amount of additional fishermen including the deceased Stephen before the 3^rd opp.party only on 26.4.2003.   The 2^nd and 3^rd opp.party in their version admitted that the 4^th opp.party had remitted the premium amount of the deceased Stephen along with the premium of other fishermen only on 26.4.03 ie after his death.  Opp.parties 2 and 3 also admitted  in their version that the policy of the fishermen would be deemed live if only the remittance of premium along with the list of the fishermen is made to the Ext. D3[a] letter shows the 2^nd opp.party seeking Insurance coverage of the additional fishermen including deceased Stephen on 30.5.2003 ie So as per the conditions on  Ext. D9 document the Insurance coverage of the deceased Stephen is commenced only from 30.5.2003.  So the deceased Stephen is not covered under the Insurance Scheme under the policy issued by the 1^st opp.party and the repudiation of the claim in perfectly justifiable.   The learned counsel of the 1^st  opp.party has produced decisions of Apex Court reported in 1997 CPJ page 351, 2004 CPJ Vol. 4 page 49  and 1996 SC R Vol 3 page 500 in which the Apex Court held that when there is a special contract mentioned in the policy it would be operative only from the time and date mentioned in the  policy and the terms and conditions of the contract has to be contended strictly and the words of the contract has to be interpreted in which the  contract is expressed by the parties.  By considering the evidence adduced from the side of 1^st opp.party we find that there is no deficiency in service on the side of 1^st opp.party.   The repudiation of claim done by the 1^st opp.party is justifiable.   With regard to 2^nd and 3^rd opp.party even though they had not adduced any oral or documentary evidence from their side from the available documents and from the cross examination of PW.1 and DW.1 it is clear that the 4^th opp.party had remitted the premium amount of deceased Stephen along with the list of fishermen entrusted to 3^rd opp.party only on 26.4.2003 ie after the death of Stephen.   According to  the 2^nd and 3^rd opp.party since the 4^th opp.party had remitted the premium of Stephen to them after his death they have  no liability in settlement of the claim.  From the available evidence we are of the view that there is no deficiency in service on the side of opp.parties 2 and 3 also.

          Ass far as opp.party 4 is concerned, though served with a notice, chose not to file their version disputing or denying the averment made in the  complaint and the version of other opp.parties.  4^th Opp.party did not turn up to adduce any evidence at all.   We have carefully perused the complaint, version of opp.party 1, 2 and 3 and the  documents filed before the Forum.   As no evidence is adduced from the side of 4^th opp.party, from the available evidence, we find that there is  deficiency in service on the part of the 4^th opp.party.  The deceased remitted the premium amount on 3.4.2005 before the 4^th opp.party on believing that the 4^th opp.party immediately  will remit his premium amount before the 3^rd opp.party.  Hence 4^th opp.party alone is liable to pay the claim amount to the complainants.

          In the result the complaint is allowed  against 4^th opp.party.  4^th opp.party is directed to pay Rs.1,50,000/- to the complainant with 12% from 24.6. 2003 till the date of payment.   4^th opp.party is also directed to pay Rs.10,000/- as compensation and 1500/- as cost to the proceedings.   The order is to be complied with within one month from the date of receipt of the order.

          Dated this the 29^TH   day of December, 2010.

I N D E X

List of witnesses for the complainant

PW.1. – Sunil Kumar.S

List of documents for the complainant

P1. – Indentity  card

P2. – Receipt

P3. – Postmortem certificate    

List of witnesses for the opp.parties

DW.1. – Raju

List of documents for the opp.parties

D1. – Letter dt. 31.3.2003

D1 [b]. – Insaurance policy    

D2.  Coverletter dt. 1.4.2003

D2[b] Insurance policy issued by the 1^st opp.party dt. 1.4.2003

D3. – Covering letter dt. 3.5.2003

D3[b] Policy issued by the opp.party on 30.5.2003

D4. Letter dt. 10.7.2003

D4[b]Policy issued by 1^st opp.party

D5. – Application form

D6. – Receipt dt. 3.4.2005

D7. – Repudiation letter

P8. – Copy of the receipt No.2621 dt. 26.4.03

D9. – Letter dt. 7.3.2003 issued by the 1^st opp.party