KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

     COMMON ORDER IN APPEAL NOS:151/09, 188/09 & 189/09

JUDGMENT DATED: 08-02-2011

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

SHRI.S. CHANDRAMOHAN NAIR                             : MEMBER

APPEAL NO:151/09

The Secretary,

North Malabar Gramin Bank,                              : APPELLANT

Bayar.P.O, Kasaragod.

(By Adv:Sri.Devan Ramachandran)

          Vs.

1.      Smt.Jaya.G.Bhat,

W/o Late Ganapathi Bhat,

Vatethivila House. Bayar.P.O,

Kasaragod.

(R1by Adv:Sri.B.A.Rajeevan)                   : RESPONDENTS

2.      The Branch Manager,

United India Insurance Co. Ltd.,

Padmavathi Commercial Complex,

M.G.Road, Kasaragod.

(R2 by Adv:Sri.R.Jagadish Kumar)

APPEAL NO:188/09

United India Insurance Company Ltd.,

Kasaragode Branch, R/by

Dr.Mohan Shanker, Senior Divisional Manager,

United India Insurance Company Ltd.,              : APPELLANT

Divisional Office-1, LMS Compound,

Thiruvananthapuram.

(By Adv:Sri.R.Jagadish Kumar)

Vs.

1.      Smt.Jaya.G.Bhat,

W/o Late Ganapathi Bhat,

Vatethivila House. Bayar.P.O,

Kasaragod.

(R1by Adv:Sri.B.A.Rajeevan)                   : RESPONDENTS

 2.     The Secretary,

North Malabar Gramin Bank,                             

Bayar.P.O, Kasaragod.

APPEAL NO:189/09

United India Insurance Company Ltd.,

Kasaragode Branch, R/by

Dr.Mohan Shanker, Senior Divisional Manager,

United India Insurance Company Ltd.,                        : APPELLANT

Divisional Office-1, LMS Compound,

Thiruvananthapuram.

(By Adv:Sri.R.Jagadish Kumar)

Vs.

1.      Smt.Jaya.G.Bhat,

Vatethivila House. Bayar.P.O,

Kasaragod.

2.      V.Satya Narayana Bhat,                            : RESPONDENTS

Vathethivila House. Bayar.P.O,

Kasaragod.

3.      The Secretary,

Bayor Service Co-operative Bank Ltd.,

         Bayar.P.O, Kasaragod.

(By Adv:Sri.B.A.Rajeevan)             

   JUDGMENT

JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT

The appellant in A.151/09 is the 1^st opposite party/North Malabar Gramin Bank in CC.201/05.  The appellant in A.188/09 is the 2^nd opposite party/Insurance Company in CC.201/05 and the appellant in A.189/09 is the 1^st opposite party/Insurance Company in CC.200/05.  The Appeal-151/09 and 188/09 has been filed over the order of the Forum in CC.201/05.  The appeal-189/09 is filed over the order in CC.200/05 in the file of CDRF, Kasaragod.

2.      The complainants in both the CCs are the same ie, the legal representatives of the deceased Ganapathy Bhat who had availed loan under Kissan Credit Card and was covered by the Group Insurance policy issued by the United India Insurance Company Ltd.  The loan involved in CC.201/05 was availed through North Malabar Gramin Bank, the 1^st opposite party therein who has filed Appeal-151/09.  The loan involved in CC.200/05 was availed from the 2^nd opposite party ie Bayor Service Co-operative Bank Limited.  The Forum has directed the opposite party/Insurance Company in CC.201/05 to pay the assured sum of Rs.50,000/- to the complainant.  The Forum has also directed the 1^st opposite party bank to pay interest at 9% on the sum of Rs.50,000/- and also to pay Rs.2000/- towards cost.  Hence the bank has filed the appeal ie. Appeal-151/09 in CC.200/05.  The Insurance Company is directed to pay a sum of Rs.50,000/- to the complainant with interest at 9% per annum from the date of complaint and also directed to pay Rs.2000/- towards cost in CC.201/05.  The group insurance policy with the assured sum of Rs.50,000/- covered accidental death and specified injuries.  It is the case of the complainants that the deceased died as a result of the shock when the cow of a cross breed variety that he used to milch twice daily attacked him.  It is stated that on 11/3/2004 at about 3.30.pm as usual when he was milching the cow and when milching was in progress the cow got suddenly irritated and became violent, lifted its back leg and attempted to kick him.  The deceased got upset and while moving back in his attempt to avoid the kick he fell down.  Immediately the cow changed its position towards the deceased Ganapathy Bhat with noisy puffs and hissing sound and tried to attack him with his horns and at the time due to extreme fear and shock the deceased had heart attack  the wife of the complainant and one Narayana.C.H witnessed the incident.  Immediately the doctor was brought and the doctor declared that the deceased died due to heart attack on account of extreme fear and shock.  It is stated in CC.200/05 that a claim application was filed on 20/3/2004 before the 2^nd opposite party Bayor Service Co-operative Bank.  There after the complainant filed a detailed claim on 5/4/2004.  Thereafter the officials of the Insurance Company recorded the statement of the wife of the deceased and she signed the same.  Subsequently the insurance company repudiated the claim.

3.      In CC.201/05 also the case of the complainant/wife is the same.  It is further mentioned that although the claim application was filed on 20/3/2004 before the 1^st opposite party/North Malabar Gramin Bank. The bank first rejected the claim without forwarding a proper claim to the Insurance Company.

The insurer who is the 1^st opposite party in CC.200/05 and the 2^nd opposite party in CC.201/05 have filed version contending that the death of Ganapathy Bhat was on account of myocardial infraction that took place in the natural course and no accident as such is involved.  It is contended that the case of the cow attacking etc. are all false.  It is further pointed out that the postmortem report which is a pre condition for the claim was not produced.  Further none of the documents produced support the alleged case of accidental death.

4.      In CC.200/05 the 2^nd opposite party Bayor Service Co-operative Society Limited has supported the case of the complainant.  In CC.201/05, the 1^st opposite party/North Malabar Gramin Bank has supported the case of the insurer and contended that the death was a natural death and that no accident was involved.  It is contended that the policy coverage is only with respect to accident caused by external violent means.

5.      The evidence adduced in CC.200/05 consisted of the testimony of PWs 1 to 3, DWs 1 and 2, Exts.A1, B1 to B6 and X1 series and the evidence in CC.201/05 consisted of the testimony of PWs 1 and 2, DWs 1 and 2, Exts.A1 and A2 and B1 to B4.  The evidence of PW3, the doctor in CC.200/05was adopted in CC.200/05.

6.      The Forum discarded the evidence of DW1, the investigator appointed by the insurance company.  The same investigator was examined as DW1 in CC.201/05 also.  The Forum has further observed that the relevant procedure for examining the genuineness of the claim was not complied with by the North Malabar Gramin Bank in CC.201/05.  Ext.B3 circular issued from of the North Malabar Gramin Bank Head office envisaged vide clause 9 therein envisaged  a report of the claim enquiry by the committee consisted of the Branch Manager of the bank, the officer of the head bank and a nominated officer of the insurance company.  The above procedure was not complied with and the bank rejected the claim without forwarding the same to the insurance company.  The Forum believed the case of the complainant as to the incident and held that the death was due to shock and resultant heart attack and hence the same can be treated as accidental death due to external violent means as envisaged under the policy.

7.      It was stressed by the counsel for the insurance company that there was no claim submitted before the insurance company in CC.201/05.  It is further contended that nowhere in the requisition submitted by the complainant in both the cases or in the claim submitted in CC.200/05 the case of accident has been mentioned.  In CC.200/05 the concerned bank ie Bayor Service Co-operative Bank had forwarded the claim and on the basis of which the insurance company had got the matter investigated.  As in both the matters the incident is the same the report of the investigator was relied on.  The contention that there was no claim in CC.201/05 is only technical in nature and as the Insurance Company was fully aware of the policy claim.

8.      Of course we find that Ext.A1 intimation in CC.200/05 and Ext.B4 intimation in CC.201/05 only mentions that the assured died on 11/3/2005 and that due to the sudden and totally unexpected death the complainant has no means to clear his liability and hence she has requested to grant the benefit under the Personal Accident Insurance of Kissan Credit Card Holder.  In Ext.B2 the accident particulars was submitted by the 2^nd complainant in CC.200/05 is the son of the deceased.  It is only mentioned as myocardial infraction at 2.30.pm against the column: nature of accident (give full details).  It is also mentioned that the matter has not been reported to the police station.  Ext.B2 is signed by the 2^nd complainant, son in CC.200/05 and by the Bank Manager/Bayor Service Co-operative Bank.  It is the contention of the counsel for the respondent/complainant that the details were not incorporated on account of the lapse on the part of the concerned bank officials.  It can be seen from Ext.X1 series, the Bank/Bayor Service Co-operative Bank forwarded the claim to the insurance company on 6/4/2004.  The concerned bank official therein in CC.200/05 was not examined.  It is also pertinent to note that Ext.A2 death certificate issued by PW3, the doctor also mentions that the death was due to myocardial infraction (heart attack).  It is not mentioned therein that the deceased had heart attack consequent on the attack by the cow it is contended.  PW3, the doctor who was examined in CC.200/05, has stated that on reaching to the house of the deceased he was informed as to the incident as the cause of death that while the deceased was milching the cow the cow attempted to attack him and he fell down in the cow shed and developed heart attack.  He has stated that heart attack may result due to extreme and sudden fear.  He has also agreed with the suggestion of the counsel for the complainant that if a person is milching a cow and if the cow suddenly got upset and lifted the leg to kick and if the person falls down and the cow tried to approach him by puffing and hissing the same may be result in heart attack due to extreme fear.  He has stated in cross examination that the deceased was his patient since 16 years.  He has stated when he reached the house of the deceased, the person was already dead and must have died half an hour prior to his arrival.  He has not noted any external injury on the body.  He is having MBBS degree. It was one Prakash Bhat who came to him to take him to the house of the deceased who narrated the incident.  He has stated that he has not asked anybody else about the accident.  He has denied the suggestion that the deceased died when he was washing his hands after taking food at about 1.30 pm.  He has denied his suggestion that accordingly he hold the complainant.  PW1 the wife of the deceased was justified in both the cases has deposed as further averments in the complaint.  She has stated that he is not conversant in Malayalam and that the statement involved by the record in Malayalam and the investigator has spoken in broken Kannada.  DW1 the investigator has also justified that he can speak in Kannada, only in broken Kannada and that he is not conversant in the above language.  She was not aware of the accident of the loan amount etc.  Her husband was an agriculturist.

9.      We find that nothing has been brought out in the cross examination of PW1 indicate that he is speaking falsehood.  No affinity on the part of PW3 the doctor towards the complainants was also brought out.  Hence we find no reason as such to disbelieve the version of PW3 the doctor that on reaching the use of the deceased he was told about the incident.  The fact that the Bayor Service Co-operative Bank/2^nd opposite party in CC.200/05 has totally suffered the case of the complainant is a strong circumstance in favour of the case set up by the complainant.  We are in full agreement with the observation of the Forum regarding the evidence of DW1, the investigator of the insurance company.  Of course there are lapses on the part of the complainant and the bank’s concerned.  The loan schemes and the group insurance coverage is meant for the low income group agriculturists and hence awareness of the technical formalities on their part cannot be interfered.  The 1^st opposite party bank in CC.201/05 has not complied with the provisions of Ext.B3 circular issued by the head office of the bank.   Without holding enquiry as contemplated in clause 9 therein the North Malabar Gramin Bank ought not to have rejected the claim.  The 2^nd opposite party bank in CC.200/05 has not at all helped the complainant in properly filling up Ext.B2 the particulars of the incident for the claim.  The concerned Manager ought to have seen that the relevant particulars of the incident are incorporated in Ext.B2.  Death certificate issued by the private doctor did not incorporate the relevant details.  So far as the insurance company is concerned the above are more sufficient to repudiate the claim.  In CC.201/05 the bank did not even forward the claim to the insurance company.  Essentially the cause of death as stated by the complainant appears true.  In the circumstances the order of the Forum in both the cases are modified as follows:-

10.    In CC.201/05 the insurance company is directed to pay a sum of Rs.50,000/- to the complainant.  The direction to pay interest and cost by the 1^st opposite party, North Malabar Gramin Bank is sustained.  In CC.201/05, the insurance company is directed to pay the assured sum of Rs.50,000/- to the complainant.  The direction to pay interest at 9% and cost of Rs.2000/- is set aside.

In the result A-151/09 and A.188/09 are dismissed and A-189/09 is allowed in part.

The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% from 08-02-2011, the date of this order.

Office will forward the LCR along with the copy of this order to the Forum.

JUSTICE K.R. UDAYABHANU:  PRESIDENT

S. CHANDRAMOHAN NAIR : MEMBER

VL.