IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

Wednesday  the 28^th  day of  Febrauary,2018

Filed on 31.03.2017

Present

1. Smt. Elizabeth George (President)
2. Sri. Antony Xavier (Member)
3. Smt.Jasmine.D. (Member)

in

C.C.No.94/2017

between

     Complainant:-                                                                  Opposite Parties:-

1.   Smt. Muthamma,K                            .                      1.          Kerala State Insurance Dept.

      W/o Sunilkamar                                                                     Insurance directorate

 Ayyamparambu Nalupurackal)                                              Trans Towrs, Vazhutahakadu

 Punnapra.P.O, Alappuzha                                                      Thaikadu.P.O Thiruvananthapuram

2.   Neetha Sunil

  D/o Sunil Kumar                                                       2.         Commissioner

      -do-                                                                                   Kerala State Fishermen Welfare

3.   Nithya Sunil                                                                          Fund Board, Poonkunnam.P.O

 D/o Sunilkumar                                                                      Trissur

4. Nimya SunilOffice, Alappuzha

D/o Sunil kumar

      -do-

 (Adv.Jose.Y.James)

O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)

The case of the complainant is as follows:-

           Complainant are the legal heirs of deceased Sunil kumar.  Sunil Kumar was a fisherman and was a member of Punnapra South Mathsya Gramam.  On 22/4/2016,   Mr. Sunil Kumar fell down from a tree and that caused serious injuries and as result he died.  The deceased Sunilkumar had taken a policy in Group Insurance Scheme implemented by the 1^st opposite party.  The 1^st complainant, the wife of deceased applied for the insurance scheme.  But it was repudiated.  Alleging deficiency in service on the part of the opposite party the complaint is filed. 

2. Version of the 1^st opposite party is as follows:-

          The deceased Sunilkumar was a member of the Punnapra South Matsya Gramam. He had taken a policy in the fisher men group insurance scheme operated by the 1^st opposite party.  The insurance protection was given only for the accidents occurred in connection with fishing.  The accident occurred while Mr. Sunil kumar was engaged in cutting the tree.  More over at the time of the accident Mr. Sunil Kumar was under the influence of Alcohol.   So the legal heirs are not entitled to get compensation.

3. Version of the 2^rd opposite party is as follows:-

          Mr. Sunil kumar was a member of Punnapra south Matsya gramam and on 22/4/2016, since his employment in the fishing field was not good, he engaged in wood cutting and while he doing so he fell down from the tree and that caused his death.  After getting the application for financial benefit, they have sent all the documents to the Fisheries office and the fisheries officer after making enquiry filed final report before the fisher men welfare board, Regional office.  There after the Board recommended to the 1^st opposite party to give the insurance claim of Rs. 5 lakhs to the wife of the deceased Sunil Kumar.  But the application was rejected since there was alcohol presence in the blood as per the chemical analysis report.

4. Version of the 3^rd opposite party is as follows:-

Complainant was not a member of insurance scheme of 3^rd opposite party.  The complaint is related to the Fishermen welfare board.

5. Complainant was examined as PW1; the documents produced were marked as Ext.A1 to A5.No oral evidence adduced from the part of the opposite party.

     6. The points for considerations are:- 

1. Whether there is any deficiency in service on the part of the opposite     party?
2. If so the reliefs and costs?                                                                                                                                                    7. Complainant is the legal heirs of the deceased Sunilkumar.  Ext.A5 the heir ship certificate evidenced the same.   It is an admitted fact that deceased Sunilkumar was holding member ship No. 1518 in the punnapra south matsya gramam.  It is also an admitted fact that while he was cutting a tree, he fell down from the tree and that caused serious injuries to him and as result he died on 22/4/2016.    According to the complainants the claim for insurance benefit was repudiated by the 1^st opposite party stating that deceased Sunilkumar was under the influence of Alcohol at the time of accident.  The contention of the 1^st opposite party is that the accident occurred due to the fall from a tree while the deceased was cutting the wood which has no nexus with fishing.  The 1^st opposite party filed version stating that since there was no adequate income from the fishermen’s job the deceased sunil kumar was compelled to engage in wood cutting.  More over the opposite party admitted that he was holding a membership in the matsya gramam at the time of accident.  Apart from that the 1^st opposite party had not produced any documents to prove that the insurance benefit is allowed only for accidents while engaged in fishing.  Fishermen’s job is seasonal and there are  days the fishermen could not go for fishing in the sea, due to various reasons and in such occasions, they used to engage in other jobs temporarily for their livelihood and that does not mean, they left the fishermen job for ever.  Hence that contention raised by the 1^st opposite party is untenable.  Another contention of the 1^st opposite party is that during the time of accident the deceased Sunilkumar was under the influence of Alcohol.  Ext.A1 is the FIR and FIS.  In Ext.A1 under the title FIR contents it is noted as “hogvNbn sh¨v Snbmt\ä ]cn¡nsâ ImTn\y¯m acWs¸«p t]mbn”.  It is also stated that “ Death was due to polytrauma (multiple injuries sustained to chest , spine and abdomen).  The pattern of injury was consistent with the given history of fall from height.”    Hence it is clear from Ext.A1 and Ext.A2 that Mr. Sunil kumar died since he fell down from height.  But the 1^st opposite party repudiated the claim relying the chemical analysis report.   The said report is produced by 1^st opposite party and marked as Ext.B1.  In the Ext.B1 report it is stated that Ethyl Alcohol was detected in the blood sample and contained 56mg (Fifty Six Milligrams) of Ethyl Alcohol in 100 ml (One hundred milliliters) of blood. No other poison was detected in the blood sample.  Learned counsel of the   complainant produced decision of the Hon’ble National Commission in Revision Petition No.2433/2007 Life Insurance co operation of India and another   Vs. Smt. Ranjith kaur, where in Hon’ble National Commission held that the Alcohol concentration in the blood viscera to the extent of 86.25mlgm/100ml of blood could not to be treated as conclusive proof that the insuree was intoxicated at the time of his death. The specific clinical picture of Alcohol intoxication also depends on other factors such as quantity and frequency of consumption and duration of drinking at that level and, therefore, mere presence of alcohol even above the usually prescribed limits is not a conclusive proof of intoxication.  As per the postmortem report the deceased died due to the fall from a tree.  There is no evidence that there was nexcess between the death caused by the fall from a tree and consumption of liquor.  From the above discussion we are of opinion that repudiation of the claim of the complainant by the 1^st opposite party is not justified and that amounts deficiency in service. 

In the result the complaint is allowed.The 1^st opposite party is directed to pay an insurance claim of Rs. 5,00,000/- (Rupees five lakhs only) to the complainant.The 1^st opposite party is further directed to pay Rs. 2000/-(Rupees Two thousand only) towards cost of proceedings to the complainant.Order shall be complied within one month from the date of the receipt of this order, failing which the amount shall carry interest at the rate of 8% per annum from the date of complaint till realization.

Dictated to the   Confidential   Assistant   transcribed   by   her   corrected by  me and  pronounced in open Forum on this the 28^th  day of February, 2018.                                                                                                       

  Sd/- Smt.Elizabeth George (President) :

                                                            Sd/- Sri. Antony  Xavier (Member)      :

                                                            Sd/-  Smt.Jasmine.D. (Member)            :

Appendix:-

Evidence of the complainant:-

PW1            -        Muthamma.k (witness)

Ext.A1        -        FIR

Ext.A2        -        Copy of Postmortem Certificate

Ext.A3        -        Copy of Fishermen Membership pass book

Ext.A4        -        Copy of Ration Card

Ext.A5        -        Copy of Legal Heir Ship

Evidence of the Opposite party: - Nil        

// True Copy //                   

                                                       By Order                                                                                                                               

     Senior Superintendent

To

         Complainant/Opposite parties/S.F.

Typed by:-br/- 

Compared by:-