By Jayasree Kallat, Member:

            Complaint is filed by Smt. Sulochana, widow of Late Mohanan who was a member N.688 of Matsya Gramam, Elathur.  On 8-2-03 when the Late Mohanan was fishing in sea in a boat along with his co-workers near Mangalore the boat capsized and all the fishermen were thrown to sea.  All the others survived except Mohanan.  The complainant and three daughters are the sole surviving legal heirs of the deceased Mohanan.  Mohanan was a member under a group accident insurance policy of opposite party-1. Premiums were being paid correctly and the policy was in existence at the time of death of Mohanan.  The sum insured was Rs.1,50,000/- the complainant preferred a claim through proper channel for the amount under insurance.  The opposite party repudiated the claim informing that the complainant was not eligible for the claim as her husband had died due to heart attack.  The postmortem report states that the “ death is due to cardiopulmonary arrest due to vagal inhibition secondary to drowning.”  It is clear that there was an inhibition caused to the vagal nerves due to drowning which caused heart attack.  The accident was directly responsible for the cause of death.  The complainant claims an amount of Rs.1,51,000/- as the insurance amount due to her.  The claim was filed as early as 13-4-03 the opposite party repudiated the claim.  The repudiation letter states that death was not due to accident but due to natural cause. Thus the claim cannot be honoured.  Opposite parties have repudiated the claim on unjustifiable grounds.  It is deficiency in service and unfair trade practice on the part of the opposite parties.  Hence the complainant had filed this petition for allowing the claim amount along with compensation and cost.

            Opposite party-1 filed a version denying averments and allegations made in the complaint except those that are expressly admitted.  The complainant is not a consumer as defined under the Act.  There is no deficiency, negligence or shortcoming for the services rendered by opposite party-1 .  It is  true that opposite party-1 issued a Group Personal Accident Policy in favour of opposite party-2 in this case, covering the death or bodily injury resulting solely and directly from accident of fishermen for the period from 31-3-02 to 30-3-03.  Opposite party-1 also admits the fact that the complainant is the nominee of the deceased Mr. Mohanan who is the beneficiary of the said policy.  Opposite party-1 had made the contract of insurance only with opposite party-2.  So only opposite party-2 is legally entitled to prefer a complaint.  Opposite party-2 also admits that they had received a claim from the complainant claiming the insured amount on the death of Mr. Mohanan who is one among the beneficiaries of the policy.  Mohanan died on 8-2-03 from a place called Surathkal.  The postmortem certificate of Mr. Mohanan revealed that the cause of death was “Drowning in sea on 8-2-03 at around 3 P.M. when the boat in which the deceased was fishing capsized.  The deceased person and others managed to swim back to boat, when the deceased person complained of severe chest pain.  He was then taken to Padmavathi Hospital where he was declared dead on arrival.”  According to the Doctor who conducted the autopsy, the cause of death was “death is due to cardiopulmonary arrest due to vagal inhibition, secondary to drowning”.  The postmortem report did not reveal the presence of water in the stomach or in the lungs, probablising the case of drowning. The opposite party had arranged for an investigation into this matter and the agency had questioned several persons including the people who accompanied the deceased Mohanan in the boat for fishing in Surathkal sea on the fateful day of 8-2-03. The investigation revealed that the boat had capsized on 8-2-03 while the deceased was fishing along with some co-workers a strong wind and heavy rain capsized the boat.  All of them were in the water when the boat overturned.  They were rescued by other boat. In the meanwhile the deceased Mohanan complained of chest pain, he was rushed to near by hospital. After examination the doctor declared the death of deceased Mohanan.  The body was sent for postmortem.  The investigating agency found that there were no symptoms supporting drowning. Opposite party-1 had also tried to find out whether the cause of death as stated in the postmortem report is true and correct.  Opposite party-1 had come to the conclusion that the deceased Mohanan the husband of the complainant in this case had died due to heart attack and not due to drowning.  If the death was due to drowning the presence of water would be noted in the autopsy report.  Opposite party-1 also states that of all the persons who had  gone fishing in the boat only one person had died.  Taking into consideration of all the factors including investigation report and the opinion given by Dr. Thomas Varghese opposite party-1 was constrained to conclude that the cause of death was not due to accident.  Hence opposite party-1 repudiated the claim and informed opposite party-2 all the facts.  The present attempt of the complainant is only experimental.  The non-presence of water in the vital organs would prove the fact in unmistakable terms that the cardiac arrest caused to Mr. Mohanan was not secondary to drowning.  But it was a simple and plain cardiac arrest.  The complainant is not entitled for any relief.  Hence the petition may be dismissed with cost to 1^st opposite party.

            Opposite parties-2 and 3 filed a version admitting the fact that Mohanan was a member of fishermen welfare board No.202.  The Fishermen Personal Accident Insurance Scheme 2002-03 was implemented through Oriental Insurance Company Ltd. for fishermen. A member fisherman has to remit Rs.30/- per year as premium and the dependent of the deceased will get Rs.1,50,000/- as compensation for the death of the insured person in any accident.  Mohanan had remitted the annual premium amount of Rs.30/- on 20-2-02 as per receipt No.8480 and enrolled in the insurance scheme.  Mohanan who was engaged in fishing activities at sea on8-2-03 died due to drowning.  Widow of Mohanan applied for insurance claim.  The claim was forwarded to Opposite party-2 and 3.  Opposite party-2 and 3 in turn forwarded to opposite party-1 insurance company for  final settlement.  But opposite party-1 rejected the claim stating that the death had occurred as a result of chest pain and not an accident.  Opposite party-2 and 3 had promptly intimated the claim to opposite party-1.  There was no lapse from the part of matsyafed in forwarding settlement of the claim.  Hence matsyafed has no liability to settle the claim.  In the circumstances the petition is devoid of merits and is liable to be dismissed.

            The only point for consideration is whether the complainant is entitled to get any relief?

            No oral evidence adduced but documents produced and marked as Ext.A1 to A6 on complainant’s side.  RW1 and RW2 were examined on opposite parties’ side.

            The case of the complainant is that her deceased husband Mohanan was a fisherman having membership in Matsyafed.  The Matsyafed had joined a Group Accident Insurance Policy of opposite party-1 Oriental Insurance Company.  Premiums were being paid correctly and the policy was in existence during the period 2002-03.  On 8-2-03 the deceased Mohanan along with his co-workers were fishing in sea off coast of Surthkal near Mangalore.  The boat capsized and all the fishermen were thrown to the sea all the other fishermen survived except complainant’s husband Mohanan.  The complainant and her three daughters are the sole surviving legal heirs of the deceased Mohanan.  Complainant had preferred a claim for the insurance policy amount from the insurance company for getting the claim amount for the accidental death policy.  Claim was put in through the proper channels but the complainant’s claim was rejected informing that she was not eligible for the claim amount, as her husband had died due to heart attack and not because of accident.  Opposite party-1 rejected the claim on the ground that the complainant was the only person who died.  All the others had survived they were taken off shore Mohanan had died later due to chest pain and heart attack.  The death was not due to drowning.  The postmortem report stated that “death is due to cardiopulmonary arrest due to vagal inhibition secondary to browning.”  Opposite party-1 insurance company had also taken the stand that there was no contract between the complainant and insurance company.  Insurance company had contract with Matsyafed but in our opinion opposite party-2 and 3 have admitted the fact that complainant’s late husband Mohanan was a member who has paid the amount for membership in the Matsyafed organization.  Matsyafed Welfare Board is formed to look after the benefits and betterment of poor fishermen going to the sea.  The Group Insurance was also arranged for the benefit of the fishermen and their family if any accident occurs to the fishermen.  In this case the complainant and her three daughters are the legal heirs of the deceased Mohanan.  As the complainant is a beneficiary she has all rights to prefer this complaint against opposite party-1.  The second fact contended by opposite party-1 is that Mohanan died due to chest pain and heart attack and not due to drowning so it was not an accidental death it was only a natural death.  The counsel for the opposite party-1 had taken the stand that the death was not due to drowning because the postmortem report did not reveal the presence of water in the stomach or in the lungs probablising case of drowning.  Opposite party-1 had taken steps to summon Dr. Thomas Varghese and Dr. Soumya to examine as witness on the side of opposite party.  The summons issued to Dr. Thomas Varghese was returned unserved.  In this instance counsel for opposite party-1 sought the permission of the Forum to examine an expert in Forensic medicine.  So opposite party had taken steps to issue sommons to Head of the Department Forensic medicines Medical College, Calicut.  Dr. Sherly Vasu, Head of the Department, Forensic Medicines, Medical College Hospital, Calicut was examined as RW2 to prove whether Mohanan had died due to drowning or not.  Dr. deposed that she had 27 years of service in Medical College Hospital.  She was M.D, in Forensic medicine.  She had conducted postmortem in bodies of drowning cases also.  The Forum was fully convinced as to the credentials and expertise of Dr. Sherly Vasu to depose in this matter.  Doctor has deposed that “ if a person drowns and dies due to cardiopulmonary arrest due to vagal inhibitions normally and invariably there will be presence of water in lungs, stomach and broncho pulmonary area is not true.  If water is thrust into the chest sudden death can occur due to shock.”  In Page No.2 Doctor also adds that “There won’t be water in the air passages, stomach etc. water might not enter into such organs.”  Again in Page-3 of the deposition of RW2 the Doctor reiterates the fact that “In most of the cases of drowning, death may occur due to sudden neurogenic shock and dried drowning also occurs which means only one or two drops may go inside.”  The evidence of RW2 is more than enough to conclude that the complainant’s husband had died due to drowning which can be called as an accidental death as it is proven beyond doubt that the deceased Mohanan had an accidental death when the boat capsized and all the fishermen fell into the sea.  As it is an accidental death opposite party-1, the insurance company is liable to pay the policy claim amount to the complainant as soon as the claim was preferred.  Opposite party-1 had hesitated in allowing the claim amount to the complainant because of a mistaken notion about drowning and heart attack.  Now the evidence of RW2 has cleared the doubt regarding the death of the fisherman Mohanan.  So we are of the opinion that the complainant is entitled for the full claim amount.

            In the result the petition is allowed directing opposite party-1 to release the claim amount of Rs.1,50,000/- with interest @ 9% per annum from 26-6-06 that is date of filing the case till realization to the complainant along with a compensation of Rs.5000/- for the mental agony and hardship she had to undergo.  Opposite party-1 are also to pay a cost of Rs.1000/-.  Opposite party is to comply the order within one month of receiving the copy of the order.

Pronounced in the open court this the 18th day of March 2009.

                                Sd/-                                                          Sd/-    

                        PRESIDENT                                                  MEMBER  

APPENDIX

Documents exhibited for the complainant

A1.  Photocopy of F.I. statement dt. 8-2-03.

A2.  Photocopy of Inquest report dt.9-2-03.

A3.  Photocopy of Post Mortem Report dt. 9-2-03.

A4.  Photocopy of paper cutting.

A5.  Photocopy of letter dt. 21-7-05

A6.  Photocopy of letter dt. 19-8-05.

Documents exhibited for the oppositeparty.

             Nil

Witness examined for the complainant

            None

Witness examined for the opposite party.

RW1.  Subash Babu, Retired Superintendent of Police

RW2.  Dr. Sherly Vasu, Professor and Head, Department of Forensic Medicine,

            Medical College, Calicut.

                                                                        Sd/- President

                        // True Copy //

                                                (Forwarded/By order)

                                                                                    SENIOR SUPERINTENDENT.