By Jayasree Kallat, Member:

            This complaint is filed by Sulochana, Widow of Late Mohanan.  Mohanan was a member of Elathur Matsya Gramam Membership No.688.  He was also a member of opposite party-1 No.202 and member of opposite party-2 No.224.  On 8-2-03 when the complainant’s husband Mohanan was fishing in sea in a boat along with his co-workers at a place called Suratkal near Mangalore, the boat capsized and fishermen were all thrown to sea.  The complainant’s husband Mohanan died and others survived.  Complainant and her three daughters are the sole surviving legal heirs of the deceased Mohanan.  The deceased Mohanan was a member under a group monetary aid scheme of opposite party-2 through 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.1,00,000/-.  The complainant preferred a claim through proper channel for the amount due to her and her children.  She was informed that she was not eligible for the claim as her husband had died due to heart attack.  The claim was repudiated on 21-4-05.  The repudiation of complainant’s claim is untenable which amounts to deficiency in service as well as unfair trade practice on the part of opposite parties.  Hence the complainant has filed this petition for getting the claim amount along with compensation and cost for the pain and suffering and mental agony she had undergone.

            Opposite party-1 filed a version.  Opposite paprty-1 admits the fact that deceased Mohanan, complainant’s husband was a member in the Accident Insurance Policy of opposite party-1 during the year 2002-2003 Mohanan became a member in the scheme on20-2-02.  On 8-2-03 Mohanan died during the course of fishing.  In the version opposite party-1 also admits that it was written in the Postmortem report that Mohanan died because of heart attack due to his fall in the water while fishing.  Opposite party-1 had submitted the claim preferred by Smt. Sulochana before Oriental Insurance Company.  Insurance company repudiated the claim on the ground that Mohanan had died due to heart attack and not because of any accident.  Opposite party-1 in the version states that as it is the insurance company who has to allow the claim opposite party-1 has no role.  Hence they are to be exempted from this case.

            Opposite party-2 also filed a version denying the averments contained in the complaint.  Opposite party-2 contends that it is incorrect to say that Mohanan died due to the alleged incident which happened on 8-2-03.  All the others in the boat survived except Mohanan.  Opposite party-2 admits that Mohanan was a member of Kerala Fishermen’s Welfare Fund Board but denies that opposite party-2 has collected any premium from members of the board.  No consideration had been obtained by the board from the deceased Mohanan.  The claim put forward was not within the purview of guidelines, which says that the death shall be due to accident.  The claim was rejected because the death was due to cardiopulmonary arrest due to vagal inhibition secondary to drowning.  The complainant’s husband died due to cardiopulmonary arrest not because of drowning.  If it was an accident everybody in the boat might have suffered the same.  The accident has got nothing to do with the death of Mohanan.  The claim was repudiated on lawful and valid grounds.  There is no unfair trade practice on the part of second opposite party.  There is no deficiency of service done by second opposite party.  The second opposite party is not liable to pay any amount to the complainant on any ground.  There is no basis for claiming compensation.  Opposite paprty-2 prays to dismiss the complaint with cost to second opposite party.

            The only point for consideration is whether the complainant is entitled for the relief sought.

            No oral evidence adduced on the part of the complainant.  The complainant has produced documents marked as Ext.A1 to A10 to prove the case of the complainant.

            It is an admitted fact that deceased Mohanan, complainant’s husband was a member in the Elathur Matsyathozhilali Vikasana Kshema Sahakarana Sangam Ltd..  He was also a member of Kerala Matsya Thozhilali Welfare Fund Board.  Opposite party-2 had taken a contention that deceased Mohanan has not paid any consideration.  Ext.A7 document, the pass book produced and marked on the side of the complainant clearly shows that Mohanan was a member of opposite paprty-2 membership number is 688.  The contents of Ext.A7 pass book would go to show that Mohanan had remitted membership fee in the opposite party-2 Welfare Fund Board.  Ext.A8 series and Ext.A9 also shows that Mohanan had remitted towards insurance premium.  Documents A8 series and Ext.A9 and Ext.A10 would clearly show that Mohanan was a member in opposite party-1 and 2.  He had paid as remittance, which clears the fact that he had paid consideration and hence he is a consumer within the purview of Consumer Protection Act.  Opposite parties had repudiated the claim of the complainant stating that the death of complainant’s husband deceased Mohanan was due to heart attack.  According to opposite party-1 and 2 it was not an accident.  In the Postmortem report (Ext.A3) it is stated that in the column of final opinion as the cause of death ( Death is due to Cardiopulmonary Arrest due to Vagal inhibition secondary to drowning).  Opposite party has taken this as the death was due to heart attack and not due to drowning.  Opposite party repudiated the claim on the ground that Mohanan died due to heart attack and not due to drowning.  This claim cannot be allowed as claim for death due to accident.  Opposite party does not see heart attack as an accident.  In this instance the counsel for the complainant filed an I.A. petition No.I.A.168/08.  This I.A. was an application stating the fact that in both C.C.236/06 and C.C.237/06 the facts of the case are the same.  Complainant’s husband was a fisherman who was a member in the opposite party-1 and 2 organisations.  He had paid for membership and premium for the policy which was for claim when died due to accident.  During the course of fishing in boat with other members, in the off coast of Suretkkal in Mangalore the boat capsized in the sea and all fishermen fell over board.Then they were taken to off shore the complainant’s husband died because of cardiopulmonary arrest due to vagal inhibition secondary to drowning.  Opposite parties had taken a contention that deceased Mohanan had died due to heart attack and not drowning.  In C.C.237/06 the Opposite party Oriental Insurance Company had sought the evidence of Dr. Shirly Vasu who was examined as RW2, to prove the fact that Mohanan had died due to heart attack and not drowning, which was not an accident.  The counsel for the complainant had sought permission to accept the evidence of Dr. Shirly Vasu, RW2 in C.C.237/06 to be taken as evidence in C.C.236/06 also by filing I.A.168/08.  This I.A. was allowed.  Hence the evidence of RW2 Dr. Shirly Vasu can be accepted in this O.P. also.  RW2, H.O.D. of Forensic Department in Medical College, Kozhikode is considered to be an expert in the matter as in this case.  In Page No.2 the Dr., RW2 states that “ if water is thrust into the chest sudden death  can occur due to shock.”  She also adds “ There are several forms of death which will occur due to contact of water, shock due to drowning and death is known as sudden immersion death.”  In Page-3, RW2 states,                     “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.”  We can take the evidence of RW2 as a concrete proof to show that the deceased Mohanan had died due to drowning when the boat capsized in the sea.  As this is proved to be an accident the opposite parties are liable to pay the claim amount to the complainant.  Hence we are of the opinion that the complainant is entitled to get the relief sought for in the petition.

            In the result the petition is allowed and the opposite parties are directed to pay the claim amount of  Rs.1,00,000/-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 sustained by the complainant along with cost of Rs.1000/-.  The opposite parties are 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 papercutting.

A5.  Photocopy of letter dt. 21-7-05

A6.  Photocopy of letter dt. 19-8-05.

A7.  Pass Book.

A8.  Receipts dt.23-3-96 and 20-02-02.

A9.  Receipt

A10. Photocopy of guidelines.

Documents exhibited for the oppositeparty.

             Nil

Witness examined for the complainant

            None

Witness examined for the opposite party.

               None

                                                                        Sd/- President

                        // True Copy //

                                                (Forwarded/By order)

                                                                                    SENIOR SUPERINTENDENT.