IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the     31^st  Day of  March  2021

  Present: -      Sri.E.M.Muhammed Ibrahim, B.A, LL.M. President

           Smt.S.Sandhya Rani, Bsc, L.L.B,Member

         Sri.Stanly Harold, B.A.LLB, Member

                                               CC.213/2018

1. Dinajayan                                                       :           Complainants

         S/o Aravindakshan

        Kochu Veedu

       Vellanathuruthu Muri

       Cheriyazheekal P.O

        Cheriyazheekkal Village.

2. Vasantha

        W/o Dinajayan

         Kochu Veedu

         Vellanathuruthu Muri

       Cheriyazheekal P.O

        Cheriyazheekkal Village.

           [By Adv.C.Gopalakrishna Pillai]

V/s

1. Secretary                                                        :           Opposite parties​
   Vellanathuruth-Pandarathuruth-

          Matsya Thozhilali Vikasana Kshema Sahakarana

          Sangham-Ltd.No.F.Q-13

          Cheriyazheekkal P.O

         Karunagappally-690573.

2. District Manager

         Matsyafed District Office

          Anila House

          Sakthikulangara P.O

         Kollam-691 581.

3. Managing Director

         Matsyafed, Kamaleswaram

         Mnacaud P.O

         Thiruvananthapuram-695009.

        [By Adv.M I Alexander Panicker& Adv.Seema.C

4. Senior Branch Manager

        National Insurance Co.Ltd.

        Branch No-II

       2^nd Floor.K.K.Building

        Aristo Junction, Thampannoor

       Thiruvananthapuram-695014.

                    FINAL   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

This is a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.

The averments in the complaint in short are as follows:-

          Complainant No.1&2 are husband and wife respectively and the deceased Vishnu is the son of the 1^st and 2^nd complainant.  The said Vishnu succumbed to the injuries sustained on a road traffic accident occurred at 8 pm on 03.06.17 at the Kazhakkoottam Meenamkulam public road at Menamkulam junction.  The deceased Vishnu was a fisherman and a priest in MankuzhiKunnuVeedu Devi Temple near Pangappara, Thiruvananthapuram.  On 03.06.2017 at 8 pm while he was travelling in his motor cycle bearing Register No.KL-23/L-7542, a car coming from Thumpa to Kazhakkoottam knocked down the deceased and thereby he sustained fatal injuries to his head and cervical spine.  Immediately the persons collected there removed the deceased to Medical College Hospital, Thiruvananthapuram, but he died due to the injuries sustained.  The register number of the car is not detected sofar and the address of the person, who was driving the car at the time of accident, is also unknown till now.  Kazhakkoottam Police has registered Crime No.877/2017 but the charge could not submit so far because the car involved in the accident is not yet found out.  The deceased was a member of the Vellanathuruth-Pandarathuruth Matsya Thozhilali  Vikasana Kshema Sahakarana Sangham Ltd. No-F.Q-13, bearing membership No-MNC-925 and on 27.03.2017 Rs.178/- was remitted towards his membership fees and premium for insurance under Group Personal Accident insurance scheme.  A policy  bearing No-270202/42/17/8200000006 with effect from 01.04.2017 to 31.03.2018 was also issued by the 4^th opposite party.  The said policy was taken by the 1^st opposite party through the 2^nd and 3^rd opposite parties for the benefit of the deceased also.  After the death of Vishnu, the complainants submitted a claim petition before the 4^th opposite party through the other opposite parties for getting the insurance claim of Rs.5,00,000/- and funeral and transport expenses covered by the policy issued by the 4^th opposite party.  But the 4^th opposite party on 24.07.2017, sent a letter to the complainants, repudiating their claim on the ground that the said policy was issued to cover bonafide fisherman only.  It is also mentioned that the deceased Vishnu was a poojari of a temple for last 2 years and he was not a member of the Fisherman Welfare Fund Board.  Before issuing the said policy to cover the members of Fisherman welfare Societies all over Kerala under Group Personal Accident Insurance Scheme, the 3^rd opposite party and the 4^th opposite party executed an agreement and it is specifically stipulated in it, that “the policy is issued for members enrolled by remitting the prescribed premium as per the enrollment list submitted by Matsyafed and the 4^th opposite party shall pay to the insured to the extent and in the manner herein after provided that if any of the insured persons shall sustain any bodily injury resulting solely and directly from accident, riot, murder and terrorism caused by external, violent and visible means, the sum hereinafter set forth in respect of any of the insured persons specified in the schedule”.  The deceased Vishnu was a fisherman and was a member of the 1^st opposite party society.  He was performing the duty of a poojari temporarily, as a service without any remuneration for 3 days in a week as a substitute of the regular poojari of that temple.  The deceased was a member of the Group Personal Accident Insurance Scheme and his death is covered by the policy issued by the 4^th opposite party as per the conditions stipulated in it.  So the claim of the complainants are genuine and it is covered by the policy conditions and the complainants are entitled to get compensation from the 4^th opposite party.  Hence the complaint.

          Opposite party No.1&4 remain exparte.  Opposite party No.2&3 filed a joint written version admitting the claim of the complainant.  Op2 is the District Manager of the Matsyafed which is a Federation of Co-operative Societies formed for the welfare of the fisherman.  3^rd opposite party is the MD of Matsyafed.  Both of them filed written version by admitting the case of the complainant.  According to them on 20.03.2017 the 4^th opposite party which is the National Insurance Company has executed an insurance agreement with Matsyafed so as to cover any of the insured persons specified in the schedule appended with the agreement on sustaining any bodily injury resulting solely and directly from accident, riots, murder and terrorism caused by external, violent and visible means.  The  deceased was named as Serial No.639 in the schedule of names of members appended with the Policy agreement.  The 4^th opposite party had issued Policy No.570203/42/17/820000006 for the period from 01.04.2017 to 31.03.2018.  On the date of accident and death of the above deceased Vishnu was insured with the 4^th opposite party and the policy cover all his bodily injury and life in any accident.  So the legal heirs of the deceased Vishnu who are the complainants herein are entitled to get all the benefits under the Insurance Policy.  The complainants are entitled for death claim of Rs.5,00,000/- and funeral expense of Rs.2500.  The 2^nd and 3^rd opposite parties had already forwarded the claim form in all respects and asked the 4^th opposite party for payment of the above said amount.  But the 4^th opposite party in gross violation of their agreement repudiated the claim on the ground that the deceased was a Poojari of a temple and he was not a member of Fishermen Welfare Fund Board.  Both the above grounds for refusal of claim amount is illegal and is against the policy conditions.  Any of the insured named person are covered by the said policy and hence repudiation of claim by the 4^th opposite party is illegal and arbitrary.  The complainants are entitled for the benefits of the policy as the deceased was named in the schedule of names appended with the policy and he has paid premium before his death in the society where he is a member and there is no valid and legal reason to deny claim of  the complainants are legal heirs.  On the 4^th opposite party is liable for the claim amount and an award has been passed in favor of the complainants.

          In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service on the part of the 1^st opposite party in repudiating the claim of the complainant?
2. Whether the complainants are entitled to get the relief sought for?
3. Relief and costs

Point No.1&2

For avoiding repetition of discussion of materials these 2 points are considered together.  The 1^st complainant has filed proof affidavit in lieu of chief examination  by re-iterating the averments in the complaint and also got marked Ext.A1 to A7 documents.  Ext.A1 is the copy of the FIR and FIS in Crime No.877/17 registered by Kazhakkoottam police regarding the motor accident resulted in the death of the deceased Vishnu.  The true copy of the postmortem certificate is marked as Ext.A2.  Ext.A3 is the agreement executed between the 2^nd and 4^th opposite party which is the basis of the insurance policy.  Ext.A4 is the receipt No.9539 dated 27.03.2017 showing that the deceased Vishnu  has paid membership fee on 27.03.2017.  Ext.A5 is the true copy of the claim lodged by the complainant.  Ext.A6 is the repudiation letter dated 24.07.17 sent by the 4^th opposite party.  Ext.A7 is the letter dated 07.08.2017 sent by the complainants.  Though the 2^nd and 3^rd opposite party has filed version.  They have not participated in the trial nor adduced any evidence.  In fact they filed version admitting the claim of the complainant.

          In view of the unchallenged averments in the proof affidavit coupled with Ext.A1 to A7 document would establish that the deceased Vishnu met with road traffic accident while riding motor cycle through KazhakkoottamMenamkulam public road at about 8 p.m on 13.06.17.  later while he was under treatment at Medical College Hospital, Thiruvananthapuram  succumbed  to those injuries.  The police has recorded FI statement of the deceased and registered Crime No.877/17 and prepared Ext.A1 FIR  cum FI statement of the  relative.  The body of Vishnu was subjected to postmortem examination and issued Ext.A2 post mortem certificate.  It is also clear from the available materials that the deceased was a fishermen and also engaged in a priest that 3 days in a week in MankuzhiKunnuVeedu Devi Temple near Pangappara, Thiruvananthapuram with the main priest of the temple was absent.  Ext.A4 receipt would indicate that he was a member of the 1^st opposite party society.  Ext.A3 agreement coupled with written version filed by 2^nd and 3^rd opposite party would indicate that there is an agreement between the 2^nd opposite party District Manager of the Matsyafed with the 4^th opposite party National Insurance Company so as to cover any of the insured person specified in the schedule appended with the agreement sustaining any bodily injury resulting directly from any accident.  It is also brought out in evidence that name of the deceased was included as serial No.639 in the schedule of name of members appended with the policy agreement and 4^th opposite party had issued insurance policy for the period from 01.04.2017 to 31.03.2018.  There is no dispute with regard to the fact that incident was  happened on 03.07.17 at 8 pm and specifically the deceased Vishnu succumbed those injuries within the validity period of the insurance.  In the circumstance the legal heirs of the deceased Vishnu is entitled to get insurance claim of Rs.5,00,000/- and also the funeral expenses to the tune of Rs.2500/- as stated in the insurance policy.  It is also brought out in evidence that the complainants have filed Ext.A5 claim through the 2^nd and 3^rd opposite party and they in turn have forwarded the claim petition to the 4^th opposite party.  But the 4^th opposite party repudiate the claim and issued Ext.A6 repudiation letter dated 24.07.17 by stating  3 reasons.  The 1^st reason is that the policy was issued to cover bonafide fishermen only.  A person other than a bonafide fishermen cannot become a member of this policy.   2^nd reason is that the deceased person Mr.Vishnu, age 23 was a poojari of a temple for the last 2 years.  The 3^rd reason is that he was not a member of Fisherman Welfare Fund Board.  Hence insured person does not  fall under the scope of policy and MOU with the insured.  Ext.A3 is the agreement executed on 20.03.2017 between the 4^th opposite party and the 2^nd opposite party.  The agreement is relating to its Group Personal Accident Insurance.  It is stated that Matsyafed has approved the Group Personal Accident Insurance Scheme is offered by 4^th opposite party, for members enrolled by remitting the prescribed premium as per the enrolment list submitted by Matsyafed.  In view of the above clause it is clear that Matsyafed is the insured and National Insurance Company Ltd. Is the insurer.  The beneficiary of the insurance is the members enrolled by remitting prescribed premium as per the enrolment list submitted by Matsyafed.  It is also brought out in evidence that the deceased Vishnu whose name is enlisted as serial No.639.  It is clear that nowhere  stated in Ext.A3 agreement that only  a bonafide fisherman can become a member, even ladies can become beneficiary of the insurance.  It is clear from paragraph 3 of the joint version filed by opposite party No.2&3 that as a part of social security to the fisherman whose life are always at the risk of nature and sea. Matsyafed had taken an insurance of all the fishermen for personal accident .  It is further stated in paragraph 5 of the written version that the deceased was a member of the Vedllanathuruth-Pandarathuruth Matsya Thozhilali Vikasanakshema Sahakarana Sangham Ltd. No-F Q-13 bearing membership No-MNC-925 and he remitted Rs.178/- towards his membership fee and premium for insurance under Group Personal Accident Insurance Scheme. In paragraph 7 of  the written version it is clearly stated on the date of accident and death of the deceased Vishnu was insured with 4^th opposite party and also cover all his bodily injury, accident and life in any accident.  So the legal heirs of deceased Vishnu who are the complainants herein are entitled to get all the benefits under the insurance policy.  It is clear from the above discussed materials that the deceased Vishnu was basically a fisherman and also a member of the Vedllanathuruth-Pandarathuruth Matsya Thozhilali Vikasanakshema Sahakarana Sangham Ltd. And he is entitled to get the benefit of the insurance policy.  It is true that the deceased Vishnu is poojari of a temple  for 3 days in a week.  It is clear from the available materials that he was working as a poojari as a service without any remuneration in the absence of the main poojari of that temple.  In the circumstance there is no merit in contenting that the complainant is not as a bonafide fisherman.  There is also no mandatory provision in the insurance agreement that only a bonafide fisherman are eligible for the benefit of the insurance policy.  In the circumstance we are of the view that legal heirs of the deceased Vishnu are entitled to get the insurance claim allowed.  But it is clear from Ext.A6 repudiation letter the 4^th opposite party has repudiated the claim on invalid and improper grounds.  Therefore Ext.A6 repudiation letter is liable to be set aside and to direct the 4^th opposite party to re-consider the claim preferred by the complainant in the light of  the above observation in this order and to award compensation and funeral charge as per the terms of the policy.  It is also clear from the available materials that though the legal heirs of the deceased Vishnu are entitled to get the insurance claim allowed and funeral charges as per the terms of Ext.A3 agreement executed between the 2^nd and 4^th opposite party,  the 4^th opposite party has denied the claim and issued Ext.A6 repudiation letter.  It is also brought out in evidence that the complainants who are the parents and legal heirs of the deceased has sustained mental agony apart from monitory loss.  Therefore the legal heirs of the deceased are entitled to get compensation for not allowing the claim by raising improper grounds.  The points answered accordingly.

          In the result the complaint stands allowed in the following terms.

Ext.A6  repudiation letter dated 24.07.17 stands set aside and the 4^th opposite party is directed to reconsider the claim lodged by the complainants and sanctioned the insurance claim amount of Rs.5,00,000/- and funeral expenses to the tune of Rs.2500/- within 45 days from today.  The 4^th opposite party is further directed to pay compensation to the tune of Rs.25000/- to the legal heirs of the deceased  Vishnu with 45 days from the date of receipt of a copy of this order. The 4^th opposite party is further directed to pay costs Rs.5000/- to the legal heirs  of the deceased Vishnu. 

All other claims stands disallowed.

 Opposite party No.2 and 3 are directed to render necessary assistance for the speedy disposal of the claim by the 4^th opposite party collect the policy amount, funeral expenses and costs handover the same to the legal heirs of the decease without delay.

 If the 4^th opposite party fails to comply with the directions stated in this order the legal heirs of the deceased Vishnu are entitled to recover Rs.527500/- with interest @ 9% p.a along with costs Rs.5000/- from the date of complaint till realization from the 4^th opposite party and its assets.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the    31^st    day of  March  2021.

E.M.Muhammed Ibrahim: Sd/-

               S.Sandhya Rani: Sd/-

               Stanly Harold: Sd/-

                                                                                                Forwarded/by Order

                                                                                         Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                :  Dinajayan   

Documents marked for the  complainant

Ext.A1            : Photo copy of FIR

Ext.A2            : Photocopy of post mortem certificate

Ext.A3            : Copy of agreement executed between the 2^nd and 4^th opposite party.

Ext.A4            : Copy of receipt No.9539 dated 37.03.2017.

Ext.A5            : True copy of the claim lodged by the complainant.

Ext.A6            : Repudiation letter  dated 24.07.2017.

Ext.A7             : Copy of letter dated 07.08.2017

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil

                                                                                 E.M.Muhammed Ibrahim: Sd/-

                                                                                                                                             S.Sandhya Rani: Sd/-

                                                                                                                                                Stanly Harold: Sd/-

                  Forwarded/by Order

              Senior Superintendent