IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

DATED THIS THE  19^th DAY OF MARCH 2020

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

                       Smt.S.Sandhya   Rani. Bsc, LLB ,Member

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

CC.No.39/2017

1. Kusumam, aged 52 years,W/o Babu,

           Manimangalathu Veedu,

         Cheriazheekkal Thura,

        Cheriyazheekkal P.O.,Alappadu Village.                                                                      

        (By Adv.Kunnathoor C.Gopalakrishna pillai.)

2. Sujith, aged 31 years,S/o Babu,

           Manimangalathu Veedu,

           Cheriazheekkal Thura,Cheriyazheekkal P.O.,

          Alappadu Village.

         (By Adv.Kunnathoor C.Gopalakrishna pillai.)

3. Sudthi, Aged 29 years,

         S/o Babu,Manimangalathu Veedu,                                                          

        Cheriazheekkal Thura,                                                      :           Complainants

        Cheriyazheekkal P.O.,Alappadu Village.          

        (By Adv.Kunnathoor C.Gopalakrishna pillai.)

4. Sunu, aged 26 years,S/o Babu,

                 Manimangalathu Veedu,

                Cheriazheekkal Thura,

                Cheriyazheekkal P.O.,Alappadu Village.          

          (By Adv.Kunnathoor C.Gopalakrishna pillai.)

V/S

1. Secretary,

           Cheriazheekal Matsya Thozhilali Vikasana

          Kshema Sahakarana Sangham Ltd. No.-F.Q-13,

          Cheriazheekkal P.O.,Karunagappally Pin 690573.

2. District Manager,

            Matsya Fed District Office,

            Anila House,Sakthikulangara P.O.,

           Kollam Pin 691581.:Opposite parties

(          (By Adv.Kottiyam N.Ajithkumar)

3. Managing Director,

             Matsyafed, Kamaleswaram,

            Thiruvananthapuram 695009.

4. Divisional Manager,

              United India Insurance Co.Ltd.,

             Divisional Office-II,

          2^nd Floor,Malankara Buildings,

              V.J.T.Hall Road, Palayam, Thiruvananthapuram 695034.

            (By Adv.S.Subhash Chandra Babu)

FAIR ORDER

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

This is a case based on a consumer complaint filed under section 12 of the Consumer Protection Act 1986.

2.       The averments in the complaint in short are as follows.

          The complainants are the legal heirs of late Babu who was a fisherman with registration No.1791 of Malsya Thozhilali Vikasana Kshema Sahakarana Sangham Ltd.No.F.Q-24, Cheriazheekkal P.O.  The said Babu met with an accident at about 5 A.M on 22/04/2015 in Arabian sea at about 25 nautical miles west of NTPC Kayamkulam and he died on 25.04.2015 at about 2.A.M.  The deceased was an employee having membership with Malsya Sangham registered with the 1^st opposite party and on 30/02/2015 he remitted Rs.150/- with the 1^st opposite party towards premium for the policy covering the risk against any kind of accident while doing fishing work.  The policy was taken by the 1^st opposite party through 2^nd and 3^rd opposite party. Death was due to brain stem stroke developed due to the head injury sustained on account of his fall in the boat strucking his head on the wheel house.  The Neendakara Coastal Police has registered a Crime No.07/2015 in respect of the said accident. The complainants are the legal heirs of the deceased Babu. The claim application submitted by the 1^st complainant was rejected by the 4^th opposite party through the 2^nd opposite party along letter bearing  Ref.No.Mfed/DOK/FGPAIS/2014-15 dated 23.04.2015 and a copy of another letter sent by the 4^th opposite party stating that the  Claim No-1014004215C050010001 of the 1^st complainant is not payable on the ground that cause of death mentioned in the postmortem certificate of the deceased issued from the Taluk Head Quarters Hospital, Karunagappally, is Brain Stem Stroke and the death is not due to the accident reported.  The  4^th opposite party had ignored the fact that the Brain Stem Stroke to the deceased has developed due to the head injury sustained to the deceased in the accident happened 0n 22.04.2015.  According to the complainant denial of the claim by the 4^th opposite party is against law, facts equity and justice and it is a clear deficiency in service on the part of 4^th opposite party.

3.       Opposite party No.1 & 3 remain exparte. The 2^nd opposite party filed version resisting the averments in the complaint.  According to the 2^nd opposite party the deceased Babu was not having any nexus with the 2^nd opposite party and hence they are not liable to compensate the complainants.  The 2^nd opposite party further contented that they have no right to initiate any kind of legal proceedings against the 4^th opposite party when they repudiates any insurance claim submitted through the 2^nd opposite party.  It is further contented by 2^nd opposite party that they are only an agency interlinked between the beneficiary and the 4^th opposite party that they have no authority to examine the decision taken by the 4^th opposite party in regard to their internal policy matters and it is better to approach the workmen compensation Court to ventilate their grievance as the accident alleged was happened during the course of his employment.

4.       The 4^th opposite party filed belated version. The learned counsel appearing for the complainant vehemently opposed in accepting the belated version filed by 4^th opposite party. Hence it was not accepted and the complaint has been proceeded without the version of the 4^th opposite party. 

5.       In the light of the above pleadings the following points arise for consideration:- 

1. Whether the death of the deceased Babu is accidental or natural one?
2. Whether there is any deficiency in service on the part of 4^th opposite party?
3. Whether the complainants are entitled to get Insurance claim of Rs.5,00,000/-  and compensation from the 4^th opposite party as claimed?
4. Reliefs and costs?

6.       Evidence on the side of the complainant consists of oral evidence of PW1 to PW3 and Ext.P1 to P9 documents.  No evidence either oral or documentary has been adduced by the contesting 2^nd opposite party.

7.       The learned counsel for the complainant has filed notes of argument.  The contesting 2^nd opposite party has also filed notes of argument.

8.       Heard the learned Advocates appearing for the complainant, 2^nd and 4^th opposite parties.

Point 1 & 2

9.       For avoiding repetition of discussion of materials these two points are considered together.   PW1 is the complainant who is the wife of the deceased who filed affidavit in lieu of chief examination by reiterating the averments in the complaint.  She proves Ext.P1 to P9 documents. Ext.P1 is the FIR in Crime No.07/2015 of Coastal Police Station at Neendakara. Ext.P2 is the Mahassar prepared from Neendakara Coastal Police Station.  Ext P3 is the report of Sub Divisional Magistrate Court regarding the death of deceased Babu.  Ext.P4 is the Post-Mortem Certificate issued from Karunagappally Taluk Head Quarters Hospital.  Ext.P5 is the Treatment Summary issued from Valiyath Institute of Medical Sciences.  Ext.P6 series are the Medical Certificate issued from Board of Medical experts.  Ext.P7 is the receipt dated 30.02.2015 issued from Cheriazheekkal Malsya Thozhilali Vikasana Kshema Sahakarana Sangham .  Ext.P8 is the repudiation letter issued from United India Insurance Co.Ltd.  Ext.P9 is the repudiation letter issued from Malsyafed District Office on 23.09.2015.

10.     The oral evidence of PW1 &PW3 would establish that on 22/04/2015 at about 5 a.m while the deceased Babu was returning from the deep sea, after fishing, and when the boat reached at 25 nautical mile west of NTPC, Kayamkulam, strong waves were generated in the sea and due to sudden wind and heavy rain, the boat started to oscillate and it heavily moved from side to side and thereby the deceased slipped and fell down on the wheel house of the boat strucking his head on the wheel house and thereby sustained fatal injury.   Therefore the deceased was taken to A.M.Hospital, Karunagappally and from there he was immediately referred to Valiyath Hospital, Karunagappally and on 25.04.2015 at 2 A.M. he breathed his last due to brain stem stroke developed due to the head injury sustained on account of his fall in the boat strucking his head on the wheel house.  Police has registered Crime No.7/2015 of Coastal Police station and prepared Ext.P1 FIR. PW2 doctor also has supported the version of PW1 & PW3 that death was due to the fall of in the wheel house of the boat.  According to PW2 the fall in the wheel house can be happened due to over strain of work in the boat.  Ext.P2 scene Mahazar, Ext.P3 final report of the sub divisional Magistrate Ext.P4 postmortem certificate Ext.P5 treatment summary, Ext.P6 series medical certificates issued by the board of medical experts would corroborate the version of PW1 and PW3 that the death of the deceased Babu was an accidental death while he was returning in the fishing boat after catching the fish.

11.     The learned counsel for the 2^nd opposite party has argued by relying on Ext.P8 letter dated 14/09/2015 issued from United India insurance Co.Ltd., that the death was not accidental during the course of employment and therefore repudiation of claim by 4^th opposite party is legal and proper.  

12.     However the learned counsel for the 4^th opposite party has pointed out Ext.P4 post mortem certificate and as argued that the death was not due to the result of any physical injury sustained by the deceased Babu during the fall.  But due to Brain Stem Stroke and hence repudiation of claim by the 4^th opposite party is legal and proper.  It is further argued that in Ext.P4 postmortem certificate no specific injuries has been noted and no injury seen on the skull or cranium of the deceased. Therefore there is no chance of causing death due to the injury sustained during the accidental fall as alleged. According to them PW2 doctor has also ruled out the possibility of causing death as a result of injury sustained due to the accidental fall. 

13.     In Ext.P5 treatment certificate it is stated that following the fall the deceased developed complaint of left sided weakness, dysarthria, difficulty in walking, nausea, headache and vertigo, since 5 a.m in 22.04.2015.  As per Ext.P5 medical record the cause of death is Left Hemiplegia-Right MCA territory infarct with hemorrhagic transformation and mass effect midline shift followed by transtentorial herniation.    Even if the deceased happened to hit on the wooden part of a wheel house there need not be any visible injury.  But the impact of the hit may cause Brain Stem Stroke.  Therefore absence of a visible injury on the head or any part of the deceased is not a ground to throw away the case of the complainant that the Brain Stem Stroke happened due to the impact of fall in the wheel house of the boat by hitting his head.

14.     Ext.P3 is the final report filed by the SI of police Coastal police station Neendakara  who conducted investigation in the above crime where in it is stated that deceased Babu aged 53 years while he was engaged in fishing boat by name Snehadeepam and while the boat was returning to Neendakara after fishing at about 5 A.M. on 23.04.2015 and when the boat reached 25 nautical miles west to NTPC Kayamkulam the said boat oscillated due to strong waves generated in the sea and as a result the deceased who was working as a srank nearby the wheel house of the fishing boat lost his balance and fallen down sustained injuries and was taken to A.M.Hospital, Karunagappally and thereafter Valiyath Institute of Medical Sciences, Karunagappally and while he was under treatment at said hospital brain death occurred at about 11.40 p.m on 24.04.2015.  It is also stated in P3 final report that he has caused autopsy on the body of deceased by Dr.S.K.Jolly at Taluk Head Quarters Hospital, Karunagappally and the said Dr. opined that acW ImcWw Xe-t¨m-dn-\p-­mb XSÊw aqe-amWv F¶pw(Brain Stem Stroke) CXp hoWmepw kw`-hn-¡m-sa¶v A`n-{]m-b-s¸-«n-«p-f-f-Xn-\mepw Fsâ At\-z-jWw CXn-t\mSv tbmPn-¡p-¶-Xn-\mepw Cu tIkv accidental death Bbn ]cn-K-Wn¨v tImS-Xn-bpsS ^b  \¼-dn \n¶pw Ipdhv sN¿p-¶-Xn-\mbn Cu dnt¸mÀ«v    X¿m-dm¡n  tae-[n-Im-cn-IÄ aptJ\ lmP-cm-¡n-sIm-f-fp-¶p.  The finding in Ext.P5 treatment summary issued by Valiyath Institute of Medical Sciences will probabilize the above findings of the investigating officer.

15.     In the view of the oral evidence of PW2 and PW3 coupled with Ext.P3 police report and Ext.P4 post mortem report, Ext.P5 treatment summary it is crystal clear that deceased Babu was brought to the hospital with the alleged history of fall in the fishing boat followed by loss of consciousness while fishing in deep sea and he died due to the impact of the fall by sustaining Brain Stem Stroke due to fall.  In the circumstance we have no doubt in our mind that the death of deceased Babu is an accidental death while in the course of employment as a fisherman in the deep sea.

16.     Admittedly the deceased Babu was a member of Group Personal Accident Tailor made insurance policy No.1014004215100841160 issued to the members of Kerala Fishermen Welfare Fund Board, and that policy was also live on the death.  The opposite party would admit that deceased Babu was an active fisherman and a member of Group Personal Accident Tailor made insurance policy.  It is clear from the Ext.P7 receipt that the said deceased Babu is the member of  Cheriazheekkal Malsya Thozhilali Vikasana Kshema Sahakarana Sangham Ltd.No.F.Q-24,.  The said receipt is signed by the Project Officer of Malsyafed Cluster-IV, Pandarathuruthu, Karunagappally.  It is clear from the available materials that there is an agreement/policy executed between the 1^st and 2^nd opposite party and as per the terms of the policy there is a master policy covering all active fisherman in Kerala State between the age of 18 year to 70 years and they are entitled to get insurance coverage during the relevant period.  The premium insurance is to be directly paid by the 1^st opposite party and the 2nd opposite party. It is clear that after collecting claim details from the claimants the authorized officer of the board is expected to prefer a claim and the same shall have to be forwarded to the regional office of the board with supporting documents such as FIR, Death Certificate, Postmortem certificate, inquest report, Doctors certificate regarding injury and such other relevant documents which would substantiate the claim and in such event the insurance company shall finalize the formalities of the admissible claims and compensation released within 30 days of submission of  all relevant records. 

17.     It is pertinent to point out that the schedule of coverage for claiming compensation would indicate that any accidental death due to dog bite, snake bite, due to lightning, train accident and due to any foreseen causes the claimant is entitled to get compensation.  The above schedule would indicate that even a fisherman mets death in a train accident, dog bite or snake bite lightning or due to any unforeseen causes his legal heirs are entitled to get compensation.  In the circumstances there is no justification in denying the claim lodged by the complainants on account of death of the deceased Babu due to an accidental fall when he was in the course of employment of fishing that too due to the impact of sudden wind, strong waves and heavy rain while the boat was about 25 nautical miles away from the sea shore when the deceased was returning in the boat after catching the fish.  It is crystal clear from the available materials that the death of the deceased Babu was due the Brain stem Stroke occurred due to a fall on the wheel house of the boat during the course of his employment. The opposite parties No. 1 to 3 would not have ignored the fact that the Kerala Fishermen Welfare Fund Board has been established with an object to protect the welfare of fisherman and not to protect the interest of insurance company. 

18.     On evaluating the entire materials available on record we are of the view that the rejection of claim by the 4^th opposite party is not legal and proper as the death of the deceased Babu is not a natural death but as a result of accidental fall at the fishing boat at the Arabian sea 25 nautical mile west of NTPC due to the development of sudden wind, strong waves and heavy rain . Hence it is clear that the death of the deceased Babu would come under the ambit of ‘course of employment’. In the circumstances it is clear that there is deficiency in service on the part of the opposite parties in not complying with the policy conditions of Group Personal Accidental Insurance Tailor made accidental policy and that the repudiation of claim by the 4^th opposite party is not legal and proper. On evaluating the entire materials available on the record it is clear that complainants who are the wife and children of the deceased are entitled to get compensation as indicated in the policy.   The two points answered accordingly.

Point No.3

19.     In view of the reasons stated under point No.1 &2 it is clear that the repudiation of claim by 4^th opposite party as per Ext.P8 repudiation letter is not legal and proper and the claimants who are the legal heirs of the deceased are entitled to get the benefit of the Group Insurance Policy.  In the Circumstance the 4^th opposite party shall review Ext.P8 letter of repudiation and reconsider the claim in the light of the findings in this case and shall allow the claim without any further delay.  As there is deficiency in service on the side of the 4^th opposite party insurance company, the complainants are entitled to get reasonable compensation also.  The point answered accordingly.

Point No.4

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

1. The 4^th opposite party is directed to review and reconsider the claim form filed by the 1^st complainant on behalf of herself and other complainant’s and allow the claim in accordance with the terms of insurance policy.
2. The 4^th opposite party is directed to pay compensation to the tune of 50,000/- along with interest at the rate of 9 % per annum from the date of complaint till realization as compensation for deficiency in service due to the illegal repudiation of the claim of complainants. 
3. The 4^th opposite party is directed to pay Rs.10,000/- to the complainants as costs of proceedings.
4. The 4^th opposite party is directed to comply with above directions within 45 days from the date of receipt of a copy of this order failing which complainants are entitled to recover Rs.5,00,000/-+50,000/- with interest @     9 % per annum for Rs.5,50,000/- from the date of complaint till realization along with cost 10,000/-from 4^th opposite party and its assets.
5. Opposite party 1 to 3 are directed to render necessary assistance to 4^th opposite party in the process of review and reconsideration of the insurance claim by the 4^th opposite party within the time limit prescribed in this order.

Dictated to the  Confidential Assistant Smt.Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the   19^th day of  March 2020.                                                                                                                                                 

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

           Stanly Harold:Sd/-

          Forwarded/by Order

INDEX

Witnesses Examined for the Complainants:- PW1) Kusumam PW2) Sajeesh S.R. PW3) Ramkumar

Documents marked for the complainant

Ext.P1:- FIR in Crime No.07/2015

Ext.P2:- Mahassar prepared from Neendakara Coastal Police Station

Ext.P3:- report of Sub Divisional Magistrate Court

Ext.P4:- Post-Mortem Certificate issued from Karunagappally Taluk Head Quarters Hospital

Ext.P5:- Treatment Summary issued from Valiyath Institute of Medical Sciences.

Ext.P6 series:- Medical Certificate issued from Board of Medical experts.

Ext.P7:- receipt dated 30.02.2015 issued from Cheriazheekkal Malsya Thozhilali Vikasana

             Kshema Sahakarana Sangham

Ext.P8:- repudiation letter issued from United India Insurance Co.Ltd.

Ext.P9 :-repudiation letter issued from Malsyafed District Office on 23.09.2015                           

Witness examined for the opposite party:-Nil

Documents marked for the opposite party:-Nil

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

            Stanly Harold:Sd/-

           Forwarded/by Order

           Senior Superintendent