<br /> <br /> <br /> By SRI.K. VIJAYAKUMARAN ACHARY, PRESIDENT.<br /> <br /> <br /> This is a complaint for settling the Insurance claim in respect of deceased Thankappan Unnithan subscriber No.3007477 covered under Group Insurance Scheme implemented by the 2nd opp.party.<br /> <br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant is the widow of late Thankappan Unnithan who was drowned to death in an accident on 30.5.1999.. He was a regular subscriber of the Mathrubhumi daily publish by the 2nd opp.party vide subscriber NO.3007477. The diceased was a beneficiary covered by the Group Insurance Scheme introduced by the 2nd opp.party for the benefits of its subscriber with the first opp.party. The complainant is the legal representative of the diceased and she had preferred a claim for settlement of the amount with the first opp.party . The 1st opp.party instead of honouring the claim arbitrarily required the complainant to produce the chemical analysis report and details of an insurance policy which was settled by the first opp.party in connection with the death of Thankappan Unnithan. The above two documents are totally irrelevant for the settlement of the claim. The documents required for disposing the claim was already submitted by the complainant before the first opp.party. The complainant by letter dated 3.10.2002 had intimated the opp.parties that there is no chemical analysis report available in the above occurrence and the police had already closed the investigation as it was an accidental drowning. Thereafter, the complainant sent a registered letter dated 1.10.2002 to the opp.parties. But the opp.parties replied stating false allegations. The refusal on the part of the first opp.party to honour the policy claim amount to defect or deficiency in service on their part. Hence the complaint.<br /> <br /> <br /> The opp.party 1 and 3 filed a joint version contending, interalia, that the complaint is not maintainable either in law or on facts. There is no consumer relationship between the complainant and these opp.parties. The complaint is barred by limitation and therefore the complaint is liable to be dismissed in limine. The complaint is bad for non-joinder of necessary parties as the legal heirs of the deceased are not imp leaded in the complaint and on that ground also the complaint is not maintainable. It is admitted that the diseased Thankappan Unnithan was a subscriber of Mathrubhoomi daily published by the 2nd opp.party. Consequent to the death of the diseased the Kunnicode police had registered a case as Crime NO.151/99 under section 174 Cr. P. C and after investigation of the case the SI of Police Kunnicode had submitted a final report on 8.6.99 stating that the diseased was in a drunken state at the time of accident and due to the intoxication he happened to fall in a rivulet and as a result he died. The postmortem was conducted on 1.6.99 in which it is stated that stomach contained a handful of sift whitish identifiable food particles having a sour smell, mucosa soft and red. It is further stated that viscera and urine preserved and sent for Chemical Analysis Test done with tissue bits and water sample revealed negative result. So from the report it is clear that a chemical analysis and Diatom Test were done in this case. So the averment that there is no chemical analysis report available is not correct. So also no details are furnished with regard to the settlement of the earlier claim. The complainant had submitted a claim form before the 2nd opp.party and issued a letter to the 1st opp.party with regard to the settlement of claim. As per letter dated 3.9.1999 the first opp.party informed the 2nd opp.party to direct the complainant to produce the final report from the police which was produced. <br /> <br /> After perusal of the final report the first opp.party informed the 2nd opp.party that since the death occurred due to drowning while under the influence of intoxicating liquor, this opp.party is not liable to pay any amount under the policy and hence the claim was repudiated on the same day. On 8.7.2007 the 2nd opp.party issued a letter to the first opp.party to subrogate the claim at earliest. Thereupon the 1st opp.party on 19.1.2001 and 28.1.2001 informed the 2nd opp.party to direct the claimant to produce the chemical analysis report and details of the claim settled by New India Assurance Company in connection with the death of Thankappan Unnithan for which the complainant made an evasive reply, but not submitted the documents . The above 2 documents are highly necessary; the complainant had issued a lawyer notice to the first opp.party for which the first opp.party give a reply notice. The chemical analysis report is very vital in this case which was not produced by the complainant in spite of repeated demands. There is no deficiency in service on the part of the 1st and 3rd opp.parties are not liable under the policy for the death occurred whilst under the influence of intoxicating liquor. Hence they pray to dismiss the complaint.<br /> <br /> The 5th opp.party filed a version contending, interalia, that the complaint is not maintainable either in law or on facts. The complaint is barred by limitation. The complainant is not a consumer within the meaning of section 2 [1] [d] of the Consumer Protection A 1986. The issuance of Insurance policy to the subscribers of Mathrubhoomi is only an additional attraction given to the subscribers . The subscribers are only paying the monthly subscription for the Mathrubhoomi daily which they have subscribed and no additional charges have been levied from the subscribers for the Insurance Policy. The issuance of Insurance policy to the subscribers was not an intrinsic part of the deal for which payments was made. Thus as far as the insurance scheme is concerned , it cannot be said that the present complainant was a consumer who had hired any service for consideration. The complaint is bad for non jointer of the necessary parties since the complaint is silent about the legal heirs of the diseased Thankappan Unnithan . The complainant has not produced any material to show that she is the only legal successor of the diseased. The diseased Thankappan Unnithan was a subscriber of Mathrubhoomi daily . The averments that the chemical analysis report and details of claim in another Group Insurance Policy is irrelevant for the settlement of this claim is false and hence denied. Since the police has filed a final report stating that the deceased was under the influence of liquor at the time of accident the chemical analysis report is the one and only vital document to determine the cause of death . The complainant has suppressed the chemical analysis report since it contained details adversely affecting the claim . The averments that there is no chemical analysis report is false and hence denied. The averments in para 6 and 7 are false and hence denied. The complainant has no cause of action against this opp.party hence this opp.party also prays for the dismissal of the complaint. <br /> <br /> <br /> <br /> The points that would arise for consideration are:<br /> [1] Whether the complainant is a consumer<br /> [2] Whether the claim is barred by limitation<br /> [3] Whether there is deficiency in service on the part of the opp.parties?<br /> [4] Reliefs and costs.<br /> <br /> <br /> <br /> Point No.1 :<br /> <br /> <br /> The contention of opp.parties 1 and 3 is that the complainant is not a consumer within the meaning of Section 2 [1] [d] of the Consumer Protection Act 1986. According to them the deceased Thankappan Unnithan though was a subscriber of Mathrubhoomi daily and was a beneficiary of the Group Insurance Scheme introduced by opp.party 2 for the benefit of its subscribers with Opp.party1 the deceased had no contractual relationship with opp.parties 1 and 3, and that they have not collected any amount from the deceased as premium towards the said scheme and therefore there is no consumer relationship between opp.parties 1 and 3 and the deceased and therefore the complainant who is the wife of the deceased is also not a consumer . That argument will not sustain in the light of the decision of the Consumer Dispute Redressal Commission, Kerala, in The Manager New India Assurance Co. Ltd. V/s Syamala Rajan and others [2004 [2] CPR 315]. The above appeal was filed by the 1st opp.party the Insurance company herein in an identical case. The 2nd opp.party herein was also an opp.party therein. In that case the wife of a deceased subscriber of opp.party 2 who was insured with the 1st opp.party under an insurance scheme proposed by the 1st opp.party as the one herein was held to be a beneficiary and as such a consumer within the meaning of Sec.2 [1] [d] of the Consumer Protection Act. Hence we hold that the complainant herein is a consumer within the meaning of Sec. 2 [1] [d] CP Act. Point found accordingly.<br /> <br /> <br /> Point No.2 :<br /> <br /> <br /> The contention of opp.parties 1 and 3 is that the complaint is barred by limitation. It Is argued that the deceased Thankappan Unnithan died on 30.5.1999 and the complainant submitted the claim on 5.7.99 which was repudiated on 5.11.99 as per Ext. D8 but this complaint which ought to have been filed within 2 years was filed only on 27.2.2003 and as such this complaint is barred by limitation. According to the complainant the complaint is within time. It is argued by the complainant that there was no repudiation of the claim as per Ext. D8 as alleged by opp.parties 1 and 3 but the matter was under consideration can be seen from Exts. P3, P4, P5, P8, P9, P10, P15 and P16 and as such the claim was a subsisting one when the complaint was filed and in support of his contention he has relied on the decision reported in III [2002] CPJ 59 [NC]. It is worth pointing out in the context that the opp.parties did not produce any letter showing that the claim was repudiated by them.<br /> <br /> <br /> Though the opp.parties 1 and 3 would content that Ext.D8 is a repudiation letter from the wording in Ext.D8 it cannot be inferred that it is a repudiation letter. It is not a letter issued to the complainant but a letter addressed to Opp.party 2 expressing the inability of opp.party 1 to entertain the claim no copy is seen marked to the complainant. Expressing inability to entertain a claim and rejecting a claim in our view are entirely different. This aspect is fortifies by Ext.D10. Ext.D10 is dated 19.1.2001 the wording in Ext.D10 is “ to proceed further in this regard”. By Ext.D10 opp.parties 1 and 3 have sought for further details such as the chemical analysis report and details of a claim settled by New India Assurance Company in connection with the death of Thankappan Unnithan in another policy . If the matter was already closed the question of proceeding further does not arise. Only a pending case can be proceeded further or else if should be reopened and proceeded further. If the matter was not pending opp.parties 1 and 3 would not have issued Ext.D10. The learned counsel for opp.parties 1 and 3 would argue that Ext.D10 was issued for reconsideration of the claim. But we are unable to draw such an inference from the wording in Ext.D10. Even assuring that Ext.D10 is issued in reconsideration of the matter the opp.parties have issued Ext.P3 letter dated 20.8.2001 as a reminder to opp.party 2 with copy to the complainant seeking production of chemical analysis report etc and the complaint filed with in 2 years of Ext.P3 is within the period of limitation.<br /> <br /> <br /> <br /> Ext.P9 is a reply notice issued by the counsel for the opp.party 1 and 3 to Ext.P8 lawyer notice issued by the complainant Ext.P8 in effect is a suit notice. There is absolutely no mention in Ext. P9 with regard to the repudiation of the claim as per in Ext.D8. Had been claim been repudiated naturally that fact would have found place in Ext.P9. Ext.P10 is a lawyer notice issued by opp.party.2 in reply to Ext.P8. In Ext.P10 also there is no mention regarding any repudiation of the claim. Ext.P9 and 10 replied to the legal notice issued by complainant to settle the claim also does not refer to any repudiation from which it can safely be concluded that there is no repudiation as per Ext. D8 as contended by opp.party 1 and 3. It is to be noted that Ext.P8 lawyer notice was issued by the complainant since her claim was not settled by the opp.parties and if the claim was in fact repudiate as per Ext. D8 there ought have been a mention regarding that aspect in Ext.P9. The matter was pending in correspondence till Ext.P8 was issued. It is to be noted that in the last para of Ext.P9 it is stated that “As already stated my client is not in a position to settle the claim”. What else is required to come to a conclusion that the claim was not repudiated even on the date of Ext.P9 ie 25.10.02. In the next sentence also it stated that “ Facts being so my client is not in a position to settle the claim…….” Exts P9 and P10 would cut at the root of the contention that the claim was repudiated as per Ext.D8. filed and therefore it cannot be said that the claim barred by limitation. <br /> <br /> <br /> Apart from all these DW.2 has categorically state in cross examination that the company is ready to pay the claim amount and interest subsequent to the receipt of the Chemical analysis report Ext.X1. Fromj the admission of DW.1 it is obvious that the repudiation alleged is not true because no amount can be paid in respect of a claim which is repudiated . For all that has been discussed above we find that the claim is not barred by limitation. Point found accordingly.<br /> <br /> <br /> Point No.3 :<br /> <br /> <br /> According to the opp.party 1 and 3 they could not settled the claim as the chemical analysis report was not produced. Subsequently Ext.X1, Chemical Analysis report was produced by the complainant which shows that the death of diseased was due to drowning and that he had not consumed alcohol at the time of death. Therefore, the objection raised by the opp.party that there was alcohol content in the blood of the diceased at the time of death will not sustain. As pointed out earlier, in fact, DW.2 has admitted in cross examination that they are ready to pay the claim amount with interest subsequent to the receipt of the chemical analysis report from which it is obvious that the opp.parties are admitting the eligibility of the complainant to get the claim. As agreed by the learned counsel for the complainant admission is the best piece of evidence . The complainant is the nominee and it is well settled that a nominee can receive the amount without production of succession certificate. For all that has been discussion above we are of the considered view that the complainant is entitled to get the insurance amount from opp.party 1 and 3.<br /> <br /> Though the incident occurred in the year 1999 the claim was not settled by one reason or another. Finally DW.1 admitted on 4.1.07 that they are ready pay the claim amount with interest subsequent to the production of the Chemical analysis report for which the complainant was not amenable. When it is found that the complainant is entitled to get the claim amount. She is also entitled to get the interest. Imposing unnecessary conditions for the payment of interest is deficiency in service. For all that has been discussed above we hold that the complainant is entitled to get policy amount with interest. Point found accordingly. <br /> <br /> <br /> In the result the complaint is allowed, directing the opp.parties 1 and 3 to pay the complainant the policy amount with interest at 12% per annum. <br /> <br /> <br /> The complainant is also allowed Rs.10,000/- [Ten thousand only] towards compensation and cost. The order is to be complied with within one month from the date of order.<br /> <br /> <br /> <br /> Dated this the 31st day of March, 2008.<br /> <br /> <br /> <br /> I N D E X<br /> <br /> List of witnesses for the complainant<br /> PW.1. Madhavi Amma.<br /> <br /> List of documents for the complainant<br /> P1. – Claim form<br /> P2. –Master policy agreement between the husband and complainant and opp.party<br /> P3. – Letter dated 20.8.2001 sent to the complainant<br /> P4. – Letter issued by 2nd, 4th and 3rd opp.parties<br /> P5. – Reply to Ext.P3,P4, and P5<br /> P6. – Postmortum report of Thankappan Unnithan<br /> P7. – Death certificate of Thankappan Unnithan<br /> P8. – Advocate notice dt. 1.10.2002<br /> P9. – Reply notice dt. 25.10.2002<br /> P10. – Reply notice of 5th opp.party<br /> P11. – Insurance policy [photocopy<br /> P12. – Letter issued by 5th opp.party<br /> P13. – Letter given by 1st and 3rd opp.party<br /> P14. – Final report of Kunnikode Police Station<br /> P15. – Letter issued by 5th opp.party dt. 5.8.2000<br /> P16. – Letter issued by 1st and 3rd opp.party dt. 19.1.2001.<br /> <br /> <br /> List of witnesses for the opp.parties<br /> <br /> DW.1. – Dr. S. Vireesh<br /> DW.2. – R. Rudhran Nair.<br /> <br /> List of documents for the opp.parties<br /> D1. – Policy certificate<br /> D2. – Claim form<br /> D3. – Letter issued by 2nd opp.party to the 1st opp.party<br /> D4. – FIR<br /> D5. – Final report<br /> D6. – Letter issued lby 2nd opp.party to the 1st Opp.party dt. 3.9.99<br /> D7. – Letter dated 5.10.99<br /> D8. – Letter issued by 1st opp.party to the 2nd opp.party<br /> D9. – Letter dated 8.7.2000<br /> D10. – Reply letter dated 19.1.2002<br /> D11. Investigation report.<br /> <br /> X1. – Chemical analysis report.<br /> <br />