Sri. K. GOPALAN: PRESIDENT This is a complaint filed under Section 12 of the Consumer Protection Act for an order directing the opposite party to pay the assured sum of Rs1,50,000/- and to pay an amount of Rs 10,000/- as compensation. The case of the complainants is as follows: The husband of first complainant, the deceased Sreenivasan, was a fisherman by occupation. He had registered as a fisherman at Edakad, Kannur City Matsya Thozhilali Vikasana Kshema Sahakarana Sangam affiliated to Matsyafed with membership number 577. Matsyafed insured the entire fisherman including the deceased Sreenivasan with opposite party no.3 under joint policy accident claims benefit widely known as JPA claims. As per the terms and conditions of the policy the 3rd opposite party undertake to indemnify all the risk involved arising out of any accidental death and accidental injuries to vital organs. On 8.7.2003, the deceased Sreenivasan went for fishing along with other persons, ventured into the high seas for fishng. Sreenivasan spread his net for catching fish where he met abundant fishes and tried to pull the fishing net and he accidently fell in the boat and sustained internal injury. The boat was immediately returned to shore and he was taken to hospital where he was declared as dead. According to the doctor who treated him the cause of death was cardiac infraction since he pulled the fishing net with fish by applying great force. Actually the death of Sreenivasan occurred only due to marine accident as the sea was very rough at the time of incident and it was due to sudden rolling of the boat that Sreenivasan was constrained to apply force accidently. Mr. Sreenivasan was a healthy person prior to this accident and was not suffering from any pre-existing physical ailments or any complaints. He was engaged in fishing for the last many years. As per the group insurance policy made applicable to the fisherman the complainants being the legal heirs of deceased Sreenivasan are entitled to get an amount of Rs 1,50,000/- with interest thereon with effect from the date of death of Sreenivasan. The claim was repudiated on the ground that the FIR statement and the postmortem report , death was primarily due to myocardial infraction , whch is not covered under insurance policy. The action of opposite party was without due application of mind to all the relevant facts. The repudiation of claim of the complainant is unjustifiable , arbitrary and against basic principles of law that amounts gross deficiency of service. Because of the delay of considering the claim complainants suffered much mental agony. Complainant estimated RS 10,000/- as compensation for mental agony. After notice to the parties opposite party 1 & 2 made appearance and filed version denying the averments in the complaint. The contension of opposite party no.1 in short are as follows: It is true that Sreenivasan was a registered fisherman and has insured under the Fisherman Accident Insurane Scheme of Oriental Insurance Company through Matsyafed. As per the terms and conditions of Fishermen Accident Insurance Scheme, insurance cover is applicable only to accidental death and partial disability arised due to accidents. Complainant had submitted filled claim form before Matsyafed in time.The FIR and postmortem report reveal that the death was due to Myocardial infraction. According to the insurance company this does not fall under the purview of insurance policy and so the claim was returned and the same was intimated . So there is no negligence or deficiency in service on the part of this opposite party. It is also submitted that if any liability found on the part of opposite party since there is a valid policy the 2nd opposite party is liable to indemnify this opposite party and they are liable to discharge all the liability. Opposite party no.2 filed separate version denying all the material allegations in the complaint. The contentions of opposite party no.2 in brief are as follows: Opposite party no.2 denies the insurance of Joint Policy Accident to the Ist opposite party, Kerala Matsyafed ,Trivandrum. Hence they are not liable to pay any amount as compensation to the complainant. This opposite party is made in the party array only by the complainants mistake. The complaint is bad for misjoinder of necessary party and is also bad for non joinder of necessary party. Opposite party no.3 filed version separately denying the material allegations. The contentions of the opposite party no.3in brief are as follows: It is false to say that the first opposite party had insured the entire fishermen including Sri.V.V.Sreenivasan with opposite party no.3 under joint policy accident claims benefit. First opposite party had not insured any fisherman at their Taliparamba branch. The allegation that the 3rd opposite party had undertaken to indemnify all the risks involved to fisherman arising out of any accidental death and injury is also equally false. The allegation that the first complainant had submitted claim form before the opposite parties and such claim was repudiated are false. The complainant had not submitted any claim form with opposite party no.3 and there was no repudiation also. The complainant had not issued any legal notice to opposite party no.3. It is for the first time the 3rd opposite party branch as well as the Kannur Divisional Office hear about the allegations in the complaint. Opposite party no.3 is an unnecessary party. Forum deleted the name of 2nd opposite party and impleaded 3rd opposite party on the petition of complainant. On the above pleadings the following issues have been taken into consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled for the compensation as prayed in the complaint? 3. Relief and cost. The evidence consist of the oral testimony of PW1 to PW3 and documentary evidence Exts. A1 to A3 and B1 to B3. ISSUES 1 to 3: The complainants are wife and children of deceased Sreenivasan, who was fisherman by occupation. Opposite party no.1 is the Chairperson , Kerala State Co.operative Federation for Fisheries Development Ltd (Matsyafed). The opposite party no.2, National Insurance Co.Ltd is deleted and opposite party no.3is the Oriental Insurance Co.under whom the deceased Sreenivasan claimed to be insured . The first opposite party unequivocally admitted that the deceasd V.V. Sreenivasan was a registered fisherman of Edakkad-Kannur city Matsyathozhilali Vikasana Sahakarana Sangam and had insured under the Fishermen Accident Insurance Scheme of Oriental Insurance Company through Matsyafed. Moreover, first opposite party has also admitted the fact that 3rd opposite party had issued the insurance policy referred in the complaint and the name of the deceased Sri.V.V. Sreenivasan was coverd by this policy. Ext.B1, B2 are policy certificate issued by 3rd opposite party.. Ext. A1 is the letter sent by first opposite party to the complainants. There it was informed to the complainant that the case was not liable for settlement. Hence it makes certain that the deceased Sreenivasan was a registered fisherman and had insured under the Fishermen Accident Insurance Scheme of Oriental Insuance Company through Matsyafed. Hence opposite party no.3 no doubt is a necessary party. Complainant has no claim over opposite party no.2.The Forum ordered to delete the 2nd opposite party from the party array on petition as the 2nd opposite party was not the insurer. Since 3rd opposite party was impleaed the 2nd opposite party has been exonerated from the liability. The main contention of opposite party no.3 is that the death of the deceased Sreenivasan was not an accidental death nor due to any external or internal injuries. It is also contended that the cause of death was Myocardiac infraction which is a gradually developed state of ailment to the heart. Dr. K.V. Krishnadas ( Formerly Director and Professor of Medicine, Medical College Hospital, Tivandrum) in his book A short Text Book on Medicine under Section 13 Cardiology 141 page 501under the head Disease of the Myocardium has pointed out that Myocarditis is a serious condition associated with mortality. Death occurs as a result of sudden cardiac failure , heart block, or fatal arrhythmias . It has also written The Myocardium may be the seat of damage in a wide variety of conditions. The causes clause concluded thus In many cases no cause may be evident.Clinical feature given also carries importance. It is thus unexplained tachycardia, arrhythmias , hyper tension cardiomegaly and evidence of cardiac disorders should suggest the possibility of Myocardial damage.In page 479 it can be seen the general consideration of Arrhythmias thus The myocardial cells have the property of spontaneous excitability (automaticity). This is responsible for the pacemaking function of the heart. The sino-atrial(SA)node which has the fastest rate of excitability controls the heart rate. The S.A. mode contains specialized electrically active cells known as P cells which have got the highest rate of excitability. The rat of impulse production and conduction are controlled by various physiological, pharmacological and pathological process. Thus the contention that the myocardial infraction is a gradually developing disease has no substance and not acceptable. The myocarditis is a serious condition associated with the state of being mortal frequency of death. Sudden cardiac failure, heart block etc leads to occur death. Ext.A3 Postmortem certificate shows the cause of death SHOCK DUE TO MYOCARDIAL INFRACTIONCardiogenic shock explained under Chapater 140 of the above book by Dr. Krishnadas shows thus. Infraction of 40 percent or more of the ventricular myocardium leads to cardiogenic shock. If the shock is not relieved by the usual measures, mortality exceeds 50-80 percent. It shows myocardiac infraction is a serious disease which require immediate medical aid to relieve shock if not risk or mortality rise upto 80 per cent. Sreenivasan was taken to hospital . But it took much time to reach the sea shore from high seas and he died on the way itself without getting medical aid. Dr. Krishnadas in his book last para of page 497 has pointed out that Myocardial infraction is a serious disease , with an over all immediate mortality. Maximum mortality is in the first 64 of onset. Thus there is no relevancy in the contention that Myocardiac infraction is gradually developed state of ailment to the heart. Opposite party has not succeeded to prove his contention . There is no evidence to substantiate the contention of opposite party no.3. The doctor who conducted the postmortem deposed that prolonged strenuous work is one of the cause for the stress and strain. It is also important to note the words of Dr. Krishnadas that in many cases no cause may be evident. PW3 in his evidence deposed that In the cross examination he has deposed that It has to be taken into consideration that the high seas where from Sreenivasan had been laboring is a place where , an atmospheric of cordiality may change unpredictably violent, a state of boisterous enough to loss the entire resisting control. Fishermen are generally supposed to be healthy. A healthy man went for fishing in the Overseas. Back history does not speak of any preexisting disease for deceased Sreenivasan. Witness says he fell down to sea from the Boat due to violence in the sea. The person who was working with him , PW3, given evidence that he had fallen in Sea. No one else but he who had worked with him last is the most competent witness to give evidence to this aspect. The evidence given by PW3, the occurant witness by no reason can be discarded. There is no contra evidence on the part of the opposite parties. The evidence of PW1 together with the evidence of Doctor clearly reveals that the death of Sreenivasan is an accidental death. The opinion of Dr. Krishnadas that in many cases no cause may be evident as far as Myocardiac infraction is concerned, is a very relevant aspect to be considered. The evidence of the doctor and that of PW3 and Ext.A3 document proves that the death of Sreenivasan was an accidental one. Digest N.C.+ S.C. on Cosumer Protection Law 2008 page 1578 under words and phrases given meaning of Accident, Accidental Death, External, Violent, visible (2642) held that Thus, violent does not necessarily imply actual violence as where the assured is bitten by a dog. violent means and include any external , impersonal cause, such as drowning, or the inhalation gas, or even undue exertion on the part of the assured. The word violent is merely used in antithesis to without any violence at all . Similarly external is used to express anything which is not internal and any cause which is external in this sense is also visible within the meaning of an accidental policy. These words refer to the accident,not the injury , and are used to distinguished injuries covered by the policy from those due simply to such causes as disease or senility which arise in the body of the deceased. Thus the word by violent , external and visible means add little if anything to an accident policy and have been adversely criticized by the Court of appeal(Re:United London and Scottish Insurance , Browns claim(1915)2.ch.167) Held,in each of the matter the insurance company cannot be allowed to gainsay that the death was not an accidental death as a result of external violent and visible manner(Ritadevi @ Gupta VS National Insurance Co Ltd & Ors, iv(2007) CPJ 355(NC) Undue exertion on the part of the assured Sreenivasan cannot be ruled out considering the peculiar atmosphere on which he had been performing his employment. In the light of the above discussion, we have no hesitation to hold that the death of Sreenivasan is an accidental one in the course of employment. Oppoiste party no.1 in their version admitted that deceased V.V. Sreenivasan was a registered fisherman of Edakad Kannur City Matsya Thozhilali Vikasana Kshema Sahakarana Sangam and had insured under the Fishermen Accident Insurance Scheme of Oriental Insurance Company through Matsyafed. The opposite party no.3 M/s. Oriental Insurance Company Ltd admitted in their version that they had issued insurance policy referred in the complaint and the name of the deceased V.V. Sreenivasan was covered by this policy. Oppoiste party no.1 also admitted that complainants had submitted filled claim form before Matsyafed in time. Ext. B1 dated 7.10.2003 is the reply sent by Matsyafed. Thus there is no doubt with respect to the claim form. Complainant had submitted the claim form in time. Hence the denial of claim on the ground of non submission of claim form cannot be accepted at all. It is unjustifiable. Denial of benefits on technical ground can only considered as unfair. On going through the evidence available on record it can be seen that the complainant could establish their case and thus they are entitled for the insured sum Rs 1,50,000/-. The repudiation of claim on one way or the other amounts to deficiency of service on the part of opposite party 1 & 3. Hence we hold that the opposite parties 1 & 3 are liable to pay the insured amount Rs 1,50,000/- to the complainants. Complainants are also entitled to get 8% interest p.a. from the date of order till the realization of the amount. They are also entitled for the cost of a sum of Rs 500/-. In the result, the complaint is allowed partly directing the opposite parties 1 & 3 to pay the insured amount of Rs 1,50,000/-( Rupees one lakh fifty thousand only) with an interest @8% p.a. from the date of this order till the realization of the amount and also Rs 500/-( Rupees five hundred only) as cost of this proceedings to the complainants within one month from the date of receipt of this order, failing which the complainants are allowed to execute the order under the provisions of Consumer Protection Act. Sd/-MEMBER Sd/-MEMBER Sd/- PRESIDENT APPENDIX Exhibits for the complainant A1. Letter dt.8.3.2004 sent to Adv.C.K. Ratnakaran A2. Copy of the lawyer notice dt. 17.2.04 sent to the opposite parties A3. True copy of the Postmortem certificate of V.V.Sreenivasan Exhibits for the opposite party B1. Photo copy of the letter dt. 7.10.2003 sent to the Dist. Manager, Matsyafed District Office,Kannur. B2.Group personal accident policy. B3. First information report of V. V. Sreenivasan. Witness examined for the complainant PW1. Rema.A. PW2. Dr.K.V. Mukundan PW3. P.P.Nazar Witness examined for the opposite party NIL Forwarded/ by order SENIOR SUPERINTENDENT
