IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

DATED THIS THE    2^nd  DAY OF DECEMBER 2019

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.247/2015

1. Laly Pious, aged 52 (widow)

           W/o Pious,

         Princy Bhavanam, Dalavapuram,

        Neendakara P.O.,Thekkumbhagom Village,

          Kollam District.

         (By Adv.R.Sethunathan Pillai)

2. Princy Pious, aged 30,

         D/o Pious,

         Princy Bhavanam, Dalavapuram,: Complainants

        Neendakara P.O.,Thekkumbhagom Village,

        Kollam District.

       (By Adv.R.Sethunathan Pillai)

3. Agent Pious, aged 28,S/o Pious,

         Princy Bhavanam, Dalavapuram,

         Neendakara P.O.,Thekkumbhagom Village,

        Kollam District.

       (By Adv.R.Sethunathan Pillai)

   V/s

1. The Commissioner,

Kerala Malsya Thozhilali Welfare Fund Board,

Punkunnam, Thrissur 680002.

 Addl.2 The Manager,United India Insurance C.Ltd.,          :    Opposite parties

Divisional Office No.2,

1^st Floor,Trichur

Trade Centre, Kuruppam Road, Thrissur.

(impleaded as per order IA No.128/16 dated 30.09.2016

(By Adv.S.Subhash Candra Babu)

FAIR ORDER

Smt.Sandhya Rani, B.SC, LLB, Member

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

          The averments in the complaint in short are as follows.

          The complainants are the legal heirs of late Pious who was fisherman with registration No.1791 of Malsya sangham of Karunagappally in Kollam District.  He died on 08.09.2013 at about 8.30 a.m while he was entering into the fishing boat near his house at Thekkumbhagam for going to fishing.  According to the complainant the diseased while entering into the boat his leg slipped and head hit at the side of fishing boat as a result he fell down in the water and he was taken to District Hospital and examination revealed the death was due to the injuries sustained to the head and Tehekkumbhagam Police had registered a case as Crime No.940/2013 U/s 174 Cr PC that autopsy was conducted at the District Hospital and the body was buried at the local Church.  The deceased was an employee having membership with Malsya sangham registered with the respondent.  The claim application submitted by the complainants was rejected by the 1^st respondent on 24.01.2014 through a letter stating the reason that the death was due to cardiac arrest.  The rejection of the claim is illegal and not in accordance with the conditions of the policy.  Hence the rejection of the claim is not legal and proper and there is deficiency in service on the part of respondent as the death is an accidental death. 

The first opposite party filed version admitting the policy coverage and accident but the insurance company which has been impleaded subsequently as additional 2^nd opposite party as per order in I.A.No.128/2016 dated 30.09.2016 has not disbursed the insurance amount to the petitioners. 

The contention of the additional 2^nd opposite party in short are as follows:-

The complaint is not maintainable either in law or on facts the complainants are having no bonafides and filed the complaint only to extract unlawful financial gain from the insurance company and further contented that the petitioner have to prove the averments regarding the relationship with the deceased Pious, the accident narrated in para II of the complaint the death of the deceased Pious with the support of authenticated police records including final report and medical evidence.  Though the 2^nd opposite party admits that the deceased Pious was a member of Group Personal Accident Tailor Made Insurance Policy No.101800/42/12/05/00001179 issued to the members of  the Kerala Fisherman Welfare Fund Board and the policy begins to run from 17.12.2012 to 16.12.2013.  The Addl. 2^nd opposite party further contents that on receiving the claim application of the applicants the additional opposite party requested them to submit the Final Investigation Report cum Postmortem certificate etc for the purpose of processing and verification and ascertaining that it was accidental or natural death.  But the petitions have not produced the final report at the office of the company at any point of time before the company receiving the summons of this Forum,  that they have received no information with regard to the letter issue by the 1^st opposite party rejecting the claim on the ground of cardiac arrest.  Moreover Additional 2^nd opposite party did not issue such a repudiation letter to the complainants till date.  According to the Addl. 2^nd opposite party the claim of the complainants was not repudiated till this time, since they failed to submit the essential records like Final Report and Postmortem Certificate.  Hence the complaint is premature prior to its repudiation .  According to the Addl. 2^nd opposite party the complainant is not entitled to get any amount claimed in the complaint due to the reason that they have not produced the Final Report or Postmortem Certificate for verification and assessments.  The addl.2^nd opposite party further prays to dismiss the complaint with their costs.

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

1. Whether the death of the deceased Pious is accidental or natural?
2. Whether there is any deficiency in service on the part of Additional 2^nd opposite party?
3. Whether the complainant is entitled to get Insurance claim Rs.3,00,000/- from the Additional 2^nd opposite party?

Evidence on the side of the complainant consists of oral evidence of PW1 and PW2 and Ext.P1 to P5 documents, 1^st opposite party has not adduced any evidence.  Evidence on side of the Additional 2^nd opposite party consists of the oral evidence of DW1 and D1 to D3 documents.

Heard both sides.

Point No.1 to 3

For avoiding repetition of discussion of materials these three 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.  Ext.P1 to P5 has been marked through this witness.  Ext.P1 is the FIR and FIS in crime No.940/2013 of Thekkumbhagam Police Station.  Ext.P2 is the postmortem certified dated 08.03.2013.  Ext.P3 is the report of Regional Executive of Kerala Malsya Thozhilai board Thiruvananthapuram  dated  29.12.2013 . Ext.P4 is  Commissioner’s repudiation letter issued on behalf of the 1^st opposite party.  Ext.P5 is a copy of inquest report.

The oral evidence of PW1 coupled with Ext.P1 and Ext.P2 documents would establishing that while the deceased Pious was attempting to enter into the fishing boat though another small country boat he slipped and fallen down while so his head hit on side of the boat and sustained injuries .  Immediately he was removed to the District Hospital, Kollam but on the way he succumbed to those injuries.  Police has registered a crime and prepared Ext.P1 FIR conducted postmortem examination on the body of the deceased prepared Ext.P2 postmortem certificate and also prepared Ext.P5 inquest report.  The oral evidence of PW2 doctor who conducted autopsy has stated in Ext.P2 Post mortem Certificate that the death was due to Intra Cranial Hemorrhage.  It is also clear from the oral evidence of PW1 and Ext.P5 inquest report that after the fall was brought dead to the hospital.

Ext.P3 letter/report issued by the 1^st opposite party would further corroborate the  version of PW1 regarding the reason for the death of the deceased Pious.  It is seen stated in Ext.P3 that Kulasekharam Fisheries office sâ ]cn-[n-bn hcp¶

Hcp DÄ\m-S³ aÕ-y-{Km-a-¯nse 1791-þmw \¼À AwK-am-bn-cp¶ {io.-]-b-Êv, 08.09.2013 \v cmhnse aI-t\mSpw aäv kl-{]-hÀ¯-I-tcm-sSm¸w aÕ-y-_-Ô-\-¯n-\mbn hÅ-¯n \n¶pw t_m«n-tebv¡v Ib-dth Im hgpXn t_m«n X«n shf-f-¯n hoWp.  DS³ Xs¶ aI\pw aäv kl-{]-hÀ¯-Icpw tNÀ¶v sImÃw PnÃm  Bip-]-{Xn-bn sIm­v t]mIsh hgn a[-y-¯n ac-W-s¸-«p.  The above report itself would indicate that the death was not a natural death but it was as a result of the accidental fall.  While attempting in his duty as a fisherman.

 However the learned counsel for the opposite party has pointed out the cause of death stated in Ext.P2 Postmortem Certificate and has argued that the death was not due to the effect of physical injuries sustained by the deceased Pious during the fall, but due to the Intra Cranial Hemorrhage and hence the repudiation of claim is legal and proper.  It is further argued that in Ext.P2 postmortem certificate only one external injury, aberration on the right cheek 3x5 cm alone is noted and there was no injury seen on the skull or cranium of the deceased.  Therefore there is no chance of causing death due to the injury sustained in the accidental fall.  PW2 doctor has also ruled out the possibility of causing death as a result injury sustained due to the accidental fall.  But according to him there are several reasons for the cause of Intra cranial Hemorrhage.  However PW2 has not explained the exact cause.  According to PW2 he is not sure about the exact cause to pin point the opinion as to Intra Cranial Hemorrhage which is the cause of death.

It is true that there was no visible injury on any part of the head except on the face.  There is no dispute with regard to the fact that scalp is a hard part of the body.   Even if it happened to hit on the wooden part of a boat there would not be any visible injury and the impact of the hit may cause Intra Cranial Hemorrhage .  Therefore absence of a visible injury on the head of the deceased is not a ground to through away the case of the complaint that the Intra Cranial Hemorrhage happened as a result of the accidental fall. 

The learned counsel for opposite party has further argued that in Ext.D3 series original claim form it is stated that the deceased Pius collapsed while boarding his boat at Dalavapuram and fell into water and died on the way to hospital.  According to the learned counsel for the 1^st and additional opposite party a combined reading of Ext.P2 and Ext.D3 series documents would indicate that the deceased Pious might have collapsed either due to high BP or due to rupture of aneurism which may lead to Intra Cranial Hemorrhage. Hence the death is not accidental but only natural. But we are of the view that no much weight can be given to Ext.D3 series claim form which are subsequently created documents not in the hand writing of any of the claimants.  As per Ext.P1 FIR the cause of accident is stated while the deceased Pious was entering into a fishing boat through a small country vessel, he slipped and fell down by hitting on the boat and he was removed to the District Hospital at about 9.30 a.m. and on the way to hospital he died.  This is the earliest version regarding the death of the deceased which has to be given more weight than the subsequently created documents by somebody else.  It is clear from the available materials that Ext.P1 FIR has been registered on the basis of First Information Statement lodged by his son by name Agnal, who was also present at the spot and was attempting to enter into the fishing boat along with his deceased father and other co-workers.

It is true that there was no visible injury on any part of the head except face.  There is no dispute with regard to the fact that scalp is a hard part of the body.   Even if it happened to hit on the wooden part of a boat there would not be any visible injury and the impact of the hit my cause Intra Cranial Hemorrhage .  Therefore absence of a visible injury on the head of the deceased is not a ground to through away the case of the complainants that the Intra Cranial Hemorrhage happened as a result of the accidental fall.  In view of the materials discussed above it is clear that the death of the deceased Pious is not natural death due to a normal heart attack but the heart attack has occurred due to the effect of fall by hitting his head on the side of the boat as alleged in the complaint.

Admittedly the deceased Pious was a member of The Group Personal Accident Tailor made Insurance Policy No.101800/42/12/05/00001179 issued to the members of Kerala Fisherman Welfare Fund Board, and that policy was also live on the date of death. DW1 also would admit that the deceased Pious was an active fisherman and a member of the Group Personal Accident Tailor Made Insurance Policy.  It is clear from the pleadings and evidence adduced by the 2^nd opposite party that the complainants have neither filed any claim from nor the insurance company has issued any repudiation letter as claimed in the complaint and therefore the complaint is premature in nature and hence the same is to be dismissed as not maintainable.

It is clear from Ext.P4 document that it is a letter issued by Kerala Matsyathozhilali Kshemanidhi Board addressed to the complainant by repudiating the claim stating that ‘ Snbm³ ac-W-s¸« Ime-b-f-hn  lrZ-bm-LmXw aqe-ap-ff  ac-W-¯n\v  insurance ]cn-c£ e`-y-a-Ã.  AXn-\m At]£ \nc-kn¨ hnhcw tJZ-]qÀhw Adn-bn-¡p-¶p’.  The said letter is seen signed by the commissioner of the above board.  Even PW1 has no case that they have filed any claim before the  additional 2^nd opposite party insurance company and they have repudiated the claim.

It is clear from the available materials including Ext.D1 and D2 documents that there is an agreement executed between the 1^st and 2^nd opposite party . As per the terms of Ext.D1 and Ext.D2  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 is to be directly paid by the 1^st opposite party to the 2^nd opposite party.  It is also clear from clause No.2(d) of Ext.D2 that after collecting claim details from the claimants the authorized officer of the board has to prefer a claim and the same shall be forwarded to the regional office of the board with supporting documents such as FIR, Death Certificate, P.M.C inquest report or corners 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.  Nowhere in the above condition it is stated that final report prepared by the investigating officer is the main document without which the claim shall not be proceeded.  In this connection it is further to be pointed out the first opposite party has not even accepted the claim details submitted by the complainant along with supporting documents nor forwarded the claim to insurance company as stipulated in the above clause, but the 1^st opposite party had straight away repudiated the claim by stating that death was due to cardiac failure.  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 a compensation of Rs.3,00,000.  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 claims lodged by the 1^st opposite party on account of death of the deceased Pious due an accidental fall when he was about board on the fishing boat.  The 1^st opposite party ought to have forwarded the claim after collecting the required documents, if the documents produced by the claimants are not sufficient to support the claim even if the death is due to cardiac failure especially when the cardiac failure occurred  while the deceased was attempting to enter in to the fishing boat in the early morning to earn his livelihood.

The 1^st opposite party would not have ignored the fact that the Kerala Fisherman Welfare Fund Board has been established with an object to protect the welfare of fisherman and not to protect the interest of insurance company.  On evaluating the entire materials available on the record it is clear that complainants are the wife and children of the deceased are entitled to get compensation as indicated in the serial No.1 of the schedule. The final report in the aforesaid crime is to be prepared by the police officials .  In this regard the officials of the board has an obligation to obtain the copy of final report if any directly from the police and attach to the claim details and supporting documents and the non supply of the copy of the said final report by the complainant is not a ground to reject the claim application by the board or by the insurance company, especially when FIR, FIS death certificate P.M.C and inquest report etc are available to substantiate the death and cause of death.

 Hence the rejection of claim lodged by the complainants by the 1^st opposite party is not legal and proper.

On evaluating the entire materials available on record we are of the view that the rejection of claim by the 1^st opposite party is not legal and proper as the death of the deceased Pious is not a natural death but as a result of accidental fall at the boat while attempting to enter in the boat to engage in his duties as a fisherman.  In the circumstances it is cristal clear that there is deficiency in service on the part of the 1^st opposite party is not complying with the mandate of clause 2 (d) of Ext.D2 agreement.

Point No.3

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

The 1^st opposite party is directed to receive the claim application details in form No.2 from the claimants in respect of the accident and thereafter a claim form shall be filled by the authorized officials of the board and the same shall be forwarded to the regional office of board as stated at the end of clause No.2 (d) of Ext.D2 agreement and in such event the insurance company shall finalize the admissible claim and compensation and shall be released to the board within 30 days of submission of all relevant records from where the complainants can obtain compensation.

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   2^nd day of  December   2019.                                                                                                   

                                                                                             E.M .MUHAMMED IBRAHIM:Sd/-                                                                                                                        S.Sandhya   Rani: Sd/-

                                                                                                                 STANLY HAROLD:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX

Witnesses Examined for the Complainant:- Laly Pious

Witnesses Examined for the Complainant:- Dr.Anilkumar

Documents marked for the complainant

Ext.P1:- Copy of FIR

Ext.P2 :- Postmortem Certificate

Ext.P3:- Report of Regional Executive of Kerala Malsya Thozhilai board, Thiruvananthapuram

              dated  29.12.2013

Ext.P4:- Commissioner’s repudiation letter

Ext.P5:- Copy of inquest report

Witness examined for the opposite party:-Bindu B.

Documents marked for the opposite party:-

Ext.D1:- Policy Schedule

Ext.D2 :-Agreement

Ext.D3 series:-Claim form and GIS relationship certificate