Date of filing : 02-04-2008 Date of order : 24-02-2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD C.C. 41/08 Dated this, the 24th day of February 2010 PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER 1. Moothodi ayathar, S/o.Madhavan, Kizhur Kadappuram, Chandragiri.Po, Kasaragod. 2. Shymala Moothodi Ayathar, } Complainants W/o. Moothodi ayathar, Chandragiri.Po, Kasaragod.Dt. (Adv. Rajesh.K. Kasaragod) 1. The Commissioner, The Kerala Fishermen’s Welfare Fund Board, } Opposite parties H.O. Thrissur.2. (In person) 2. The Managing Director, Matsyafed, Kuravankonam, Thiruvananthapuram (In Person) 3. M/s Reliance General Insurance Co. Ltd, Elizabeth Alexander Memorial Buildings, Marine Drive, Cochin.3. (Advs. Thomas Mathew, Calicut, Benny Jose, Kasaragod) 4. The Director of Insurance, Kerala State Insurance Department, Thiruvananthapuram. (Govt. Pleader, Kasaragod) O R D E R SRI.K.T.SIDHIQ, PRESIDENT Case of the complainants. The complainants are the parents/independents of Kishore, who died on 14-02-2007 at about 18.16 hours in a railway accident. The deceased Kishore was a member of Kottikulam Kasaba Fishermen Welfare Board which is affiliated with opposite party No.1 with membership No.1000. He was also a member of Kottikulam Kasaba Matsya Thozhilai Kshema Vikasana Sahakarana Sangham that is having affiliation with opposite party No.2 with membership No.1518. The death of the fisherman Sri.Kishore was due to the accident caused by external violent means and the same is liable to be compensated by opposite parties 1 & 2 by paying Rs.1,50,000/- each. The complainant’s therefore getting the Janata Personal Accident benefits issued by opposite parties 3 & 4 to opposite party No.1 and Opposite party No.2 submitted necessary claim forms. But opposite party No.3 repudiated the claim on 14-08-2007. Hence the complaint alleging deficiency in service on the part of opposite parties. 2. Version of Opposite party No.1. According to opposite party No.1 the Commissioner Kerala Fisherman’s Welfare Fund Board the death of Kishore was due to accident occurred on 14-2-2007 and falls within the purview of the accident policy issued by the Kerala State Insurance Department opposite party No.4. But opposite party No.4 rejected the claim vide letter No.KSID/GPM-M2-2109/08 dt.1-3-08. 3. Version of Opposite party No.2 According to opposite party No.2 the Managing Director, Matsyafed, the deceased Kishore was a member of Kottikulam-Kasaba Fisherman Development Welfare Co-operative Society with membership No.59 and was enrolled under Finshermen Personal Accident Insurance Scheme 2006-07 implemented by Matsyafed and Reliance General Insurance Company, opposite party No.3. As per the terms and conditions of the said insurance the dependants of the deceased will get Rs.1,50,000/- as compensation for death of the insured person in any accident. The insurance claim application pertaining to the death of Sri. Kishore with relevant documents were submitted for settlement to opposite party No.3. But opposite party No.3 informed that they are filing away the papers as ‘No Claim’ since the death of Kishore doesnot come under the purview of policy. Hence Matsyafed has no liability for the settlement of claim and hence there is no deficiency in service on their part. 4. Version of Opposite party No.3 Complainants are no consumers and they will not come under the definition of ‘complainant’ under Consumer Protection Act. There is no deficiency in service on the part of opposite parties. In the policy issued by opposite party No.3 as per the exception clause No.6 the company shall not be liable under the above policy for payment of compensation in respect of death, injury of disablement of the insured person for international self injury, suicide or attempted suicide etc. The deceased was died not due to any accident but it was a suicide. Hence the claim was repudiated. Therefore there is no deficiency on their part. 5. Version of Opposite party No.4. According to opposite party No.4 the death of Kishore was not due to the accident assignment of external violent visible means. The death was occurred when he was crossing the railway track. Crossing railway track is an offence punishable under the Railway Act. As such, the membership do not come under the purview of accident for the purpose of insurance. Since the mishap was happened while doing an illegal act. Hence there is no deficiency on the part of opposite party No.4. 6. Evidence in this case consists of the proof affidavit of the Ist complainant and Exts A1 to A12 on the side of complainants and Exts B1 to B8 on the part of opposite parties. Both sides heard and documents perused. 7. Whether the dependants of the deceased Kishore are entitled for the Group Insurance benefits or not is the issue to be settled in this matter. 8. Opposite party No.3 had taken a contention that the complainants will not come within the definition of complainants under the Consumer Protection Act. The said contention is not sustainable. Since the definition of complainant U/s 2(1)(b)(iv) says that in case of death of consumer, his legal heir or representative; who or which makes a complaint is also a complainant. 9. According to complainants the deceased Kishore was died in a train accident. Opposite parties have no case that the deceased was not a beneficiary of the Group Insurance Scheme facilitated and issued by them. 10. According to opposite party No.1 the deceased was died to an accident and it falls within the purview of the accident policy. Hence they forwarded the claim papers and relevant documents with enquiry report to the insurance company. This statement shows that opposite party No.1 has conducted an enquiry in to the matter and according to them the accident will come within the purview of the policy. Ext.A1 is the FIR lodged by A.K. Krishna Prasad, the then railway station master, Kottikulam before the Bekal Police Station pertaining to the death of deceased. Ext.A2 is the copy of Post Mortem Certificate of the deceased. Ext.A3 is the letter issued by opposite party No.2 to the second complainant. Ext.A4 is the copy of the letter dated 19-2-07 issued by Assistant Manager, Cluster III of Matsyafed to the District Manager of Matsyafed, Kasaragod intimating the accidental death of deceased Kishore. Ext.A5 is the copy of letter dated 19-02-07 issued by District Manager, Matsyafed, District Office to the 2nd opposite party intimating the accidental death of deceased Kishore. Ext.A6 is the copy of the letter dated 19-2-07 issued by District manager, Matsyafed District Office, Kasaragod to 3rd opposite party intimating the accidental death of Kishore. All the documents produced would goes to show that the death of the deceased Kishore was an accidental death. 11. Opposite party No.3 produced Ext.B1 copy of Personal Accident Insurance Policy issued by opposite party No.3 to opposite party No.2 covering the risk of 38363 persons. Ext.B7 is some news paper cuttings it shows the death of one unknown person. Ext.B8 is the copy of the extract of case diary of Bekal Police. The opposite party No.3 has relied on Ext.B8 to reject the claim of the dependents footing on the exclusion clause contained in the policy. But no reliance can be placed on Exts B7 & B8. Both the said documents have no evidentary value. The extract of a case diary is not a substantive piece of evidence. Except for opposite party No.3, none of the other opposite parties have a case that the death of the deceased was a suicide. Apart from that opposite party No.1 has conducted an enquiry in to the matters and they forwarded the claim papers to opposite party No.4 with their enquiry report. Even after enquiries their view was that the death of the late Kishore was coming within the purview of the policy issued by opposite party No.4. Further opposite party No.4 has not produced the policy to substantiate their contentions that the death of late Kishore was not come under the purview of the policy. Moreover the Hon’ble Supreme Court in the case reported in 2007 CTJ 338(SC). National Insurance Co. V. Ishar Das Madan Lal has held that whenever an exclusionary clause is contained in a policy, it would be for the insurer to show that the claim filed before it falls within the purview thereof. In a case of ambiguity the contract of insurance shall be construed in favour of insured. 12. The stand of opposite parties 3 & 4 to repudiate the claim relying on exclusion clause without any evidence is quite unreasonable and that amounts to deficiency in service. The Hon’ble High Court of Kerala in the case of Kerala Fishermen Welfare Fund Board V. Kunjan Divakaran reported in 2005 (2) KLT 610 has held: “The Scheme framed by the Kerala Fishermen Welfare Fund is a laudable Welfare legislation or scheme as the case may be, has to be construed and interpreted liberally. The attempt should never be to deprive the ready and eligible the benefit of benevolent legislation or scheme. An earnest endeavour should be made to reach out to the victims and wipe the loss or sufferings. The intent and purport of the legislation must be borne in mind while dealing with the provisions contained in any welfare legislation or scheme. There is no room for a pedantic view while interpreting the provisions contained is a welfare statute” 13. The opposite parties should have borne the above dictum laid down by the Hon’ble High Court In the above decision before repudiating the claim of the dependants on unsustainable grounds. 14. Relief & Costs. As per the policy issued by opposite party No.3 in case of death of a member included in the list, then his dependents are entitled for the capital sum assumed i.e.1,50,000/-. 15. As per the policy issued by opposite party No.4 the dependents of the deceased member of the scheme is entitled for Rs.1,00,000/-(Rupees one lakh) as the sum assured. Therefore the complaint is allowed and the opposite parties 1 & 4 jointly and severally directed to pay Rs.1,00,000/- (Rupees one lakh) to the complainants with interest @ 9% from the date of complaint till payment and opposite parties 2 & 3 are jointly and severally directed to pay Rs.1,50,000/-(One lakh fifty thousand only) with interest @ 9% from the date of complaint till payment. They are also liable to pay cost of Rs.2000/- each respectively. Time for compliance is limited to 30 days from the date of receipt of complaint. Failing which they shall be liable to pay interest @ 12% from the date of order till payment. Sd/- Sd/- Sd/- MEMB ER MEMBER PRESIDENT Exts. A1. Copy of F.I.R. A2.Copy of Post-Mortem Certificate. A3. 14-8-07 letter sent by Matsyafed, Kasaragod Dist office to Smt. Shymala A4. 19-2-07 letter issued by Asst.Manager, Project office Cluster III Kasaragod to Dist.Manager, Matsafed. A5. 19-02-07 letter issued by the Dist. Manager, Matsyafed to G.M. Matsyafed. A6 19-02-07 letter issued by the Matsyafed District office to OP No.3. A7.8-3-07 letter addressed by the Asst.Manager, Matsyafed to Dist.office, Matsyafed, Kasaratgod A8.28-3-06 receipt issued by Kottikulam Kasaba Matsa Thozilali Vikasana Kshema Sahakarana Sangam to Kishore. A9. 2-4-07 letter issued by Matsyafed Dist.Office Kasaragod to Asst.Manager(NC) Cluster.III, Matsyafed, Kasaragod. A10.3-4-07. Letter of Dist.Manager, Matsyafed. A11. Form No.6.A. Photocopy of Identity card of Kishore A12. Photocopy of pass book of deceased Kishore. B1. Personal Accident Insurance Policy B2.Personal Accident Insruance Policy (Group) B3.4-4-07 Letter send by Matsyafed District office Kasaragod to RM Reliance Insurance Co.Ltd. B4.11-4-07 letter sent by Kerala State Co-op. Federation for Fisheries Development Ltd Trivandrum to Regional claims Manager, Reliance Insurance Co.Ltd B5. 2-7-07 letter sent by Reliance General Insurance to G.M. Matsyafed, Trivandrum. B6. 14-08-07 letter sent by Matsyafed District office to Smt. Shymala. B7. Paper cutting of news paper(Photocopy) B8. Photocopy of case diary. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT | 
