D.O.F:13/04/2018
D.O.O:21/03/2022
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.55/2018
Dated this, the 21th day of March 2022
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SRI.RADHAKRISHNAN NAIR.M: MEMBER
SMT.BEENA.K.G : MEMBER
1.Rajan. 48 years (Since Dead)
S/o Vasanthan,AjanurKadappuram
P.O Kolavayal, Kanhangad.
(Adv: Rajesh.K) : Complainant
2.Beena.K(aged 39 yrs)
W/o Rajan and D/o Keshavan
3.AthiraRajan(aged 21 yrs), D/o Rajan
4.AkhilRajan(19 yrs),S/o Rajan
(2 to 4 R/at above address) And
1. The Commissioner,
Matsya Board, Poomkunnam,
Trissur – 680002
2. The Managing Director,
Matsyafed, Kamaleshwaram,
Thiruvanathapuram – 695009
3. M/s United India India Insurance Co. Ltd
Trissur, 680001
(Adv: C. Damodaran)
ORDER
SRI.RADHAKRISHNAN NAIR.M: MEMBER
The complaint is filed under section 12 of the Consumer Protection Act, 1986 ( as amended ) The complaint was originally filed by now deceased Rajan . After the death of Rajan on 05.09.2018, his wife and children being the legal heirs impleaded themselves as supplemental complainants No. 2 to 4, as per the order in IA No.39 / 2019 and amended the complaint accordingly, as per the order in I A No.40 / 2019.
The facts of the case in brief is that the complainant No.1, now deceased Rajan was a member of Ajanur Matsya Gramam with membership No.1497 and was issued with pass book bearing No.07069 by the Fisheris Officer , Ajanur. He was also a member of Ajanur FDWCLtd and paying the regular insurance premium.
That on 13 -11-2015 the complainant was engaged in fishing in high seas at Ajanur . He sustained weakness over his body and collapsed inside the fishing vessal , the others removed the fishing craft to the shore and immediately he was taken to Pariyaram Medical College where he was admitted and treated till 20.11.2015 . He was diagnosed "Systemic Hypertension " and because of the injury sustained while engaged in fishing his body was fully paralysed and he was incapable of moving around and occupationally he was 100 % disabled . After treatment at Pariyaram Medical College, he was admitted at First Neuro Brain and Spine Super Speciality Hospital, Manglore on 20-11-2015 and discharged on 15.12.2015 The complainant was also treated at AJ Institute of Medical Science , Mangalore as inpatient who was admitted on 10-01-2017 and discharged in February 2017. The Opposite Party No.1 and 2 are affiliated to the Opposite Party No.3 and all the insurance benefits to be paid by the Opposite Party No. 3. The complainant has filed JPA benefit form and the same was not repudiated. Hence there is no delay in filing this complaint.
The Dist. Medical Board has assessed 80 % disability on 22-08-2017. Hence the disability is to be treated as 100% for functional disability as the complainant is unable to do any work in future and he was bed ridden. The injury sustained in the high seas ,at the time of engaging in hectic fishing is to be treated as accident which occurred because of violent and visible means.
The disease which the complainant was afflicted with would come under the provision of the scheme formulated by the Opposite Parties and covered by the insurance scheme. The complainant has incurred more than Rs. 2 lakhs for treatment at 3 Medical Colleges and prayed for grant of financial assistance for the period from 2015 to 2017 and he was continuing treatment and he is unable to move about.
Hence the complaint was filed for an order directing the Opposite Parties No.1 to 3 to pay an amount of Rs.5,20,000/- with interest @ 12% from 13.11.2015 and Rs. 2,00,000/- towards Medical expenses and Rs.30,000/- towards compensation for pain and suffering and Rs .10,000/- as cost.
The opposite parties entered appearance and filed written Version. Originally there were 4 opposite parties and after the filing of written version of Opposite Party No.3, the complaint was got amended as per the order in IA No.140 / 2020, as per which the Opposite Party No.3 there in was deleted from the party array and Opposite Party No.4 became Opposite Party No. 3.
As per the written version of the Opposite Party No.1 , it is admitted that (now diseased) Rajan was a member of the Ajanur Fishermen village, with a member No.1497 and considering an application under a scheme for financial assistance for treatment , an amount of Rs.17,790/- was sanctioned (cheque No.658285 dt.14.02.2014) and an amount of Rs.12,084/- was sanctioned (cheque No.028151 dt.25.07.2015) to him as per file No. D/242/14. It is stated that since no application for insurance benefit on account of accident occurred on 13.11.2015, was submitted to them by the complainant, they could not take any steps in that respect.
As per the written version of the Opposite Party No. 2 , it is admitted that (now diseased) Rajan was a enrolled under Fishermen Personnel Accident Insurance scheme 2015-16 as per Serial No.175 of Ajanur FD W Co-op.Society implemented by Matsyafed through Opposite Party No.3. The Fishermen Personnel Accident Insurance scheme 2015-16 cover "Only Death due to Accident "and if the insured person died due to any accident , the dependant (nominee) of the insured will be paid compensation of Rs. 5,00,000/- by the Opposite Party No. 3. The complainant Rajan had not informed about the accident and not submitted any application and supporting documents pertains to the above accident through society till date to the Opposite Party No. 2, through matsyafed Dist. officer.
There is no negligence on the part of the Opposite Party No.2.
As per the version of the Opposite Party No.3 (originally Opposite Party No.4 ) , the complaint is false ,frivolous and vexatious and as such unsustainable at law.
It is denied that the No.3 has received any claim either from the complainant or from Opposite Party No.1. The Opposite Party No.1 is the insured who is supposed to forward the claim after enquiry with recommendation and supporting documents. The allegation that the complainant has filed JPA benefit form and the same was not repudiated is false and denied .Liability if at all is subject to the terms, conditions and limits specified in the policy and the MOU entered in to between the Opposite Party and the Matsyafed Fund Board. The payment made by Fishermen's Welfare Fund Board is binding as regards the merits of the case .The complainant has not suffered any disability. The alleged expenses is denied as false. Injuries if any is not caused while engaged in fishing .The claim is adequately compensated by Opposite Party No.1. The complaint is Iiable to be dismissed.
The Opposite Party No.3 filed an additional written version dated 2.12.2020 as per which it is stated that has already admitted insurance coverage to the complainant, being a member of the Matsya Board. The policy coverage for the members of Matsya Board is Rs .2.5 lakhs in case of permanent partial disability and Rs. 25,000/- towards medical bill. It is also submitted that the Opposite Party No.1 is not Iiable to pay as claim is adequately compensated by them.
The Supplemental complainant No. 2, Beena , the wife of Rajan filed proof affidavit in lieu of chief examination and documents Ext. A 1 to Ext. A 6 are marked .The Ext - A1 is the Discharge Summary dated 20-11-2015 from Pariyaram Medical College , Ext - A 2 is the Treatment certificate dated 18-12-2017, Ext A3 is the Discharge Summary dated 15-12-2015 from First Neuro Brain and Spine Super Speciality Hospital, Manglore, Ext. A 4 is the Discharge Summary dated 15-12-2015 from AJInstitute of Medical Science, Manglore.. Ext. A 5 is the lnsurance payment receipt N. 20682 issued by Opposite Party No.3., Ext. A 6 is the Original pass book showing the payment of Ri 100/- The complainant No. 2 was Cross -examined as PW - 1.The complainant produced one more document along with affidavit and marked as Ext A7. The Ext. A 7 is the Certificate for the persons with disabilities issued by Medical Board .
The opposite party didn't adduce any oral evidence . The Opposite Party No. 3 produced 2 documents, which are marked as Ext. B1 and Ext. B2 Ext B1 is a copy of the Insurance policy. Ext.B 2 is a copy of the agreement between Opposite Party No.1 and Opposite Party No. 3.
Based on the pleadings and evidence of the rival parties in this case the following
issues are framed for consideration.
- Whether the complainants are entitled for the insurance benefit?
- Whether there is any service deficiency on the part of any of the opposite party ?
- If so, what is the relief?
For convenience, all these issues are considered together.
Here the specific case of the complainants No. 2 to 4 is that the complainant No.1, now deceased Rajan was a member of Ajanur Matsya Gramam with membership No.1497 and is being issued with pass book bearing No.07069 by the Fisheris Officer , Ajanur. He was also a member of Ajanur FDWCLtd and paying the regular insurance premium.
That on 13 -11-2015 the complainant was engaged in fishing in high seas at Ajanur . he sustained weakness over his body and collapsed inside the fishing vessal , the others removed the fishing craft to the shore and immediately he was taken to Pariyaram Medical College where he was admitted and treated till 20.11.2015 . He was diagnosed "Systemic Hypertension " and because of the injury sustained while engaged in fishing his body was fully paralysed and he was incapable of moving around and occupationally he was 100 % disabled . After treatment at Pariyaram Medical College, he was admitted at First Neuro Brain and Spine Super Speciality Hospital, Manglore on 20-11-2015 and discharged on 15.12.2015. The complainant was also treated at AJ Institute of Medical Science , Manglore as inpatient who was admitted on 10-01-2017 and discharged in February 2017. The Opposite Party No.1 and 2 are affiliated to the Opposite Party No.3 and all the insurance benefits to be paid by the Opposite Party No. 3. The complainant has filed JPA benefit form and the same was not repudiated. The Dist. Medical Board has assessed 80 % disability on 22-08-2017. Hence the disability is to be treated as 100% for functional disability as the complainant is unable to do any work in fature and he was bed ridden. The injury sustained in the high seas, at the time of engaging in hectic fishing is to be treated as accident which occurred because of violent and visible means.
The disease which the complainant was afflicted with will come under the provision of the scheme formulated by the Opposite Parties and covered by the insurance scheme. The complainant has incurred more than Rs. 2 lakhs for treatment at 3 Medical Colleges and prayed for grant of financial assistance for the period from 2015 to 2017 .(There after Rajan died on 05.09.2018 while undergoing treatment. ) Hence the complaint was filed for an order directing the opposite Parties No.1 to 3 to pay an amount of Rs.5,20,000/- with interest @ 12% from 13.11.2015 and Rs. 2,00,000/- towards Medical expenses and Rs.30,000/- towards compensation to pain and suffering and Rs .10,000/- as cost.
As per the version of the Opposite Party No.1 it is admitted that the complainant was a member of Matsya Board and considering an application under a scheme for financial assistance for treatment , an amount of Rs.17,790/- was sanctioned (cheque No.658285 dt.14.02.2014) and an amount of Rs.12,084/- was sanctioned (cheque No.028151 dt.25.07.2015) to him as per file No. D/242/14.It is stated that since no application for any financial assistance on account of accident insurance benefit was submitted to them by the complainant, they could not take any steps in that respect.
As per the written version of the Opposite Party No. 2 , it is admitted that (now diseased) Rajan was a rolled under Fishermen Personnel Accident Insurance scheme 2015-16 as per serial No.175 of Ajanur FD W Co-op. Society implemented by Matsyafed through Opposite Party No.3. The Fishermen Personnel Accident Insurance scheme 2015-16 cover "Only Death due to Accident "and if the insured person died due to any accident , the dependant (nominee) of the insured will be paid compensation of Rs. 5,00,000/- by the Opposite Party No. 3. The complainant Rajan had not informed about the accident and not submitted any application and supporting documents pertains to the above accident through society till date to the Opposite Party No. 2, through matsyafed Dist. officer. There is no negligence on the part of the Opposite Party No.2.
As per the version of Opposite Party No. 3, it is denied that they have received any claim either from the complainant or from Opposite Party No.1. The Opposite Party No.1 is the insured who is supposed to forward the claim after enquiry with recommendation and supporting documents. The allegation that the complainant has filed JPA benefit form and the same was not repudiated is false and denied . Liability if at all is subject to the terms , conditions and limits specified in the policy and the MOU entered in to between the Opposite Party and the Matsyafed Fund Board. The payment made by Fishermen's Welfare Fund Board is binding as regards the merits of the case.
The Opposite Party No.3 filed an additional written version dated 2.12.2020 as per which it is stated that the policy coverage for the members of Matsya Board is Rs .2.5 lakhs in case of permanent partial disability and Rs. 25,000/- towards medical bill. It is also submitted that the Opposite Party No.3 is not Iiable to pay as claim is adequately compensated by Opposite Party No.1.
Admittedly the insurance scheme introduced by the Opposite Parties is a welfare scheme with an objective to ensure economic and social and development of fishermen community. The complainants argue that Mr. Rajan was engaged in the high seas in hectic fishing on 13. 11.2015 and while engaged in fishing he sustained weakness over the body and collapsed inside the Fishing vessal and that was an accident caused by external and visible and violent means.
It is submitted that the bodily weakness sustained during while engaged in fishing activities in scorching sun turbulent wind is to be treated as accident
Because of the above accident his body was fully paralysed and he was completely bedridden as he was incapable of moving around inspite of the treatment in 3 medical colleges. Thereafter he died on 05.09.2019. The Opposite Parties didn't disputed the incident on 13. 11.2015. The case of Opposite Party No.1 is that the complainants had not submitted any claim form for insurance benefit with necessary documents on account of the accident dated 13.11.2015. The Opposite Party No. 3 also states they have not received any claim either from the complainant or from Opposite Party No.1. The Opposite Party No.1 is the insured , who is supposed to forward the claim after enquiry with recommendation and supporting documents. The complainant had not filed JPA benefit form and the same was not repudiated.
Here the complainant didn't take steps to call for the documents of claim form submitted by them. Therefore it cannot be held that there is any service deficiency or negligence on the part of the Opposite Parties. The complainant’s counsel produced a decision reported in 2005 (2) KLT 610 Kerala Fishermen Fund Board vs. Kunjan Divakaran. The para 7 of the Judgment reads as follows : " Undoubtedly the scheme framed by the Board is a laudable Welfare measure . Any provision or clause in a welfare legislation or scheme, as the case may be, has to be construed and interpreted liberally. The attempt should never be to deprive the needy and eligible the benefit of the benevolent Iegislation or scheme. An earnest endeavour should be made to reach out to the victim and vipe out the tears of sufferings. The intent and the purport of the legislation must be born 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 provision contained in a welfare statute."
Coming to the facts of this case, it is revealed that the original complainant Rajan died on 05.09.2018 , during the pendancy of the case and his legal heirs got impleaded themselves as the supplimental complainants No.2 to 4. But here no death certificate or post mortem report produced to know the exact reason for death . The complainants produced and marked the Ext. A 7, a disability certificate issued from the Medical Board constituted by District Medical officer. It shows that as on 22.08.2017, Mr. Rajan had 80 % of Pautism permanent Locomotor disability. It is also written that the disability was classified as severe. This condition was progressing not Iikely to improve. All these imply that Mr.Rajan was in a state of permanent disability.
The Opposite Party No.3 state that the policy coverage for the members of Matsya Board is Rs. 2.5 lakhs in case of permanent partial disability and Rs. 25,000/- towards medical bill. The document Ext. B 1, the Group personal accident tailor made policy schedule, it is seen that ”Special condition : Sum insured per person Rs.5 lakh for death, permanent total disability and missing while fishing ., Rs . 2.5 lakh for 50 % disability permanent partial disability - % of CSI as per MoU, Accidental Hospitalisation benefit subject to limit of Rs 25,000/- per person per year. Educational grant and Funeral expenses as per MoU ". The document Ext. B2, the agreement , the MoU , describes what is permanent total disability. In the page 4 , it is mentioned as : "3. Permanent total disability means : (i) Loss of sight of both eyes or of actual loss by physical separation of the two entire hands or two entire feets, or of one such Ioss of sight of one eye and such Ioss of one entire foot, or
(ii) Loss of use of two hands or two feets, or one foot and one hand or such loss of sight of one eye and such loss of use of one hand and one foot.( iii) Any Permanent total disablement which prevents from doing any work for lively hood."
In view of the document Ext. A7 together with the Ext.B2, it can be held that the complainant Rajan was having permanent total disability.
So considering the facts and circum stance of the case the complainant is entitled for Rs. 5,00,000/- towards insurance benefit for having permanent total disability, along with Rs. 25,000/- towards Hospitalisation benefit.
Since there is no evidence for timely filing of claim form by the complainant and repudiation of the same, this commission is not inclined to allow any compensation for service deficiency or negligence. But in the interest of justice the complainants are entitled to a nominal interest on the amount.
ln the result , the complaint is allowed in part and the Opposite Party No.3 is directed to pay a total amount of Rs. 5,25,000/- with 8% interest per annum from 18.04.2018, the date of complaint till payment, to the complainants. No order towards the costs.
Time for compliance is 30 days from receipt of the copy of the Judgement.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Discharge Card
A2- Treatment certificate
A3- Discharge summary
A4- Discharge summary
A5- Receipt
A6- Pass Book
A7-Medical Board Certificate.
B1- Copy of the policy
B2- copy of the agreement
Witness Examined
Pw1- Beena. K
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
