D.O.F:09/01/2018
D.O.O:05/10/2021
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.05/2018
Dated this, the 05th day of October 2021
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Smt. Narayani
W/o. Dasan,
Kizhur Kadappuram, P.O. Chandragiri : Complainant
Kasaragod Taluk
(Adv: Rajesh.K)
And
1. The Commissioner
Matsya Board,
Poomkunnam, Trissur - 680002
2. The Managing Director,
Matsyafed, Kamaleshwaram,
Thiruvanathapuram – 695009
3. The United India Insurance Co. Ltd,
Divisional Office No. 11,
Trade Centre, Kuruppam Road,
Trissur, Kerala – 680001
(Adv: C. Damodaran)
: Opposite Parties
4. M/s Reliance General Insurance Co.Ltd
Elizabeth Alexander Building
Marine Drive, Cochin -3
(Adv: Santhosh Thomas)
5. The Director of Insurance
Kerala State Insurance Department
Insurance Directorate, Trans Tower
Vazhuthakkad, Thykad P.O, Trivandrum – 695014
ORDER
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The complaint is filed under section 12 of the Consumer Protection Act, 1986 ( as amended) The facts of the case in brief is that the complainant’s husband Mr.Dasan died accidentally on02-11-2016 at about 5.30 am ,while engaged in fishing . He became collapsed and fell in the country craft, when he was pulling the fish net at high seas and was taken to shore and from there to Taluk Govt.General Hospital Kasaragod, but he was declared dead due to cardiac arrest, by the doctors.
That Mr. Dasan was a fisherman by profession and the entire traditional fisher men were insured by the Opposite Party No.1 and 2 with Opposite Party No.3 and 4 under the Personal Accidental Claim Benefits, a welfare scheme formulated by the Govt. That as per terms and conditions of the JPA Policy Opposite Party No.1 has to pay an amount of Rs.5 lakhs the Opposite Party No .2 has to pay an amount of 5,20,500/- and Opposite Party No.3 and 4 respectively are liable to compensate Mr. Dasan was a member of OP No.2 of Kizhur FDWC Ltd. And he paid his insurance premium on 09-03-2016 for the year 2016-2017.
He was issued with Fisherman Pass book of Opposite Party No.1, with Member No.05059 of Kizhur Fishermen village and he was regularly paying the yearly dues to the Fisheries Officer Kasaragod.
The Opposite Party No.1 and 2 had conducted enquiry on the death of Mr. Dasan and on enquiry it was satisfied that he was died in accident while engaged in fishing. Therefore The Opposite Party No.1 and 2 forwarded all the necessary documents to the Opposite Party No.3 and 4 for allowing the insurance benefits entitled to his legal heirs but the claim was repudiated , for the reason that the cardiac arrest will not fall under the category of accidental death.
It is submitted that the fisher men while engaged in fishing has to be treated as on duty and because of strenuous work ,he sustained cardiac arrest and fell inside the country craft and that is an accident.
The diseased K .V. Dasan was hale and healthy prior to the unfortunate accident and he was not having any pre existing ailments. He was continuously engaged in fishing for the last several years.
The death of K. V. Dasan was due to work relate injury like for unusual emotional stress and unusual exertion, which could be due to unforeseen circumstances K. V.Dasan was, while engaged I fishing is exposed to excessive stress and other natural calamities ,exhaustion and as a side effect , if death occurs by means of stroke or attack it would be a accidental death.
The diseased K V Dasan was working in open turbulent sea under scorching sun uneven air balance, high tides and there after sustained a heart attack due to the stress and such death is an accident, which is caused by visible and violent means. Therefore the complainant, being the legal heirs entitled for compensation and the repudiation of the claim is illegal.
Therefore there is gross negligence and service deficiency on the part of the Opposite Parties, due to which the complainant suffered great mental agony and sufferings.
Hence the complaint is filed for an order directing the Opposite Party No.1 to 5 to pay the insurance amount of Rs.10,20,500/- with interest and also Rs.1,00,000/- as compensation and cost.
The opposite parties entered appearance and filed written Version.
As per the separate written versions of the Opposite Party No.1 and 2 , they admit that the diseased K V Dasan , who was a member of the Kizhur Fishermen village, with a member No.761, collapsed and fell while he was engaged in fishing and taken to hospital and at there he was declared as died .There after an application filed by his wife Narayani for the insurance benefit and annexed documents was forwarded to the Kerala State Insurance Department, with a covering letter GAIS/KNR/11/2016
dated 09-01-2017of Kunnur Regional Executive. It is also admitted that the claim was repudiated as per the letter No.KSID/M2/KFWFB/13892/16 dated 27-05-2017, for the reason that the ''cardiac arrest " will not fall under the category of accidental death .
The Opposite Party No.2, further states that The Fishermen Personal Accident Insurance Scheme 2016-17 was implemented as an insurance scheme for fishermen, who are primary member of PFDW Co-operative Societies affiliated to Matsyafed by Reliance General Insurance Company, the Opposite Party No.4 here in. The Fishermen Personal Accident coverage is “Only Death Due to Accident” and the insured person dies due to any accident, the dependant (nominee) of the insured will be paid a compensation of Rs.5 lakh only, by the OP No.4. Reliance General Insurance Company
The Opposite Party No.2 is only a facilitator to furnish the required details to the insurance company. As per the Scheme a member fisherman has to remit the yearly premium in advance (Rs.155/- during 2016-17) and the dependant of the deceased will get the compensation for the death, as per terms and conditions. Here the Opposite Party No.4 rejected the claim on the ground that the death was not due to any accidental injury and the Opposite Party No.2 intimated the complainant about the letter issued by the Opposite Party No.4.There is no negligence on the part of the Opposite Party No.2.
As per the version of the Opposite Party No.3, the complaint is false ,frivolous and vexatious and as such unsustainable at law. It is denied that the Opposite Party No.3 has issued any policy covering the date of accident. The prior policy expired on 16-12-2015 and there is no renewal of policy. The Opposite Party No.3 is an unnecessary party to this case and the complaint is liable to be dismissed.
As per the version of the Opposite Party No.4, the complaint is false, frivolous and vexatious and liable to be dismissed. The Opposite Party No.4 is not admitting the contentions of the complainant that the Opposite Party No.2 has insured the traditional fishermen including the deceased husband of the complainant with the Opposite Party No.4, under the personal accident claims benefit scheme formulated by the government.
Neither the complainant nor the Opposite Party No.2 have made any information about the death nor made any claim before the Opposite Party No.4 so far. More over no policy particulars are made available to the Opposite Party No.4, so that the genuineness of the claim can be considered. The Opposite Party No.4 denied all the allegations put forth in the complaint. Without prejudice, Opposite Party No.4 submits that the amount claimed is very high, excessive and imaginary and the complaint is liable to be dismissed.
Formerly there was only 4 Opposite Parties and after the filing of the written versions of Opposite Party No.1 to 4 , the complaint filed petition IA. No. 123/2019 to implead the Opposite Party No.5, which was allowed. As per the written version of the Opposite Party No.5, the averments of the complainant are not maintainable either on facts or in law. The policy agrees to cover personal accident insurance to the active registered Fisher men/allied workers of the Kerala Fishermen Welfare Fund Board. The Opposite Party No 5 has co- insurance agreement with Opposite Party No.3, the United India Insurance Company and the company has to process the claims and issue technical opinion to the department. In this claim the Opposite Party No.3 has advised to repudiate the claim based on the postmortem report, which shows that the death was due to occlusive coronary artery disease. As such, the department relied on this technical opinion also. This department Opposite Party No.5 repudiated the claim in good faith and not made any disgrace or inconvenience to the complainant. Therefore the complaint is to be dismissed.
The Complainant filed proof affidavit in lieu of chief examination and documents
Ext. A 1 to Ext. A 9 are marked .The Ext - A1 is the FIR dated 2-11-2016 in the Cr.No.683/2016 of Bekal Police Station, Ext - A 2 is the copy of Postmortem Report dated 03-11-2016 , Ext A3 is the Death Certificate, Ext. A4 is a copy of the Passbook.
Ext. A 5 is the copy of Personal Accident Claim Form submitted to OP No.4., Ext. A6 is the Letter Dated 2-11-2018 issued by Kizhur Society through project officer of Opposite Party No.2,Ext.A7 is a copy of letter dated 30-11-2016 issued by Kizhur Society through Cluster III, Matsyafed, Ext A8 copy of Ambulance Bill, Ext A9 is Copy of a Report issued by Kizhur Society. The complainant was Cross -examined as PW – 1.
The opposite party didn't adduce any oral evidence . No documents produced.
Based on the pleadings and evidence of the rival parties in this case the following
issues are framed for consideration.
1. Whether there is any service deficiency on the part of any of the opposite party?
2. If so, what is the relief?
For convenience, both these issues are considered together.
Here the specific case of the complainant is that the complainant’s husband Mr.Dasan died accidentally on 02-11-2016 at about 5.30 am, while engaged in fishing . He became collapsed and fell in the country craft, when he was pulling the fish net at high seas and was taken to shore and from there to Taluk Govt.General Hospital Kasaragod, but he was declared dead due to cardiac arrest, by the doctors. That Mr. Dasan was a fisherman by profession and the entire traditional fisher men were insured by the Opposite Party No.1 and 2 with Opposite Party No.3 and 4 under the Personal Accidental Claim Benefits, a welfare scheme formulated by the Govt. That as per terms and conditions of the JPA Policy, Opposite Party No.1 has to pay an amount of Rs.5 lakhs the Opposite Party No. 2 has to pay an amount of Rs. 5,20,500/- and Opposite Party No.3 and 4 respectively are liable to compensate . Mr. Dasan was a member of Opposite Party No.2 of Kizhur FDWC Ltd. And he paid his insurance premium on 09-03-2016 for the year 2016-2017.
He was issued with Fisherman Pass book of Opposite Party No.1, with Member No.05059 of Kizhur Fishermen village and he was regularly paying the yearly dues to the Fisheries Officer Kasaragod.
The Opposite Party No.1 and 2 had conducted enquiry on the death of Mr. Dasan and on enquiry it was satisfied that he was died in accident while engaged in fishing. Therefore The Opposite Party No.1 and 2 forwarded all the necessary documents to the Opposite Party No.3 and 4 for allowing the insurance benefits entitled to his legal heirs but the claim was repudiated , for the reason that the cardiac arrest will not fall under the category of accidental death.
It is submitted that the fisher men while engaged in fishing has to be treated as on duty and because of strenuous work, he sustained cardiac arrest and fell inside the country craft, and that is an accident.
The diseased K. V. Dasan was hale and healthy prior to the unfortunate accident and he was not having any pre existing ailments. He was continuously engaged in fishing for the last several years.
The death of K V Dasan was due to work relate injury like for unusual emotional stress and unusual exertion, which could be due to unforeseen circumstances. K. V Dasan was, while engaged I fishing is exposed to excessive stress and other natural calamities, exhaustion and as a side effect, if death occurs by means of stroke or attack it would be a accidental death.
The diseased K V Dasan was working in open turbulent sea under scorching sun uneven air balance, high tides and there after sustained a heart attack due to the stress and such death is an accident, which is caused by visible and violent means. Therefore the complainant, being the legal heirs entitled for compensation and the repudiation of the claim is illegal.
Therefore there is gross negligence and service deficiency on the part of the Opposite Parties, due to which the complainant suffered great mental agony and sufferings.
The Opposite Parties filed separate written statements. The versions of the Opposite Party No.1 and 2 were to a certain extent supportive to the complainant’s case. They admitted the membership of KV Dasan in the Kizhur Fishermen village, with a member No.761and the facts of collapsed fall in country craft while he was engaged in fishing and subsequent death which was declared at the hospital. There after an application filed by his wife Narayani for the insurance benefit and annexed documents was forwarded to the Kerala State Insurance Department., which was repudiated as per the letter No.KSID/M2/KFWFB/13892/16 dated27-05-2017, for the reason that the cardiac arrest will not fall under the category of accidental death.
As per the Opposite Party No.2, the Fishermen Personal Accident Insurance Scheme 2016-17 was implemented as an insurance scheme for fishermen, who are primary member of PFDW Co-operative Societies affiliated to Matsyafed by Reliance General Insurance Company, the Opposite Party No.4 here in. The Fishermen Personal Accident coverage is “Only Death Due to Accident” and the insured person dies due to any accident, the dependant (nominee) of the insured will be paid a compensation of Rs.5 lakh only, by the Opposite Party No.4. Reliance General Insurance Company.
The Opposite Party No.2 is only a facilitator to furnish the required details to the insurance company. As per the Scheme a member fisherman has to remit the yearly premium in advance (Rs.155/- during 2016-17) and the dependant of the diseased will get the compensation for the death ,as per terms and conditions .Here the Opposite Party No.4 rejected the claim on the ground that the death was not due to any accidental injury and the Opposite Party No.2 intimated the complainant about the letter issued by the Opposite Party No.4.
There is no negligence on the part of the Opposite Party No.2. So , as per the version of the Opposite Party No.2, the insurer is the OP No.4. But as per the Opposite Party No.3, it was with the OP No.3 the United India Insurance Company, the Opposite Party. No 5 has co- insurance agreement, and the Company has to process the claims and issue technical opinion to the department. Further it is revealed that the claim was repudiated by the Opposite Party No.5.not by any insurance company.
In this claim the Opposite Party No.3 has advised to repudiate the claim based on the postmortem report, which shows that the death was due to occlusive coronary artery disease. As such, the department relied on this technical openion also..The department OP No.5 repudiated the claim in good faith and not made any disgrace or inconvenience to the complainant.
The Opposite Party No.5 admits that they repudiated the claim only based on the opinion of the Opposite Party No.3, on technical ground. Denial of the insurance benefit in connection with a government welfare scheme only on technical ground cannot be justified . Since this is a welfare measure for the fishermen community, the Opposite Party No.5 ought to have considered the case in a liberal manner applying their mind.
The complainant argue that the fisher men while engaged in fishing has to be treated as on duty and because of strenuous work , he sustained cardiac arrest and fell inside the country craft, and that is an accident. The diseased K V Dasan was hale and healthy prior to the unfortunate accident and he was not having any pre existing ailments. He was continuously engaged in fishing for the last several years.
The death of K V Dasan was due to work relate injury like for unusual emotional stress and unusual exertion, which could be due to unforeseen circumstances K. V Dasan was, while engaged in fishing is exposed to excessive stress and other natural calamities , exhaustion and as a side effect , if death occurs by means of stroke or attack it would be a accidental death.
In the case, Additional Secretary, Chhattisgarh State Power Holding Company Ltd. v. Bajaj Allianz General Insurance Co. Ltd. Revision Petition No.2139 of 2011 decided by the Hon'ble National Commission on 19.03.2014, it was held in Para No.10 as follows. :
" 10. As per the above report, the cause of death is cardio respiratory failure. The cause of cardiac arrest could be the existence of a pre-cardiac disease or even in the absence of such a disease, the cardiac arrest could take place due to shock upon falling
from a pole 36 in height. In the event of death by any means, the cardiac arrest or cardiac failure has to take place and only after that, a person is usually declared as dead. The cause of death stated in the post mortem report, therefore, does not support the version of the respondent that it was a death not due to accident.
Further, it has been stated in the post mortem report that no external injury was found on the body of the deceased. During fall from a pole, it is not necessary that bodily injury should always take place. The basic point is that there has been a fall from a pole and there has been the death of the employee. The argument taken by the respondent that the employee suffered heart attack while working on the pole, he died then and there, and then fell down, is not substantiated by any medical evidence. Rather, the version that because of his fall from the pole, he got a shock, due to which he suffered a heart-attack and died, seems to be a more plausible explanation."
This dictum can be applicable to this case also .As per the complainant’s case, the diseased K V Dasan was working in open turbulent sea under scorching sun uneven air balance, high tides and there after sustained a heart attack due to the stress and such death is an accident, which is caused by visible and violent means.
Here it is admitted that K V Dasan had fell down in the country craft, while engaged in fishing in the high sea . He was pulling the fish net . He was taken to shore and from there to Taluk Govt. General Hospital Kasaragod, but he was declared dead due to cardiac arrest, by the doctors. There is no evidence to rule out the possibility of cardiac arrest and death due to the impact of the fall.
National Commission held that the onus to prove that the death of the insured is a natural one and not an accidental death shifts on the Insurance Company.
Any of the Opposite Parties did not adduce any evidence in this case.
Therefore considering all these aspects, this commission is of the view that there is circumstance to hold that the death of K V Dasan was an accidental death during the course of fishing. Therefore the repudiation of the claim is not justified and amounts to service deficiency.
Therefore the complainant, being the legal heirs, entitled for the insurance benefit amount and the compensation for the mental agony and sufferings and the Opposite Party No.1 to 5 are liable to compensate. As far as the quantum of the insurance amount is concerned there no document showing exact details. The complainants claim is for Rs.10,20,500/- for which there is no reliable evidence Admittedly, as per the version of the Opposite Party No. 2, the compensation amount is Rs.5,00,000/- as per the scheme .So that amount can be fixed.
ln the result , the complaint is allowed and the Opposite Party No.1 to 5 are directed to pay the an amount of Rs.5,00,000/-(Rupees Five lakhs only) with 8% interest per annum from 09.01.2018, the date of complaint till payment. The opposite parties are also directed to pay Rs. 10,000/-(Rupees Ten thousand only) towards compensation and Rs.5,000/-,(Rupees Five thousand only) 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- FIR
A2- Postmortem Report
A3- Death Certificate
A4- Copy of the pass book
A5- Personal Accident claim form
A6- Letter dated. 02/11/2016
A7- Letter Dt: 30/11/2016
A8- Ambulance bill
A9- copy of a report issued by Kizhur Society
Witness Examined
Pw1- Narayani
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Senior Superintendent
Ps/
