IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 10th day of September 2021.
Filed on 11-11-2019
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Sholy P.R, B.A.L,LLB (Member)
In
CC/No.293/2019
between
Complainant:- Opposite parties:-
Smt. Sanila.S 1. The Director
W/o Late Anilkumar Kerala State Insurance
Velikkakathu Chirayil Department, Trans Towers
Kalavoor.P.O, Alappuzha Vazhuthakkadu,
Pin-688522 Thaikkadu.P.O,
(Adv. Sri. Jose. Y. James) Thriuvananthapuram
Pin-695014
2. The Manager
District Insurance Office
Insurance Department,
Alappuzha Office -688001
(Adl. Govt. Pleader
Sri. P.K.Ramesan for Ops)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
Complainant is the wife of late Anilkumar who died on 16.10.2017 due to drowning. Late Anilkumar was an employee of the Government high school, Naluchira, Thottappally P.O., Alappuzha-683561 working as an office attendant and holding group personal accident insurance scheme of government employees and teachers which was implemented through Kerala State Insurance Department. Premium was duly collected by the opposite parties for a coverage of Rs.15,00,000/- per employee in case of death. Complainant is the nominee of deceased Anilkumar in that group insurance policy.
2. On 16.10.17 Anilkumar died due to drowning at a canal near his home by slipping of foot. Mannanchery Police had registered a case as crime No.1402/2017 and filed final report stating that death was due to drowning. Deceased Anilkumar was healthy and energetic person without any ailments. The postmortem of deceased Anilkumar was conducted by the medical officer, Taluk head quarters hospital, Cherthala and report shows that the cause of death was due to the drowning. It happened as a result of accidental fall in a canal by slipping of foot. Complainant after death of Anilkumar lodged an application before the opposite parties for getting the legally entitled benefits on 20.11.2018 as claim No.120/2017. But it was rejected by the opposite parties on 31.01.2019 without any valid reason. Repudiation letter was received by the complainant on 20.02.2019. The act of opposite parties in rejecting the claim is illegal, arbitrary and deficiency in service. Hence complainant is entitled for compensation.
3. Even after repeated requests they have not paid the insurance amount. Hence complainant is entitled to get Rs.15,00,000/- along with interest @12 % per annum and Rs.50,000/- as damages sustained to the complainant for her mental pain. Hence the complaint.
4. 1st opposite party filed a version for a non- behalf of opposite parties mainly contenting as follows:-
As per G.O (P) No.555/2013 Fin dated 13.11.13 from 2014 onward GPAIS coverage is only Rs.10,00,000/- in case of accident death. It is admitted that the deceased was also a member of the GPAIS Scheme with a coverage of Rs.10,00,000/- only. Accident means any bodily injury sustained by the member on account of any sudden unforeseen or unexpected event which is soely or directly the result of an external violent or visible means. The proximate cause of the death should be an accident. On a detailed examination of the witness statements, it is found that the deceased had fits and cardiac problems. The accident of death could not be undoubtfully proved. From the police records it is evident that the body of the deceased was found in a canal where the water level was much below one feet which makes impossible drowning death by a healthy person. Hence the department rejected the claim. Even though the department has rejected the claim, the petitioner could have made an appeal to the principal secretary, finance department, Government of Kerala with relevant documents as per GO (P) 616/2010 Fin dated 23.11.2010. In this case complainant did not file an appeal.
5. This opposite party examined the matter as per the provisions of GO (P) No.616/2010 Fin dated 23.112010 and there was no illegal or improper actions for rejecting the claim. His death could not be proved as accident death and hence the claim was denied. Hence it is prayed that the complaint may be dismissed.
6. On the above pleadings following points were raised for consideration :-
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to realize an amount of Rs.15,00,000/- along with interest @ 12% as prayed for ?
- Whether the complainant is entitled to realize an amount of Rs.50,000/- for mental agony and pain as compensation as prayed for?
- Reliefs and cost?
7. Evidence in this case consists of the oral evidence of PW1 to PW3 and Exts.A1 to A4 from the side of the complainant. Opposite parties have not adduced any evidence either oral or documentary.
8. Point Nos.1 to 3:-
PW1 is the complainant in this case. She filed an affidavit in tune with the complaint and marked Ext.A1 to A4.
9. PW2 was working as Junior Consultant at Taluk hospital Cherthala on 16.10.2017. On that day he conducted the post mortem examination of Anilkumar and issued Ext.A2 certificate. The cause of death was due to drowning.
10. PW3 was working as station house officer at Mannancherry Police station. Crime No.1402/2017 was registered by him and Ext.A1 is the final report prepared in the case. Cause of death was drowning.
11. PW1, the complainant is the widow of Anilkumar, who met with an untimely death on 16/10/2017 at the age of 43 years while working as an Office Attendant attached to the Government High School Naluchira, Thottappally.P.O, Alappuzha. Being a government employee he was a member of Group Personal Accident Insurance Scheme(GPAIS) of the Government of Kerala managed by the opposite parties M/s Kerala State Insurance Department. Being the nominee of the policy PW1 filed a claim petition as claim No.120/2017 before the opposite party claiming an amount of Rs. 15,00,000/-. However the claim was repudiated by Ext.A3 letter dated.31/1/2019 by the opposite parties on a contention that since the death was not due to any accident claimant is not entitled for realizing the amount. Aggrieved by the same complaint is filed claiming an amount of Rs.15,00,000/- along with 12 % interest and Rs. 50,000/- as compensation for mental agony.
12. 1st opposite party filed a version mainly contenting that as per G.O(P) No.555/2013 Fin dated 13/11/2013 GPAIS coverage is only Rs.10,00,000/- and not to Rs.15,00,000/- as claimed. Secondly it was contented that as per G.O.(P) No. 616/2010 claimant is entitled for the amount only on accidental death. Since in the instant case it was not an accidental death they repudiated the claim. Complainant got examined as PW1 and Ext.A1 to A4 were marked. Two witnesses were examined as PW2 and PW3. Opposite parties did not adduce any evidence. They produced the Government Orders mentioned in the version. Accident is defined in G.O(P) No. 616/2010/Fin dated 23/11/2010 as follows:-
a). “ Accident’ means any bodily injury sustained by the member on account of any sudden unforeseen or unexpected event which is solely or directly the result of an external, violent or visible means.
Provided that no compensation shall be paid for death or disablement as described above arising out of intentional self- injury, suicide, attempted suicide, death or disablement due to accident while under the influence of intoxicating liquor or drugs and death or disablement while breaching law with criminal intent.
vii) Death under influence of liquor will not be treated as accident even if it is happened due to ‘motor accident’, ‘electric shock’, ‘drowning’ whatsoever the case, viscera-brain, lungs samples test respiratory test by chemical examination will be produced when claims submitted in such doubtful cases and occasion and in such cases insurance claim will not sustain only because he has subscribed to GPAIS.
13. The main contention in repudiating the claim by Ext.A3 letter dated. 31/1/2019 is as follows:-
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14. During Cross examination PW1 admitted that her husband had fics and cardiac problems. Their marriage was about 9 years back and thereafter there was no such disease to the deceased. Ext.A1 is the Final Report prepared by PW3, Station House Officer attached to Mannanchery Police Station in crime no.1402/2017. As per Ext.A1 report the SHO requested to close the case since it was ‘accidental death by drowning.’ Ext.A2 is the post mortem certificate issued by PW2 , medical officer attached to Taluk Hospital Cherthala. After conducting postmortem on the body of Anilkumar, in the column opinion as to the cause of death it is written as ‘death due to drowning’. So it is pellucid from Ext.A1 and A2 coupled with the oral evidence of PW2 and PW3 that the death was due to drowning. In the version it is contented that the dead body was found in a canal where the water level was much below one feet which makes impossible drowning death by healthy person. However as stated earlier from Ext.A1 and A2 coupled with the oral evidence of PW2 and 3 it is crystal clear that death was due to drowning which is an accidental death as defined in G.O.(P) 616/10/Fin dated 23/11/2010 of Government of Kerala. So the opposite parties had no right to reject the genuine claim of PW1, on a contention that it was not an accidental death. Opposite parties could not produce even a scrap of paper to show that death was not due to drowning and it was due to some other disease. So there was deficiency of service from the part of opposite parties by rejecting a genuine claim put forward by PW1 on flimsy ground. The claim was rejected as per Ext.A3 letter dated 31/1/2019 and thereafter complainant had to file this case claiming the amount. Though the amount claimed is Rs.15,00,000/- from G.O.(P) No. 555/2013/Fin dated 13/11/2013 it is seen that the assured sum is only Rs.10,00,000/- So the complainant is entitled to realize Rs.10,00,000/- from the opposite parties.
15. It is contented in the version that as per G.O.(P) No. 616/10/Fin dated 23/11/2010 if a claim is rejected party has to make a complaint to the Principal Secretary, Finance Department Government of Kerala within 60 days. Here in this case admittedly PW1 has not filed any complaint before the principle secretary. But it is not a bar for filing a consumer complaint claiming the amount.
16. Pw1 has filed the complaint on a contention that he is the nominee of the GPAIS scheme of the deceased. Now it is well settled that nominee can only withdraw the amount and appropriate among the legal heirs. From Ext.A4 Legal Heir ship Certificate dated. 12/2/2018 issued by the Tahasildar, Ambalappuzha it is seen that deceased is left with his mother and two children other than complainant. All the four legal heirs are entitled to claim the amount equally. We have already found that as per Ext.A3 letter dated 31/1/2019 the claim was repudiated without any satisfactory reason though Ext.A1 Final Report and Ext.A2 Post mortem Certificate clearly shows that it was an accidental death ie, death by drowning. In said circumstances claimants are entitled to get interest from the date of Ext.A3 (31/1/2019). After repudiation of the case complainant has to approach this Commission to redress her grievance. Much agony and delay might have experienced by the complainant and so she is entitled for compensation and we are limiting the same to Rs.20,000/-. These points are found accordingly.
17. Point. No.4:-
In the result complaint is allowed in part.
A) Parties mentioned in Ext.A4 Legal Heir ship Certificate including complainant are entitled to realize an amount of Rs. 10,00,000/- (Rupees Ten Lakh only) along with interest @ of 9% per annum from 31/1/2019(Ext.A3) till realization from the opposite parties.
B) They are also allowed to realize an amount o fRs.20,000/- (Rupees Twenty Thousand only) as compensation for mental agony and hardship.
(C) The share of minor children will be deposited in a Nationalized Bank till they attains majority and the certificate will be produced.
(D) PW1, complainant is allowed to realize the amount for and on behalf of other claimants.
E) PW1 is allowed to realize an amount of Rs.2000/- (Two thousand only) as cost.
The order shall be complied within one month from the date of receipt of copy of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 10th day of September, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Sanila.S(Complainant)
PW2 - Aneesh Raj.A(Witness)
PW3 - Binu.R(Witness)
Ext.A1 - Attested Copy of Final Report
Ext.A2 - Attested copy of Post mortem Report
Ext.A3 - Copy of Repudiation Letter
Ext.A4 - True copy of Legal Heir Ship Certificate
Evidence of the opposite parties:- Nil
True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
