State Consumer Disputes Redressal Commission
The Divisional Manager, Oriental ... vs Lourdamma, on 31 October, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/783 (Arisen out of Order Dated 31/01/2012 in Case No. CC/04/347 of District Thiruvananthapuram) 1. ORIENTAL INSURANCE CO LTD DIVISIONAL OFFICE,MEDICAL COLLEGE TRIVANDRUM KERALA ...........Appellant(s) Versus 1. LOURDAMMA VALIYATHOPE,THEKKEKKARA,PUTHIYATHURA.P.O TRIVANDRUM KERALA ...........Respondent(s) BEFORE: SMT.A.RADHA PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.783/12
JUDGMENT DATED : 31.10.12
PRESENT:
SMT. A. RADHA : MEMBER
The Divisional Manager,
Oriental lnsurance Co. Ltd.
Divisional Office-11,
Medical College P.O., Trivandrum : APPELLANT
(By Sri. Advs.R.S. Kalkura & G.S. Kalkura)
Vs
1. Lourdamma,
Valiyathope,
Thekkekara, Puthiyathura P.O.,
Thiruvananthapupram -26
2. Antony A.,
-do-
3. Michael. A.,
-do-
4. Sonia.L.,
-do-
5. Sony. A,
-do-
6. Matsya Fed, Matsya Bhavan,
Kuravankonam,
Kowdiar P.O.,
Trivandrum 695 003. : RESPONDENT
JUDGMENT
SMT. A. RADHA : MEMBER Aggrieved by the order passed by the CDRF, Thiruvananthapuram in OP No. 347/04 the appellant/1st opposite party preferred this appeal. The Forum below directed the 1st opposite party to pay the insured amount of Rs.1,50,000/- On non-compliance the complainants are entitled for 9% interest from the date of order till realization.
2. When this appeal came up for hearing on the question of admission the learned counsel for the appellant/1st opposite party vehemently opposed the order allowing the complaint. The Forum below had gone beyond the conditions of the policy and at the time of the death of the deceased the premium for the policy was not remitted to the 1st opposite party. The premium was remitted only during the extended period and in between that time the complainant's husband died in the accident occurred on 26.04.03. He also pointed out that the Forum below failed to consider that the deceased paid the premium with his primary society only on 16.4.03 whereas the company had issued the policy to the 2nd opposite party for the premium remitted on for a period of one year from 31.03.2003 till 30.3.04 for 31722 fishermen as beneficiaries. At that time the deceased was not included in that list of beneficiary on 31.03.03. It is also admitted that the policy was issued as an yearly policy. The payment of premium is only for one time in yearly policy. The counsel also pointed out that subsequent payment of premium cannot be included for the benefit until the issuance of policy completed and the policy is valid from the date of issuance. The additional list of persons including the deceased came to 14193 which was effective from 30.05.03 to 30.03.04 . Since the deceased paid the premium only on 16.4.03 he cannot be included as beneficiary in the 1st policy. The additional premium was remitted only on 30.5.03 and in the additional list the deceased cannot be considered as an insured person, as the person died before the remittance of the additional premium. There cannot be a contract with a dead person. During the remittance of the additional premium the 2nd opposite party suppressed the details of death of the deceased. There cannot be any contract of insurance between a dead person and the 1st opposite party/appellant. If at all any liability is cast upon, it goes with the 2nd opposite party who accepted the premium and the deficiency in service is to be attributed on the part of the 2nd opposite party.
3. The case of the complainant is that the 1st complainant's husband died on 26.04.03 in an accident and drowned in the sea. The deceased sustained heavy injuries on his eyes and forehead on the sudden hit of the Kattamaram and drowned in the sea accidentally. The deceased was enlisted in the group insurance policy of the 1st opposite party under the Janatha Personal Accident Policy through the 2nd opposite party, Matsyafed. The deceased was a member of the Kochuthura Fishermen Development and Welfare Co-operative Society. The scheme was intended for the fisherman who met with accidental death is covered for an amount of Rs.1,50,000/- through the 2nd opposite party. He remitted an amount of Rs.50/- on 16.4.2003 in the year 2003-2004. Consequent to the death , the legal heirs of the deceased claimed the insured amount through the 2nd opposite party which was repudiated by the 1st opposite party on the ground that the premium was remitted long after his death. The repudiation of claim was not proper and just and the complainants prayed for the insured amount of Rs.1,50,000/- with interest @18% and compensation of Rs.25,000/- and cost of Rs.5,000/-.
4. The opposite parties in their version contended that the deceased was not a member of the group accidental insurance policy at the time of death. It is also the contention that the 2nd opposite party had not remitted the premium before the death of the deceased. The group insurance policy was for a period from 31.03.2003 to 30.3.2004. The additional premium was remitted by the 2nd opposite party only on 30.05.03 which is long after the death of the deceased. The contention also enlarged to the effect that the remittance to the primary society cannot be made liable to pay the claim amount by the 1st opposite party. The society is acting as an agent of its member but not as the agent of the 1st opposite party and no deficiency can be attributed on the part of the 1st opposite party on repudiation of the claim.
5. In the version filed by the 2nd opposite party it is stated that they were included as an unnecessary party. They are only a mediator to introduce the scheme for the development and welfare of fishermen. It is not in dispute that the 2nd opposite party received the premium from the deceased and forwarded it to the 1st opposite party within the extended period.
6. The evidence consisted of the oral testimony of PW1 and documents were marked as Exts. P1 to P7 and on the side of the opposite parties DW1 and DW2 were examined and documents were marked as Exts. D1 to D5. The Forum below came to the conclusion allowing the complaint in the interest of natural justice and also based on the Consumer Protection Act as a beneficial legislation.
7. On going through the documents this Commission finds that the group insurance policy adopted and implemented by the 6th respondent/2nd opposite party for the benefit of the fishermen under the Janatha Personal Accident Policy for an amount of Rs.1,50,000/-. The Accident policy was a period from 31.03.03 to 30.03.04 and the premium was collected by the Welfare Co-operative Societies under the 6th respondent/2nd opposite party. The complainant's husband died on 26.04.03 due to the accident and drowned in the sea. He remitted an amount of Rs.50/- to the Kochuthura Fisherman Welfare and Development Co-operative society which is a primary society of Matsyafed, the 6th respondent. The scheme was introduced from 31.03.03 and additional premium was remitted by the 6th respondent to the appellant on 30.5.03. It is an admitted fact that the 6th respondent collected the premium as the agent of the appellant/1st opposite party. It is also true that the society was acting as an agent of its member also. So it cannot go without saying that the principal agent relationship between the appellant and the 6th respondent/ 2nd opposite party. It is also an admitted fact that the 6th respondent collected premium for 31722 persons on the 1st instance and the additional number of 14,193 wherein the deceased included in the 2nd list. The extended period for the premium was also within the knowledge and consent of the appellant. The contention that the additional premium paid for the period from 30.05.03 to 30.03.04 was also for a period of yearly policy and was included in the master policy. While a policy is meant as an yearly policy, the appellant is estopped from saying that the policy is prevalent only for a period from 30.5.2003 to 30.03.2004. As the second premium for 14193 persons having been accepted by the appellant on 30.5.03 and resisting of payment towards the insurance policy by the appellant is unsustainable. The remittance of premium by the deceased was on 16.4.03 and he died only on 26.04.03. On the part of the insured he had already paid the premium before his death to the agent who was acting upon the appellant. So the vicarious liability of the appellant cannot be absolved by repudiating the claim. There is no case pleaded that there is any delay in remitting the premium to the appellant. It is with the consent of the appellant, the 6th respondent collected the premium from the fishermen. There is no separate policy issued for the additional persons which means they were included in the master policy under the Janatha Accident Policy issued by the appellant as early as on 30.03.03. The premium was accepted on an understanding between the 6th respondent and the appellant. The master policy was issued to the matsyafed, 6th respondent and all the persons were included as beneficiaries under this policy. This was evidenced in the cross examination of DW1. It is also to be pointed out that the yearly policy means 12 months policy. In this case it could be from 30.3.03 to 30.03.04 only. After accepting the premium for one year contract the appellant is estopped from holding that it was only for a period from 30.05.03 to 30.03.04. As per Ext. D4 the total sum insured for 45915 fishermen the sum insured comes to Rs.6887250000/- and the sum insured comes to Rs.1,50,000/- per person and the policy period was from 31.03.03 to midnight 30.03.04. So the appellant cannot blow hot and cold that the policy cover was only from 30.05.03 to 30.03.04 Since the 6th respondent acted upon as the agent of the appellant, the appellant as the principal who accepted the premium under one master policy is liable to pay the insured sum to the complainants.
In the result, the appeal is not admitted and dismissed and uphold the order passed by the Forum below.
Office is directed to send a copy of this order to the Forum below along with LCR.
A. RADHA : MEMBER
st
[ SMT.A.RADHA] PRESIDING MEMBER