National Consumer Disputes Redressal
R.V. Fathima Mohammed vs New India Assurance Co. Ltd And Ors. on 22 July, 2010
This appeal is directed against the order dated 03 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL No. 231 of 2006 (From the Order dated 30.05.2005 of Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in OP No. 38 of 2001) Smt. R.V. Fathima Mohammed Rasheed Manzil P. O. Puthenpalli Appellant Trichur versus 1. M/s New India Assurance Company, Divisional Office II (761400), 2nd Floor, K.N. Mathew Building Gandhari Amman Building Thiruvananthapuram 2. Divisional Manager M/s New India Assurance Company Respondents II (761400), 2nd Floor, K.N. Mathew Building Gandhari Amman Building Thiruvananthapuram 3. The Secretary Department of Non Residential Keralites (NORKA) Government Secretariat Thiruvananthapuram BEFORE: Honble Mr Justice R. C. Jain Presiding Member Honble Mr Anupam Dasgupta Member For the Appellant: Mr. Raghenth Basant, Advocate For the Respondents: Mr. K.L. Nandwani, Advocate Dated 22nd July 2010 ORDER
Anupam Dasgupta This appeal seeks to challenge the order dated 30.05.2005 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, the State Commission), in complaint case no. 38 of 2001. By the impugned order, the State Commission dismissed the complaint filed by the appellant on the ground that the death of her son Rasheed (who had availed of an insurance policy for Rs. 5 lakh under the Pravasi Suraksha Social Welfare Scheme framed jointly by the New India Assurance Company Limited (respondent here) and the Government of Kerala specifically for the benefit of Non Resident Indians of that State) fell in the category of exclusions under clause 4 of the said Scheme and hence the respondent insurance company was not liable to pay the compensation of Rs. 5 lakh to the nominee of the insured, namely, the appellant here.
2. The facts are that Rasheed, the eldest son of the complainant/appellant was a Non Resident Indian working in Dubai as a computer science engineer.
On 24.04.1999, he drowned off the coast of Hawar Island in Bahrain while he was driving a jet ski. An account of the accident was published in the Bahrain Tribune dated 26.04.99. In the death certificate issued by the State Authorities of Bahrain, the main cause of Rasheeds death was shown as cardio respiratory failure and the event leading to the said cause as drowning. The Embassy of India in Bharain also issued death certificate stating that he had died on 24.04.1999 due to cardio respiratory failure.
However, when the complainant/appellant applied to the respondent seeking compensation under the aforesaid Scheme, the latter declined the claim vide its letter dated 31.08.1999 on the following grounds:
We note that Rasheed died while jet-skiing at Hawar Islands, Bahrain. In this connection we have to inform you that the Pravasi Suraksha Social Welfare Scheme specifically excludes compensation for death while skiing. Hence we regret very much to inform you our inability to consider your claim for compensation under the scheme for the death of your son Rasheed.
3. After considering the evidence and documents brought on record, the State Commission concluded that Rasheeds death was covered by exclusion clause 4 of the Scheme which reads as under:-
This scheme shall exclude
4. Payment of compensation in respect of death, injury, or disablement from (a) intentional self-injury, suicide or attempt thereof (b) whilst under the influence of intoxicating liquor of drugs (c), whilst racing on wheels, hunting big game, mountaineering, or engaged in winter sports, skiing, ice-hockey, etc.
(d) directly or indirectly caused by insanity (e) arising or resulting from the insured committing any breach of law with criminal intent.
This conclusion was based on the meaning of the word skiing which the State Commission interpreted to include jet skiing over water.
4. We have heard Mr. Raghenth Basant, learned counsel for the appellant and Mr. K. L. Nandwani, learned counsel for the respondent and carefully considered their submissions as well as the documents relied upon by them.
5. Mr. Basant emphasised that the above-mentioned clause 4 of exclusion ought to be read in full in order to decide the intent of the policy/Scheme. He pointed out that the word skiing used in this clause was preceded by winter sports and followed by ice- hockey. From this, he argued that what was intended to be excluded from the purview of events leading to death of a person covered by the Scheme was skiing on snow covered slopes of mountains which is a very popular winter sport in cold climate countries, like ice hockey which is also a winter sport. In this case, however, what Rasheed did was to jet ski on the surface of water and this sport was clearly not intended to be covered by the aforesaid exclusion clause. Mr. Nandwani, on the other hand, supported the interpretation of the term skiing in the impugned order.
6. On careful consideration, we are inclined to agree with Mr. Basant. We also find the logic of the State Commission in arriving at its conclusion (vide definition of ski in paragraph 8 of the impugned order) patently erroneous because the definition relied on by the State Commission clearly referred to skiing over snow, which was not the case here. Moreover, it is a settled legal doctrine that in case of ambiguity in the terms of an insurance policy (drawn up always by the insurer), the terms are to be construed unfavourably to the insurer (contra proferentem: in interpreting documents, ambiguities are to be construed unfavourably to the drafter, vide Blacks Law Dictionary, Eighth Edition, p. 352).
7. In conclusion, we allow the appeal and set aside the impugned order of the State Commission. The respondent is directed to pay to the appellant Rs. 5 lakh as per the terms of the Scheme, along with interest @ 9% per annum with effect the date of repudiation of the claim, i.e., 01.09.1999 till actual payment. The payment shall be made within four weeks from the date of this order, failing which the rate of interest from the aforesaid date shall be enhanced to 12% per annum. The parties are left to bear their own costs.
[R. C. Jain, J] ..
[Anupam Dasgupta]