State Consumer Disputes Redressal Commission
Moothodi Ayathar, S/O Madhavan, vs 1. The Commissioner, on 30 April, 2014
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/13/311 (Arisen out of Order Dated 22/02/2013 in Case No. 41/2008 of District Kasaragod) 1. MOOTHODI AYATHAR AND ANOTHER KIZHUR KADAPPURAM, CHANDRAGIRI P.O, KASARGOD ...........Appellant(s) Versus 1. THE KERALA FISHERMEN'S WELFARE FUND BOARDAND 2 OTHERS THRISSUR ...........Respondent(s) BEFORE: HON'ABLE MR. JUSTICE SRI P.Q.BARKATH ALI PRESIDENT SRI. V. V. JOSE MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.311/13
JUDGMENT DATED:30.04.2014
PRESENT :
JUSTICE SHRI. P.Q. BARKATHALI : PRESIDENT
SHRI. V.V. JOSE : MEMBER
Moothodi Ayathar, S/o Madhavan, Kizhur Kadappuram, Chandragiri.P.O : APPELLANT Kasaragod.
(By Adv: Sri.G.S.Kalkura) Vs
1. The Commissioner, The Kerala Fishermen's Welfare Fund Board, H.O. Thrissur-2.
2. The Managing Director, Matsyafed, Kuravankonam, TVPM.
(R2 by Adv: Sri.Subair Kunju)
3. M/s Reliance General Insurance Co. Ltd., Elizabeth Alexander Memorial Buildings, : RESPONDENTS Marine Drive, Cochin-3.
(R3 by Adv: Sri. Sreevaraham G. Satheesh)
4. The Director of Insurance, Kerala State Insurance Department, Thiruvananthapuram.
(R4 by Adv: Sri. M. Nizarudeen) JUDGMENT JUSTICE SHRI. P.Q. BARKATHALI: PRESIDENT This is an appeal filed by the complainants in CC.41/08 on the file of CDRF, Ksaragod under section 15 of Consumer Protection Act challenging the order of the Forum dated, February 22, 2013 dismissing their complaint.
2. The case of the complainants as stated in the complaint before the Forum in brief is this:-
Complainants are the parents and dependants of one Kishore who died on February 14, 2007 at about 18.16 hours in a railway accident. The deceased was a member of Kottikulam Kasaba Fishermen Welfare Board which is affiliated with the opposite party No.1, the Kerala Fishermen Welfare Fund Board with membership No.1000. He was also a member of Kottikulam Kasaba Matsya Thozhilali Kshema Vikasana Sahakarana Sangham affiliated with opposite party No.2, Matsyafed with membership No.1518. The death of Kishore was due to accident caused by external violent means and that therefore opposite parties 1 and 2 are liable to compensate the claimants by paying Rs.1,50,000/- each. Complainants submitted necessary claim for claiming benefits under the policy issued by opposite parties 3 and 4 to opposite party 1 and 2 respectively. They repudiated the claim on August 14, 2007. Therefore claiming that amount and compensation complainant filed the complaint.
3. First opposite party is Commissioner, Kerala Fishermen Welfare Fund Board, Thrissur. He in his version contended that the death of Kishore was due to accident which comes within the purview of the policy issued by the opposite party No.4, Kerala State Insurance Department.
4. Second opposite party, the Managing Director, Matsyafed, Kuravankonam, Thiruvananthapuram in his version admitted the policy but contended that the 3rd opposite party, Insurance Company has repudiated the claim of complainants on the ground that the death of Kishore does not come under the purview of the policy and that therefore there is no deficiency of service on his part.
5. Third opposite party, M/s Reliance General Insurance Company Limited, Cochin in its version contended that death of Kishore was not an accident but was a case of suicide which comes under the exclusion clause No.6 of the policy and that therefore this opposite party is not liable to pay any amount to the complainants.
6. The 4th opposite party, Kerala State Insurance Department represented by the Director of Insurance in his version contended that the accident occurred while deceased was crossing the railway track which is an offence punishable under the Railway's Act and that therefore there is no deficiency of service on this opposite party.
7. The first complainant filed proof affidavit and Exts.A1 to A12 were marked on his side and Exts.B1 to B8 were marked on the side of the opposite parties before the Forum. Initially the Forum by order dated, 22nd February 2013 found that the first and 4th opposite parties are jointly and severally liable to pay Rs.1 lakh to the complainants and opposite parties 2 and 3 are jointly and severally liable to pay Rs.1,50,000/-. In compliance of that order opposite party No.4 ie State Insurance Department paid Rs.1,50,000/- to the complainants. But opposite party No.3 filed Appeal No.265/10 before this Commission and this Commission by Judgment dated:24.11.2010 set aside that order and remitted the matter to the Forum for fresh consideration, after giving an opportunity to the 3rd opposite party to adduce evidence to prove Ext.B7 and B8 which are paper cutting and photocopy of the case diary respectively. After remand witness on the side of the opposite party was examined and DW1 and Ext.B9 was marked. Complainant filed the proof affidavits of PWs 2 and 3.
8. On an appreciation of evidence the Forum found that death of Kishore was suicide and not an accident and that therefore opposite party No.3 is not liable to pay any amount under Ext.B1 policy and dismissed the complaint. Complainants have come up in appeal challenging the said order of the Forum.
9. Heard the counsel for the complainants and the counsel for the respondents/opposite parties.
10. The following points arise for consideration:
1. Whether there was any deficiency of service on the part of opposite party No.4 or opposite party No.3 in repudiating the claim of the complainants?
2. Whether the impugned order of the Forum can be sustained?
11. It is admitted that deceased Kishore on 14.2.2007 at about 18.16 hours was hit by a train and died in the accident. It is not disputed that he was a member of Kottikulam Kasaba Fishermen Welfare Board which is affiliated with opposite party No.1, the Kerala Fishermen Welfare Fund Board and that he was covered by Personal Accident Insurance Policy issued by 4th opposite party, Kerala State Insurance Department. It is also admitted that he was also a member of Kottikulam Kasaba Matsya Thozhilali Kshema Vikasana Sahakaranan Sangham and he is covered by General Personal Accident policy issued by 3rd opposite party, M/s Reliance General Insurance Company.
12. The specific case of the 3rd opposite party is that death of Kishore was not an accident but a suicide which is not covered under the policy. Appellant relied mainly on Ext.B9 copy of the final report filed by the Bekal police before the Sub Divisional Magistrate, Hosdurg wherein it is stated that on an investigation it was found that the death of deceased was a suicide. But in our view merely relying on Ext.B9 one cannot come to a conclusion that Kishore committed suicide. The 3rd opposite party has not chosen to examine the police officer who prepared Ext.B9 the final report to prove the same. On the other hand complainant filed the proof affidavit of PWs 2 and 3 who categorically stated that the death of Kishore was an accident. The opposite parties have not chosen to cross-examine PWs 2 and 3. The 3rd opposite party examined DW1, legal executive of the company in support of their case but he has no direct knowledge regarding the incident. Further the 4th opposite party in its version submitted that the accident occurred while deceased was crossing the railway lines. They have satisfied the claim by paying the insurance amount. Under these circumstances we are of the view that 3rd opposite party has failed to prove that deceased Kishore committed suicide. On the other hand the evidence adduced by complainants proved beyond doubt that he died in a railway accident. That being so 3rd opposite party is bound to honour the claim submitted by the complainants under Ext.B2 policy. It follows that the finding of the Forum on this point cannot be sustained and the appeal has to be allowed.
In the result appeal is allowed. The impugned order of the Forum dismissing the complaint is set aside. Opposite parties 3 and 4 are found liable to honour the claim submitted by the complainants under Ext.B1 and B2 policy. The 4th opposite party has already paid the amount. Therefore 3rd opposite party is directed to pay Rs.1,50,000/- to the complainants, being the Insurance Claim amount under Ext.B2 policy. Complainants are entitled to interest at the rate of 9% per annum from the date of complaint till realization. They are also entitled to cost of Rs.5000/-.
JUSTICE P.Q. BARKATHALI: PRESIDENT
V.V. JOSE : MEMBER
VL.
[HON'ABLE MR. JUSTICE SRI P.Q.BARKATH ALI] PRESIDENT
[ SRI. V. V. JOSE] MEMBER