KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL NO. 248/13

JUDGMENT DATED: 23/04/2014

 (Against the order   in CC No.319/2011on the file of CDRF,   Kasargod, dated 11/01/13) 

PRESENT

SHRI.K. CHANDRADAS NADAR                   :          JUDICIAL MEMBER

SMT. A. RADHA                                                :          MEMBER

SMT. SANTHAMMA THOMAS              :          MEMBER

Assistant Manager,

United India Insurance Co. ,

LMS Compound,                                                  APPELLANT

Thiruvananthapuram

(By Adv. Sri. Thomas P. Jacob)

V/s.

1.   Bharathi, W/o. Soman,

Residing at Adkathbail                    

Beach P.O.,Kasargod-671121

2.   The Commissioner,

Kerala Fishermens Welfare

Fund Board,Thrissur – 2

3.   Managing Director, Matsyafed,

Kuravankonam P.O.,

Thiruvananthapuram

4.   Director of Insurance,

Kerala State Insurance Dept.,

Thiruvananthapuram

5.   The Divisional Manager,

National Insurance Co.                                  RESPONDENTS

P.B. No. 40, Bank Road,

Kannur - 670001        

(By Adv. Sri.M. Nizamudeen for R5)

                                                JUDGMENT

SMT. SANTHAMMA THOMAS :     MEMBER

          This Memorandum of appeal has been filed under section 15 of the Consumer Protection Act, 1986 against the impugned order dated 11/01/2013, passed by the Consumer Disputes Redressal Forum, Kasargod, in CC No.319/2011 filed on 22/11/2011, by “Bharathi, W/o. Soman as Complainant against the Commissioner Kerala Fishermen’s Welfare Fund Board, Thrissur, (1^st Respiondent), The Managing Director, Matsyafed, Thiruvananthapuram (2^nd Respondent), The  Director of Insurance, Kerala State Insurance Department, Thiruvananthapuram (3^rd Respondent), The Divisional Manager, United India Insurance Co. Ltd., Thrissur (4^th Respondent), The Divisional Manager, National Insurance Co. Ltd., Kannur (5^th Respondent), The Divisional Manager, M/s United India Insurance Co. Ltd, Thrissur (6^th Respondent) vide which, passed by the District Consumer Disputes Redressal Forum, as order as following; “As per Ext.B1 Group Personal Accident Policy issued by opposite parties 1 & 4 in case of death of a fisherman his legal representatives are entitled for Rs.2,00,000/- as the capital sum assured.  Therefore the complaint is allowed and opposite parties 1 & 4 is directed to pay Rs.2,00,000/- with interest @ 9% from the date of complaint till payment with a cost of Rs.3,000/-.  Time for compliance is limited to 30 days from the date of receipt of copy of this order.  Failing which Rs.2,00,000/- will carry interest at the rate of 12% per annum.”  Henceforth the 6^th respondents from Lower Forum preferred this appeal against the order passed by the Lower Forum.

          2.      Brief facts – Smt. Bharathi claimed for compensation for the death of her husband Sri. Soman, while fishing in the high seas on 3/01/2011.  He was a member of Kasaba fisheries village affiliated to 1^st respondent in the Lower Forum and Kasaba Fishermen Welfare Department Co-operative Society Ltd. Affiliated to 2^nd respondent in the Lower Forum Matsyafed, Thiruvananthapuram.  There was a group insurance scheme for fisherman and allied workers registered as members with the Kerala fisherman welfare fund board entered with United India Insurance Company.  The claim of Smt.Bharathi after the death of her husband was rejected by United India Insurance Comapny on the ground that as per the agreement and policy coverage under serial No.1 & 2, heart

attack is not included and since the death of her husband shall not fall under the coverage, 5^th respondent National Insurance Company Ltd., Kannur in the Lower Forum had already satisfied the complainant by paying a sum of 3 lakhs which is received by 2^nd respondent Matsyafed, Thiruvananthapuram in the Lower Forum M/s. United India Insurance Co.Ltd., Thrissur (6^th Respondent in Lower Forum and appellant in this appeal) refused to pay any compensation based on supportive evidences as per terms of the agreement.  The Lower Forum conclued that the complainant’s husband is died due to heart attack, which is also an unforeseen cause.  Moreover, respondents 2 & 5 admission of the claim and by giving the assured sum proves justification that the heart attack also falls under accidental injury.  Thus Lower Forum passed an order as above.

          3.      Aggrieved by the said order, the complainant preferred the above appeal.

          4.      We heard the counsel for both the parties and perused the evidence on record.

5.      There is no dispute that the deceased Shri. Soman falls under the category of insured persons under the group insurance scheme in accordance to Ext. B1 & B2 and there has been no rejection from Kerala Fishermen’s Welfare Fund Board, Thrissur nor  Matsyfed, Thiruvananthapuram so as to the membership of deceased Shri. Soman.  Now examining the Insurance policy coverage under serial no.1 & 2 under the agreement submitted under Ext. B2 which is reproduced here;

Coverage

          6.      The rejection made by the appellant was that the heart attack will not fall under the category of accidental claim to which we totally disagree.  Reports states the cause of death is Myocardial Infarction” a medical term for an event commonly known as a heart attack.  The deceased Sri. Soman did not have any medical illness recorded prior to his death nor had been a patient who could be prone to heart diseases.  It is usually a common stature under law that heart diseases and any injury due to the same is not covered under workman compensation.  However the person rejecting the same must prove beyond doubt that the claimant had previous heart diseases and had purposely mislead the information.  In this case nothing of such matters had arisen; it was purely based on the condition specified under the agreement covering the insurance policy as signed by the appellant and matsyafed refused to give the claim.  However we take to notice that even in the agreement it is not stated that death occurred    due to heart attacks will not be covered under insurance.  We presume now Heart Attacks can be caused due to accident also and that is the reason it is not specifically written as excluded under the coverage.  Elaborating heart attack or under medical term “Myocardial infarction” could occur due to work-related injury like for unusual emotional stress or unusual exertion.  In this case Shri. Soman was at high seas fishing and got a chest pain while fishing which is his profession. Myocardial infarction happens when blood stops flowing properly to part of the heart and the heart muscle is injured due to not receiving enough oxygen.  Being at sea even the deceased could have occured breathing probelms or even due to any shock which resulted in the attack.  The medical report have stated the cause death is due to Myocardial infarction and have not specified anything

else which could be made as a reason that it was not an accidental death.  Merely because the death is stated as Heart Attack we are of not in a position to reject the claim completely as we feel the attack could had been due to any unforeseen circumstance which would be difficult to be specified.

          7.      It is clear that the injury or death caused by lightening, sun-stroke or earthquake has been held to be accidental and hence where a man in the course of his work is exposed to excessive, heat, stress, other natural calamities, exhaustion and as a side effect if death occurs by means of stroke or attack, it would be an accidental death.  Similarly, a person workin in an open sea under scorching sun, uneven air balance, high tides and thereafter, sustains a heart attack due to stress or any other reason which causes for his death, such death is also to be considered as an accidental death.  In the usual course or natural couse of events or events/causes which could not be reasonably anticipated is considered to be accidental one.  By providing an insurance coverage for fisherman ranging between age group of 18 to 70 years, the insurance company should had been fully aware of the consequences which it need to be

covered merely by not inserting a clause will not provide an exemplary excuse from walking away from their responsibility.

          8.      It is made out very clearly from the facts on record; therefore, that this is a case where death has occured because of an accident and under the terms and conditions of the Insurance Policy, the appellant is liable to pay compensation to the legal heirs of the deceased.

Based on the above discussion, this appeal is dismissed; the order passed by the District Forum is upheld.  There shall be no order as to costs.

                                      SANTHAMMA THOMAS :                        MEMBER

K. CHANDRADAS NADAR :            JUDICIAL MEMBER

 A. RADHA          :                                               MEMBER

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