BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT
SHRI. G. SIVAPRASAD : PRESIDENT
SMT. SATHI. R : MEMBER
SMT. LIJU B. NAIR : MEMBER
C.C.No: 289/2010 filed on 13/09/2010
Dated: 31..03..2014
Complainants:
1. Bharathi Amma, W/o Bhaskaran Nair, Velliplackal Veedu, Plassanal P.O. Ampara, Erattupetta, Kottayam Dist.
2. Suneesh B. Nair, S/o Bhaskaran Nair of ..do. ..do..
3. Saneesh B. Nair, S/o Bhaskaran Nair of ..do.. ..do..
(By Adv. V.P. Suresh)
Opposite parties:
1. Somanathan Nair, ‘Pala Timbers’, Karakkamandapam, Thiruvanantapuram and also having address Venattumattathil House, Alanadu P.O., Pravithanam, Plai, Kottayam Dist.
2. The United India Insurance Co. Ltd., represented by its Branch Manager, Branch Office, P.B.No.12 Faizal Building, Main Road, Ottapalam – 676 101.
3.The General Manager, United India Insurance Co. Ltd., Regd & Head Office, 24,White Road, Chennai – 600 014.
(Opp. Parties 2 & 3 by Adv. M. Nizamudeen)
This O.P having been heard on 13..03..2014, the Forum on 31..03..2014 delivered the following:
ORDER
SHRI. G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that, the complainants are the wife and children and the only legal heirs of the deceased Bhaskaran Nair @ Soman, that the deceased was the licensed first mahout of the elephant named Gangadharan owned by the 1st opposite party, that the said elephant was insured with the 2nd opposite party the United India Insurance Co. Ltd vide policy No.101203/47/99/00000636 under the scheme Elephant Insured for the period from 18/12/2006 to 17/12/2007, that on 01/06/2007 at about 4.50PM Sri. Bhaskaran Nair @ Soman had sustained serious injuries due to sudden attack by the insured elephant at Kiralikkuzhi, Vilappil Village, Thiruvananthapuram District, during the course of his employment, that immediately after the incident Sri. Bhaskaran Nair was rushed to Medical College Hospital, Thiruvananthapuram, but he succumbed to the fatal injuries and Vilappilsala Police Station had registered a crime No. 99/2007 as per Section 174 of Cr.P.C, that on 02/06/2007 complainants lodged claim for compensation before the 1st opposite party and 1st opposite party had insured the 2nd opposite party with respect to the aforesaid accidental death of the first mahout Bhaskaran Nair, that the 2nd opposite party had given a letter to the 1st opposite party dated 14/06/2007 demanding 6 documents with respect to the Police and medical records of the deceased Bhaskaran Nair, that complainants had handed over the records to the 1st opposite party and 1st opposite party had produced the documents before the 2nd opposite party for settling the claim, that 2nd opposite party had not taken any further steps to settle the claim though complainants approached the 2nd opposite party on several days, that 2nd opposite party has not acted upon the terms and conditions of the policy, that thereafter complainant sent a notice to the 2nd & 3rd opposite parties for settlement of the claim, that opposite parties, on acceptance of the notice, repudiated the claim on flimsy grounds, and that the acts of the opposite parties amount to unfair trade practice and deficiency in service. Hence this complaint for realizing an amount of Rs. 1,62,500/- with future interest thereon from 2nd & 3rd opposite parties along with compensation Rs. 50,000/-.
2. Opposite parties 2 & 3 entered appearance and filed version contending inter alia that the elephant named Gangadharan under the ownership of Mr. V.R. Somanathan Nair was insured with the 2nd opposite party vide policy No.101203/47/06/99/0000636 for the period from 18/12/2006 to 17/12/2007, that under the said policy two mahouts of the said elephant namely Biju and Byju alone were insured with the 2nd opposite party for Rs. 1,00,000/- each for their death and the policy covers the death of the said two mahouts alone and no other mahout, that Sri. Bhaskaran Nair @ Soman was not insured as a mahout of the elephant Gangadharan, that Sri. Bhaskaran Nair was never the mahout of the elephant, that the allegation that 2nd opposite party has not acted upon the policy, has violated the terms and conditions of the policy and trying to escape from the policy are absolutely false, that opposite parties 2 & 3 have not committed any deficiency in service to the complainants, that they have acted only in accordance with the policy conditions, that 2nd & 3rd opposite parties are not liable to pay any compensation or interest to the complainants. Hence opposite parties 2 & 3 prayed for dismissal of the complaint.
3. The points that arise for consideration are:
(i) Whether repudiation of the death claim is justifiable?
(ii) Whether there is deficiency in service on the part of the opposite parties 2 & 3?
(iii) Whether complainants are entitled to reliefs as prayed for?
In support of the complaint, 1st complainant has filed proof affidavit and has marked Exts. P1 to P12. From the side of the complainant one witness has been examined as PW2. In rebuttal, The Assistant Manager, United India Insurance Company Ltd., Palayam Branch has filed proof affidavit and has marked Exts. D1 to D4.
4. Points (i) to (iii): There is no dispute on the point that the elephant named Gangadharan was insured with 2nd opposite party vide policy No.101203/47/06/99/0000636 for the period from 18/12/2006 to 17/12/2007. There is no dispute on the point that the policy covers death of mahouts and insurance amount for the death claim of each mahout is for Rs.1,00,000/-. According to complainants, Sri. Bhaskaran Nair @ Soman was the licensed first mahout of the elephant named Gangadharan insured with the 2nd opposite party and on 01/06/2007 the said Bhaskaran Nair sustained serious injuries due to sudden attack of the elephant Gangadharan and he died. The legal heirs of the deceased lodged claim for compensation of death before the opposite parties and opposite parties 2 & 3 repudiated the claim on flimsy grounds. Complainant has led evidence by oral testimony of PW1 & PW2 and Exts. P1 to P12. Ext. P1 is the original policy. As per Ext. P1insured’s name is V.R. Somanathan Nair, the policy is titled as Rural Accident Package Policy, the policy period is from 18/12/2006 to 17/12/2007, the total sum insured is for Rs. 7,45,000/-, out of which death of mahouts due to insured elephant (two mahouts) is Rs.1,00,000/- each (Biju & Byju). Risks cover include: (risk covers-elephant, third party property damage, third party death / injury, death of mahouts, hospitalisation expenses 2 mahouts, cremation expenses). Ext. P2 is the copy of the Advocate notice sent by the 1st complainant to opposite parties 2 & 3. Ext. P3 series include postal receipts and acknowledgement card. Ext. P4 is the reply to Ext. P2 given by opposite parties. Ext. P5 is the copy of Personal Accident Insurance Claimant’s statement. Ext. P6 is the copy of Personal Accident Insurance Medical Report. As per Ext. P6 the nature and extent of injuries of the insured person includes multiple injuries over chest, abdomen and limbs patient brought dead. Ext. P7 is the copy of the death certificate issued by Poovachal Grama Panchayat. Ext. P8 is the Post Mortem Certificate issued by Directorate of Medical Education. Ext.P9 is the copy of the Death Report issued by Sub Inspector of Police, Vilappilsala Police Station. Ext. P10 is the copy of the FIR. Ext. P11 is the Rural Accident Package Policy issued by United India Insurance Co. Ltd in the name of V.R. Somanathan Nair for the period from 14/01/2010 to 13/01/2011. Ext.P12 is the Rural Accident Package Policy issued in the name of Sri. Sajimon.V.R by the United India Insurance Company for the period from 14/01/2009 to 13/01/2010. 1st complainant has been cross examined by the opposite parties. During cross examination 1st complainant as PW1 has deposed that her husband was the first mayhout of the elephant named Gangadharan. When a suggestion was put by the 2nd opposite party to PW1 that in the policy issued by the 2nd opposite party the names of mahout mentioned are Biju & Byju, PW1 has replied that her husband was the mahout of the elephant Gangadharan. V.R. Somanathan Nair, the owner of Pala Timbers, Karakkamandapam, Thiruvananthapuram has been examined as PW2. During chief examination PW2 has deposed that he is the owner of elephant named Gangadharan. PW2 has also deposed that he has another elephant called Lekshmi and he is the owner of both elephants for the last more than 20 years. PW2 has also deposed that both elephants were insured with Insurance Company. PW2 has admitted that Ext. P1 is the original policy. During chief examination PW2 has deposed that at the time of taking policy Biju and Byju were mahouts. PW2 has added that there may be change in mahouts due to their sickness, salary disputes and employment shift to Devaswom Board. PW2 has admitted that Sri. Bhaskaran Nair @ Soman was the mahout of the elephant called Gangadharan on 01/06/2007. It was during the course of his employment he sustained serious injuries due to the sudden attack and he died. PW2 has also deposed that the said elephant was insured with the 2nd opposite party and 2nd opposite party is bound to give death claim to the complainants. PW2 has deposed further that the alleged incident was informed to the 2nd opposite party. PW2 has admitted Exts. P5 & Ext.P6. PW2 has deposed further that in the earlier policies names of mahouts were noted but in the present policies the names of mahouts are not noted. PW2 has been cross examined by opposite parties 2 & 3. During cross examination PW2 has replied that at the time of taking policy the names of Biju & Byju were suggested by him. PW2 has added further that the policy period was 18/12/2006 to17/12/2007 and during the entire policy period the said Biju & Byju were not worked with him. The said mahouts left the job 10 days prior to the alleged incident and the same was informed to the Insurance Company also. PW2 has deposed that Bhaskaran Nair joined duty as first mahout after Biju left the job. PW2 denied the suggestion put by the 2nd opposite party that Bhaskaran Nair was never worked with him and deposition in favour of complainant was given in order to harass the opposite parties. PW2 denied the suggestion that Bhaskaran Nair was not the mahout of elephant Gangadharan owned by PW2.
5. Opposite party has led evidence by oral testimony of DW1 and Exts. D1 to D4. Ext.D1 is the copy of the proposal form for elephant insurance. Ext.D2 is the copy of the insurance policy. Ext.D3 is the copy of the reply notice to Ext.P2 notice sent by the complainant. Ext.D4 is the copy of the certificate of ownership. As per Ext.D4 V.R. Somanathan Nair is the owner and custodian of Asian elephant named Gangadharan. DW1 has been cross examined by the complainant. There is no dispute on Exts. P1 / D2 policy. The said policy was valid for the period from 18/12/2006 to 17/12/2007. As per Ext.D1 proposal form in the space given for additional particulars the names of Biju & Byju are handwritten. It is pertinent to point out that as per Ext.D1 proposal form for elephant insurance, column is given for additional particulars such as number of nails of the elephant in all the four limbs, girth, colour of eyes, shape of moles on the tongue, ear shape and colour at base, length of tail and shape of bristles, tusk conformation – length - directions – shape, scar and blusters. There is no column for mentioning the names of mahouts. Admittedly, the names of Biju & Byju are reflected in the policy issued by the 2nd opposite party. Complainant has produced Exts. P11 & P12, Ext. P11 is the policy taken by V.R. Somanathan Nair from the 2nd opposite party wherein there is no mention of the names of mahouts. Ext. P11 is also the elephant insurance policy. The said policy was for the period from 14/01/2010 to 13/01/2011. Ext.P12 is the original policy issued by the 2nd opposite party to Sajimon. V.R. Ext.P12 is also the elephant insurance policy taken for the period from 14/01/2009 to 13/09/2010. In Ext.P12 also the names of mahouts are not mentioned. According to complainant there is no column for mentioning the names of mahouts in the proposal form (Ext.D1). Admittedly, the legal heirs of the deceased mahouts are entitled to get death claim of the mahouts who died in the course of his employment. Exts.P11 & P12 never bear the names of mahouts, thereby the implication is that eventhough the names of mahouts are not mentioned in the policy, the mahouts mentioned by policy holder are entitled to get insurance benefits. It is admitted by PW2 the policy holder that at the time of the alleged incident Bhaskaran Nair was the first mahout who accompanied the elephant and who died by the sudden attack of the insured elephant called Gangadharan. As such eventhough the names of Biju & Byju mentioned in Ext.P1, it was Bhaskaran Nair, the first mahout of elephant Gangadharan who sustained injury due to the attack of the elephant. In view of the evidence available on record we are of the opinion that Bhaskaran Nair was the first mahout of elephant Gangadharan and the said mahout died due to attack of the elephant. As such the legal heirs of the deceased Bhaskaran Nair are entitled to get death claim. As per Ext.P1 the insurance cover for death of mahout due to insured elephant is Rs.1,00,000/-. Complainant has claimed Rs.1,62,500/- which includes compensation for death of mahout Rs.1,00,000/-, hospitalisation expenses Rs. 5,000/-, ambulance and cremation charge Rs. 15,000/- and interest @ 12% per annum. A perusal of Ext.P1shows that risk covered includes elephant, 3rd party property damage, 3rd party death, death of mahouts, hospitalisation expense, expense to two mahouts and cremation expenses. As per Ext.P1 hospitalisation expense arising out of accidents only two mahouts: Rs. 20,000/-, cremation expense: Rs. 25,000/-, death of mahout Rs.1,00,000/-. Complainants herein claimed compensation for death Rs.1,00,000/-, hospsitalisation expense Rs.5,000/- and cremation charge Rs.15,000/-. Complainant has not produced any record to show cremation charge and hospitalisation expenses. Eventhough no documents furnished by the complainants to substantiate hospitalisation expenses and cremation charge, it is just and proper to allow cremation charge and hospitalisation expenses. Since the claim of hospitalisation expenses and cremation charge which are within the limit of the sum insured we are of the view that the amount claimed by the complainants are reasonable and genuine as such we are of the view that complainants are entitled to get Rs.1,00,000/- towards compensation for death of mahout Bhaskaran Nair plus Rs.5,000/- towards hospitalisation expenses and Rs.15,000/- towards cremation charge. Thus complainants are also entitled to get reasonable interest for the said amount of Rs.1,20,000/- which we fix @ 8% per year. Repudiation the claim is not justifiable which amounts to deficiency in service on the part of the opposite parties for which complainant is entitled to get compensation Rs.10,000/-.
In the result, complaint is allowed. Opposite parties shall pay the complainant a sum of Rs. 1,20,000/- towards compensation for death of mahout, and hospitalisation expenses and cremation charges with 8% interest per year from 02/06/2007 till realisation. Complainants shall also pay Rs.10,000/- towards compensation for deficiency in service to the complainant. Opposite parties shall pay the said amount within 2 months from the date of receipt of this order failing which Rs.1,20,000/- will carry interest @12% from the date of order.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31st day of March, 2014.
Sd/- G. SIVAPRASAD : PRESIDENT
Sd/- R. SATHI : MEMBER
Ad. Sd/-LIJU B. NAIR : MEMBER
C.C.No: 289/2010
APPENDIX
I. Complainants’ documents:
P1 : Original policy (Policy No.101203/47/06/99/00000636)
P2 : Copy of the Advocate notice sent by the 1st complainant to opposite parties 2 & 3.
P3 : Postal receipts and acknowledgement cards
P4 : Reply to Ext. P2 letter given by opposite parties.
P5 : Copy of Personal Accident Insurance Claimant’s statement
P6 : Copy of Personal Accident Insurance Medical Report
P7 : Copy of the death certificate issued by Poovachal Grama Panchayat.
P8 : Post Mortem Certificate issued by Directorate of Medical Education
P9 : Coy of the Death Report issued by Sub Inspector of Police, Vilappilsala Police Station.
P10 : Copy of FIR
P11 : Rural Accident Package Policy issued by United India Insurance Co. Ltd in the name of V.R Somanathan Nair
P12 : Rural Accident Package Policy issued in the name of Sri. Sajimon V.R by the United India Insurance Company
II. Complainant’ witness:
PW2 : V.R. Somanathan Nair
III. Opposite parties’ documents:
D1 : Copy of the proposal form for elephant insurance
D2 : Copy of the insurance policy
D3 : Copy of the reply notice to Ext. P2 notice sent by the complainant.
D4 : Copy of the certificate of ownership
IV. Opposite parties’ witness:
DW1 : Sameera Joseph
Sd/-
PRESIDENT
Ad.
