The Insurance Director vs Amina Sebastian
2021 Latest Caselaw 2720 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR.JUSTICE N.NAGARESH

       MONDAY, THE 25TH DAY OF JANUARY 2021/5TH MAGHA, 1942

                      WP(C).No.28811 OF 2019(B)


PETITIONERS:

      1        THE INSURANCE DIRECTOR,
               KERALA STATE INSURANCE DEPARTMENT,
               INSURANCE DIRECTORATE, TRANS TOWERS,
               VAZHUTHACAUD, THYCAUD P.O.,
               THIRUVANANTHAPURAM-695 014.

      2        THE INSURANCE DEPUTY DIRECTOR,
               KERALA STATE INSURANCE DEPARTMENT,
               INSURANCE DIRECTORATE, TRANS TOWERS,
               VAZHUTHACAUD, THYCAUD P.O.,
               THIRUVANANTHAPURAM-695 014.

      3        THE DISTRICT INSURANCE OFFICER,
               KOTTAYAM.

      4        ADDITIONAL CHIEF SECRETARY &
               FINANCE SECRETARY, FINANCE DEPARTMENT,
               THIRUVANANTHAPURAM.

               BY GOVERNMENT PLEADER SRI.S.KANNAN

RESPONDENTS:

      1        AMINA SEBASTIAN, W/O. JOSEPH SEBASTIAN,
               MADATHIKUNNEL HOUSE, PALA P.O.,
               KOTTAYAM-686 575.

      2        SANDRA SEBASTIAN, D/O. JOSEPH SEBASTIAN,
               MADATHIKUNNEL HOUSE, PALA P.O.,
               KOTTAYAM-686 575.

      3        RIYAA SEBASTIAN, D/O. JOSEPH SEBASTIAN,
               MADATHIKUNNEL HOUSE, PALA P.O.,
               KOTTAYAM-686 575.

      4        ALPHONSE SEBASTIAN,D/O. JOSEPH SEBASTIAN,
               MADATHIKUNNEL HOUSE, PALA P.O.,
 WP(C)No.28811/2019

                             2



             KOTTAYAM-686 575,

             MINOR REPRESENTED BY MOTHER AND NATURAL
             GUARDIAN AMINA SEBASTIAN, MADATHIKUNNEL
             HOUSE, PALA P.O., KOTTAYAM-686 575.

      5      THE PERMANENT LOK ADALATH (FOR PUBLIC
             UTILITIES),ERNAKULAM , REPRESENTED BY
             ITS REGISTRAR, GROUND FLOOR, ADR CENTRE,
             DISTRICT COURT ANNEX PREMISES,
             KALOOR, KOCHI-682 107.

             R1-R4 BY ADV. SRI.LATHEESH SEBASTIAN
             R1-R4 BY ADV. SRI.BABY THOMAS

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 25.01.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 WP(C)No.28811/2019

                                 3




                          JUDGMENT

Dated this the 25th day of January, 2021

The petitioners 1 to 4 who are respondents in O.P. No.

51/2018 before the Permanent Lok Adalath (for Public

Utilities), Ernakulam are before this Court challenging

Ext.P4 Award.

2. The respondents who are the petitioners in the

Original Petition before the Permanent Lok Adalath,

Ernakulam are legal heirs of late Joseph Sebastian, who

was an ASI in Manarkad Police Station, Kottayam. The said

late Joseph Sebastian had two insurance policies obtained

under Group Personal Accident Insurance Scheme framed

by the Government of Kerala under Ext.P2 order dated

23.11.2010. On 29.07.2014, while the deceased Joseph

Sebastian was discharging his duties, he suffered an injury

on his right leg. He was taken to Medical College Hospital,

Kottayam on 31.07.2014 and was treated as inpatient till WP(C)No.28811/2019

05.08.2014. Due to the fracture and treatment, Joseph

Sebastian availed medical leave for five weeks. On

13.08.2014, the said late Joseph Sebastian fell unconscious

and was taken to Marian Hospital, Pala. As the physical

condition of Joseph Sebastian worsened, he was rushed to

Amrita Hospital, Ernakulam. Joseph Sebastian passed

away on 16.08.2014 while he was under treatment for

Pulmonary Thrombo Embolism.

3. The respondents herein preferred Ext.P1 O.P

No.51/2018 before the Permanent Lok Adalath (for Public

Utilities), Ernakulam seeking to direct petitioners 1 to 3 to

pay full compensation amount covered by the two insurance

policies with interest @ 9% per annum from 16.08.2014

onwards. An amount of `50,000/- was claimed towards

costs also. The Permanent Lok Adalath considered the

evidence adduced by the respondents through PW1 to

PW4. Exts.P1 to P18 produced by respondents were also

considered.

WP(C)No.28811/2019

4. After appreciating the evidence on record, the

Permanent Lok Adalath held that it is proved by the

petitioners that the late Joseph Sebastian died due to

accident which will come within the sweep of the conditions

mentioned in the insurance policy. The Permanent Lok

Adalath held that the petitioners are entitled to get the

amounts claimed. Accordingly, the petitioners were directed

to pay full compensation amount covered by the policies in

question along with the litigation expenses of `10,000/-. It is

aggrieved by Ext.P4 Award, the petitioners have

approached this Court.

5. The learned Government Pleader representing

the petitioners brought to the attention of this Court various

clauses of Ext.P2 Scheme. The learned Government

Pleader contended that the term 'accident' is defined in

clause 2 (a) of Ext.P2 Scheme as "bodily injury sustained by

the member on account of any sudden unforeseen or

unexpected event which is solely or directly the result of an WP(C)No.28811/2019

external, violent or visible means". The learned Government

Pleader argued that though what happened on 29.07.2014,

resulting in the injuries of the deceased was an accident, the

death was not as a consequence of such accident. There is

no proximity to the death with the alleged extent.

6. Referring to Clause 11 of Ext.P2 Scheme, the

learned Government Pleader argued that it is necessary for

any claimant to produce:

(i) Claim Form

(ii) FIR from Police Department wherever applicable

(iii) Mahazar from Police Department

(iv) Death Certificate

(v) Postmortem report

(vi) Form No.1 (Nomination form)

to claim the insurance amount. In the case of the petitioner,

since it was not an accident as contemplated by Ext.P2

Scheme, there was no FIR registered by the Police

Department. Mahazar was also not prepared. No WP(C)No.28811/2019

Postmortem report was produced. The learned Government

Pleader argued that in the absence of the mandatory

documents contemplated under clause 11 (e), the

Permanent Lok Adalat ought not have awarded the

insurance amount to the respondents.

7. The learned Government Pleader further pointed

out that the Permanent Lok Adalat has not applied its mind

properly, which is evident from the fact that even in the

Award passed in the Permanent Lok Adalat, the number of

insurance policies shown, are erroneous. The learned

Government Pleader contended that even assuming that

insurance amount was legally payable, 9% interest awarded

by the Permanent Lok Adalat was excessive and the Lok

Adalat ought not have awarded any cost.

8. I have heard the learned Government Pleader

and the learned counsel appearing for the respondents.

9. The factum of accident on 29.07.2014 is not

disputed. The injuries sustained by the deceased are also WP(C)No.28811/2019

not disputed. Consequent to the accident, the deceased

was under treatment in Medical College Hospital, Kottayam

from 13.07.2014 to 05.08.2014. The deceased was on

medical leave even thereafter. It is not in dispute that the

deceased fell unconscious within ten days of discharge from

Medical College Hospital, Kottayam and had to be taken to

hospitals. The deceased passed away on 16.08.2014.

10. The hospital authorities recorded the cause of

death of the deceased as 'Pulmonary Thrombo Embolism'

The contention is that 'Pulmonary Thrombo Embolism' which

resulted in the death of the deceased, is not as a

consequence of the accident and injuries suffered by the

deceased on 29.07.2014.

11. The Permanent Lok Adalat has considered the

evidence adduced by PW2, who is a Professor in

Orthopaedic Department of the Kottayam Medical College.

PW2 stated that right foot 5th metatarsal bone of the

deceased was fractured. 'Pulmonary Thrombo Embolism' WP(C)No.28811/2019

will occur if blood clotted in any part of the body and through

bllood circulation, the same will reach the lungs resulting in

obstruction to breathing process which will culminate in

death. PW2 observed that after applying plaster of parries

on the deceased, two weeks later blood clot occurred in his

calf muscles and this might have reached his lungs resulting

in his death.

12. PW3, a Cardiologist of Pala Marian Medical

Centre, had treated the deceased. PW3 stated that the

deceased was unconscious when he was brought to the

hospital and his Blood Pressure was not recorded. The

oxygen saturation in the blood of the deceased was very

low. Those who brought the deceased to the hospital

informed that the fracture occurred and plaster of parries

was applied at the Medical College Hospital, Kottayam.

According to PW3, since the condition of the deceased was

worse after giving immediate medical aid, he was referred to

AIMS Hospital, Ernakulam. The deceased had put in an WP(C)No.28811/2019

ambulance with ventilator support.

13. PW3 also stated that the condition of the

deceased was serious because blood clot might have been

very large. The said evidence adduced on behalf of the

respondents through Exts.P2 and P3 would show that there

was proximity of the accident of the deceased occurred on

29.07.2014 with his death on 16.08.2014. The period

between the date of the accident and the date of the death

cannot be a reason to hold that the death is not as a result

of the accident.

14. The learned Government Pleader relied on the

judgment Alka Shukla v. Life Insurance Corporation of

India [AIR 2019 SC 2088] to contend that in the absence of

Postmortem report indicating the nature of injuries sustained

by the insurer, necessarily the medical report will have to be

relied on.

15. The judgment of the Hon'ble Apex Court found

from the medical reports available, that there is no direct WP(C)No.28811/2019

nexus between the assured suffering a heart attack and

injuries sustained in an accident by outward, violent and

visible means. The judgment of the Hon'ble Apex Court is

distinguishable on facts in as much as in the present case

two competent medical professionals had entered the

witness box and gave evidence that the demise of the

deceased was as a result of 'Pulmonary Thrombo Embolism'

which stage has arisen consequent to the accident of the

deceased on 29.07.2014. This Court does not doubt the

veracity of the evidence adduced by medical professionals.

In the circumstances, this Court finds no reason to

interfere with the Award passed by the Permanent Lok

Adalat. The writ petition is accordingly dismissed.

Sd/-

N. NAGARESH JUDGE ncd WP(C)No.28811/2019

APPENDIX PETITIONERS' EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE ORIGINAL PETITION PREFERRED BY RESPONDENTS 1 TO 4 BEFORE THE PERMANENT LOK ADALATH (FOR PUBLIC UTILITIES),ERNAKULAM

EXHIBIT P2 A TRUE COPY OF THE G.O DATED 23.11.2010 TOGETHER WITH THE SCHEME

EXHIBIT P3 A TRUE COPY OF THE VERSION SUBMITTED BY PETITIONER 1 TO 3 BEFORE THE ADALATH

EXHIBIT P4 A TRUE COPY OF AWARD DATED 29.03.2019 PASSED BY THE PERMANENT LOK ADALATH (FOR PUBLIC UTILITIES),ERNAKULAM

EXHIBIT P5 A TRUE COPY OF THE POLICY BEARING NO.KSID/L/1/ADL/600221047

RESPONDENTS' EXHIBITS:

EXHIBIT R1(a) TRUE COPY OF THE G.D ENTRY MAINTAINED AT MANARKAD POLICE STATION WITH RESPECT TO THE INJURY SUSTAINED TO JOSEPH SEBASTIAN AS PRODUCED BEFORE THE PERMANENT LOK ADALATH AS EXT.P18.

EXHIBIT R1(b) TRUE COPY OF THE EVIDENCE OF PW2 IN O.P NO.51/2018 OF PERMANENT LOK ADALATH, ERNAKULAM.

EXHIBIT R1(c) TRUE COPY OF THE EVIDENCE OF PW3 IN O.P NO.51/2018 OF PERMANENT LOK ADALATH, ERNAKULAM.

EXHIBIT R1(d) TRUE COPY OF THE EVIDENCE OF PW4 IN O.P NO.51/2018 OF PERMANENT LOK ADALATH, ERNAKULAM.

EXHIBIT R1(e) TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT DATED 10.12.2014 WHICH WAS PRODUCED AS EXT.P7 IN EXT.P4 AWARD.