The Insurance Director, Kerala State Insurance Department v. Amina Sebastian and others

## **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 25[th] 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 4 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 5 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 6 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 7 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 8 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 5[th] metatarsal bone of the deceased was fractured. 'Pulmonary Thrombo Embolism' WP(C)No.28811/2019 9 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 10 ## 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 11 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 12 ## **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.**