BINOMA Vs. STATE OF KERALA

JUDGEMENT

(1.) Rejection of the insurance claim preferred by the second respondent, Welfare Fund Board in respect of the demise of the husband of the petitioner, who was a fisherman and a member of the second respondent/Board, is the subject matter of challenge. The husband of the petitioner, by name Asokan, fell down in water while fishing in Kalattotil Cannal and was drowned. A case was registered as Crime No. 177/08, as borne by Ext.P3. Ext.P2 is the Death Certificate issued by the competent authority and Ext.P4 is the Post Mortem Certificate as to the cause of death. Ext.P1 is a copy of the pass book issued to the petitioner's husband by the 2nd respondent; being a member of the Board.

(2.) The case of the petitioner is that, by virtue of Ext.P5 'Memorandum of Understanding' executed among the 2nd respondent Welfare Board, the 3rd respondent Insurance Company and the 4th respondent State Insurance Department, the death of the husband of the petitioner by accident stands covered, in view of the specific entry at serial No. 1 of Ext.P5. The claim preferred by the 2nd respondent was considered and it was rejected by the 3rd respondent as per Ext.P7, pointing out that the deceased had fallen into the Kalattotil Cannal while fishing due to 'giddiness', which is caused due to diabetes and that as per the 'MOU', particularly S. 4, death due to heart attack while fishing at sea alone was payable; however, adding that 'drowning due to accident' is payable, but not due to any disease. The outcome was communicated to the petitioner by the second respondent vide Ext.P6 dated 24.2.2011, whereupon the petitioner preferred Ext.P8 representation before the second respondent for taking further steps against the Insurance Company to obtain the due amount of Rs. 1,00,000/- (Rupees one lakh) more so since, there was no privity of contract between the petitioner and the 3rd respondent insurer and it was for the 2nd respondent Welfare Board to pursue the matter, based on the Memorandum of Understanding. As nothing transpired in the positive, the petitioner is before this Court by filing this Writ Petition.

(3.) The 4th respondent has filed a counter affidavit simply reproducing the version of the third respondent Insurance Company as given in Ext.P7. The 3rd respondent/Insurer has filed a counter affidavit mainly raising two contentions; that the Writ Petition is not maintainable for the fact that there is no privity of contract between the petitioner and the Insurance Company and that the second respondent who is a party to Ext.P5 MOU, has not preferred any complaint, appeal, proceeding or Writ Petition. With regard to the merits, it is pointed out that, as per Ext.P3. F.I.R., there is a reference to the 'giddiness' because of the diabetes, whereby the petitioner fell into the water, leading to drowning and the death followed. Since it was because of the 'giddiness', that he fell down and got drowned, it was not an accident and hence that the claim is not payable; according to the 3rd respondent.