IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 WP(C).No. 1453 of 2009(W) ---------------------------------------- PETITIONER(S): ------------------------- K.SHYAMALA, W/O.SREEKANDAN, 'USHAS', KANDOTH P.O., PAYYANNUR (VIA), KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): ------------------------------ 1. THE L.I.C OF INDIA, REPRESENTED BY ITS CHAIRMAN, CENTRAL OFFICE, MUMBAI. 2. THE DIVISIONAL OFFICER, KOZHIKODE DIVISION, L.I.C OF INDIA, KOZHIKODE. 3. THE BRANCH MANAGER, L.I.C OF INDIA, PAYYANNUR BRANCH, KANNUR. 4. THE GRIEVANCE REDRESSAL OFFICER, L.I.C OF INDIA, ZONAL OFFICE, L.I.C BUILDING, ANNASALINE, CHENNAI. R1 TO R4 BY ADVS. SRI.P.B.SAHASRANAMAN, SRI.K.JAGADEESH, SRI.T.S.HARIKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.1453/2009 W APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DEATH CERTIFICATE OF THE SON OF THE PETITIONER ISSUED BY THE BERMUDA GOVERNMENT. P2: COPY OF THE COMMUNICATION ISSUED BY THE MINISTER FOR SHIPPING SRI. T.R.BALU TO SRI.KARUNAKARAN M.P. P3: COPY OF THE LETTER DTD. 19/07/2006 ISSUED BY THE BRANCH MANAGER, LIC. P4: COPY OF THE LETTER DTD. 17/10/2006 ISSUED BY THE BRANCH MANAGER TO THE PETITIONER. P5: COPY OF THE COMMUNICATION DTD. 12/02/2007 ISSUED BY THE BRANCH MANAGER TO THE PETITIONER. P6: COPY OF THE REPLY DTD. 27/02/2007 SUBMITTED BY THE PETITIONER BEFORE THE BRANCH MANAGER LIC. P7: COPY OF THE CERTIFICATE ISSUED BY THE M/S.NORTHERN MARINE MANAGEMENT (INDIA) PVT.LTD. P8: COPY OF THE COMMUNICATION DTD. 23/03/2007 ISSUED BY THE BRANCH MANAGER TO THE PETITIONER. P9: COPY OF THE COMPLAINT DTD. 1/06/2007 FILED BY THE PETITIONER BEFORE THE GRIEVANCE REDRESSAL CELL. P10: COPY OF THE POSTAL RECEIPT SHOWING SENDING OF EXT.P9. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ``````````````````````````````````````````````````````` W.P.(C) No. 1453 of 2009 W ``````````````````````````````````````````````````````` Dated this the 13th day of October, 2010 J U D G M E N T Petitioner is the mother of one Sri.Manoj Kakkante. Sri.Manoj Kakkante was working in Merchant Navy since 2002 under a company by name M/s.Northern Marine Management (India) Private Limited, Mumbai. Based on a contract entered into with M/s.Northern Marine Management, Scotland through the aforesaid Indian company, he was employed as Mess man to serve on board the vessal, 'M.T. Stena Contest' under Bermuda flag. 2. According to the petitioner, while the ship was sailing from Wilhelmshaven(Germany) to Charlleston(U.S.A.), Manoj Kakkante fell into the high seas from the ship on 09-06- 2006. Petitioner states that Ext.P1 is the death certificate of her son issued by the Bermuda Government. It would appear that, based on the representation made by the petitioner through the Member of Parliament representing her constituency, the Government of India had the circumstances WPC.1453/2009 : 2 : leading to the death of Sri.Manoj Kakkante looked into. Thereafter, the then Minister for Shipping and Transport replied to the M.P. concerned, by Ext.P2 letter, the relevant portion of which reads as under:- “ I have had the matter looked into. Thiru.Manoj Kakkante was reported missing from the vessel 'M.T.Stena Contest' on 9th June, 2006. In terms of the provisions of the United Nations Convention on Law of Sea (UNCLOS), investigations into the incident were carried out by the Flag State of Bermuda. A copy of the Report of investigations was sent to the family of the missing seafarer. The investigation report reveals that the seaman, Thiru.Manoj Kakkante was “Lost at sea presumed drowned”. An amount of US$.60,000/- equivalent to Indian Rupees 26,67,600.00 (Rupees Twenty Six Lacs Sixty Seven Thousand Six Hundred only) has been paid by the Shipping Company to Thirumathi Shyamala Kakkante, mother of the missing mess man Thiru.Manoj WPC.1453/2009 : 3 : Kakkante towards settlement of the Contractual Death in Service benefit.” 3. Sri.Manoj Kakkante has subscribed a life insurance policy with the respondents for Rs.10 lakhs and the petitioner herein was the nominee. On the basis that the policy holder died in the high seas, petitioner lodged a claim. This was replied by the Life Insurance Corporation of India by Ext.P3 letter, requiring the petitioner to produce either a proper and indisputable proof of death or a decree of the court that the assured is presumed to be dead. Petitioner was also advised that until then the policy should be kept alive by paying the required amount of premium. Petitioner states that, in reply to Ext.P3, petitioner produced Ext.P1 and that after receipt of the reply, LIC issued Ext.P4 letter, requiring the petitioner to produce the original policy, deed of assignment, if any, and the details of compensation received from the shipping authorities. Petitioner submits that those details were submitted but, even thereafter, LIC issued Ext.P5, calling upon the petitioner to produce proof of death – court decree WPC.1453/2009 : 4 : on presumption of death. 4. On receipt of Ext.P5, petitioner replied by Ext.P6 informing the respondents that accepting the reality that her son is dead, the shipping company had disbursed a compensation of Rs.60,000/- US Dollars and she produced the details thereof. She also produced Ext.P7 certificate issued by the shipping company, confirming the death of the assured, the relevant portion of which reads as under:- “This is to confirm and certify that Mr.Manoj Kakkante (CDC No.MS14396) was engaged by us under Contract of employment dated January 1st, 2006 on behalf of our Principal, M/s.Northern Marine Management Ltd. Scotland as a Mess Man to serve on board the vessel M.T.STENA CONTEST under Bermuda Flag. This is to further confirm that he was found missing/drowned and presumed dead from the Vessel M.T.STENA CONTEST on 9th June 2006 enroute from Wilhelmshaven, Germany to Charleston, USA and in terms of WPC.1453/2009 : 5 : the said Contract death compensation of US$.60,000/- (US Dollar Sixty Thousands only) is payable to his Next of Kin, Mrs.Shyamala Kakkante, his mother and as such we have received remittance of US$.60,000/- on her behalf from our Principal, M/s.Northern Marine Management Ltd. Scotland enqualing to Indian Rupees 26,67,600.00 (Rupees Twenty six lacs sixty seven thousand six hundred only) which is paid by Pay order No.070249 dated February 6, 2007 to Mrs.Shyamala Kakkante by way of compensation in full and final settlement of all the claims.” 5. Even thereafter, the LIC issued Ext.P8, insisting that the petitioner should produce proof of death by way of a court decree. Her subsequent representation also did not yield any result. It is in these circumstances, this writ petition was filed, praying for a direction to the respondents to disburse the amount due under policy No.794547040 subscribed by the petitioner’s son. Consequential reliefs are WPC.1453/2009 : 6 : also sought for. Contention of the petitioner is that Ext.P1 issued under the Merchant Shipping (Returns of Births and Deaths) Regulations, 1980, conclusively proves the death of her son in the high seas. It is stated that the LIC should have accepted and acted upon Ext.P1 death certificate, without insisting on any further proof and disbursed the compensation that is due and payable. 6. On the other hand, in the counter affidavit filed, the stand taken by the respondents is that there is no concrete, conclusive and indubitable finding as to the death of the assured. It is also contended that there is no document to show that the dead body was found or to prove the circumstances which led to the death. They also decline to accept Ext.P1 as a death certificate. According to them, only on production of a court decree, to be obtained after a period of seven years as contemplated in Sections 107 and 108 of the Indian Evidence Act, keeping the policy alive until then, can they honour the claim of the petitioner. Learned counsel WPC.1453/2009 : 7 : for the LIC also relied on the Apex court judgment in LIC of India Vs. Anuradha [2004 (2) KLT 351 SC] in support of the contentions. 7. The Apex court judgment was rendered in a case where a person was found missing, in respect whom, claim under an insurance policy was laid before the LIC. It was considering those facts, the Apex Court held that in such circumstances, a claim can be raised only after a period of seven years as provided for in Sections 107 and 108 of the Indian Evidence Act. No doubt the principle laid down in the judgment binds this Court, but, if Ext.P1 certificate issued by the Bermuda Government is accepted as a death certificate, the principles laid down by the Apex Court judgment relied on by the learned counsel for the respondents may not have any application to the facts of this case. Therefore, the first issue to be examined is whether Ext.P1 is to be accepted and relied on as a certificate evidencing the death of the assured, the son of the petitioner. WPC.1453/2009 : 8 : 8. It is not a matter of dispute that the deceased, Manoj Kakkante, was employed as a Mess Man to serve on board the vessel, 'M.T. Stena Contest' under Bermuda flag, on the basis of a contract which was entered into with M/s.Northern Marine Management, Scotland through M/s.Northern Marine Management (India) Private Limited, Mumbai. Ext.P1 is a certificate of return of births and deaths issued by the Department of Maritime Administration of the Bermuda Government under the provisions of the Merchant Shipping (Returns of Births and Deaths) Regulations, 1980. A copy of the regulations made available by the learned counsel for the petitioner shows that this regulations have been made under Section 66 of the Merchant Shipping Act, 1979. Regulation 3 provides that where any person dies in a ship registered in Bermuda or any person employed in any such ship dies outside Bermuda, the Master of the ship shall make a return of death in accordance with Regulations 4 and 5, and notify the death to such person, as soon as practicable but WPC.1453/2009 : 9 : not more than three days as the deceased may have named to him as his next of kin. Regulation 4 provides for that any return of a birth or a death required to be made under Regulation 2 or 3 shall be made by the Master of the ship as soon as practicable after the birth or death to which it relates and in the case of a birth or of a death which occurs in the ship, it shall be made to a Superintendent or proper officer for the place where the ship is at the time of the birth or death, or at which it next calls thereafter, and in the case of a death which occurs elsewhere than in the ship, return shall be made to a Superintendent or proper officer for the place where the ship is when the Master first becomes aware of the death or at which it next calls thereafter. Regulation 5 provides for the contents of return to be made and Regulation 7 provides that the Master of the ship who fails to comply with any provision of Regulations 2, 3, 4 or 5 commits an offence, and is liable for punishment with a fine of 50 US Dollars. 9. A reading of Ext.P1 shows that this certificate has WPC.1453/2009 : 10 : been issued in compliance with the aforesaid Regulations and this certificate indicates 9th June, 2006 as the date of death. Apart from the details of the deceased, cause of death indicated in Ext.P1 is as “lost at sea presumed drowned”. Thus, this certificate, in my view, certifies the death of the assured in categoric terms and the only ambiguity is regarding the cause of the death, no longer the death stands confirmed is immaterial. Yet another fact which is to be noticed from the certificate is that this document also carries a certificate signed by the proper officer in terms of the provisions contained in the Merchant Shipping Act, 2002, a Bermuda enactment. This certificate is made by the proper officer after holding an enquiry under Section 232 of the said Act. A reading of Section 232 shows that an enquiry is contemplated only in a case of death. Thus, this certificate reinforces the case of the petitioner that her son met with an untimely death and for the aforesaid reasons, Ext.P1 can safely be acted upon as a certificate of his death. Therefore, in my view, WPC.1453/2009 : 11 : Ext.P1 should have been accepted as a certificate of death of the deceased. In view of this finding, the principles laid down in the judgment relied on by the counsel for the respondents are inapplicable to the facts and hence are not relevant to the issue arising for consideration in this case. 10. Apart from Ext.P1, it is also to be mentioned that accepting the reality that the petitioner’s son died on high seas, the shipping company has already paid the compensation due to the petitioner’s son. That apart, Ext.P2, the letter issued by the then Minister for Shipping and Transport, also shows that the investigation into the incident disclosed that the petitioner’s son was lost at the high seas and is presumed drowned. In such circumstances, in my view, the LIC should have, in all fairness, accepted the claim of the petitioner and disbursed the compensation due under the policy subscribed by the deceased. 11. Therefore, this writ petition is disposed of, directing the respondents to settle the claim of the petitioner and WPC.1453/2009 : 12 : disburse the amount due under policy No.794547040 subscribed by the deceased son of the petitioner. The payment shall be made, at any rate, within a period of four weeks from the date of production of a copy of this judgment. Sd/- (ANTONY DOMINIC, JUDGE) aks // True Copy // P.A. To Judge