Executive Engineer, Iph Division vs Shishma Devi

LATE Sh. Nittu Ram, who was working as a daily wage Beldar with I&PH Division Rohru, Tehsil Rohru in District Shimla of Himachal Pradesh was insured with the New India Insurance Company Ltd., under a scheme called Janta Personal Accident Insurance Policy, which covered his life for a sum of Rs. 2 lakhs, in case he was to die in an accident. Late Sh. Nittu Ram, when he was returning from duty on 04.04.2003, had an accidental fall as a result of which he sustained fatal injuries and died on the spot. The dead body of Sh. Nittu Ram, however, was recovered after four days and was subjected to post mortem. Viscera was also preserved and later sent to the State Forensic Science Laboratory of Himachal Pradesh. Dr. B. R. Rawat, Chemical Analyst of State Forensic Science Laboratory of Himachal Pradesh, stated before the District Forum that since alcohol was present in the sample sent to the laboratory, the deceased was highly drunk. However, he also admitted in the aforesaid cross -examination that no preservative was used in blood and urine samples and if preservative was not used, puterification would take place in the sample and it can result in the formation of the alcohol. In view of the report of the analyst, the claim was rejected by the Insurance Company on the ground that the insurance policy did not cover the insured, in case he was under influence of intoxication of liquor. Being aggrieved, the complainants who are the widow and children of the deceased approached the concerned District Forum, by way of a complaint impleading not only the Insurance Company, but also the employer of the deceased as the opposite party.

THE complaint was resisted by the Insurance Company primarily on the same ground on which the claim was rejected i.e. the deceased was under influence of intoxicating liquor at the time he had a fall.

THE District Forum, vide its order dated 28.04.2009, dismissed the complaint. Being aggrieved from the order of the District Forum, the complainants approached the concerned State Commission by way of an appeal. Vide impugned order dated 17.12.2010, the State Commission while upholding the order of the District Forum qua the Insurance Company held that the employer of the deceased was deficient in the services rendered to him, since the terms of the insurance policy were not duly explained to him. Accordingly, the employer of the deceased i.e. the petitioner before this Commission, was directed to pay a sum of Rs. 2 lakhs to the complainants alongwith interest at the rate of 9% per annum and the cost of litigation quantified at Rs. 5,000/ -. Being aggrieved from the aforesaid order, the petitioner, Executive Engineer, I&PH Division, Rohru is before us by way of this revision petition.

AS far as the petitioner is concerned, there was no relationship of consumer and service provider between him and the deceased. Late Sh. Nittu Ram was an employee of the Himachal Pradesh Government and he had not hired the services of the State Government for a consideration, in taking the insurance cover. The premium payable to the Insurance Company used to be deducted from his salary and transmitted to the Insurance Company but there is no evidence or even allegation of the State Government retaining a part of the deduction made from his salary towards premium for the insurance policy. Moreover, there is absolutely no evidence to prove that the terms of the insurance policy were not explained to the deceased. In fact, late Sh. Nittu Ram was the only person, who could have testified in this regard and he having died, there was no material before the State Commission to hold that the terms of the policy were not explained to him. This is on the assumption that it was a duty of the employer of late Sh. Nittu Ram to explain the terms of the policy to him. The contention of the learned counsel for the petitioner in this regard is that no such duty was cast upon the employer of the deceased. Therefore, the order passed by the State Commission directing the petitioner, before this Commission, to pay a sum of Rs. 2 lakhs to the complainants alongwith the interest and cost of litigation cannot be sustained and is liable to be set aside.

HOWEVER , in my opinion, since it has not been firmly established that the deceased was under influence of intoxicating liquor at the time he had an accident, the Insurance Company needs to fulfil its obligation under the insurance policy and pay the sum assured to the complainants alongwith appropriate interest. As noted earlier, Dr. B. R. Rawat has clearly stated in his cross -examination that no preservative was used for blood and urine samples. He also admitted that if the preservative was not used, puterification would take place in the sample and that can result in the formation of the alcohol. Therefore, the possibility of the alcohol being found in the sample analysed by the State Forensic Laboratory on account of preservative having not been used in the said samples is quite strong. The doctors who took the blood and urine samples were required to put preservative in the said samples, so that there was no puterification and consequently, formation of alcohol did not take place. In these circumstances, it would not be just fair and reasonable to deny the benefit of the insurance policy to the complainants only on the basis of the report of State Forensic Science Laboratory.

IT is pointed out by the learned counsel for the Insurance Company that even in the inquest report, it was stated that the deceased was under influence of alcohol when he had a fall. However, it is not known on what basis the aforesaid statement was made in the inquest report. No witness was examined by the Insurance Company to prove that the deceased had taken alcohol before he met with an accident. No one claimed to have seen the deceased taking liquor before he had an unfortunate fall on 04.04.2003. Therefore, the benefit of the insurance policy cannot be denied to him on the basis of a bald statement in the inquest report when neither the author of the inquest report has been examined nor any witness was produced to prove that the deceased had taken liquor when he met with an accident on account of a sudden fall.

FOR the reasons stated hereinabove, while setting aside the order of the State Commission qua the petitioner, The New India Insurance Co. Ltd. is directed to pay the insured amount of Rs. 2 lakhs to the complainants alongwith interest at the rate of 9% per annum from the date of filing of the complaint till the date of payment. The amount which the petitioner had deposited be returned to the petitioner alongwith interest, which may have accrued on that amount. The revision petition stands disposed of.