GEETA JEEVNANI vs Oriental Insurance Co. Ltd.

SMT. Geeta Jeevnani has filed this complaint under Section 17(a)(i) of the Consumer Protection Act, 1986 (for short the "Act") attributing deficiency in service to and claiming Rs. 5,60,000/- with interest from, respondent-the Oriental Insurance Company Ltd.

COMPLAINANT is widow of late Dilip Kumar who was insured with the respondent for a sum of Rs. 5,00,000/- against accidental death under a policy titled as Janta Personal Accident Insurance Policy taken out by late Dilip Kumar from the respondent on 14.11.1996. The period of insurance was from 14.11.1996 to 13.11.2007. It is also no more in dispute that late Dilip Kumar on 29.3.1997 around 4:00 p.m. died an accidental death due to drowning in Kerwan Dam 35 kms. away from Bhopal. A report of the incident was lodged with the police, the same evening at 4.30 p.m. It appears that the body of the deceased was taken out from the water the same evening. The police after conducting inquest under Section 174, Cr. P.C. on 30.3.1997 at 10.00 a.m. handed over the body of the deceased to the Department of Forensic Medicine and Toxicology, Gandhi Medical College, Bhopal for post-mortem examination. The autopsy was performed the same morning at 10.15 a.m. and it was reported that the death was due to asphyxia as a result of drowning. The blood and viscera of the deceased were also preserved and later, on 31.3.1997 analysed chemically. As per the Chemical Examination Report it was found that there was alcohol in concentration of 100 mg% in stomach, 130 mg% in viscera and 130 mg% in blood. Complainant, the widow of the deceased and who was also nominee under the insurance policy, presented claim before the respondent-Insurance Company for the assured sum. However, the respondent - Insurance Company after certain investigations repudiated the entire claim vide letter dated 17th February, 1998 on the ground that the deceased at the time of the drowning was under the influence of liquor and the claim was, therefore, hit by proviso 4 of the terms and conditions of the policy. Feeling aggrieved by the action of the respondent - Insurance Company the complainant has come up before this Commission claiming Rs. 5 lacs as the amount assured, Rs. 50,000/- as compensation and Rs. 10,000/- towards miscellaneous expenses.

The complaint is resisted by the respondent company on the same ground that the deceased at the time of drowning was under the influence of liquor and as such the claim preferred by the complainant was hit by the said proviso which thus reads as follows: "Provided always that the Company shall not be liable under this Policy for- 1 .......... 2 .......... 3 .......... 4. Payment of compensation in respect of death, injury or disablement of the insured from (a)..........(b) whilst under the influence of intoxicating liquor or drugs........"

WE have heard learned Counsel for the parties and also gone through the evidentiary meterial on record. This complaint in our considered judgment must succeed. The claim of the complainant was repudiated mainly on the basis of chemical examination report of the Medico Legal Institution, Gandhi Medical College dated 18.9.1997 showing presence of alcohol in concentration of 100 mg% in stomach and 130 mg% in viscera and blood. After filing of the complaint, the respondent- Insurance Company also obtained opinion of Dr. Rituraj Tongia, a Consulting Physician and Cardiologist. Dr. Tongia on the basis of post-mortem report and the said chemical examination report gave opinion that the "proximate cause of death was consumption of alcohol and the original accident only a remote cause." Dr. Tongia concluded: "Thus it is very much clear that the drowning leading to death was a result of proneness of accident due to consumption of alcohol by deceased Mr. Dilip Kumar Jeevnani."

THE complainant in order to controvert the opinion of Dr. Tongia obtained opinion of Dr. R.C. Saxena, a Medico Legal Consultant and M.D. in Forensic Medicine and Toxicology. He is also ex-faculty member of Department of Forensic Medicine and Toxicology, Gandhi Medical College, Bhopal. Dr. Saxena on consideration of the same documents as also the factual aspect of the case, opined: "Hence one must not jump on the conclusion that Dilip Kumar Jeevnani, prior to his death, was under the influence of intoxication of alcohol." This opinion of Dr. Saxena was referred to Dr. Rituraj Tongia who submitted his counter-affidavit. In this counter-affidavit though he adhered to his earlier opinion but at the end conceded that the quantity of liquor in the blood of the deceased could be less than 130 mg% , Dr. Saxena after seeing this affidavit of Dr. Tongia submitted a supplementary report together with his affidavit reiterating his earlier opinion. He thus opined: "The death of Dilip Kumar Jeevnani was due to accidental drowning. He had not consumed so much amount of alcohol as to be regarded as under the influence of intoxicating alcohol, i.e., who had lost the self-control."

We have very carefully considered evidence of these two expert witnesses and we tend to agree with the opinion expressed by Dr. Saxena. At the outset we may observe that Dr. Rituraj Tongia is not an expert in the field of Forensic Medicine and Toxicolgy. In his report as also in his affidavit he has not disclosed his qualification and merely claimed to be a Consulting Physician and Cardiologist. As against it Dr. R.C. Saxena is M.D. in Forensic Medicine and Toxicology and has been a faculty member of Forensic Medicine and Toxicology Department of Gandhi Medical College, Bhopal. He is a Medico Legal Consultant having long experience in this field of Forensic Medicine and Toxicology.

IN order to appreciate the rival opinions it would be appropriate here to advert to material facts of the case. It is no more in dispute that the deceased had consumed some liquor immediately before the said accident. He along with his friends had gone to Kerwan Dam for picnic and they all had some snacks and drinks. It was only when one of them had entered the water to take bath and was seen drowning that the deceased Dilip Kumar Jeevnani rushed and tried to save his drowning friend, unfortunately they both drowned and lost their lives. This incident took place around 4.00 p.m. and it appears that the body of the deceased was also recovered within half an hour. The report with the police was lodged at 4.30 p.m. The body was with the police till next morning 10.00 a.m. when it was finally handed over to the doctors for post-mortem examination. Obviously, during all this period of 18 hours the body was kept in open not under any refrigeration. There was thus time-gap of 18 hours between death and autopsy, and the chemical examination was conducted after 42 hours.

AS per Modi''s Medical Jurisprudence & Toxicology (22nd Edition) Page 238-239, Section I- " a body takes twice as much time in water as in air to undergo the same degree of putrefaction. Putrefaction is accelerated, when the body is removed from water, as the tissues have imbibed much fluid. In such a body, decomposition is so rapid that the changes occurring in 24 hours exposure to the air will be more marked than those ordinarily resulting from a fortnight''s further submersion."

In Section II Pages 318-319 the learned author has further observed- "ethyl alcohol may be produced in the blood in a putrefying body, or during storage or autopsy by fermentation of proteins and carbohydrates present in the blood, through the action of enzymes, and bacteria like Escherichia Coli, Klebsiella Aerobacter or fungi. On Page 314 of the same section it is further observed : It must be kept in mind that only alcohol that has passed into the blood stream has any effect on behaviour; also there is a possibility of diffusion of alcohol from the stomach into blood and tissues after death."

(Emphasis supplied) In the instant case as already pointed out there was time-gap of 18 hours between death and autopsy and during this period the body which had imbibed much fluid (water) was kept in open thereby accelerating the rate of putrefaction. Under the circumstance as observed by Modi the possibility of diffusion of alcohol from the stomach into blood and tissues after death could not be ruled out. Similarly, the possibility of ethyl alcohol being produced in blood in the putrefying body was also there, thus adding to the quantity of alcohol in the blood of the deceased. Dr. Saxena in his two reports has taken into consideration all these material facts and the views expressed by various authors of Medical Jurisprudence, while giving his opinion that presence of liquor found in the blood at the time of chemical analysis may not have been the same at the time of accident. Unfortunately this aspect of the case was not taken into consideration by Dr. Tongia while expressing the opinion that the deceased at the time of accident was under the influence of intoxicating liquor.

Several affidavits including all those who were present at the scene have been filed by the complainant stating that the deceased at the time of accident was not under any influence of liquor. There is no challenge to this direct evidence either in the form of cross-examination or by any counter affidavit of an eye-witness. It has further come in the evidence that the deceased was not new comer in the matter of consuming liquor and had been taking drinks in the past. As per Parikh''s Text Book of Medical Jurisprudence and Toxicology, a person showing presence of 150-200 mg% of alcohol in his blood can be termed as drunk if he is non-addict and under influence of liquor if he is an addict. In the instant case as agreed by Dr. Tongia, the presence of alcohol in the blood of deceased even at that distance of time could be taken less than 130 mg% . So by any standard it cannot be said that the deceased was drunk or under influence of liquor at the relevant time. We, therefore, hold that the cause of death of the deceased was drowning and drowning alone not because of his having consumed liquor. The claim of the complainant-nominee was wrongly repudiated by the respondent-Insurance Company and it was a clear case of deficiency in service on their part.

THE complainant has claimed Rs. 50,000/- as compensation for torture and harassment and Rs. 10,000/- towards miscellaneous expenses, besides the amount assured, Rs. 5 lacs. Awardment of interest @ 8% p.a. from the date of repudiation i.e., 17.2.1998 until payment shall in our opinion adequately compensate the complainant for the deficiency on the part of the respondent. Accordingly, we allow the complaint as aforesaid and direct that the respondent-Insurance Company shall pay to the complainant Rs. 5,00,000/- with interest @ 8% p.a. from 17.2.1998 until payment. The respondent shall also pay Rs. 5,000/- towards cost of this complaint. A copy of this order be conveyed to the parties. Complaint allowed.