NATIONAL INSURANCE CO. LTD. vs PARMILA DEVI & ORS.

Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), is to order dated 19.9.2008 in Appeal No. 488 of 2007 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (for short "the State Commission"). By the impugned order, the State Commission dismissed the Appeal preferred by the Insurance Company and affirmed the order of the District Forum.

The brief facts as set out in the Complaint are that the Complainant''s husband late Shri Sukh Chain Singh, who was employed as Peon took Group Personal Accident Insurance Scheme for an insured amount of Rs. 2,00,000/- with premium being deducted from his salary. On 28.2.2002 the Complainant was informed that her husband was lying at Shikadi Khud below Kanso Kali in an abandoned condition. The mother of the deceased suspected foul play as, on 28.2.2001, she came to know that the deceased along with Shri Kalam Singh were together at Rohroo and consumed alcohol. They came together to Kansa Koti in a van wherefrom Shri Sukh Chain was taken by said Shri Kalam Singh to his house. Shri Sukh Chain was then deceitfully taken towards the bridge by the accused Kalam Singh deceitfully and thrown from a tank and Shri Sukh Chain fell into Shikhri khad and died on the spot. It is averred that the police had found truth in the allegations of Smt. Geeta Devi and as such came to file challan against the accused Kalam Singh. Immediately an FIR was lodged under Section 304/356 IPC and the Insurance Company was also informed with respect to the claim, but there was no response. Hence, the Complaint seeking direction to the Insurance Company to pay the insured amount of Rs. 2,00,000/- with interest, damages and costs.

The Opposite Party filed their reply before the District Forum stating that the insured was under the influence of intoxicating liquor, which is in violation of Clause 5 of the Policy and, therefore, is not entitled to the claim amount.

The District Forum, based on the evidence adduced, allowed the Complaint directing the Insurance Company to pay Rs. 2,00,000/- and the interest at 9% p.a. from the date of filing of the complaint, i.e. 19.11.2003 till the date of actual payment. The District Forum observed as follows: "The grounds taken by the OPs-Company for repudiating the claim of the complainant is not tenable. Annexure-B is the copy of police report under Section 173 Cr. P.C. filed against Shri Kalam Singh in case FIR No. 42/2001 under sections 304 & 356 IPC on a report of Smt. Geeta Devi mother of Shri Sukh Chain with the allegations that on 27.2.2001 her son Shri Sukh Chain had gone to Rohroo and did not return in the evening. On 28.2.2001, she came to know that he along with Shri Kalam Singh were together at Rohroo and had drinks. They came together to Kansa Koti in a van wherefrom Shri Sukh Chain was taken by said Shri Kalam Singh to his house. Shri Sukh Chain was taken towards bridge by the accused Kalam Singh deceitfully and thrown from a tank and Shri Sukh Chain fell into Shikhri khad and died on the spot. The police had found truth in the allegations of Smt. Geeta Devi and as such came to file challan against the accused Kalam Singh. The aforesaid evidence on record makes it evident that the death of deceased Shri Sukh Chain was not on account of any act attributable to him which may be considered to negative the claim of the complainant for compensation. In such circumstances, the report of chemical examiner wherein 357.7 and 425.5 miligram of alcohol was determined in the blood and urine of the deceased is also not sufficient to substantiate that the deceased died due to consumption of alcohol. Shri Sukh Chain did not intentionally suffer any injury nor is shown to have committed attempted suicide. The post-mortem report rather substantiate that Shri Sukh Chain died due to asphyxia which also speaks that he did not die natural death. The OPs -Company as such has not been able to substantiate that Shri Sukh Chain deceased had violated any policy condition so as to disentitle the complainant from getting the amount of claim. The complainant is able to substantiate that Shri Sukh Chain had died unnatural death and as such she is entitled to the insurance amount of Rs. 2,00,000/- along with interest and litigation costs".

Aggrieved by the said Order, Insurance Company preferred an Appeal before the State Commission. The State Commission observed as follows:-

"7. As per annexure C in blood alcohol was found to be 357.7% milligram and in urine it was found 425.5% milligram. On the pant of the deceased blood was found, whereas on other clothes no blood was found. Doctor who conducted post-mortem vide Annexure D had opined:-

"After thorough post-mortem of deceased, in my opinion patient died due to asphyxia following wet drowning. However final opinion will be given after chemical expert report".

Final opinion given by the doctor after receipt of chemical expert opinion is as under:-

"After chemical expert opinion i.e. my provisional opinion is confirmed and also person was intoxicated".

In this behalf the primary cause of the death according to us is wet drowning. Doctor has not opined that wet drowning was on account of the deceased being intoxicated, so as to bring his case within exclusion 5 of the policy of the Insurance.

Faced with this situation Mr. Bagga learned counsel for the appellant submitted, that once the doctor has found the deceased intoxicated, this is enough to allow this appeal by setting aside the impugned order in the face of Clause 5 of the insurance policy. We do not accept this plea for the simple reason, that if the death was not due to wet drowning, but had been only held due to the deceased being intoxicated, situation would have been different. His being intoxicated can be an additional factor, however, unless it is shown to be the only and sole factor resulting in his death, no benefit can be derived by this observation of the final opinion of the doctor on behalf of the appellant. 10. No other point is urged.

In view of the aforesaid discussion, we find no substance in this appeal which is accordingly dismissed, leaving the parties to bear their own costs".

Dis-satisfied with this order, the Insurance Company preferred this Revision Petition before this Commission on the ground that liquor beyond a safe limit must necessarily disqualify the insured from getting the benefits of the Insurance Policy. Learned counsel for the Petitioner argued that the quantity of alcohol allowed to the driver of a motor vehicle is not more than 100 mg/100 ml and, therefore, if a person is found to have consumed more than 103.14 mg of alcohol/100 ml of his blood, he is construed as being intoxicated and relied on Lyon''s Medical Jurisprudence & Toxicology by Prof. T.D. Dogra and Lt. Col. Abhijit Rudra and relied on the following:

" MEDICO LEGAL ASPECTS OF ALCOHOL INTAKE

Terminologies used in medico-legal context: The following terminologies are employed in medico-legal cases. Their exact meaning should be understood.

Sober - Blood alcohol concentration of less than 10 mg%.

Drinking - Blood alcohol concentration of 20-70 mg%.

Under the influence of alcohol - Blood alcohol concentration of 80-100 mg%.

Drunk or intoxicated - Blood alcohol concentration of 150-300 mg%.

Coma and death - Blood alcohol concentration in excess of 400 mg%.

It is the main ground of the Revision Petitioner that State Forensic Science Laboratory Himachal Pradesh, Junga 173216 has reported that alcohol in blood is 357.7mgm% and in urine is 425.5mgm.%, which is more than what is stipulated in the Medico Legal Aspects of Alcohol Intake. As against this argument, learned counsel for the Respondent submitted that there is no nexus between the intoxication level and the cause of death.

The brief point that falls for consideration is whether the person was intoxicated and if that falls within the Exclusion Clause 5 of the Policy. Exclusion Clause 5 of the Policy reads as follows: "Payment of compensation in respect of death, Injury of Disablement of the Insured person (a) from intentional self-injury suicide or attempted suicide, (b) whilst under the influence of intoxicating liquor or drugs, (c) whilst engaging in aviation or whilst mounting into dismounting from or travelling in any aircraft other than as a passenger (fare paying or otherwise) in any duly licensed standard type of aircraft anywhere in the world, (d) directly or indirectly caused by veneral diseases or insanity, (g) arising or resulting from the Insured Person committing any breach of the law with criminal intent".

The Post-mortem as well as Chemical Report show that the deceased died due to Asplyxia following wet drowning. It is the main case of the Respondent/Complainant that there is no nexus between intoxication and the cause of death. Learned counsel for the Respondent relied on the Judgment of this Commission in LIC of India & Anr. Vs. Ranjit Kaur in which this Commission, interalia , observed as under: "It has also come in evidence that this by itself is not adequate proof that the deceased was intoxicated at the time of his death. As rightly observed by the learned Fora below, the specific clinical picture of alcohol intoxication also depends on the quantity and frequency of consumption and duration of drinking at the level and, therefore, mere presence of alcohol even above the usually prescribed limits is not a conclusive proof of intoxication. Apart from this, there is also no evidence that there was a nexus between the death caused by electric shock and consumption of liquor".

Learned counsel for the Petitioner relied on the judgment of this Commission in the matter of Baby Apoorva Rai & Anr. Vs. New India Assurance Co. Ltd. & Anr. in CC No. 401 of 2014, decided on 3.9.2015, in which this Commission observed as under:

"Though in Ranjit Kaur (supra), this Commission, inter-alia observed that there was no nexus between the death caused by electric shock in consumption of liquor, the aforesaid observation is only an obiter and does not constitute the ratio decidendi of the case. In fact, the aforesaid obiter is contrary to the express terms of the insurance policy which absolves the insurer of its obligation under the policy, in case the insured was under the influence of the intoxicating liquor at the time of the accident and the policy does not require any nexus to be shown between the case of accident and the consumption of liquor".

The facts in the instant case are different in the sense that Firstly there is a specific averment in the Complaint that, on 27.2.2001, the deceased was taken towards a bridge by one Mr. Kalam Singh and thrown from a precipice, as a result of which the insured had died and this averment had not been rebutted by the Respondent/Insurance Company. Even in their grounds in the Revision Petition there is no rebuttal or even a whisper about the manner in which the insured had died. The Petitioner/Insurance Company cannot ignore the FIR that was lodged by the mother under Section 304/356 IPC on the ground that insured was taken to the bridge and thrown from the precipice.

Having regard to the manner and cause of death and the concurrent finding of fact by both the lower Fora below and also that the complaint is of the year 2003 and 13 years have lapsed and further the fact that the quantum involved (insured sum is Rs. 2,00,000), I do not see it a fit case to exercise our limited revisional jurisdiction as envisaged in the judgment of the Hon''ble Apex Court in Rubi (Chandra) Dutta vs. United India Insurance Co. Ltd. II (2010) CPJ 19 (SC).

In the result, this Revision Petition fails is dismissed accordingly. No order as to costs.