Rajasthan State Insurance And P F Deptt vs BASANTI DEVI

THIS appeal has been filed by the appellant -non -petitioner against the order dated 28.2.2004 passed by the District Forum, Baran by which the learned District Forum accepted the complaint filed by respondent -petitioners and awarded Rs. 2 lakh of Insurance Scheme and further awarded 9% interest w.e.f. 20.2.2002 on the above amount.

IT arises in the following circumstances: That the respondent -petitioners filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act of 1986'') on 9.5.2002 before the District Forum inter -alia stating that one Sh. Prem Shankar (hereinafter referred as ''deceased'') was working in the office of Rajasthan Police as Head Constable and Smt. Basanti Devi is the wife and other respondents are his sons. It was further stated in the complaint that the Govt. of Rajasthan the appellant had issued a policy known as Group Individual Accident Insurance Policy (referred to as ''the policy) for the welfare of its employees. It was further stated in the complaint that the main scheme of the policy was that in case any Constable or Head Constable while working dies his heir would get Rs. 2 lakh as compensation. The further case of the respondent -petitioners was that on 16.11.2001 at about 9 p.m. the deceased was going on his motorcycle No. RPM 4224 a bus bearing No. RJ 20 P -2694 came there and the driver of that bus while driving rashly and negligently hit the motorcycle of the deceased from back side as a result of which deceased fell down from the motorcycle and received multiple injuries and at that time on the pillow driver seat, one Dwarka Prasad was also sitting along with the deceased. On the basis of that accident a FIR No. 779/2001 was registered in the Police Station Kotwali District Baran and a challan for the offences under Sections 279, 304 (A), IPC was filed against the driver of that bus and the same is pending in the Court. It was further stated in the complaint that because of the accident that the deceased later on died and a post -mortem of his body was got conducted by the doctor and cause of the death was that the deceased died because of injuries. The further case of the respondent -petitioners was that since the deceased died while in service, therefore, the petitioners in capacity as LR of the deceased were entitled to Rs. 2 lakh under the scheme of that policy. The further case of the petitioners was that through letter dated 20.2.2002 S.P. Baran informed the petitioners that since at the time of the accident the deceased was in intoxication, therefore, as per terms and conditions of the scheme of the policy they were not entitled to the amount claimed by them. Thereafter the present complaint was filed by the respondent -petitioners before the District Forum with the prayer that Rs. 2 lakh be awarded to them. A reply was filed by the appellant -non -petitioner on 1.11.2002 before the District Forum and the case of the appellant was that since at the time of accident deceased was in intoxication, therefore, the accident had taken place because of the negligence of the deceased and there was no fault on the part of the driver of the bus. It was further replied that as per condition No. 8 of that policy if the person had died because of consuming alcohol the benefit of that policy would not be available. Hence since the deceased was in intoxication as is evident from the prescription issued by the Government Hospital, Baran on 16.11.2001 and, therefore, the complaint be dismissed. After hearing both the parties the learned District Forum through his order dated 28.2.2004 accepted the claim of the complainants and awarded the amount as stated above inter alia holding: (i) That the prescription slip dated 16.11.2001 itself would not make out the case that the deceased was intoxication when driving the motorcycle. (ii) That since the fact that the deceased was in intoxication was not found in post -mortem report, therefore, the learned District Forum came to the conclusion that the appellant had failed to prove the fact that the accident had taken place because of consuming liquor by the deceased. (iii) That since at the time of accident one Dwarka Prasad was sitting and from his statement recorded under Section 161, Cr.P.C. the fact that accident had taken place with the rash and negligent driving of the driver of the bus had been established. (iv) That since there is no chemical report justifying the fact that the deceased was intoxication. Aggrieved from that order this appeal has been filed by the appellant. The main case of the appellant in this appeal is that since the prescription slip dated 16.11.2001 issued by the Government Hospital, Baran clearly establishes the fact that when deceased was got medically examined by the doctor on duty the doctor had clearly mentioned ''smell of alcohol'' in that slip. Therefore, from this point of view it was sufficient evidence to prove the fact that at the time of accident the deceased was intoxication and accident had taken place because of his fault. Therefore, the impugned order should be set aside and the appeal should be allowed.

ON the other hand the learned Counsel for the respondents has supported the order in question and has made the prayer that appeal be dismissed.

WE have heard the learned Counsel of both the parties and perused the record. There is no dispute on the point that in prescription slip dated 16.11.2001 words ''smell of alcohol'' were there. There is also no dispute on the point that in post -mortem report dated 17.11.2001 the fact that deceased was having liquor is missing and in other words in post -mortem report there is no mention of the fact that at the time of conducting post -mortem examination anything suggesting that the deceased was in intoxication was found. That there is no dispute on the point that a challan has been filed against the driver of the bus for the offence under Section 304A, IPC meaning thereby that the accident had taken place with the rash and negligent driving of the bus driver. There is also no dispute on the point that as per condition No. 8 of that scheme if any employee had died because of consuming any intoxicating item, in such case; benefit of that scheme would not be available to his LRs.

KEEPING the above facts in mind; the question for consideration is whether the findings of the District Forum that at the time of accident the deceased was not in intoxication are liable to be confirmed or not.

BEFORE proceeding further something should be said about the legal position in respect of breach of condition in Insurance Policy (scheme). The burden to prove the fact that the employee is guilty of breach of the conditions of the scheme lies on the insurer (appellant in the present case). Breach has to be construed as a wilful default and intentional ommission. Mere breach of conditions of policy would not have the effect of exonerating the insurer of his statutory liability. In such a case there should be a nexus between breach of condition of policy and the accident. Even for getting the benefit of contributory negligence the insurer has to establish that the driver had consumed excess amount of alcohol resulting in accident. Apart from this the prescription slip merely tells that there was smell of alcohol. In our considered opinion mere smell of alcohol cannot be a substitute for holding the fact that accident had taken place because at the time of accident the deceased had consumed excess amount of alcohol. Thus for the sake of argument if this prescription slip is taken as a correct state, it would not be sufficient to prove the fact that the accident had taken place because of the fault of the deceased. In this case the accident had taken place by driving rashly and negligently of the driver of the bus and since the driver of the bus had caused accident from the back side, therefore, in no manner, deceased can be held liable for accident. For the above reasons the appellant cannot be exonerated from its statutory liability.

THUS it can easily be said that in the present case there is no nexus between the breach of condition of policy and the accident. Hence defence pleaded by the appellant cannot be accepted and the learned District Forum has rightly rejected the same.

THE learned District Forum has meticulously dealt with the point in question and has rightly come to the conclusion that the defence would not be available to the appellant and thus the findings recorded by the District Forum are legal and proper one and not amendable in appeal. Thus we have no reason to dissent from the findings arrived at by the District Forum and we, therefore, confirm the findings and in that consequence the appeal deserves to be dismissed. Accordingly, this appeal filed by the appellant -non -petitioner is dismissed but no order as to cost. Appeal dismissed.