SAJJAN BAI vs BIMA NIGAM DIVISIONAL MANAGER, BHARTIYA JEEVAN

THIS is a complainant''s appeal against the order dated 5.9.1998 passed in Case No. 2/95 by the District Consumer Disputes Redressal Forum, Mandsaur (for short the ''District Forum'') whereby the complaint for deficiency in service in not making the payment of the double accident benefit was dismissed.

FACTS giving rise to this appeal are thus : that the appellant''s husband the life assured 25 years New Money Policy with Profit (With Accident Benefit) obtained a Policy No. 341408679, for the sum assured of Rs. 25,000/- of the table and term 93-25. The life assured while coming back to his home in the night at about 8.00 p.m. on 12.10.1993 on a cycle lost balance and fell into the well by the side of the road, as a result of which he died. A First Information Report was lodged and post-mortem was performed by the Autopsy Surgeon on 13.10.1993 at about 11.45 a.m. The cause of death was asphyxia due to drowning. The appellant as nominee lodged the claim with Life Insurance Corporation of India (LIC). According to the policy for the death the amount assured of Rs. 25,000/- with bonus and interest was paid. However, the double accident benefit was not paid in view of the Condition No. 10 of the policy as the life assured at the time of fall in the well was under the influence of intoxicating liquor.

The appellant filed the complaint before the District Forum which was resisted. The District Forum on the evidence adduced by the parties did not record a clear-cut finding that at the time of fall in the well the deceased was under the influence of the liquor or not and observed that it requires an elaborate enquiry on complex issue which can be held in the Civil Court, hence, dismissed the complaint.

THE Condition No. 10 of the policy deals with accident benefits payable, relevant of which we quote : "10. Accident Benefit : If at any time when this policy is in force for the full sum assured, the Life Assured, before the expiry of the period for which the premium is payable or before the policy anniversary on which the age nearer birthday of Life Assured is 70, whichever is earlier, is involved in an accident resulting in either permanent disability as hereinafter defined or death and the same is proved to the satisfaction of the Corporation, the Corporation agrees in the case of :

(a) Disability to the Assured : .... (b) Death of the Life Assured : To pay an additional sum equal to the sum assured under this policy, if the Life Assured shall sustain any bodily injury resulting solely and directly from the accident caused by outward, violent and visible means and such injury shall within 120 days of its occurrence solely, directly and independently of all other causes result in the death of the Life Assured. However, such additional sums payable in respect of this policy, together with any such additional sums payable under other policies on the life of the Life Assured shall not exceed Rs. 5,00,000/-. THE Corporation shall not be liable to pay the additional sum referred in (a) or (b) above if the disability or the death of the Life Assured shall : (i) be caused by intentional self-injury, attempted suicide, insanity or immorality or whilst the Life Assured is under the influence of intoxicating liquor, drug or narcotic; or

In the post-mortem report the condition of the body of the deceased, was found thus : "body of young man in which face was cyanosed. Smell of alcohol is coming out, eyes close, watering from nose, cloths are wet and body was in rigor morits in which knee (both) was hemiflexed and elbow was hemiflexed and left was internally rotated posture of rider on bicycle was maintained, no external evidence of signs is present. Wearing black blue jeans pant and light blue shirt."

THOUGH, in column 4 of Abdomen the Autopsy Surgeon found stomach contain watery material, smell of alcohol is coming out from the material. However, the Autopsy Surgeon did not give definite opinion that the deceased at the time of fall in the well was under the influence of intoxicating liquor. Merely on the basis of the smell of alcohol it cannot be said that the deceased was under the influence of the liquor. This Commission considered the question in case of Study Circle Society v. LIC, I (1999) CPJ 719, and observed that to establish that the deceased was under the influence of the liquor Bio-chemical Examination Report ought to have been produced. The Autopsy Surgeon did not perform the Biochemical Examination of the fluid, hence, it was not possible to definitely state the nature of the stomach contents. Most probably it could be gastric juice mixed with the bile. From the above material it is not established that the deceased was driving the motor cycle after consuming the liquor and at the time of accident he was under the influence of liquor. The Karnataka State Commission in case of S.B. Girijamba v. The Senior Divisional Manager, LIC of India & Ors., I (1996) CPJ 224, after considering the expressions ''Intoxicating Liquor'' and ''Intoxication'' have been explained in Black''s Law Dictionary observed in paras, 15 to 20 thus : "15. The expressions ''Intoxicating Liquor'' and ''Intoxication'' have been explained in Black''s Law Dictionary as under : Intoxicating Liquor : Any liquor used as a beverage, and which, when so used in sufficient quantities, ordinarily or commonly produces entire or partial intoxication. Any liquor intended for use as a beverage or capable of being so used, which contains alcohol, either obtained by fermentation or by the additional process of distillation, in such proportion that it will produce intoxication when imbibed in such quantities as may practically be drunk. Intoxication : Term comprehends situation where, by reason of taking intoxicants, an individual does not have the normal use of his physical or mental faculties, thus rendering him incapable of acting in the manner in which an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would act under like conditions. 16. A disturbance of mental or physical capacities resulting from the introduction of substances into the body. 17. The fact that a person charged with a crime who in an intoxicated condition at the time the alleged crime was committed is a defence only if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirement of law. An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind. 18. Under most state statute dealing with driving while intoxicated, ''intoxication'' includes such by alcohol or by drug or by both. 19. Confirmed habits of intoxication caused by voluntary and excessive use of liquor is a ground for divorce under many state divorce statutes. 20. These Expressions would go to show that the word ''Intoxication'' comprehends such a situation whereby reason of taking intoxicants, an individual does not have the normal use of his physical or mental faculties, thus rendering him incapable of acting in the manner in which an ordinary prudent and cautious man in full possession of his faculties, using reasonable care would act under like conditions."

IN the case in hand, the circumstances in which the accident had occurred resulting the fall of cycle in the well can also be taken into consideration. The life assured was going on bicycle in the dark night on the road where there was no light. The cycle of the deceased also did not have any light. The well was by the side of the road. The life assured could not see and judge the distance between the road and well, as a result of which he fell down in the well resulting in his death. The LIC has not placed any evidence on record to show that at the place of accident the life assured was under such a condition that he was not able to have the normal use of his physical or mental faculties. IN the circumstances, it would be unjust to relegate the wife of the deceased to the Civil Court to establish her claim.

BESIDES it, the appellant is relegated to the Civil Court she would be remedyless as her suit would be barred by time. See, the decision of the Supreme Court in Amar Jwala Paper Mills (India) & Anr. v. State Bank of India, II (1999) SLT 478=I (1999) CLT 441 (SC). In the circumstances, it was the duty of the LIC to have investigated the matter, if they wanted to refuse the claim of the appellant under the double accident benefit. Except the post mortem report there is no material on record to come to the conclusion that the deceased at the time of accident was under the influence of the liquor. The LIC has also not placed any material to establish that at the time of the accident the life assured was under such a condition that he was not able to have the normal use of his physical or mental faculties. Hence, we direct the LIC to pay the amount of double accident benefit within a period of two months from the date of receipt of certified copy of this order failing which the amount shall carry interest at the rate of 12 per cent per annum from the date of this order.

In the result, the appeal is allowed, the order of the District Forum is set aside. LIC to bear the costs of the litigation throughout quantified as Rs. 1,000/-. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith record of the case. Appeal allowed with costs.