State Consumer Disputes Redressal Commission
Nia Co. Ltd. vs Smt. Narbada Devi & Ors. on 9 October, 2006
H
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
SHIMLA
APPEAL NO. 281/2004.
Date of Decision 09.10.2006.
The New India Assurance Co. Ltd.
through its
Divisional Manager IIIrd Floor,
Block No.7,
SDA Complex
Kasumpti Shimla 171 009.
. . . Appellant.
Versus
1. Smt. Narbada Devi Wd/o late
Sh. Om Parkash,
2. Ms. Seema D/o late Sh. Om
Parkash,
3. Sh. Mahinder S/o late Sh. Om Parkash,
4. Sh. Babloo S/o late Sh. Om Parkash,
5. Sh. Pappu S/o late Sh. Om Parkash,
6. Ms. Chotti D/o late Sh. Om
Parkash
Respondent No.2 to 6 being minors through
their
Mother and natural guardian Smt. Narbada
Devi
Wd/o late Sh. Om Parkash
R/o Vill. Kaloon, PO
Jakholi, Tehsil Chopal Distt. Shimla, H.P.
7. H.P. State Forest Corporation
through its
Managing Director Divisional Office,
SDA Complex Kasumpti
Shimla 171 009.
Respondents.
Honble Mr. Justice Arun Kumar Goel
(Retd.), President.
Honble Mr. Narinder
Singh Thakur, Member.
Honble Mrs. Saroj
Sharma, Member.
Whether
Approved for reporting
?
For
the Appellant. Mr.
Ratish Sharma, Advocate.
For
the Respondents. Mr.
Shashi Bhushan Singh Chandel, Advocate.
No. 2 to 6.
For
the Respondent No.7. Mr. Sunil
Mohan Goel, Advocate.
O R D E R:
Justice Arun Kumar Goel (Retd.) President (Oral) This case is listed today for dictating judgment. We felt necessity to further hear learned counsel for the parties, therefore, all of them have been heard.
2. In the facts and circumstances of this case primary question for consideration before us is, whether the death of Chowkidar Om Parkash who was a daily rated employee of respondent No.7 was accidental or otherwise. In case it is accidental then no exception can be taken to the impugned order, if it is otherwise then the consequence would be natural.
3. Facts as they emerge from the record of this case are that Om Parkash chowkidar working with respondent No.7 died on 8.10.1997. Prior to it as per averments made in the pleadings and the communications Annexure A-III and A-IV placed on record on behalf of the respondent No.1 are to the effect, that the deceased Om Parkash on the night of 7.10.1997 was coming from Banal Depot to Thundal alongwith Chandermohan Forest Guard. On that night there was heavy storm and rain, therefore, deceased might have been trapped in it. On the morning of 8.10.1997 on way to Village Thundal he was found in a helpless condition around 9:00 AM. Mohan Singh chowkidar when saw the deceased he called Narayan Dass Forest Sub Inspector. Deceased was removed to the quarter to Chandermohan Forest Guard where he died at about 1:00 PM. Thereafter forest guard reached Chopal and lodged FIR on 9.10.1997 at about 2:30 PM. Intimation was also provided by Narayan Dass to the Manager Forest Working Circle Chopal vide Annexure A-III. Assistant Manager of respondent No.7 has issued a certificate Annexure A-IV to the effect that deceased Om Parkash S/o Sh. Kehru Singh R/o Vill. Kaloon, Tehsil Chopal had died on duty while he was working as a daily rated chokidar.
4. From the record it is made out that the deceased was found in a helpless condition on the road on the morning of 8.10.1997 and he was smelling of alcohol. He was taken inside the room where he was given hot water bath and then was massaged. After his death his port-mortem was conducted. Post-mortem report is Annexure D-2/1. In it the doctor has clearly stated that no injury has seen on any part of the body. Doctors final opinion was person examined probably died of asphyxia resulting from regurgitation of food articles into larynx and trachea after consumption of alcohol about 34.5 MG per hundred ML in urine as per chemical examiner report.
5. We may mention here that as per report of the HP Forensic Science Laboratory, Junga Annexure D-2/6 in the blood alcohol found was 97.4 MG% and in urine it was found to be 34.5 MG %. Dr. D.S. Puri was opined that death was due to asphyxia on account of alcohol. Further according to Dr. Puri the quantity of alcohol as per FSLs report was sufficient to cause deep sleep. The two private doctors namely Dr. D.S. Puri Former Professor and Head of the Department of Medicine IGMC, Shimla as well as Dr. D.J. Dass Gupta Former Professor and Head of Department of Medicine and Principal, IGMC, Shimla have opined on the basis of this material that the death was natural and the claim was not payable. In this background appellant contested the claim that it will only be liable in case any external injury was found otherwise it is not liable, reliance was placed by him on the opening paragraph from where the insurance policy begins.
6. In the aforesaid background Mr. Sharma submitted that so far his client is concerned he can only be held liable when the case is covered by the policy condition subject to which risk was covered. He urged that material on record the impugned order is not sustainable in any circumstances whatsoever. On the other hand Mr. Chandel urged that there is enough material on record to uphold the impugned order. Per him deceased was on duty and he appears to have fallen accidentally on that stormy and rainy night and was found totally in helpless condition next morning. Therefore, to say that death was not the outcome of accident is not correct. According to him accidental death is clearly made out in this case and further according to him asphyxia which has mainly attributed to the death of present case can be due to obstruction of large airbase which may be due to a foreign body. Person breathes rigorously, heart rate and breath rises to overcome such a situation, first aid treatment is given. Whereas according to Mr. Sharma cause of death in hypothermia and death is ultimately due to asphyxia. Both counsel referred to different books on this aspect of this case.
7. Mr. Goel learned counsel for respondent No.7 submitted that the impugned award calls for no interference and he thus prayed for dismissal of this appeal by upholding the same.
8. We are prima facie not happy with the stand of the HP State Forest Corporation Ltd. Particularly being a limb of the welfare State on one hand while admitting the death on 8.10.1997 they have denied that he died during the period while he discharging his official duty in their to the complaint. However, they have stated that the husband of the complainant fell from height while he was under the influence of liquor. This fact is clearly mentioned from the post-mortem report.
9. Record further shows that the case was initially referred by the Forest Corporation to the appellant for processing and payment of the sum of Rs. 2 lacs. However, it seems to have been abandoned which resulted in filing of the complaint wherein impugned order has been passed. Reference of case for payment would only be made by respondent No.7 was satisfied that respondents No.1 to 6 were entitled to it.
10. From the material on record we are fully satisfied that on the body of the deceased there is no external injury or mark to invoke the policy in question. We have no hesitation in making further observation that the stand of respondent No.2 the forest corporation is self contradictory and mutually destructive. In this behalf original certificate given by the Competent Authority Annexure A-IV at page 129 of the file. Intimation sent vide Annexure A-III by Narayan Dass to MDs Forest Corporation Annexure A-III at page 127. So far matter relating to the terms and conditions of Insurance policy is concerned, is no more res-integra in view of the decisions of Honble Supreme Court in United India Insurance Co. Ltd Versus Harchand Rai Chandan Lal IV (2004) CPJ 15 (SC) and Polymat India Pvt. Ltd & Anr. Versus National Insurance Co. Ltd & Ors IV (2004) CPJ 49 (SC). It hardly needs to be clarified that this being the law of the land, the same has to be followed. For want of external injury or any mark of any violence on the body of the deceased, in our opinion is sufficient to exonerate the appellant for the payment of the compensation.
11. Now the question arises if appellant is exonerated who is liable for payment of compensation. It has come in Annexure A-IV that deceased was on duty when he died, in this behalf Annexure A-IV referred hereinabove. This contradicts what is stated by this respondent in reply to paragraph three of the complaint. Mr. Goel had no answer as to why this self contradictory and mutually destructive stand is there on the part of his client.
12. There is a communication Annexure A-II at page 131 of the file issued by Govt. of HP Department of Public Works and according to it one of the salient feature of the insurance scheme under item 1 coverages is that policy will cover the death also. Mr. Sharma on behalf of the appellant hastened to add that while his client is not liable to pay any compensation, but in almost identical situation National Commission while reversing the order of this Commission in the case of New India Assurance Co. Ltd. Vs. Jamuna Devi and Ors. III (2002) CPJ 64 (NC) for payment of compensation. In our opinion this decision is nearer on facts, of the appeal before us and covers the present case. Thus appellant cannot be held liable for payment of the amount in question, but at the same time it is employer-respondent No.7 who is held liable for the payment of the amount and to that extent impugned order needs to be modified. Ordered accordingly.
13. Faced with this situation Mr. Goel forcefully urged that death is accidental that is the stand of his client and therefore whether he was on duty or not is wholly immaterial. In case death was due to accident then, respondent No.7 was duty bound to have placed material on record to suggest that how and by what method it came to the conclusion that the deceased had died due to accident while not on duty as is the stand in reply to complaint. In our opinion the best way to establish this fact was by producing something to the effect that some enquiry was made to ascertain regarding cause of accident death before filing the reply as well as before issuing Annexure A-IV. In fact, we are of the view that respondent No. 7 was not bothered what is being said in Annexure A-II and what has been pleaded in their reply. Cumulative effect of the stand of the respondent No.7 in its reply that death was due to accident while the deceased was not on duty. Whereas Annexure A-IV leads to be conclusion that it is the employer who is liable to pay the amount in question. Despite decision of Jamuna Devi even no attempt was made by the respondent No.7 to placed on record before us any enquiry report if any to suggest that the death was due to accident.
14. Without in any manner conceding that his client is liable Mr. Goel lastly urged that interest allowed is on higher side is needs to be reduced to 9% per annum. This stand was contested by Mr. Chandel on behalf of the respondents No.1 to 6. However keeping in view the general trend of National Commission as well as Honble Supreme Court of India, we feel that interest needs to be reduced from 12% per annum to 9% per annum. Ordered accordingly.
15. No other point is urged.
In view of the aforesaid discussion, while allowing this appeal order of the District Forum Shimla, in Consumer Complaint No. 761/2001, dated 13.9.2004 is modified thereby exonerating the appellant of liability for payment of the amount alongwith interest @ 9% per annum from the date of filing of the complaint i.e. 20.3.2001 till the payment/deposit of this amount, whichever is earlier and it is held that liability to pay the amount in question is that of respondent No. 7 i.e. HP State Forest Corporation Ltd. Litigation cost awarded by the District Forum below is also upheld, of course against respondent No.7. Subject to this modification appeal stands disposed of, leaving the parties to bear their own costs.
All interim orders passed from time to time shall stand vacated forthwith.
Office will make available a copy of this order to the parties free of costs as per rules.
Shimla.
9th October, 2006. (Justice Arun Kumar Goel )Retd.
President.
(Narinder Singh Thakur), Member. (Saroj Sharma), Karan* Member.