State Consumer Disputes Redressal Commission
Smt.Mamta Thakur vs Bhartiya Jeevan Bima Nigam & Anr. on 9 June, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/49
Instituted on : 10.03.2016
Smt. Mamta Thakur,
W/o Shri Late Naresh Kumar Thakur,
Quarter No.293/H, Risali Sector,
Bhilai, Tehsil and District Durg (C.G.). ... Appellant.
Vs.
1. Senior Divisional Manager, (Claim Section),
Life Insurance Corporation of India,
Divisional Office - Jeevan Prakash,
Jeevan Bima Marg, Post Box - 10, Pandri,
Raipur 492004 (C.G.)
2. Branch Manager,
Life Insurance Corporation of India,
Branch - Civic Centre,
Bhilai, Tehsil and District Durg (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, for the appellant.
Smt. Varsha Vyas Choubey, for the respondents.
ORDER
Dated : 09/06/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 11.01.2016, passed by the District Consumer Disputes Redressal Forum, Durg (C.G). (henceforth "District Forum" for short), in Complaint Case // 2 // No.C.C./2015/293. By the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant).
2. Brief facts of the case are that the Late Naresh Kumar Thakur was husband of the complainant and was an employee of Bhilai Steel Plant. During his lifetime on 27.07.2012, 10.06.2012 and 20.08.2012 Late Naresh Kumar Thakur purchased insurance policy No.387065071, 382728438 and S-386572365 from the OPs (Insurance Corporation). In the above three policies accidental benefit is included. The complainant submitted death claim application along with relevant documents before O.P.No.1. The OPs did not hold the death of insured as accidental death and did not pay the double amount under the Accidental Insurance Policy. On 20.07.2014, the appellant (complainant) submitted an application before the respondent No.1 (O.P. No.1) along with copy of the relevant document i.e. judgment dated 30.06.2014 passed by First Sessions Judge, Durg Shri Rajneesh Shrivastava in Sessions Trial No.272/2013 State of Chhattisgarh Vs. Devendra Kumar Thakur, which was sent by the respondent No.1 (O.P. No.1) to the respondent No.2 (O.P.No.2) for settlement. The claim of the appellant (complainant) was repudiated by the respondents (OPs) on the ground that Late Naresh Kumar Thakur was murdered by one Devendra Kumar Thakur, who is sentenced for imprisonment for life, therefore, the death of Naresh Kumar Thakur, does not come within the purview of accidental death, hence the // 3 // appellant (complainant) is not entitled to get any amount from under the insurance policies. Therefore, the appellant (complainant) sent legal notice to the respondents (OPs). The respondents (OPs) committed deficiency in service by not paying the amount of accidental benefit. Hence the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
3. The respondents (OPs) have filed their written statement and averred that according to condition No.10 & 11 Durghatna Hit Labh /b/ in case of death of the insured amount equivalent to the sum assured will be paid extra. According to sub section (i) if the death is caused by intentional self injury, attempted suicide, insanity or immorality or while the Life Assured is under the influence of intoxicating liquor, drug or narcotic, the insurer will not be liable to pay the amount equivalent to sum assured. The First Additional Sessions Judge, Durg, District Durg (C.G.) vide judgment dated 30.06.2014 has held that "the death of the deceased was homicidal in nature." According to the judgment of the Additional Sessions Judge, Durg, at the time of death the insured was under the influence of alcohol and according to terms and conditions of the policy in these circumstances the accidental benefit is not payable. The complaint is liable to be dismissed.
4. The appellant (complainant) filed documents. Annexure A-1 is letter dated 24.03.2014 sent by the respondent (O.P.) to the appellant // 4 // (complainant), Annexure A-2 is order dated 30.06.2014 passed by First Additional Sessions Judge, Durg, District Durg (C.G.) in Sessions Case No.272/2013 Government of Chhattisgarh Vs. Devendra Kumar Thakur, Annexure 3 is registered notice dated 06.12.2014 sent by Shri Tamaskar Tondon, Advocate to the respondents (OPs), Annexure A-4 is Merg Intimation, Annexure A-5 is First Information Report (Under Section 154 Cr. P.C.), Annexure A-6 is Police Investigation Report, Annexure A-7 is Inquest, Annexure A-8 is Panchayat Nam (Mrityu Janch) may upasthit hone ke liye avedan patra(Section 175 Cr.P.C.), Annexure A-9 is application for post mortem, Annexure A-10 is Postmortem report.
5. The respondents (OPs) filed documents. Annexure NA-1 is insurance policy No.87065071, Annexure NA-2 is Claim Payment Voucher, Annexure NA-3 is insurance policy No.382728438, Annexure NA-4 is Claim Payment Voucher, Annexure NA-5 is insurance policy No.386572365, Annexure NA-6 is Claim Payment Voucher, Annexure NA-7 is Annexure A-2 is order dated 30.06.2014 passed by First Additional Sessions Judge, Durg, District Durg (C.G.) in Sessions Case No.272/2013 Government of Chhattisgarh Vs. Devendra Kumar Thakur.
6. Learned District Forum, after having considered the material placed before it by the parties, dismissed the complaint of the appellant (complainant). Hence this appeal.
// 5 //
7. Shri R.K. Bhawnani, learned counsel appearing for the appellant (complainant) has argued that the death of insured Naresh Kumar Thakur comes within purview of accidental death, therefore, the appellant (complainant) is entitled for getting compensation from the respondents (OPs). He further argued that the respondents (OPs) have wrongly repudiated the claim of the appellant (complainant) on the ground that at the time of accident, the deceased was under influence of alcohol. Mere presence of alcohol, is not sufficient to deny the claim. Merely in the post mortem report, it is mentioned that the deceased had consumed alcohol and without giving any details about the actual quantity of the alcohol found in the body, the claim of the appellant (complainant) has been repudiated by the respondents (OPs), therefore, the appellant (complainant) is entitled to get compensation from the respondents (OPs) under the insurance policies.
8. Smt. Varsha Vyas Choubey, learned counsel appearing for the respondents (OPs) has argued that at the time of accident, the deceased consumed alcohol and in the post mortem, the presence of alcohol in the body was found by the doctor. Charge sheet for offence under Section 302 IPC was filed against one Devendra Kumar Thakur, and he was sentenced for offence under Section 302 IPC and was sentenced for imprisonment for life by First Additional Sessions Judge, Durg vide order dated 30.06.2014, therefore, the death of the deceased does // 6 // not come within purview of accidental death, hence, the appellant (complainant), is not entitled to get any compensation from the respondents (OPs).
9. We have heard learned counsel for the parties and have also perused the record of the District Forum.
10. Now, we shall examine whether the deceased Naresh Kumar Thakur consumed alcohol at the time of accident, which is more than the prescribed limit and comes within intoxication ?
11. In Life Insurance Corp. of India & Anr. Vs. Smt. Anita Panwar & Ors. 2016 (2) CPR 500 (NC) has observed thus :-
"9. In the case in hand, it has been established from the chemical analysis report that the deceased had 236 mg% of blood in his body which was much more than 100 mg% and hence, it can be safely concluded that the deceased was under the influence of intoxicating liquor at the time of his fall, which resulted in head injury leading to his death.
11. Since the deceased was under the influence of intoxicating liquor at the time of his death, it is very clear from a plain reading of the conditions stated above that the opposite party, LIC was not liable to pay additional sum as accident benefit to the complainants."
12. In M. Sujatha vs. Bajaj Allianz General Insurance Company Limited , III (2015) CPJ 104 (NC), Hon'ble National Commission has observed thus :-
// 7 // "9. Intoxication is perceived as a state of mind in which a person loses self-control and his ability to judge. As per Sections 185 and 202, of the Motor Vehicles Act, it would be considered intoxicated only if the person is tested and found to have more than 30 mg of alcohol in his blood, per 100 ml. In the present case, except for a mere noting in the Final Opinion Report and the FSL report, no test had been done to ascertain whether Blood Alcohol Concentration (BAC) had exceeded the legally stipulated limit. The mere smell of alcohol or presence of ethyl alcohol in the tissue samples cannot lead to an inference that person is incapable of taking care of himself.
10........
11. It should be borne in mind that a person cannot be said to be intoxicated unless alcohol level exceeds the prescribed limit which can only be confirmed through Blood Alcohol Concentration (BAC) is most commonly used as a metric of alcohol intoxication for legal or medical purposes. Therefore, the State Commission's observations appear to be unscientific one."
13. In the case of Himachal Pradesh Road Transport Corporation Limited vs. New India Assurance Company Limited, II (2007) CPJ 287, a table has been given. In the above judgment, Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla, has relied on Medical Jurisprudence and Toxicology, 7th Edition by HWV Cox, Table 7.5.1 . The above table is as below :-
Table 7.5.1.
Table showing the Effects of Different Concentration of Alcohol.
// 8 // Concentration Minimum Behaviour and Remarks.
of Alcohol in consumed sign.
blood (mg. 100 volume of 70%
ml) proof Spirit
(ml.)
Upto 50 Less than 70 No change Dry and decent,
Slightly flushed fit to drive.
face.
50 to 140 70 to 150 Majority are gay, Dry and decent,
vivacious and fit to drive.
talkative a few
may show
symptoms of
more severe
intoxication.
Around 150 150 to 200 Garrulous and A critical level.
aggressive. Delighted and
devilish, may be
dangerous in
control of a
vehicle.
150 to 200 250 to 300 Motor Delinquent and
incoordination disgusting. Unfit
slurred speech, to drive.
staggering Gait.
400 to 600 550 to 500 Comatosed. Dazed and
dejected.
Above 600 More than 700 Asphyxia and Dead drunk.
death.
14. In the instant case, the post mortem report has been filed by the appellant (complainant) which is marked as Annexure A-10. In post mortem report, the doctor, who conducted post mortem, has specifically opined that alcohol present in stomach Approximately 250 ml., which is more than prescribed limit and comes within purview of // 9 // intoxication, therefore, it is established that at the time of accident, the deceased was in state of intoxication.
15. The dead body of the deceased was found near country liquor shop, Ruabandha and inquest on the dead body of the deceased was prepared and post mortem was also conducted and the doctor who conducted postmortem specifically opined that the cause of death is throttling and death is homicidal in nature.
16. In the instant case, the respondents (OPs) have filed terms and conditions of the policy. Relevant portion of Term No.10 of the policy runs thus :-
"10.2. Accident Benefit .................
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 while the Life Assured is under the influence of intoxicating liquor, drug, or narcotic."
17. In Rita Devi (Smt) And Others v. New India Assurance Co. Ltd. And Another, (2000) 5 Supreme Court Cases 113, Hon'ble Supreme Court has observed thus :-
"10. The question, therefore is, can a murder be an accident in any given case ? There is no doubt that "murder", as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder // 10 // can be by accident on a given set of facts. The difference between a "murder" which is not an accident and a "murder" which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder."
18. In the instant case, the death of the deceased was occurred due to throttling which is homicidal in nature and murder with intention. Throttling is always homicidal. It appears that the deceased was murdered with an intention, therefore, death of the deceased does not come within accidental murder, but it is a murder simpliciter.
19. In N. Kabilan vs. New India Assurance Company Limited & Others 2015 (2) CPR 227 (NC), Hon'ble National Commission has observed thus :-
"6. On bare reading of the above, it is clear that death benefit under the insurance policy is available to the legal heirs of the deceased insured only if the insured person dies as a direct result of injury sustained from an accident by external, violent and visible means. In the instant case, undisputedly, the deceased insured was murdered. This fact is evident from the copy of the judgment of Second Addl. Sessions Judge, Salem in the murder trial pertaining to the death of the insured wherein the late complainant M/s Jayalakshmi was charge- sheeted as one of the accused. On reading of the above judgment, it is clear that the insured Nagarajan was murdered by hitting him on his // 11 // heading with a spade. Merely because the complainant was acquitted in the said trial by itself would not render the death due to murder into an accidental death. Since Nagarajan was murdered in did not die because of injury sustained in an accident, his death is not covered under the insurance policy, which covers only the accidental death or the injury. Therefore, we do not find any infirmity in the impugned order of the State Commission which may call for interference by this Commission in exercise of revisional jurisdiction. Revision petition is, accordingly, dismissed with no order as to costs."
20. In the instant case, charge-sheet against one Devendra Kumar Thakur, was filed by the Police before the concerned Magistrate and the case was committed to First Additional Sessions Judge, Durg and case was registered, where it was registered as Session Trial No.272/2013. Copy of the Session Trial 272/2013 State of Chhattisgarh vs Devendra Kumar Thakur judgment dated 30.06.2014, has been filed by the appellant (complainant). In the said Sessions Trial, accused Devenda Kumar Thakur was convicted for offence under Section 302 IPC and sentenced to imprisonment for life and fine of Rs.1,000/-.
21. In para 33 of the above judgment, the First Additional Sessions Judge, Durg held that the death of deceased was not accidental or was not due to consumption of alcohol. He further held that the death of the deceased was homicidal in nature.
// 12 //
22. The appellant (complainant) Smt. Mamta Thakur earlier filed a Complaint Case No.CC/2014/34 before the District Forum, which was dismissed by the District Forum vide order dated 27.03.2015 thereafter the appellant (complainant) filed Appeal No.FA/2015/170 before this Commission against the order of the District Forum. This Commission vide order dated 04.09.2015 has observed that "Since the deceased Naresh Kumar Thakur was murdered and he did not die because of accident, therefore, his death is not covered under the Group Personal Accident Policy, therefore, the finding recorded by the learned District Forum, does not suffer from any infirmity and illegality and does not call for any interference by this Commission". Aggrieved by the order of this Commission, the appellant (complainant) filed Revision Petition No.2776 of 2015 before Hon'ble National Commission. Hon'ble National Commission vide order dated 11.05.2016 dismissed the Revision Petition of the appellant (complainant) and confirmed the order passed by this Commission.
23. Since the deceased Naresh Kumar Thakur was murdered and he did not die because of accident, therefore, his death is not covered under the Group Personal Accident Policy, therefore, the finding recorded by the learned District Forum, does not suffer from any infirmity and illegality and does not call for any interference by this Commission.
// 13 //
24. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 09 /06/2016 09 /06/2016 09 /06/2016 09/06/2016