National Consumer Disputes Redressal
United India Insurance Co. Ltd. vs Sheela & Ors. on 21 May, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2481-2482 OF 2013 (From the order dated 06.02.2013 in First Appeal No. 24/12 & 25/12 of State Consumer Disputes Redressal Commission, Kerala, Thiruvananthapuram) The United India Insurance Co. Ltd. Regd. & Head Office at 24, Whites Road, Chennai Through its Regional Office No. 1, 8th Floor, Kanchanjunga Building, 18, Barakhamba Road, New Delhi-110001 Petitioner Versus 1. Sheela W/o Late Mr. Kally Pilly Sasidharan, Vellani kara, Thrissur, Kerala 2. Sreejith S/o Late Mr. Kally Pilly Sasidharan Vellani Kara, Thrissur, Kerala 3. Ishwar Kallepilly (Minor) S/o Late Mr. Kalla Pilly Sasidharan Vellani Kara, Thrissur, Kerala 4. Anju K. Sasi (Minor) D/o Late Mr. Kalla Pilly Sasidharan Vellani Kara, Thrissur, Kerala (Respondent No. 3 & 4 through Smt. Sheela, Respondent-1 Being Mother and National Guardian) Respondents BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. V. S. Chopra, Advocate For the Respondents : Mr. Raji Joseph, Advocate Mr. B. S. Sharma, Advocate PRONOUNCED ON 21st MAY, 2014 ORDER
PER DR. S.M. KANTIKAR, MEMBER
1. The Petitioner has filed the present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 being aggrieved by the order dated 06.02.2013, passed by the State Consumer Disputes Redressal Commission (in short, State Commission), whereby the State Commission allowed the First Appeal No. 24/12 & 25/12 which was filed against the order of the District Consumer Disputes Redressal Forum (in short, District Forum).
2. The complainant, Smt Sheela, the wife of deceased Kalleppilly Sasidharan along with her two sons and a daughter, filed a complaint before the District Forum alleging deficiency in service by the United India Insurance Company, Thrissur, the OP/Petitioner, who had repudiated the death claim under the Personal Accident Policy. The claim was repudiated contending that the deceased committed suicide, it was not accidental and that he was under influence of alcohol i.e. intoxicated, at the time of his death, on 17.01.2014.
3. The District Forum dismissed the complaint, but the State Commission allowed the appeal and directed the OPs to pay Rs.5,00,000/- being the policy claim, Rs. 2,500/- under clause-1(g) of the policy, Rs. 10,000/- under clause-(h)
(b) of policy by 3rd and 4th Opposite Parties and Rs. 25,000/- as compensation and all the benefits under the policy.
4. Aggrieved by the order of State Commission, the petitioner preferred this Revision Petition.
5. We have heard counsel for the both the parties. The counsel for the complainants vehemently argued that, it was an accidental death, the deceased has not consumed alcohol. The Counsel for the OP centered his argument on the Chemical analysis repot from Chemical Examiners Laboratory, Ernakulum(Annexure P-11).He further submitted that, as per MV Act, Blood alcohol Concentration(BAC) more than 30 mg/100 ml of blood is intoxication. The BAC of deceased was very high, at 220 mg/100 ml of blood; hence, he was severely intoxicated. The counsel for OP prayed for opinion from AIIMS, if necessary. Hence, the repudiation was correct and prayed to set aside the order of state commission.
6. We have perused the evidence on record, the Chemical analysis report, Post Mortem report, Personal Accident Policy conditions and the investigation report issued by Mr. George Thattil (Insurance Investigator). The main crux in this case is, whether, the cause of death is due to Drowning or by Alcohol Intoxication?. The post mortem report (Annexure 8) clearly mentions that the final opinion as Post mortem findings were consistent with death due to drowning It is also surprising to note that, under the heading of other laboratory findings it was written as The sample of blood and viscera contained 220 mg/ml of ethyl alcohol. Further, we have noted several fatal errors in the Post mortem reports, like, name and age of deceased was mentioned as Sasi, 44 years instead of Shashidharan, 42 years. Also, same mistakes carried further, while sampling of all the specimens during postmortem. The final Post Mortem Certificate issued by Dr.Pleasnt Sunny, has also erroneously mentioned about the concentration of alcohol as 220 mg per ml, instead of 220mg per 100 ml of blood. Thus, it is very pertinent to note that the Head of Forensic Department, in this regard, issued two letters of corrections to the Sub Divisional Magistrate, Thrissur.
7. We have given thoughtful consideration after referring to the medical texts and literature on Alcohol Intoxication. Our views are that, the Ethyl alcohol was qualitatively detected in liver/kidney and blood samples, but it is not clear what the report is with regard to the stomach and intestine. The result appears to have been struck out with a pen.
In fact, the autopsy is inconclusive about the cause of death because of absence of any significant/specific lesion on gross inspection, either internally or externally, except for "foul smell" in the stomach contents. Incidentally, alcohol does not produce "foul smell".
The report did not specify about the exact methodology employed by the chemical examiner's lab in arriving at the concentration of 220 mg% of ethyl alcohol in the blood. It is essential to do so, the work sheets pertaining to the analysis have not produced.
Therefore, even if the concentration is 220 mg% it cannot, on its own, be implicated as the cause of death. Pure ethyl alcohol ingestion is rarely associated with fatality, unless something else has been taken along with it to aggravate its effects or to produce added toxicity.
As 4 months appear to have elapsed between collection of samples and toxicological analysis, the reliability of ethyl alcohol concentration can be questioned, as over a period of time alcohol can either get evaporated from samples or generated in samples (due to decomposition if preservation was not effective). If there is any sample of blood left over from the case, it is advisable to re-test it in a second laboratory (preferably an accredited lab).
Dr. P.C.Ignatus who performed the PM does not appear to have taken samples of tissues of vital organs (heart, lungs, brain, etc) for histo-pathological examination to rule out illness that could have caused or contributed to death.
8. Further, we put reliance upon , a judgment of this Commission in, Life Insurance Corporation of India Vs. Smt. Ranjit Kaur 2011, (30) CPR 266 (NC) that mere presence of alcohol, even usually prescribed limits, is not a conclusive proof of intoxication. Further, in this case, there is also no evidence that there is nexus between the death caused by drowning and consumption of liquor. In the light of the principles laid down in the above decision, we are of the view that it is not proved that the deceased was under
the influence of liquor at the time of the accident. Even the investigation report issued by Mr. George Thattil (Insurance Investigator) does not support the Petitioner/OP.
9. Hence, in entirety of our discussion, there is nothing suggestive of alcohol-related death, in the post mortem report. We have certain apprehension in allowing this revision petition, because it pertains to issue relating to non-payment of claim on account of alcohol being detected in substantial concentration in the blood. One need to be absolutely convinced about the reliability of the chemical examiner's analysis. It is unfortunate and it also appears that a responsible Forensic Medicine and Chemical Analysis department had made a causal approach to the PM investigations. The PM certificate is, with a lot of errors which raise many doubts. In such a situation, we are of considered view that the complainant should get benefits. Accordingly, we agree with the impugned order of State Commission, and dismiss this revision petition. No orders as to costs.
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(J. M. MALIK, J.) PRESIDING MEMBER ...
(S. M. KANTIKAR) MEMBER Mss/