State Consumer Disputes Redressal Commission
Smt. Mamta Thakur vs B.M. Future General India Insurance ... on 4 September, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/15/171
Instituted on : 04.04.2015
Smt. Mamta Thakur, W/o Late Naresh Thakur, Age 33 years,
Permanent resident : Village Jarway,
Post : Surdung, District Durg (C.G.)
Present Address : 293/H, Risali Sector,
Bhilai Nagar, Tehsil & District Durg (C.G.) ... Appellant
Vs.
1. Branch Manager,
Future Generali India Insurance Company Limited,
Office - Shop No.3, Maruti Business Park,
G.E. Road, Beside Dhuppad Petrol Pump,
Raipur, Tehsil and District Raipur (C.G.)
Registered office :
Future Generali India Insurance Company Limited,
India Bulls Finance, Centre Tower, 6th Floor,
Senapati Bhawan Marg, Elphin Stone,
(West) Mumbai 400 013
Branch Office : 502, Avani Signature,
5th Floor, 91-A, Park Street,
Kolkata 700016
2. Jila Sahkari Kendriya Bank Maryadit,
Durg, Tehsil & 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 appellant.
Shri Manoj Prasad for respondent No.1.
Shri Sudhir Tiwari, for respondent No.2.
// 2 //
ORDER
Dated : 04/09/2015 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 23.03.2015, passed by the District Consumer Disputes Redressal Forum, Durg (C.G). (henceforth "District Forum" for short), in Complaint Case No.C.C.14/180. 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 appellant (complainant) and he was an account holder of respondent No.2 (O.P.No.2) and was a member and he was having credit card account no.601001006019458. Late Naresh Kumar Thakur was insured with the respondent No.1 (O.P.No.1). The premium was deducted from the account of the Naresh Kumar Thakur and the same was deposited with the respondent No.1 (O.P.No.1). Group Personal Accident Policy No.2012-A-0180222, was issued to him. The documents relating to insurance is with respondent No.2 (O.P.No.2). On 11.08.2013 at about 7.00 A.M., the dead body of Late Naresh Kumar was found near Country Liquor Shop, Ruabandha and one Sunder Singh Thakur lodged report in Police Station, Bhilai Nagar, where merg intimation was registered and inquest on dead body of the deceased Naresh Kumar Thakur was prepared and dead body was sent to District Hospital, Durg for post mortem. Dr. N.C. Roy, who conducted post mortem of the dead body of // 3 // the deceased opined that the mode of death is Axphyxia and cause of death is throttling and the death is homicidal in nature. The Police Station, Bhilai Nagar, filed charge sheet before concerned Court against one Devendra Kumar Thakur. The death of the deceased Naresh Kumar Thakur, was accidental, therefore, the appellant (complainant) filed claim before the respondent No.1 (O.P.No.1) but the respondent No.1 (O.P.No.1) repudiated the claim of the appellant (complainant) on the ground that the insured Naresh Kumar Thakur was under influence of the alcohol at the time of accident, hence claim was treated as no claim. The respondent No.1 (O.P.No.1) erroneously repudiated the claim of the appellant (complainant). The death of Naresh Kumar Thakur, comes within purview of accidental death, therefore, the appellant (complainant) is entitled to get the sum assured from the respondent No.1 (O.P.No.1). Hence, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the complaint.
3. The respondent No.1 (O.P.No.1) filed its written statement and averred that the death of insured Naresh Kumar Thakur, does not come within purview of accidental death, and at the time of accident, the deceased Naresh Kumar Thakur, was under influence of alcohol, which is violation of terms and conditions of the insurance policy, therefore, the respondent No.1 (O.P.No.1) is not liable to pay any compensation to the // 4 // appellant (complainant). The respondent No.1 (O.P.No.1) has rightly repudiated the claim of the appellant (complainant). The complaint is liable to be dismissed.
4. Respondent No.2 (O.P.No.2) filed its written statement and denied the allegations leveled against it by the appellant (complainant) in the complaint and averred that it has not committed any deficiency in service.
5. Learned District Forum, after having considered the material placed before it by the parties, dismissed the complaint of the appellant (complainant). Hence this appeal.
6. The appellant (complainant) filed documents. Annexure 1 is letter dated 07.05.2014 sent by the respondent No.2 (O.P.No.2) to the Branch Manager, Branch Bhilai - 3, Annexure 2 is letter dated 25.04.2014 sent by the respondent No.1 (O.P.No.1) to the respondent No.2 (O.P.No.2), Annexure 3 is registered notice dated 29.03.2014 sent by Shri Tamaskar Tondon, Advocate on behalf of the appellant (complainant) to the respondent No.1 (O.P.No.1), Annexure 3A is postal receipt, Annexure 3B is acknowledgement, Annexure 4 is Merg Intimation, Annexure 5 is First Information Report (Under Section 154 Cr.P.C.), Annexure 6 is Police Inquiry Report, Annexure 7 is Inquest, Annexure 8 is application (under Section 175 Cr.P.C.) for appearing in the death investigation and application for post mortem of dead body, Annexure 9 is post mortem // 5 // report, Annexure 10 is Property Seizure Memo, Annexure 11 is copy of pass book in respect of SB A/c No.8352 with Jila Sahkari Kendriya Bank Maryadit, Durg (C.G.).
7. The respondent No.1 (O.P.No.1) has also filed documents. Annexure D-1 is terms and condition of Group Accident Insurance Policy, annexure D-2 is letter dated 25.04.2014 sent by the respondent No.1 (O.P.No.1) to the respondent No.2 (O.P.No.2), Annexure D-3 is application for post mortem and post mortem report.
8. 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 respondent No.1 (O.P.No.1). He further argued that the respondent No.1 (O.P.No.1) has 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 smell 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 respondent No.1 (O.P.No.1), therefore, the appellant (complainant) is entitled to get compensation from the respondent No.1 (O.P.No.1) under Group Personal Accident Policy.
// 6 // He placed reliance on orders of Hon'ble National Commission in the cases of M. Sujatha vs. Bajaj Allianz General Insurance Company Limited, III (2015) CPJ 104 (NC); Executive Engineer, IPH Division vs. Shishma Devi & Ors., 2015 (2) CPR 316 (NC); Geeta Devi vs. United Insurance Company Limited, 2015 (2) CPR 223 (NC) and N. Kabilan vs. New India Assurance Company Limited & Ors. 2015 (2) CPR 227 (NC).
9. Shri Manoj Prasad, learned counsel appearing for the respondent No.1 (O.P.No.1) 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, therefore, the death of the deceased does not come within purview of accidental death, hence, the appellant (complainant), is not entitled to get any compensation from the respondent No.1 (O.P.No.1).
10. Shri Sudhir Tiwari, learned counsel appearing for the respondent No.2 (O.P.No.2) has supported the arguments advanced by Shri R.K. Bhawnani, learned counsel for the appellant (complainant).
11. We have heard learned counsel for the parties and have also perused the record of the District Forum.
// 7 //
12. 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 ?
13. In M. Sujatha vs. Bajaj Allianz General Insurance Company Limited (Supra), Hon'ble National Commission has observed thus :-
"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."
14. 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 // 8 // 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.
Concentration Minimum Behaviour and Remarks.
of Alcohol in consumed volume sign.
blood (mg. 100 of 70% proof
ml) Spirit (ml.)
Upto 50 Less than 70 No change Dry and decent, fit
Slightly flushed to drive.
face.
50 to 140 70 to 150 Majority are gay, Dry and decent, fit
vivacious and 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.
15. In the instant case, the post mortem report has been filed by both the parties. 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 // 9 // within purview of intoxication, therefore, it is established that at the time of accident, the deceased was in state of intoxication.
16. 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.
17. In the instant case, the respondent No.1 (O.P.No.1) has filed terms and conditions of Group Personal Accident Insurance Policy, which runs thus :-
"What is not payable :
We will not pay for any compensation, benefit or expenses in respect of Death, Injury or Disablement, Accidental Medical Expenses of the Insured person as a consequence of the following :-
a. ........................
b. Accident while under the influence of alcohol or drugs."
18. 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 can be by accident // 10 // 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.
19. 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.
20. In N. Kabilan vs. New India Assurance Company Limited & Others (Supra), 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 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 // 11 // 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."
21. 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 Session 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/-.
22. 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.
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 // 12 // learned District Forum, does not suffer from any infirmity and illegality and does not call for any interference by this Commission.
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) (NarendraGupta) President Member Member Member /09/2015 /09/2015 /09/2015 /09/2015