State Consumer Disputes Redressal Commission
Manager Sbi General Insurance Co.Ltd vs Ganga Bai Dewangan & Anr. on 25 September, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/691
Instituted on : 09.08.2018
Manager, S.B.I. General Insurance Co. Ltd.
Registered Office - Natraj 101, 102 and 301,
Junction of Western Express-Hi-Way and
Andheri Kurla Road, Andheri (East),
Mumbai 400069 .... Appellant (O.P. No.1)
Vs.
1. Gangabai Dewangan, W/o Late Hansram Pal,
R/o : Village : Kaudiya, Tahsil Khairagarh,
District Rajnandgaon (C.G.) .... Respondent No.1 (Complainant)
2. Branch Manager, Bhartiya State Bank,
Branch - Khairagarh, Dist. Rajnandgaon (C.G.).... Respondent No.2 (O.P. No.2)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Manoj Prasad, Advocate for the appellant (O.P. No.1).
Shri Umakant Mahobiya, Advocate for the respondent No.1 (complainant).
None for the respondent No.2 (O.P. No.2).
ORDER
DATED : 25/SEPTEMBER/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 21.05.2018, passed by District Consumer Disputes Redressal Forum, Rajnandgaon (C.G.) (henceforth "District Forum") in Complaint Case No.154/2017. By the impugned order, learned District Forum, has allowed the complaint of the complainant and directed that :-
(1) The O.P. No.1 will pay a sum of Rs.2,00,000/- (Rupees Two Lakhs) towards compensation to the complainant within period of one // 2 // month from the date of order, along with interest @ 06% p.a. from the date of filing of the complaint i.e. 03.07.2017 till date of order. (2) If the O.P. No.1 fails to pay the amount of compensation to the complainant within stipulated period i.e. one month, then the interest @ 09% will be payable on the amount of compensation from the date of order till date of recovery (3) The O.P. No.1 will pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards compensation for mental agony and Rs.2,000/- (Rupees Two Thousand) towards cost of litigation to the complainant with period of one month from the date of order.
2 Briefly stated the facts of the complaint of the complainant are that, the husband of the complainant, Hansram Pal, was having account No.3287764561 with the State Bank of India, Branch Khairagarh (Branch Code 6942) and he was insured under Group Personal Accident Policy bearing No.143820-0000-01 with S.B.I. General Insurance Company Limited for the period from 28.02.2016 to 27.02.2017. In the above insurance policy, the name of Ghashiya Pal is recorded as nominee. On 01.01.2017, the husband of the complainant, Hansram Pal, met with an accident and he died. The complainant is entitled to get the accidental sum assured amount under the policy because Ghashiya Pal, who was father of husband of the complainant Hansram Pal, was nominee in the above policy, had already died prior to the date of the above accident. The complainant is wife of insured Hansram Pal, therefore, only the complainant is entitled to get the accidental sum assured Rs.2,00,000/-. After death of her // 3 // husband Hansram Pal, in the accident, the complainant submitted claim form and application before the State Bank of India, Branch Khairagarh and Main Branch of S.B.I. General Insurance Company Limited, Mumbai on 19.04.2017 but till date the OPs have not paid the accidental sum assured amount to the complainant. The husband of the complainant, Hansram Pal was insured with the O.P. No.1 under Personal Accident Insurance Policy No.143820-0000-01 for the sum assured Rs.2,00,000/- for the period from 28.02.2016 to 27.02.2017. The insured Hansram Pal died on 01.01.2017 in accident during the existence of the above insurance policy, therefore, the OPs are responsible to pay the sum assured Rs.2,00,000/- to the complainant. The OPs did not make payment of the sum assured Rs.2,00,000/- to the complainant till date and thus the OPs committed deficiency in service. The complainant is entitled to get the sum assured amount Rs.2,00,000/- from the OPs. Due to non--payment of the sum assured Rs.2,00,000/- by the OPs to the complainant, the complainant is suffering financial loss as well as mental agony. Hence, the complainant has filed the instant consumer complaint and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. The O.P. No.1 (Insurance Company) filed its written statement and averred that the Group Personal Accident Insurance Policy No.143820/0000/01 for the period from 28.02.2016 to 27.02.2017 was issued by the O.P. No.1 under its terms and conditions. In the case of death of her husband, the complainant is not entitled to get the accidental sum assured amount Rs.2,00,000/- from the O.P. No.1. The complainant did not give intimation regarding death of nominee Ghasiya Pal, to the O.P. No.1. The name of the complainant is not // 4 // recorded as nominee in the insurance policy, therefore, she is not entitled to get the above amount . In support of her claim, the complainant did not submit all relevant documents before the O.P. No.1. In case of accidental death of the insured, the O.P. No.1 is liable to pay compensation under the terms and conditions of the policy, but in the instant case, the deceased Hansram was under the influence of liquor and due to felling down from the culvert he died. The insured was influence of alcohol and was under intoxicated condition, at the time of incident, therefore, the O.P. No.1 is not liable to pay any compensation to the complainant. The O.P. No.1 has not committed any deficiency in service. In the instant case the insured had violated the terms and conditions of the insurance policy, therefore, the complainant is not entitled to get Rs.2,00,000/- or any other amount from the O.P. No.1. The O.P. No.1 insured the husband of the complainant under Group Personal Accident Policy under the terms and conditions of the insurance policy. According to the conditions mentioned in the policy "Coverage is limited to death on account of accident only" the company shall not be liable for any claim or claims under this Policy arising from - Being under the influence or abuse of drugs, alcohol or other intoxicant or hallucinogens unless property by a prescribed by a physician and taken as prescribed. In the merg intimation it is clearly mentioned that the cause of death is due to sustaining injuries from felling down from the culvert under the influence of alcohol. Thus the deceased was under the influence of alcohol and he fell down from the culvert and due to sustaining injuries he died. The deceased did not die due to sustaining any injuries in accident but he died because he fell down from culvert while he was // 5 // under influence of alcohol. The death of decease is not an accidental death. In view of violation of the terms and conditions of the insurance policy, the O.P. No.1 is not liable to pay any compensation to the complainant. The complaint is liable to be dismissed.
4. The O.P. No.2 filed its written statement and averred that the complainant has not provide the relevant documents to the O.P. No.2. The Officer of the O.P. No.2 bank sent letter dated 22.04.2017 to the complainant to submit all original documents and photocopy of the documents regarding the claim form and accident, but the complainant has not submitted claim form and relevant documents and directly filed the complaint before the District Forum. The O.P. No.2 is not liable to pay any compensation to the complainant. Inspite of sending letter to the complainant by the O.P. No.2 to submit relevant documents, the complainant did not submit the same. The O.P. No.2 did not commit any deficiency in service. The insurance premium amount was regularly paid to the insurance company from the bank account of Hansram Pal. The complainant did not suffer any financial loss or mental agony. The complainant did not submit any evidence that she is the only entitled to get the sum assured under the insurance policy. No cause of action has accrued to the complainant against the O.P. No.2. The complaint is not maintainable and is liable to be dismissed against O.P. No.2.
5. The complainant has filed document. Annexure 1 is letter dated 19.04.2017 sent by the complainant to O.P. No.1, Annexure 2 is letter dated 19.04.2017 sent by the complainant to the O.P. No.2,Annexure 3 is Claim Form, // 6 // Annexure 4 is PA Insurance Cover Confirmation, Annexure 5 is aadhar card, Annexure 6 is aadhar card of Hansram Pal, Annexure 7 is pass book, Annexure 8 is Death Certificate of Hansraj Pal, Annexure 9 is merg intimation, annexure 10 is application for postmortem examination, Annexure 11 is Post mortem examination report, Annexure 12 is inquest, Annexure 13 is property seizure memo, Annexure 14 is Crime Details Form, terms and conditions of Master Policy, Annexure 15 is Death Certificate, Track consignment, copy of ration card, application under Section 6(1) of Right to Information Act, 2005.
6. The O.P. No.1 has not filed any documents.
7. The O.P. No.2 has filed documents. Documents are Statement of Account, letter dated 22.04.2017 sent by the O.P. No.2 to the complainant.
8. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint of the complainant and directed the O.P. No.1 to pay amounts to the complainant, as mentioned in para 1 of this order.
9. Shri Manoj Prasad, learned counsel appearing for the appellant (O.P. No.1) has argued that Group Personal Accident Insurance Policy was issued by the appellant (O.P. No.1) in favour of the deceased Hansram Pal and he made his father Gashiyaram Pal, as his nominee. Gashiyaram Pal had also died. The Life Assured Hansram Pal did not make the complainant Smt. Gangabai Dewangan as his nominee. The complainant did not give intimation to the O.P. No.1 regarding the death of nominee Ghasiya Pal, therefore, the // 7 // complainant is not entitled to get any compensation from the O.P. No.1. The death of the deceased Hansram Pal was not accidental and at the time of incident, he was under the influence of liquor and due to felling down from the culvert he died. Due to intoxication he fell down from the culvert and died. Therefore, the complainant is not entitled to get any compensation from the O.P. No.1. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. The appeal filed by the appellant (O.P. No.1) may be allowed and the impugned order passed by the District Forum, may be set aside.
10. Shri Umakant Mahobiya, learned counsel appearing for the respondent No.1 (complainant) has argued that the deceased Hansram Pal had obtained Group Personal Accident Insurance Policy from the appellant (O.P. No.1) and the complainant is widow of deceased Hansram Pal. Being widow, the complainant Smt. Gangabai Dewangan is heir of the deceased Hansram Pal, therefore, she is entitled to get the sum assured under the insurance policy. The death of deceased was accidental in nature. Therefore, the impugned order passed by the District Forum, is just and proper and does not call for any interference. The appeal filed by the appellant (O.P. No.1) may be dismissed.
11. Before us, despite of service of notice, none appeared for the respondent No.2 (O.P. No.2) on 12.09.2018, when the case is fixed for final hearing.
12. We have heard learned counsels appearing for the appellant (O.P. No.1) and respondent No.1 (complainant) and have also perused the record of the District Forum, as well as the impugned order passed by the District Forum.
// 8 //
13. Firstly we shall examine whether the complainant being widow of deceased Hansram Pal, is entitled to get compensation ?
14. The respondent No.1 (complainant) has specifically pleaded that she is widow of deceased Hansram Pal. The appellant (O.P. No.1) has not filed any documents to prove that the complainant is not widow of deceased Hansram Pal. The complainant has filed her affidavit under Order 18 Rule 4 of CPC in which also she specifically pleaded that she is widow of deceased Hansram Pal, which has not been rebutted by the OPs, therefore, the complainant being the widow of deceased Hansram Pal, is entitled to get the sum assured under the Group Personal Accident Insurance Policy.
15. Now we shall examine whether the death of Late Hansram Pal, is accidental in nature ?
16. We have perused the Post Mortem Examination Report of deceased Hansram Pal. The Doctor, who conducted post mortem has found that near about 12 external injuries and mentioned that Sweetish smell found. In the post mortem report the opinion was given by the doctor, who conducted post mortem of the deceased Hansram Pal that the cause of death is shock as a result of Head Injury. It appears that the deceased Hansram Pal, sustained injuries in his body. The complainant specifically pleaded that the deceased Hansram Pal died in an accident on 01.01.2017.
17 Looking to the post mortem examination report of the deceased Hansram Pal, it appears that the deceased sustained near about 12 external injuries and in // 9 // the post mortem report it is mentioned that Sweetish smell found. In the post mortem report it is mentioned that the cause of death is shock as a result of Head Injury. Looking to the facts and circumstances of the case, it is established that the death of the deceased Hansram, Pal, is an accidental death.
18. Now we shall examine whether deceased Hansram Pal, was under
influence of alcohol and was under intoxication and due to intoxication he died ?
19. The respondent No.1 (complainant) has pleaded that her husband Late Hansram Pal was having saving bank account No.3287764561 with respondent No.2 (O.P. No.2) Bank and he was insured under Group Personal Accident Insurance Policy with the appellant (O.P. No.1) for the period from 28.02.2016 to 27.02.2017 and he made nominee Gashiya Pal in the above insurance policy. Hansram Pal died on 01.01.2017 due to accident. The appellant (O.P. No.1) admitted that the deceased was insured under Group Personal Accident Insurance Policy for the period from 28.02.2016 to 27.02.2017, but the appellant (O.P. No.1) denied the competency of the respondent No.1 (complainant) on the ground that the complainant was not made nominee in the insurance policy and the death of the deceased Hansram Pal, was not accidental death. He consumed alcohol and was under intoxication at the time of incident.
20. Annexure 9 is Merg Intimation, which has been filed by the respondent No.1 (complainant) in which it is mentioned that on 01.01.2017 at about 7.30 P.M., Hansram Pal was coming with Puranik Pal, in a motor cycle. Puranik Pal // 10 // stopped the motorcycle near Village Vitaldehi culvert and deceased Hansram Pal went for urination in the culvert and he fell down from the culvert and sustained injuries. The deceased Hansram Pal was taken to Hospital with the help of 108 vehicle, where he died.
21. In the Merg Intimation, it is mentioned that the deceased Hansram Pal, was under intoxication, but in the Post Mortem Report, the doctor who conducted post mortem found near about 12 external injuries and he mentioned that Sweetish smell present. The deceased Hansram Pal died on 01.01.2017 and the post mortem was conducted on 02.01.2017 at about 10.30 A.M. within 24 hours. The viscera was preserved, but the viscera report has not been filed by the appellant (O.P. No.1).
22. In M. Sujatha Vs. Bajaj Allianz General Insurance Company Limited, III (2015) CPJ 104 (NC), 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 // 11 // metric of alcohol intoxication for legal or medical purposes. Therefore, the State Commission's observations appear to be unscientific one."
23. In Raja Gangu, M. Sujatha Vs. Life Insurance Corporation of India, I (2015) CPJ 676 (NC), Hon'ble National Commission has observed thus :-
"10 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 a person is incapable of taking care of himself.
11. We are unable to get convinced, that the deceased person was in intoxicated state of alcohol. Further, the OP filed a counter affidavit which appears to be misleading about the concentration of alcohol. In this context, we place reliance upon the judgment of this Commission passed in the Revision Petition 2481-82 of 2013 titled United India Insurance Co. Ltd. V. Sheela & Ors. The Special Leave Appeal (Civil) No. 26791-92 of 2014 preferred by United India Insurance Co. was dismissed by Hon'ble Supreme Court, on 8.10.2014. Another judgment passed in Revision Petition 3934/2013 decided on 1.12.2013 in Bajaj Allianz General Insurance Co. Ltd. V. Smt. Achala Rudraniwas Marde, also dovetails with our view".
// 12 //
24. In United India Insurance Co. Ltd. V. Sheela & Ors. III (2014) CPJ 64 (NC) , Hon'ble National Commission has observed thus :-
"7. We have given thoughtful consideration after referring to the medial text and literature on Alcohol Intoxication. Our views are that, Û 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.
Û In fact, the autopsy in 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 product "foul smell".
Û 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.
Û Therefore, even if the concentration is 200 mg% it cannot, on its own, be implicated as the cause of death. Pure ethyl alcohol ingestion is rarely associated with fatelity, unless something else has been taken along with it to aggravate its effects or to produce added toxicity. Û 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 // 13 // blood left over from the case, it is advisable to re-test it in a second laboratory (preferably an accredited lab).
Û Dr. P.C. Ignatus who performed who performed the PM does not appear to have taken samples of tissues fo vital organs )heart, lungs, brain, etc.) for histopathological exami-nation to rule out illness that could have caused or contributed to death."
25. In Johitram Yadav Vs. Yogendra Singh Thakur & Ors. III (2012) ACC 500 (DB), Hon'ble High Court of Chhattisgarh, has observed thus :-
"7. With regard to consumption of alcohol by the appellant-driver, the same is an offence punishable only if in the blood of the driver alcohol exceeding 30 mg per litre of blood is detected in a test by a Breath Analyzer, as provided in Section 185 of the Act. However, if the alcohol is found below the above quantity in the blood, it is not punishable and it was the duty of the Tribunal to determine the quantity of alcohol by summoning even the doctor who had examined the injured medically."
26. In Bajaj Allianz General Insurance Co. Ltd. Vs. Manju Devi and others 2015 ACJ 627, the Division Bench of Hon'ble Andhra Pradesh High Court, has also observed thus :-
"Policy contains clauses regarding eligibility to drive the vehicle by the driver but fit state of mind was not included in the eligibility clause- Consciousness and senses of the driver in inebriated state was impaired, he became unfit to drive but insurance company is not entitled to be exonerated from payment of compensation- Inebriated state of driver was not within the knowledge of the // 14 // insured- Whether drunk and driving is a ground to exonerate insurance company from liability- Held: no."
27. 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.
Concentration of Minimum Behaviour and Remarks.
Alcohol in blood consumed volume sign.
(mg. 100 ml) of 70% proof Spirit
(ml.)
Upto 50 Less than 70 No change Slightly Dry and decent, fit
flushed face. to drive.
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 //
28. In Himanshu Sharma vs. National Insurance Company Limited (Appeal No.12/431) and National Insurance Company Limited vs. Himanshu Sharma (Appeal No.FA/12/499), decided by this Commission on 07.03.2013, this Commission has observed thus :-
"7. We have very anxiously gone through these papers and other material, which were brought on record before the District Forum, but from the entire material, we fail to take note of any fact on the basis of which it can be concluded that driver of the insured vehicle, Shri Uttam Verma, was driving the vehicle at the relevant time under the influence of liquor and was fully intoxicated. It is just possible that driver might have consumed some alcohol, but it never means that he has become intoxicated under the influence of liquor and lost his control over his faculties. Merely breathing test of the driver was taken, which confirmed smell of alcohol, but there is no medical evidence to show that he was intoxicated and was unable to have control over his faculties. Medical Report does not prove the effect that he had consumed particular quantity of liquor and can be said a person under intoxication. Medical report of the driver Shri Uttam Verma, has been filed before the District Forum. The photocopy of MLC report of Shri Uttam Verma also merely says that he had suffered an injury on his left cheek, and had consumed alcohol, but there is no positive finding in the medical report that he was intoxicated. Any affidavit of the Doctor, who had given medical report, has also not been filed before the District Forum. Thus, best evidence was not available and therefore, the District Forum, has not committed any mistake in arriving the conclusion that there is no evidence to prove that driver of the insured vehicle, was under intoxication while driving the vehicle.
8. On the basis of aforesaid discussions, it cannot be held that driver of the insured vehicle, was intoxicated and the complainant committed any criminal act or any breach of any policy condition. In fact policy document does not contain any such condition, under which it can be said that the O.P. / Insurance Company, will not be having any liability in case anybody drives the vehicle merely consuming liquor."
// 16 //
29. In United India Insurance Co. Ltd. Through its Regional Office Vs Sheela & Ors., 2014 (2) CPR 734 (NC)), Hon'ble National Commission has observed thus :-
"8. Further, we put reliance upon, a judgment of this Commission, in Life Insurance Corporation of India v. Smt. Ranjit Kaur, 2011, (3) 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 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 casual 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 the revision petition. No order as to costs."
30. In our considered opinion, mere mentioning that the deceased Hansram Pal, had consumed alcohol, cannot be substitute for holding that at the time of incident of felling down from the culvert, the deceased Hansram Pal, was under intoxication or under the influence of alcohol and it would not be sufficient to prove the fact that the incident had taken place because of fault of // 17 // the deceased Hansram Pal due to consumption of alcohol. Therefore, the complainant is entitled to get the sum assured Rs.2,00,000/- under the Insurance Policy from the appellant (O.P. No.1).
31. So far as the award of interest, is concerned, the learned District Forum, has rightly awarded interest @ 6% p.a. on Rs.2,00,000/- from the date of filing of the complaint i.e. 03.07.2017 till realization and has also rightly directed that if the above amount is not paid by the O.P. No.1 to the complainant within stipulated period i.e. one month, then the interest @ 9% p.a. would be payable from the date of order till date of recovery.
32. So far as the award of compensation for mental agony of Rs.10,000/- is concerned, it is proved that the deceased had consumed alcohol at the time of incident, although the death was not caused due to intoxication, but looking to the facts and circumstances of the case, the complainant is not entitled to get any compensation for mental agony. The order passed by the District Forum regarding compensation for mental agony, is liable to be set aside.
33. So far as award of the cost of litigation of Rs.2,000/-, is concerned, it is just and proper and does not call for any interference.
34. Therefore, the appeal filed by the appellant (O.P. No.1) is party allowed and the impugned order dated 21.05.2018, passed by the District Forum, is modified and it is directed that :-
(i) Sub para (1) and (2) of para 10 of the impugned order, are maintained.
// 18 //
(ii) Sub para (3) of para 10 of the impugned order regarding awarding compensation for mental agony, is set aside, but award regarding payment of cost of litigation, is maintained.
(iii) No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
25/09/2018 25 /09/2018 25 /09/2018 25 /09/2018