State Consumer Disputes Redressal Commission
United India Insurance Co.Ltd. vs Smt.Adhaniya Bai & Ors. on 11 September, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/621
Instituted on : 16.07.2018
United India Insurance Company Limited,
Manager, Bhilai, District Durg (C.G.)
Through : Senior Divisional Manager, Divisional
Office No.1, Krishna Complex,
Post and District Raipur (C.G.) .... Appellant (O.P. No.1)
Vs.
1. Smt. Adhaniya Bai, Aged 56 years,
Widow of Late Chhaganlal.
2. Kavidas, Aged 31 years,
S/o Late Chhaganlal.
3. Dev Kumar, Aged 29 years,
S/o Late Chhaganlal.
4. Saroj, Aged 35 years,
D/o Late Chhaganlal,
All r/o : Village Dhanora, P.S. Utai,
Tehsil and District Durg (C.G.)
5. Asha, Aged 33 years
D/o Late Chhaganlal,
R/o : Village Murmunda,
Tehsil Dhamdha, District Durg (C.G.).... Respondent No.1 to 5 (Complainants)
6. C.G. Sahkari Sakh Samiti Maryadit,
Through : Manager, Sector 1,
Bhilai, District Durg (C.G.) .... Respondent No.6 (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 P.K. Paul, Advocate for the appellant (O.P. No.1).
Shri O.P. Sharma, Advocate for the respondent No.1 to 5 (complainants).
Shri Lokeshwar Singh Rajput, Assistant Clerk, present for the respondent No.6
(O.P. No.2).
// 2 //
ORDER
DATED : 11/SEPTEMBER/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 11th May, 2018, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No.C.C.17/538. By the impugned order, learned District Forum, has allowed the complaint of the complainants and directed that :-
(1) The O.P. No.1 (Insurance Company) will pay sum assured Rs.8,00,000/- (Rupees Eight Lakhs), to the complainants within period of one month from the date of order.
(2) The O.P. No.1 (Insurance Company) will pay interest @ 09% p.a. on the above amount from the date of filing of the complaint i.e. 29.07.2017 till date of payment, to the complainants.
(3) The O.P. No.1 (Insurance Company) will pay a sum of Rs.1,00,000/- (Rupees One Lakh) toward compensation for mental agony to the complainants.
(4) The O.P. No.1 (Insurance Company) will pay a sum of Rs.5,000/- (Rupees Five Thousand) towards cost of litigation to the complainants.
2 Briefly stated the facts of the complaint of the complainants are that, the deceased Chhagan Lal, was an employee of Bhilai Steel Plant, whose personnel No. was 137380. The complainant No.1 is wife of the insured Chhaganlal and the remaining complainants are son and daughters of Chhaganlal. The // 3 // deceased was having account No.11935 with the O.P. No.2 and from the above account premium for Personal Accident Insurance Policy was paid to the O.P. No.1. The insurance policy No.2703004215 P. 12992091 was issued and a sum of Rs.8,00,000/- was to be provided to the legal heirs of the deceased in case of accidental death. On 15.11.2015, the deceased Chhagan Lal fell down from the stairs, while he was coming down, at 5.30 A.M. The deceased was immediately got admitted in Sector 9 Hospital, Bhilai for treatment. Due to sustaining grievous injuries he was admitted 42 days in the Sector 9 hospital in I.C.U. and during treatment he died on 27.12.2015. In the postmortem report, doctor did not give definite opinion regarding his death and gave opinion for conducting chemical examination. In F.S.L. Report dated 12.08.2016, , no sign of poison was found in the viscera of the deceased Chhaganlal. The complainants have legal right to obtain sum assured Rs.8,00,000/- under the Personal Accident Insurance Policy and the O.P. N.1 is liable to pay the same. The complainants submitted application for obtaining claim amount before the O.P. No.2 on 25.02.2017, but the O.P. No.2 vide letter dated 28.02.2017 and 07.03.2017 gave intimation regarding repudiation of their claim. From the above letter the complainants came to know regarding settlement of their claim, in which it was informed that the claim was settled by the Insurance Company on No Claim Basis. The complainants sent notice through advocate to the OPs and requested to pay the claim amount, but the OPs refused to pay the claim amount. Hence the complainants filed instant consumer complaint and prayed for granting reliefs as mentioned in the complaint.
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3. The O.P. No.1 (Insurance Company) filed its written statement and averred that there is no evidence or opinion of any doctor to show that due to which reason Chhagan Lal, had died. The, doctor who conducted post mortem on dead body of the deceased, did not mention any definite opinion regarding his death, but he mentioned that the viscera was preserved and the same was sent to forensic science laboratory. In F.S.L. Report dated 12.08.2016, , no sign of poison was found in the viscera of the deceased Chhaganlal. For want of direct evidence regarding death of the deceased Chhaganlal, it cannot be presumed that he died on 27.12.2015 due to sustaining injuries from felling down from that stairs while he was coming down. In the instant case, at the time of incident, the insured consumed liquor, which is violation of term and conditions of the insurance policy, therefore, the O.P. No.1 had repudiated the claim of the complainant. In the treatment slip dated 15.11.2015 of Jawahar Lal Nehru Hospital Sector 9, Bhilai, it is mentioned that Alcoholic Smell + from breath and in the Patient History, it is mentioned History of Fall - Alcoholic. At the time of incident the deceased insured was under the influence of alcohol which is violation of clause 5 (b) of Exception clause i.e. whilst under the influence of intoxicating liquor or drug. Therefore, the claim of the complainants was closed as No Claim. The O.P. No.1 did not commit any deficiency in service. The complainants have filed false complaint, which is not maintainable. The complaint is liable to be dismissed.
4. The O.P. No.2 has filed its written statement and averred that the O.P. No2 is not liable to pay the claim amount Rs.1,00,000/- to the complainants . The dispute is between the complainants and the O.P. No.1 and the O.P. No.2 // 5 // has no concern with the same. The deceased Chhaganlal was insured with the United India Insurance Co. Ltd., Bhilai, District Durg under Personal Accident Insurance Policy. The Insurance Company held that deceased Chhagani Lal had consumed alcohol in excessive quantity at the time of incident and therefore repudiated the claim of the complainants. The O.P. No.2 has no responsibility in this regard. The complainants can recover the amount from the O.P. No.1. The O.P. No.1 is mediator who worked as mediator between the complainants and the O.P. No.1 and it has no concern with the insurance amount. No cause of action has accrued against the O.P. No.2 The complainants are not entitled to get any compensation from the O.P. No.2. The complaint is liable to be dismissed against it.
5. The complainants have filed documents. Annexure A-01 is Death Certificate, Annexure A-02 is report dated 12.08.2016 of State Forensic Science Laboratory, Raipur, Annexure A-03 is Police Investigation Report, Annexure A- 03A is Akal avam Akasmik Mrityu Ki Suchna, Annexure A-3B is Inquest Report, Annexure A-3C is Intimation of Death, Annexure -3D is application for post mortem, Annexure A-3E & F is Post Mortem Report, Annexure A-04 is letter dated 25.02.2017 sent by Dev Kumar Banjare to the O.P. No.2, Annexure A-5 is letter dated 28.02.2012 sent by O.P. No.2 to the complainant No.1, Annexure A- 5A is letter dated 27.02.2017 sent by O.P. No.1 to O.P. No.1, Annexure A-6 is registered notice dated 12.04.2017 sent by Shri Omprakash Sharam Advocate to the OPs, Annexure A-7 and A-8 are acknowledgements, Annexure A-9 is reply dated 02.05.2017 sent by Shri Yogendra Chandrakar on behalf of the O.P. No.1 to Shri Omprakash Sharma, Advocate.
// 6 //
6. The O.P. No.1 has filed documents. Annexure NA 1 is insurance policy, Annexure NA-2 is application for post mortem, Annexure NA-2(1) is Post Mortem Report, Annexure NA-3 is report dated 12.08.2016 of State Forensic Science Laboratory, Raipur, Annexure NA-4 is treatment slip of Sector 9 Hospital, Bhilai, Annexure NA-4(1) and (2) are Initial Nursing Assessment Sheet of Sector 9 Hospital, Bhilai.
7. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint and directed the O.P. No.1 to pay the amounts to the complainants, as mentioned in para 1 of this order.
8. Shri P.K. Paul, learned counsel appearing for the appellant (O.P. No.1) has argued that the respondent No.1 to 5 (complainants) have utterly failed to prove that deceased Chhaganlal died an accidental death. The Doctor who conducted postmortem examination, specifically mentioned that the definite opinion could not be given regarding death of deceased Chhaganlal and viscera are preserved for chemical analysis. In FSL report, no sign of poison was found in viscera of the deceased Chhaganlal. The doctor, who initially treated the deceased has specifically mentioned that the alcoholic smell was found. It shows that the deceased had consumed liquor and he was under
influence of alcohol and was in intoxicated condition, therefore, the deceased had violated the terms and conditions of the insurance policy. The complainants are not entitled to get any compensation from the appellant (O.P. No.1) under the insurance policy, but learned District Forum, did not consider the above aspect and awarded compensation to the complainants. The // 7 // 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. He placed reliance on United India Insurance Company Limited Vs. Canara Bank & Anr. I (2016) CPJ 699 (NC); National Insurance Company Limited Vs. Aparna Kahar, IV (2014) CPJ 464 (NC); Madhumita Bose Vs. HDFC Ergo General Insurance Company Limited & Anr. , I (2015) CPJ 647 (NC); Renu Gangwar Vs. Aviva Life Insurance Co. India Ltd., I (2015) CPJ 165 (NC); Shakuntla Devi Vs. National Insurance Co. Ltd. & Ors., I (2015) CPJ 95 (NC); Appeal No.FA/2015/86 - Smt. Farida Begum Vs. The Manager, Golden Multi Services Club Limited & Others, decided by this Commission vide order dated 04.04.2016; Fulbati Bai Vs. Liberty Videocon Insurance Co. Ltd. & Ors. III (2017) CPJ 217 (NC), Appeal No.FA/2018/448 - Smt. Bhanupriya Patel Vs. Samiti Prabandhak & Others, decided by this Commission vide order dated 13th July, 2018 and Bhagmati Bai Verma Vs. Oriental Insurance Co. Ltd. II (2012) CPJ 136 (NC).
9. Shri O.P. Sharma, learned counsel appearing for the respondent No.1 to 5 (complainants) has argued that the deceased Chhaganlal was an employee of Bhilai Steel Plant, who personnel No. was 137380. The complainant No.1 Smt. Aghaniya Bai is widow, complainant No.2 & 3 are son and complainant No.4 & 5 are daughters of deceased Chhaganlal. The deceased Chhaganlal was insured with the O.P. No.2 through O.P. No.2 under Personal Accident Insurance Policy. On 15.11.2015, the deceased Chhaganlal fell down from the stairs and he was immediately got admitted in Sector 9 Hospital, Bhilai (C.G.). He was got admitted in the above hospital near about 42 days and he died // 8 // during treatment on 27.12.2015. Mere presence of alcoholic smell is not sufficient to reject the claim of the complainants. The impugned order passed by the District Forum, is just and proper and does not suffer from any infirmity, illegality or irregularity, hence does not call for any interference by this Commission. The appeal filed by the appellant (O.P. No.1), is liable to be dismissed. He placed reliance on Appeal No.FA/2017/152 - Smt. Khomin Bai Vs. Relationship Manager, Ruler and Co-Operative Bank, Liberty Videocon General Insurance Co. Ltd & Another, decided by this Commission vide order dated 07.06.2017; Sujata Vs. Bajaj Allianz General Insurance Company Limited, Rep. by its Branch Manager, 2015 (2) CPR 57 (NC) and The Oriental Insurance Company Limited Vs. Smt. Raini Bai, 2007 (1) C.G.L.J. decided by this Commission vide order dated 29.09.2006.
10. Shri Lokeshwar Singh Rajput, Assistant Clerk, appearing for the respondent No.6 (O.P. No.2) has supported the arguments advanced by learned counsel for the appellant (O.P. No.1).
11. We have heard learned counsel appearing for the appellant (O.P. No.1) & respondent No.1 to 5 (complainants) and Lokeshwar Singh Rajput, Assistant Clerk of the respondent No.6 (O.P. No.2) and have also perused the record of the District Forum as well as the impugned order.
12. Firstly we shall examine whether the death of Late Chhaganlal, is accidental in nature ?
13. We have perused the Post Mortem Examination Report of deceased Chhaganlal. The Doctor, who conducted post mortem has mentioned that "(1) // 9 // lacerated wound over rt. Sided back of neck size cm x ½ cm approx. on dissection - No clot seen. (2) Lacerated wound on sided head. (3) Abrasion are sustained size 1.0 x ¼ cm approx...". It appears that the deceased Chhaganlal sustained injuries in his body. The complainant have specifically pleaded that the deceased Chhaganlal fell down from stairs while he was coming down. The deceased Chhaganlal sustained injuries in his body.
14. As per Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition 2005, "the accident is an undersigned; sudden or unexpected event; mishap; misfortune; disaster. Strictly an occurrence can only be said to be accidental when it is due neither to design nor to negligence. The word 'accident' generally means some unexpected event happening without design even though, there may be negligence on the part of the workmen. It is used in the popular and ordinary sense and means a mishap or an untoward event not expected or designed."
15. The appellant (O.P. No.1) has filed terms and conditions of the insurance policy, in which it is mentioned thus :-
"DEFINITIONS :
10. INJURY :
Injury means accidental physical bodily harm excluding illness or disease solely and directly caused by external, violent and visible and evident means which is verified and certified by a Medical Practitioner. EXCEPTION PROVIDED ALWAYS THAT The Company shall not be liable under this policy for :
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5. Payment of compensation in respect of death, injury or disablement of insured (a) from intentional self-injury, suicide or attempted suicide (b) whilst under the influence of intoxicating liquor or drugs (c) whilst engaging in aviation of Ballooning, whilst mounting/dismounting from or traveling in any Balloon or aircraft other than as a passenger (fare-paying or otherwise) in any duly Licensed Standard type of aircraft anywhere in the world (d) directly or indirectly caused by venereal disease or insanity (e) arising or resulting from the insured committing any breach of the law with criminal intent."
16. Looking to the above definition and post mortem examination report of the deceased Chhaganlal, it appears that the deceased sustained external injuries and had died after 42 days but in the post mortem examination report, the doctor specifically mentioned that injuries were sustained by the deceased Chhaganlal. If the Doctor who conducted the post mortem examination, was unable to give definite opinion regarding the death of the deceased Chhaganlal, it cannot be held that the death of the deceased Chhaganlal, was natural. Looking to the facts and circumstances of the case, it is established that the death of the deceased Chhaganlal, is an accidental death.
17. Now we shall examine whether deceased Chhaganlal was under
influence of alcohol and was under intoxication and due to intoxication he died ?
// 11 //
18. 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 metric of alcohol intoxication for legal or medical purposes. Therefore, the State Commission's observations appear to be unscientific one."
19. 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.
// 12 //
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".
20- 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 // 13 // 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 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."
21. 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."
// 14 // 22- 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 insured- Whether drunk and driving is a ground to exonerate insurance company from liability- Held: no."
23. 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.
// 15 //
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.
24. 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 // 16 // 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."
25. 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 // 17 // 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."
26. In Emergency Assessment Slip (Annexure NA-4) dated 15.11.2015, issued by Jawaharlal Nehru Hospital & Research Centre, Sector 9, Bhilai (C.G.), it is mentioned that alcohol smell was coming, but in the said report, the quantity of alcohol is not mentioned. Even in viscera report, the presence of alcohol, is not mentioned, Therefore, in our considered opinion, mere mentioning that the deceased had consumed alcohol, cannot be substitute for holding that at the time of incident of felling down from the stairs the deceased was under intoxication or under the influence of alcohol and it would not be sufficient to prove the fact that the accident had taken place because of fault of the deceased due to consumption of alcohol. Therefore, the complainants, are entitled to get the sum assured Rs.8,00,000/- under the Insurance Policy from the appellant (O.P. No.1). The facts of the judgments cited by the appellant (O.P. No.1), is quite distinguishable from the facts of the instant case, therefore, the same are not helpful to the appellant ( O.P. No.1).
27. So far as the award of interest is concerned, the learned District Forum, has rightly awarded interest @ 9%% p.a. on Rs.8,00,000/- from the date of filing of the complaint i.e. 29.07.2017 till realization. 28 So far as the award of compensation for mental agony of Rs.1,00,000/- 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 // 18 // the facts and circumstances of the case, the complainants are 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.
29. So far as award of the cost of litigation of Rs.5,000/-, is concerned, it is just and proper and does not call for any interference.
30. Therefore, the appeal filed by the appellant (O.P. No.1) is party allowed and the impugned order dated 11.05.2018, passed by the District Forum, is modified and it is directed that :-
(i) Sub para (1), (2), and (4) of para 21 of the impugned order, are maintained.
(ii) Sub para (3) of para 21 of the impugned order regarding awarding compensation for mental agony is concerned, the same is set aside.
(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
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