National Consumer Disputes Redressal
National Insurance Co.Ltd. vs Soma Devi & Ors. on 2 March, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3243 OF 2007 (From the order dated 25.05.2007 in Appeal No.219/2004 of the State Commission, H.P.) National Insurance Co.Ltd. Petitioners(s) Versus Soma Devi & Ors. Respondent(s) BEFORE : HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioners(s) : Mr.R.C.Mishra and Ms.Meera Aggarwal, Advocate For the Respondent(s) : Mr.Bikram Singh, Advocate for R-1 to 3. Mr.Abhishek Sood, Advocate for R-4,5. Pronounced on 2nd March, 2012 ORDER
PER VINEETA RAI, MEMBER This revision petition filed by National Insurance Company Ltd. (hereinafter referred to as the Petitioner) challenges the order of the State Consumer Disputes Redressal Commission, Himachal Pradesh (hereinafter referred to as the State Commission) which had dismissed its appeal in favour of Smt.Soma and others, Respondents herein, who were the original complainants before the District Forum.
The facts of the case are that late Kishan Chand(hereinafter referred to as the insuree), husband of Respondent No.1 and father of Respondents No.2 and 3, was employed with the Home Guards and had obtained Group Insurance Personal Accident Policy from Petitioner/Insurance Company for which premium was deducted from his salary. On 09.10.1993, the insuree who was on night patrolling duty was found dead under Lathiana Bridge. Respondent filed an insurance claim with the Petitioner/Insurance Company through Commandant, Home Guards, Una which was repudiated on the ground that the death of the insuree was due to an accident when he was under alcoholic intoxication which resulted in head trauma as per an enquiry conducted by the police.
Since this was not factually correct, being aggrieved, Respondent filed a complaint before the District forum on grounds of deficiency in service and requested that Petitioners be directed to make the payment of the entire amount of Rs.2 lakhs with interest @ 18% till realization, Rs.10,000/- for mental agony and harassment and Rs.1,500/- towards litigation cost.
The above contentions were denied by the Petitioner/Insurance Company who while admitting that the deceased had taken a Group Personal Accidental Policy from Petitioner/Insurance Company stated that since his death had taken place in unnatural circumstances, an Investigator was appointed to investigate the cause of death. According to the Investigator, the insuree had died due to a fall from the bridge because he was in an inebriated condition. The same was also confirmed as per the report of the Police. Since as per Section 5 of the Insurance Policy, the Petitioner/Insurance Company would not not liable for payment of compensation in respect of death, injury or disablement of the insured whilst under influence of intoxicating liquor or drugs, the claim was rightly repudiated.
The District Forum after hearing both parties and considering evidence on record allowed the complaint by observing that the contradictory findings in the post-mortem report filed by the Police wherein in one place it has been stated that no intoxicants were found in the blood and urine of the deceased and stating at the back of the same report that this was a typing mistake and alcohol was found in the insurees system makes the entire report suspicious. Also no evidence has been submitted to prove the contents of this report. The District Forum also reached a finding that neither the insuree nor the Respondents had been made aware of the terms and conditions of the insurance policy and therefore, Petitioner is liable to pay insurance amount of Rs.2 lakhs with interest @ 9% per annum from the date of complaint till realization, Rs.2,000/- as compensation and Rs.1,000/- litigation cost.
Aggrieved by this, Petitioner/Insurance Company filed an appeal before the State Commission which dismissed the same by observing as follows:
Annexure R-1/9 is the first communication from Adeshak Home Guard, 12th Battalion Una to the Director General Aarakshi and Home Guards, Civil Defence and Fire Services, H.P. It is clearly mentioned in it that the deceased had died during duty on 3.11.2001 after having slipped from Lathiana bridge having received serious head injuries suddenly on that date and his post-mortem was got done on 4.11.2001.
This version clearly supports the plea of respondent Nos. 1 to 3 that deceased had died while on duty due to fall at Lathiana bridge having sustained serious injuries. On the other hand Mr. Dharmani learned counsel for the appellant placed reliance on the report of the post-mortem Annexure R-1/14 and report of the State Forensic Laboratory, Junga Annexure R-1/11. In the face of Annexure R-1/9, both these documents in our opinion loose complete significance, this in addition to the fact that it was the duty of the appellant either itself or through respondents No 4 and 5 to have brought to their notice the terms and conditions of the policy including the exclusion clause to all these covered by the policy. It is nobodys case that either of them had done so, therefore, even if it is be assumed for the sake of argument that deceased was under the influence of intoxication still no benefit can be derived by the appellant from such exclusion clause. That being the position, plea urged by Mr. Dharmani that this case is covered by exclusion clause has been raised simply to be rejected. Once this conclusion is arrived at and insurance being admitted on the date of incident, the decision of this case need not detain us.
Hence the present revision petition.
Counsel for both parties made oral submissions. Counsel for Petitioner stated that the Fora below erred in not placing reliance on the post-mortem and police reports which conducted an inquest under section 174 of Cr.P.C. stating that the insuree had fallen of the bridge due to alcoholic intoxication which resulted in head trauma and death.
Therefore, as per Exclusion Clause, since death due to intoxication is not covered under the Insurance Policy, the claim was rightly repudiated. It was further contended that the Fora below erred in observing that the terms and conditions of the Policy were not read out to the insuree. In fact the insuree being a party to the contractual agreement was aware of the terms and conditions of the policy document and therefore, this plea is not tenable.
Counsel for Respondent on the other hand stated that Exclusion Clause was cited only to unjustly repudiate the claim as there was no credible evidence to indicate that the death of the insuree was due to intoxication and the Fora below being the courts of fact had given detailed reasons for concluding that the post-mortem could not be relied on particularly in view of the discrepancies in it and also since there was no mention/finding about the amount of alcohol etc. found in the body.
We have heard learned Counsel for Parties. The facts pertaining to the insurees having taken the Group Personal Accidental Policy and his accidental death having occurred on 10.10.2000 while on official duty are not in dispute. We have carefully perused the documents on file and we find force in the contention of the Counsel for Respondent that no credible or substantive evidence has been filed by the Petitioner to indicate that the deceased was in an inebriated condition/intoxicated which resulted in his accidental fall and death. Both the post-mortem report and the investigators report merely state that the deceased had consumed alcohol without giving any details about the actual amount of alcohol consumed or the type of intoxicants consumed. Even if the post-mortem report stating that the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed. Apart from this as observed by the Fora below, we agree that the post-mortem report does not inspire much confidence in view of the contradictory statements made it. On the other hand, it is an admitted fact that the deceased was on patrol duty in uniform when he was found dead under the bridge. Taking into account these facts in their totality, we are of view that the Petitioner has not be able to produce any credible evidence to repudiate the claim by citing the Exclusion Clause in the insurance document that the insuree was intoxicated which resulted in his death. We, therefore, find no merit in the revision petition and dismiss the same and uphold the order of the State Commission. Petitioner is, therefore, directed to pay Respondents, Rs.2 lakhs with interest @ 9% per annum from the date of complaint till realization, Rs.2,000/- as compensation and Rs.1,000/- litigation cost within 4 weeks. Counsel for Petitioner states that he has already deposited Rs.2,21,000/- which includes Rs.50,000/- as directed by this Commission on 09.10.2007. Out of this amount, Rs.50,000/- has already been withdrawn by the Respondent. If that is the case, after due verification, Respondent is at liberty to withdraw the remaining amount of Rs.1,71,000/- lying deposited with the District Forum in full and final settlement of the insurance claim.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/