State Consumer Disputes Redressal Commission
Shishma Devi vs Xen Iph on 17 December, 2010
H
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.
FIRST APPEAL NO.350/2009.
DECIDED ON : 17.12.2010.
In
the matter of:
1. Smt. Shishma Devi wife of late Shri Nittu
Ram;
2. Master Mukesh (minor) son of late Shri
Nittu Ram;
3. Miss Amita (minor) daughter of late Shri
Nittu Ram;
All
resident of Village and Post Office Kaloti, Tehsil Chirgaon,
District Shimla, H.P.
Appellant.
Versus
1. The Executive Engineer, I & PH Division, Rohru, Tehsil Rohru,
District Shimla, H.P.
2. The
New India Assurance Company Limited, Divisional office, Kasumpti, Shimla-9,
through its Divisional Manager.
.. Respondents.
.
For the Appellant: Mr.
Peeyush Verma, Advocate.
For the Respondent No.1: Mr. Vinay Verma, A.D.A.
For the Respondent No.2: Mr. Ratish Sharma, Advocate.
..
Honble Mrs. Saroj Sharma, Presiding
Member.
Honble Mr. Chander Shekhar Sharma, Member.
Whether approved for reporting? Yes.
O R D E R:
( Per Mr. Chander Shekhar Sharma, Member).
This appeal is directed against the order of District Consumer Disputes Redressal Forum, Shimla passed in Consumer Complaint No.482/2004, dated 28.04.2009, whereby the complaint of the appellants was dismissed by holding that it is being without any substance since it was concluded by the Forum below that the deceased policy holder was under the influence of liquor at the time of accidental death and as such the appellants are not entitled for the claim as per terms and conditions of policy.
2. The facts of this case within narrow compass are that Shri Nittu Ram who was working as daily wager Beldar with respondent No.1 In IPH Department, Rohru was duly insured with the Insurance Company-respondent No.2 for a sum of Rs.2,00,000/- in case of accidental death in course of his employment under the scheme, Janta Personal Accident Insurance Policy and the premium for the said policy was paid by respondent No.1.
3. The other averments made in the complaint are to the effect that on 04.04.2003 Shri Nittu Ram policy holder after finishing his duty at 5.00 a.m. left for his residence at Village Kaloti and while on its way to his house, he had accidental fall and received fatal injuries, resulting in his spontaneous death. Since the death was caused during the course of his employment and he was insured for a sum of Rs.2,00,000/- by the respondent No.1 and it was accidental one and as such the legal heirs of deceased appellant No.1 being mother and appellants No.2 and 3 minor son and daughter of deceased Shri Nittu Ram made request to the respondents for making the payment to appellants of insurance claim, but no heed was paid to their requests.
4. In this background, complaint under Section 12 of Consumer Protection Act, 1986 was filed against the respondents for deficiency of service/unfair trade practice on their part, wherein an amount of Rs.2,00,000/- was claimed and damages to the tune of Rs.50,000/- were also claimed for mental torture, harassment and litigation cost amounting to Rs.11,000/- was also prayed to be paid.
5. The complaint was resisted and contested by the respondents. The respondent No.1 alleged that since the deceased Shri Nittu Ram had not died in the course of his employment, rather he had died after the working hours and immediately after receiving the information relating to accidental death of deceased Shri Nittu Ram, the claim of deceased was submitted for payment to respondent No.2 Insurance Company and as such the respondent No.1 is not in any way responsible for payment of insurance claim since the compensation was to be paid by respondent No.2 and the respondent No.1 has only acted as a middleman between the insured and insurer and as such is not liable for any payment.
6. The respondent No.2 in the present case has taken the plea to the effect that since the deceased had consumed alcohol at the time of accident since as per chemical analysis report, the deceased had 423.2 mg % in his blood and 322 mg % in his urine which was very high and it clearly depicts that he was highly intoxicated at the time of death and as such as per exclusion clause, the respondent No.2 is not liable to indemnify the appellants in the present case and as such there is no deficiency of service/unfair trade practice on its part.
7. Rejoinder to the complaint was also filed by the appellants, wherein the stand taken in the replies was controverted by reiterating the stand taken in the complaint and it was also specifically pleaded that the alleged terms and conditions of the policy regarding repudiating of claim on the basis of consumption of alcohol does not bind the insured as they were never conveyed to the insured at any point of time.
8. The brief resume of evidence led by the parties in the present case in nutshell is that the appellants in support of their case had filed affidavit of Smt.Shishma Devi wife of deceased Shri Nittu Ram and placed reliance on number of documents Annexures P-1 to P-4 which are extract of Parivar register of Panchayat, copy of legal heir certificate, copy of health card, copy of post mortem report, copy of death certificate and copy of letter dated 01.10.2004 addressed to the Assistant Engineer, IPH for expedite the release of insurance claim.
9. The respondent No.1 in support of its case has filed affidavit of Engineer J.K. Jarhyal and various correspondence exchanged between the respondent No.2 and the Executive Engineer, IPH and also the copy of inquest report, copy of post mortem report and copy of chemical analysis report.
10. The respondent No.2 in support of its case has filed affidavits of Shri T.S. Kaith its Divisional Manager and Dr. D.G.Dass Gupta and also placed reliance upon various documents Annexures R-1 to R-7 which are copy of insurance policy and various correspondence exchanged between the respondent No.2 and the Executive Engineer, IPH Rohru, copy of post mortem report, letter of repudiation, copy of chemical analysis report and also placed reliance upon certificate of Dr. D.J. Dass Gupta dated 26.09.2005 Annexure A-1 and various other Annexures R-1/1 to R-1/7. Statement of Dr. B.R. Rawat was also recorded by the Forum below on 03.07.2007 as he was called for cross-examination by the appellants.
11. We have heard Mr. Peeyush Verma, learned counsel appearing for the appellants, Mr. Vinay Verma, learned ADA appearing for respondent No.1 and Mr. Ratish Sharma, learned counsel for the respondent No.2 and have also gone through the record of this case, minutely.
12. Mr. Peeyush Verma, learned counsel for the appellants argued that repudiation of claim of the insured which was mainly based upon the report of Chemical Examiner which gives the percentage of 423.2 mg % of alcohol in the blood and 322 mg % in the urine upon which reliance was placed by the Forum below is not legally warranted since the deceased in the present case had died on 04.04.2003 and his dead boy was recovered on 08.04.2003 and Dr. B.R. Rawat who had submitted chemical analysis report of viscera of the deceased had also admitted in cross-examination that no preservative was used in the blood and urine samples and the samples of urine/blood were examined on 20th June, 2003 and he had also stated in the cross-examination that this report does not state contents of alcohol and percentage of alcohol present in the urine and blood on 4th April, 2003 and this fact is also admitted by Dr. Rawat that on account of putrefaction action, there is every possibility of the production of alcohol in the body and as such as per him, no reliance can be placed upon this report and it cannot be concluded that the insured deceased Shri Nittu Ram was under the influence of liquor at the time of accident and the insurance claim was illegally rejected by the Insurance Company in the present case.
13. His alternative plea was also to the effect that since the exclusion clause in the policy whereby the claim can be repudiated in case of consumption of alcohol by the insured is not binding upon the appellants since the terms and conditions of the policy were not explained to the insured and as such as per him, this is a clear case of deficiency of service on the part of respondent No.2 and he also laid stress upon the delay on the part of respondent No.1 in processing the claim of the appellants since the insured had died on 04.04.2003 and the claim was sent on 04.09.2003.
14. Mr. Vinay Verma, learned ADA appearing for the respondent No.1 argued that the accident had not occurred in the course of employment since the insured had accidental fall after the working hours and the claim had been submitted by the Department to the respondent No.2 for making payment in view of obtaining Janta Personal Accident Insurance Policy by the respondent No.1 and since the deceased was found under the influence of liquor and as such the appellants are not entitled for the insurance claim and he had supported the order of lower Fora.
15. Mr. Ratish Sharma, learned counsel for the respondent No.2 argued that in the present case, the life assured/deceased was under the influence of liquor, when he had died in accidental fall since the alcohol in the blood as per report of Chemical Examiner was 423.2 mg % and in the urine the alcohol percentage was 322 mg and stated as per terms and conditions of policy, the appellants are not entitled for any claim since the consumption of alcohol falls within the ambit of exclusion clause of insurance policy which reads as under:-
Special exclusion- natural death and death due to disease not covered. Death, injury or disablement from (A) intentional self injury, suicide or attempted suicide (B) whilst under influence of intoxicating liquor or drugs is not covered.
16. In the alternative, he had also argued that since the terms and conditions of policy relating to exclusion clause were not explained to the insured by the respondent No.1 Executive Engineer, IPH. As such due to non-explaining of exclusion clause as per decision of National Commission given in the cases titled as State of Himachal Pradesh and another versus New India Assurance Company Limited and others, I (2009) CPJ 66 (NC) the respondent No.1 is liable to make the payment of insured sum. He had also placed reliance upon decision of National Commission and various decisions of this Commission viz., Life Insurance Corporation of India and another versus Priyanka Singh III (2007) CPJ 436 (NC), Surinder Kumar versus State of H.P. and others I (2010) CPJ 296 and also in case Appeal No.281/2004, decided on 09.10.2006 titled as New India Assurance Company Limited versus Narbada Devi and others, wherein due to high quantity of alcohol which was above 150 mg. % in the blood of the deceased, the insurance company was not held liable.
17. In the present case after hearing the learned counsel for the parties and going through the record of the case, we are of the considered view that the appeal in the present case deserves to be allowed. Reason being that in this case this fact is clearly apparent from the record that exclusion clause which provides for rejection of the claim of the insured on the ground of consumption of alcohol had not been explained to the life assured/policy holder by the respondent No.1- Executive Engineer, Irrigation and Public Health. Since it is a Janta Personal Accident Insurance Policy purchased by the respondent No.1 and it was not directly purchased by the insured and as such legally it was the responsibility of the Department concerned to inform the employees about the correct features of the scheme in any terms of the policy. But there is no iota of evidence on record to prove that the Department had in any way explained to the insured the terms and conditions of the insurance policy/its exclusion clause which was the bounden duty of the employer to inform the employee in the matter and as such the insurance company is not liable to indemnify the appellants in the matter and responsibility for the indemnification lies with the department concerned, i.e. respondent No.1.
18. We are supported by this view by the decision of National Commission given in case State of Himachal Pradesh and another versus New India Assurance Company Limited and others (supra), wherein it was held as under:-
Employees to be informed about correct features of scheme in easy terms- No evidence produced to show that necessary steps taken by PWD- Deficiency in service on part of PWD and non-compliance of own instructions proved.
19. Moreover in this case, National Commission had also confirmed the order of the State Commission and held the petitioner State responsible for payment of insured amount.
20. No doubt, in the present case, there is delay of examination of sample nearly about 5 months and this fact had also come on record that no preservative was put in the viscera which was examined. But in this case this fact is clear from the report of inquest which is at page-123 wherein it had been clearly mentioned as under:-
DINANK 4.4.03 KO SAMAY KARIB 7.15 BAJE SHAM JAB VAH KALOTI SE APNE GHAR SEEMA AA RAHA THA TO SEEMA PUL PAR NITTU RAM NIWASI KALOTI NASHE MAIN THA AUR JAB VAH PUL KE BEECH MAIN PAHUNCHA TO NEECHE NADI MAIN GIR GAYA.
Hence this fact is clear from the inquest report which is initial report prepared by the police in the matter that on the relevant date, the deceased Nittu Ram was under the influence of liquor, as a result thereof he had fallen from the bridge. Even the post mortem report in the present case depicts that death of deceased Nittu Ram was due to drowning and fracture of cervical and it is also mentioned in the column-9 of the post mortem report Annexure R-1/6.
21. In the present case this fact had been clearly admitted by Dr. B.R. Rawat, Assistant Director, State Florescence Science in re-examination, the deceased in view of the contents of the alcohol present was highly drunk. No doubt he had admitted that on account of putrefaction, there is every possibility of production of alcohol in the body, but this fact had been specifically stated by Dr. Rawat that in view of the contents of alcohol in the viscera, the deceased was highly drunk and as such the insurance company cannot be held liable for the indemnification of insured sum in the present case due to exclusion clause in the insurance policy which was not explained to the deceased as there is no iota of evidence in this regard led by the respondent No.1 and as such the respondent No.1 cannot escape its liability for indemnification of insured sum amounting to Rs.2,00,000/- and since it also appears from record that there is delay of more then 4 months in processing the present case on the part of respondent No.1 since the insurance claim of the deceased insured was sent to the insurance company on 04.09.2003, whereas Shri Nittu Ram had died on 04.04.2003 and as such there was undue delay on the part of respondent No.1 in processing the insurance claim of the deceased.
There is no dispute about the legal proposition laid down by the National Commission and this Commission in cases referred supra.
22. No other point was urged.
23. Hence in view of aforesaid discussion and facts and circumstances of the case, the present appeal is accepted and consequently the impugned order dated 28.04.2009 passed by District Forum below in Consumer Complaint No.482/2004 is set aside and the said complaint stands partly allowed. Thus, the respondent No.1 is held liable to indemnify the appellants for the insured sum amounting to Rs.2,00,000/- and the appellants will also be entitled to the interest @ 9 % per annum from the date of filing of complaint, i.e. 09.11.2004 till realization and further the respondent No.1 shall also be liable to pay lump sum cost of the complaint and of this appeal, which we quantify at Rs.5,000/-. In case the aforesaid payment is not made by the respondent No.1 within a period of 45 days from the date of this order failing which the respondent No.1 will be liable to pay interest @ 9 % per annum till payment. As such the instant appeal stands disposed of accordingly.
24. Office is directed to send a certified copy of this order to the parties, free of cost as per Rules.
SHIMLA 17.12.2010 ( Saroj Sharma ) Presiding Member.
(Chander Shekhar Sharma) Member.
/dinesh/