KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.692/2015

JUDGEMENT DATED :18.11.2024

(Against the order in C.C.No.51/2008 on the file of DCDRC, Kottayam)

PRESENT:

APPELLANT:

(by Adv. Prasanna Kumar Nair)

Vs.

RESPONDENTS:

(By Adv. K. Satheesh Kumar and Adv. Sabu N.S. for R4 and R5)

JUDGEMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  :  PRESIDENT

          The appellant is the opposite party and the respondents are the complainants in C.C.No.51/2008 on the files of the Consumer Disputes Redressal Commission, Kottayam (for short ‘the District Commission’).

          2.       The complainants are the legal heirs of the deceased Jikku Kuruvilla Mathew, who died on 15.02.2006 in a road traffic accident.  On 15.02.2006, while he was driving a motor cycle from north to south along the road, his motor cycle was knocked down by a lorry bearing No. KRK 3498, which came from the opposite direction and as a consequence, the deceased sustained fatal injuries on his head and he succumbed to the injuries on the same day at about the same time.  In connection with the above accident, a crime was registered in Gandhi Nagar Police Station, Kottayam.  After completing the investigation, the final report was filed by the police against the driver of the lorry for the offence punishable under 304 (A) IPC. 

3.       The deceased Jikku Kuruvilla was the holder of a master policy, valid from 11.05.2005 to 10.09.2006, issued by the opposite party under the cover of the insurance scheme introduced by Malayala Manorama daily subscribers and the Malayala Manorama discount holders.  The complainants claimed that they are entitled to the benefit of the said policy being the legal heirs of deceased Jikku Kuruvilla.  The said policy assured the benefit of Rs.1,00,000/-(Rupees One Lakh only) on account of the accidental death of the policy holder. The said policy also assured the educational assistance to the 4^th and 5^th complainants, who were students.  The policy also covered the marriage benefit to the 4^th complainant.  The complainants approached the opposite party and submitted the claim form with all documents.  However, the opposite party repudiated the claim without any legal ground, stating that the deceased had consumed alcohol while driving the vehicle.  The cause of death was due to head injury sustained in the accident. It was contended by the complainants that the act of the opposite party in repudiating the claim would amount to deficiency in service. 

          4.       The opposite party filed version admitting the policy and contending that the accident was due to the negligence of the deceased.  The deceased also violated the traffic rules due to the impact of consumption of alcohol.  Therefore, as per the terms and conditions of the policy, the insurance company was not liable to pay any compensation to the complainants.  The postmortem certificate would show that the deceased had consumed alcohol and hence the opposite party had repudiated the claim as per the terms and conditions of the policy.

          5.       PW1 to PW6 were examined and Exhibits A1 to A18 were marked for the complainants.  DW1 and DW2 were examined for the opposite parties.  Exhibits X1 to X3 were also marked.

          6.       After evaluating the evidence, the District Commission found that there was deficiency in service on the part of the opposite party.  Accordingly, the District Commission directed the opposite party to pay Rs.3,00,000/- (Rupees Three Lakhs only) as compensation to the complainants with interest @ 9% per annum from the date of complaint till realisation.  The District Commission also directed the opposite party to pay costs of Rs.5,000/- (Rupees Five Thousand only) to the complainants.  It was further directed that the above said amount would be equally shared among the complainants. 

          7.       Service on the 5^th respondent is not yet complete.  However, the learned counsel for the appellant has submitted that 5^th respondent is not a necessary party.  The learned counsel also filed a memo praying for deleting the 5^th respondent from the party array.  In view of the memo and the submission made by the learned counsel, the 5^th respondent stands deleted from the party array at the risk of the appellant.

          8.       Heard. 

          9.       It is not disputed that the complainants are the legal heirs of the deceased Jikku Kuruvilla.  Exhibit A5 legal heirship certificate would also show that the complainants are the legal heirs of the deceased Jikku Kuruvila.  It is also not disputed that the deceased Jikku Kuruvila died in a road traffic accident on 15.02.2006.  Exhibit A1 is the First Information Report registered in connection with the above accident.  Exhibit A2 is the final report whereby the Police, after completing the investigation, found that the accident occurred due to the rash and negligent driving of the lorry by its driver. 

          10.     It has been contended by the opposite party that the deceased Jikku Kuruvila was under the influence of alcohol at the time of accident and hence the complainants are not entitled to get any benefit under the policy.  The opposite party admitted that there was a valid insurance policy during the period of accident.  However, the claim was repudiated on the reason that the deceased was under the influence of alcohol at the time of accident.  Exhibit A2 final report, filed by PW6, the Sub Inspector of Police, would show that the accident occurred due to the rash negligent driving of the offending lorry by its driver.  Exhibit P4 is the copy of the postmortem certificate, which would show that the deceased died of injuries sustained to the head.  It is stated in Exhibit P4 postmortem certificate that the stomach contained 100 ml of watery fluid mixed with partly digested food having smell resembling to that of alcohol.  In view of the above statement in Exhibit P4, the opposite party had taken a contention that the deceased had consumed alcohol at the time of accident.  It is stated in Exhibit P4 that the food particles inside the stomach had smell resembling to that of alcohol. However, no report from the Forensic Science Laboratory has been produced by the opposite party before the commission to show that the deceased was under the influence of alcohol or the deceased had consumed alcohol while driving the vehicle.  Exhibit A2 would clearly show that the accident occurred due to the rash and negligent driving of the offending lorry.  This was clearly stated by PW6 also.

11.     In the absence of any document to show that the deceased had consumed alcohol at the time of driving the vehicle, the contention of the opposite party in this regard cannot be accepted.  In order to establish drunken driving, it is necessary to show that the deceased was having the prescribed quantity of alcohol in his blood as provided under Section 185 of the Motor Vehicles Act., while driving.  The blood test was not conducted in this case.  Therefore, no report of the blood test is available on record.  In the said circumstances, the District Commission was perfectly justified in holding that the contention of the opposite party that the deceased was under the influence of alcohol at the time of accident could not be sustained, particularly when Exhibit A1 FIR and Exhibit A2 final report did not reveal anything to that effect.   In view of the above, we do not find any reason to deviate from the above said finding of the District Commission in this regard. 

12.     The evidence of PW2 and PW5 coupled with Exhibits X2 and X3 would prove that the premium for the educational and marriage benefits were remitted by the deceased. Therefore, the District Commission directed the opposite party to give the educational assistance to the 4^th and the 5^th complainants.   The District Commission granted the marriage benefit to the 4^th complainant as the marriage of the 4^th complainant was solemnised on 23.10.2009.  Both the 4^th and the 5^th complainants were students.  We are fully convinced that the policy would cover the educational assistance to respondents 4 and 5 and also the marriage benefits to the 4^th respondent, being the legal heirs of the deceased. Therefore, we are satisfied that the District Commission was perfectly justified in directing the opposite party to give the educational assistance to the 4^th and the 5^th complainants and the marriage benefit to the 4^th complainant. The District Commission had only ordered to pay Rs.3,00,000/-(Rupees Three Lakh only) with interest @ 9% from the date of filing of the complaint.  The amount ordered by the District Commission does not appear to be excessive or harsh, calling for interference by this Commission.  The costs ordered by the District Commission also does not appear to be excessive.  In the said circumstances, we do not find any reason to interfere with the costs as well.

          In the result, this appeal stands dismissed, confirming the order passed by the District Commission in C.C. No. 51/2008.  In the circumstances of the case, there is no order as to costs.

The statutory deposit made by the appellant shall be given to the respondents 4 and 5, to be adjusted/credited towards the amount ordered by the District Commission, on proper acknowledgement.

SL