ORDER
(Passed on22nd of July, 2020)
Passed by Shri.Atul Alsi, Hon’ble President.
The widow complainant has filed these four complaints alleging arbitrary repudiation of partial Insurance claim pertaining to accidental risk cover benefit even after the payment of partial insurance death claim for the reason of intoxication under exclusion clause of the policy and, thereby, seeking compensation for accidental risk cover along with compensation for mental torture and litigation expenditure. All the four complaints involves similar dispute and is between the same parties. Hence we proceed to dispose of all the four complaint cases with a common order...
2. The story in short is as under.. The complainant is the widow of late Rajendra bhaiyaji Kotamwar resident of Chandrapur who was insured with opposite party under different insurance policies . The deceased was a club member of life Insurance Corporation of India and two times D. M. R. D.with ranking of merit as the best performer among 500 agents in India in selling insurance policies. The deceased insured had obtained insurance policies as detailed below..
In CC No. 175/2017
bearing policy numbers
1) No. 970408228 for Rs. 1 lac
2) No. 971130487 for Rs. 2 lac 3) No. 971140461 for Rs. 1 lac
4) No. 9711559129 for Rs. 2 lac
5) No.974226824 for Rs.2 lac &
6) No. 976075313 for Rs. 5 lac.
____________________
Total Rs. 13,00,000/-
In CC No. 181/2017
bearing policy numbers
1) No. 970407686 for Rs. 1 lac
2) No. 978615185 for Rs. 1 lac 3) No. 978615187 for Rs. 1 lac
4) No. 978615189 for Rs. 1 lac
5) No.978615191 for Rs.1 lac
6) No.978615192 for Rs.1 lac
7) No.978615193 for Rs.1 lac
8) No.978615194 for Rs.1 lac
9) No.978615196 for Rs.1 lac
10) No.978615197 for Rs.1 lac
11) No.978615205 for Rs.1 lac
12) No.971559740 for Rs.25000/-
&
13) No.971559796 for Rs.25000/-
__________________
Total Rs. 11,50,000/-
In CC No. 189/2017
bearing policy numbers
1) No. 977431706 for Rs. 7 lac
2) No. 970823087 for Rs. 3 lac 3) No. 970413657 for Rs.50,000/-
4) No. 977438995 for Rs. 1, 60, 000/-
__________________________
Total Rs. 12,10,000/-
In CC No. 190/2017
bearing policy numbers
1) No. 975058299 for Rs. 3 lac
2) No. 976431358 for Rs. 9 lac 3) No. 977435152 Rs.1,25,000/-
___________________
Total Rs. 13,50,000/-
3. On 14 /12/ 2015 while returning back from nagpur after attending marriage ceremony of daughter of one of the relatives, the deceased was driving tata indica car bearing number MH- 34, AA- 1021. At about 10:30 p.m.when they reached 17 kilometre away from Nagpur on Nagpur- Umred Road, one travel bus bearing number CG- 08. M 0990 collided head on against the vehicle of the insured in an attempt to overtake other vehicle in a rash and negligent manner. In the accident, three persons including the deceased insured who were travelling in the car died on the spot and the complainant was seriously injured. An offence under section 279, 337, 338, 304 A, 427 of Indian Penal Code read with sections 164, 184 and 181 of Motor Vehicle Act came to be registered against the erring driver of taxi Traveller bearing number CG- 08. M 0990 at police station Kuhi, District Nagpur.
4. The complainant being the nominee under the policies, filed Insurance claim along with relevant documents with the opposite party Insurance Company under all the 27 insurance policies mentioned Supra. However the opposite party has sanctioned only partial claim under the policies but it repudiated complainants claim of accidental benefit vide letter dated 25 /11/ 2016 alleging that the deceased insured was driving the vehicle under the influence of liquor and as such, as per the exclusion clause of the policy, double accident benefit is not payable. Thereafter the complaint preferred an appeal before the higher office of the opposite party but the same came to be rejected vide letter dated 24/ 7/2017.
The complainant submitted in all these petitions that the deceased had a habit of taking Ayurvedic medicine drakshasav before the meals and the same were found in the vehicle by police after the accident and recital of which is given in the seizure panchnama. Therefore, due to consumption of drakshasav there may be presence of alcohol content found in the body of deceased but the deceased was not intoxicated at the time of plying the vehicle. Therefore the denial of accidental benefit under all the 27 insurance policies under the garb of exclusion clause does amount to negligence of service and unfair trade practice on the part of opposite party and hence these petitions are filed by the complainant.
5. After receipt of notice from the forum in the matter, the opposite party appeared before the forum and filed its reply to the complaint. It denied allegations against it but admitted 27 policies which were obtained by the deceased insured from the opposite party. It also admitted that the sum assured under all the policies was paid to the complainant but accidental benefit claims were repudiated. It submitted that the opposite party is not liable to pay the additional sum referred to in clause A or B in respect of accidental benefits in the event of disability or death of insured which is Caused by intentional self injury, attempted suicide, insanity or the life assured is under influence of intoxicating materials, drugs or narcotics. As per the Postmortem report and chemical analysis report of the viscera conducted by the forensic laboratory, nagpur dated 15/12/2015, the deceased was found under the influence of alcohol and his stomach and liver were having 99% and 97% milli gram of ethanol alcohol respectively per 100 milligram which is much above the permissible limits. It also amounted to breach of RTO rules. Hence the rejection of accidental benefit is done under the exclusion clause as the insured was driving the vehicle while he was under the influence of intoxication of liquor at the time of accident. The opposite party further contended in complaint case number 181 of 2017 that though the assured sum is Rs. 11,50,000/- in total, the consolidated accidental benefit is payable only to the extent of Rs. 5 lac as per plan 189 clause 8(a) of the policy.. It contended that as the repudiation is done in accordance with terms and conditions of the policy, it does not amount to deficiency in service or unfair trade practice. Hence all the petitions of the complainant are liable to be dismissed with cost.
6. The counsel for the complainant Mr. Kullarwar argued that the opposite party cannot repudiate accidental benefit once it sanctioned assured amount under the policy. Further, there is no Nexus between presence of alcohol in the body of the deceased insured and accrual of accident. It is nowhere alleged or proved by the opposite party that the accident occurred due to any lacuna on the part of deceased insured which was the direct consequence of his alleged state of intoxication. The Opposite party has to prove that the insured was in a state of intoxication to the extent that it rendered him incapable of driving the vehicle and it actually contributed to the accrual of accident. Non examination of chemical analyser on affidavit is fatal to the prosecution case. It is a fact that an offence came to be registered against the driver of the offending luxury bus and not against the diseased. Hence there is neither negligence on the part of deceased in driving his vehicle nor there is any contribution of his alleged intoxicated state of mind in the accrual of accident. At the time of accrual of accident, the deceased was driving his vehicle on right side of the road with his family and friends after attending a marriage ceremony and having dinner there. It is true that the disease used to take ayurvedic medicine drakshasav twice a day regularly i.e.before having meals. Even that medicine came to be recovered from the vehicle as is shown in panchnama prepared by the police. The counsel for the complainant relied on the judgement of honourable National Commission in the matter of life Insurance Corporation of India versus Ranjit Kaur which is delivered by honorable justice Mr. Ashok Bhan, president and Mrs Vinita Rai, honorable Member, reported in CPJ 232,NC 2011(Vol.III) holding that, Insuree under the influence of alcohol beyond permissible limit- not accepted- specific clinical picture of alcohol intoxication depends on quantity and frequency of consumption and duration of drinking at that level- mere presence of alcohol even above the usually prescribed limit is not a conclusive proof of intoxication- no nexus between death caused by electric shock- order of Fora upheld. Therefore the Complainants case deserves to be decreed in his favour as per the judgement of Honorable National Commission.
7. The counsel for the opposite party advocate Mr. Khati argued that the complainant has filed split consumer cases just to bring them into pecuniary jurisdiction of this forum which is not permissible in law. When the cause of action, parties, purpose and the relief claimed is same, splitting of consumer cases is not permissible. The pecuniary jurisdiction in the instant matters is of Honorable state Commission and this Forum has no pecuniary jurisdiction to entertain the complaints. Further as per the chemical analysis report dated 9 2 2016 filed with the charge sheet before the judicial magistrate Kuhi district Nagpur, the deceased insured was driving the accidented vehicle in a state of intoxication beyond permissible limits which is also an offence under Motor Vehicle Act. Therefore as per exclusion clause of terms and conditions of the policy contract, the double accident benefit was not payable. Hence denial of accidental Rider does not amount to negligence in service or unfair trade practice adopted with an intention to avoid the liability. Therefore denial of accidental claim benefit in respect of all the 27 policies under the exclusion clause for the reason of driving the vehicle in a state of intoxication is fully justified and as such, these petitions are liable to be dismissed with cost.
8. We have gone through the complaint written version affidavits and the documents filed by the parties. After careful scrutiny of the documents filed on record and after hearing the parties at length, we record our findings in respect of allegation of deficiency in services as follows.
Reasoning :
9. It is a fact on record that the complainant had submitted separate sets of claims for the accidental benefit under all the 27 insurance policies. Admittedly policy numbers, their nature, plans, durations and the benefits applicable therein are different. Each of the policy is an independent contract between the insuree and the insurer and any breach of the terms and conditions of the insurance contract by either of the parties gives a separate cause of action. Therefore Order 2 Rule 1 and 2 of the Civil Procedure Code would not apply to the present matter. The complainant can file separate claims in respect of each and every insurance policy as the policy number, nature, plan, duration and the benefits etc. vary from policy to policy and breach of each insurance contract gives a separate cause of action. Therefore the contention of the opposite party that the complainant has filed split petitions just to avoid pecuniary jurisdiction of the Honorable state Commission cannot be accepted. The counsel for OP relied on judgement of h’ble National Commission Vitthal Sugar factory Vs New India Insurance .case no-82/15 decided on 25/5/17 holding that “ it is well settled law that as per provisions of order 2 “ Rule 1and 2 of Civil Procedure code if the plaintiff is entitleled to seek relief against defendant in respect of same cause of action,He can’t be split up the claim .What the rule requires is unity of all claims based on the same cause of action in one suit Rule 2(1) of order 2 of CPC reads as under’’
“Every suit shall include the whole of claim which the plaintiff is entitled “ make in respect of cause of action but plaintiff may relinquish any portion of his claim in order to bring suit within the jurisdiction of any court” This rulling is is not applicable to the case in hand .
10. As per the judgement in the appeal in 307/2007 before Honourable state Commission Punjab it was held that influence of liquor on a particular person will depend on specific clinical picture of alcohol intoxication on the quantity, frequency of consumption, duration, drinking habit, drinking level, state of mind, capacity of body and the time of accident.
As per the judgement in lIC versus Ranjit Kaur RP 2233/07 decided on 11 7 2011 cited Supra, it is held by honorable National Commission that mere presence of alcohol over and above permissible limits is not a conclusive proof of intoxication which would attract the provisions of exclusion clause of the policy. Further there is no Nexus proved between the accrual of accident and resultant death of the insured with the level of alcohol in his body at the relevant time of accident. The impact of intoxication is different from person to person. Admittedly the deceased was driving the accidented vehicle carrying his family and friends along with him at the time of accident. It is also a fact on record that the police machinery after verifying the spot and examining the witnesses including the occupants of the accidented vehicle and on examination of the driver of the offending vehicle came to the conclusion that the offending travel bus in an attempt to overtake another vehicle in a rash and negligent manner, collided headon with the vehicle of the deceased insured. Hence there is a cogent and reliable evidence about the cause of accident and sole responsibility of the driver of the offending travel bus and, as such, an offence came to be registered by the police against the offending bus driver only. Hence there is no nexus proved between the intoxicated state of mind of the deceased insured and the accrual of accident, by the opposite party Insurance Company. It is also true that there is no cogent, reliable and mathematical evidence about the intoxicated state of mind of the deceased has been brought on record by the opposite party which would attract the provisions of exclusion clause of the policy enabling the opposite party to deny the accidental benefits under the policy. Alcohol is an organic compound and in generic term, it is called ethanol. It is composed of karbonn hydrogen and oxygen. As per american study papers published it shows that, a chronic alcohol user and an average drinker when they consume a same amount of alcohol, the chronic alcohol user has twice tolerance level then the average alcohol consumer. It has been shown in the study conclusively that even in heavily drunk conditions they can drive the vehicle safely and sensitively. The intoxication depends upon water level, intake of food, type of body, weight and tolerance capacity. The opposite party failed to bring the state of mind of the diseased and the contents of food and water level to prove his intoxication. The postmortem of the body took place approximately 10 to 12 hours after the death of the insured on the spot. Further the opposite party fail to prove any Nexus between the alleged state of intoxication of the insured and the cause of accident by filing cogent evidence on record. It is also worth mentioning here that the opposite has already sanctioned assured amount under all the policies however surprisingly it repudiated only the partial claims in respect of accidental benefit under all the policies. Therefore rejection of Insurance claim with a view to avoid the liability amounts to deficiency in service. Therefore the petitions are required to be allowed and the complainant is entitled for accidental benefit arising out of all the policies along with interest @ 7% per annum from the date of judgement till realisation along with a compensation of rupees 40,000/- in agreegate towards all insurance claims and cost of litigation of rupees 10,000/- as per the following order..
Final Order
1. All the complaint cases bearing numbers CC/ 175/2017,CC/181/2017,CC189/2017 & 190/2017 are partly allowed.
2. The opposite party is directed to pay the accidental benefits under all the insurance policies as detailed in the paragraph number 2 Supra to the permissible limits as per terms of condition of payment of accidental benefits in the policies alongwith interest thereon at the rate of 7% per annum from the date of this judgement till realization.
3. The opposite party shall also pay rupees 40,000/- in agreegate towards all claims to the complainant as compensation for physical and mental torture coupled with cost of litigation of rupees 10,000/-.
4. Copies of the order be supplied to the parties free of cost.
(Smt.Kalpana Jangade (Kute) (Smt. Kirti Vaidya (Gadgil) ( Shri.Atul D.Alsi )
Hon’ble Member Hon’ble Member Hon’ble President
