West Bengal

Dakshin Dinajpur

CC/42/2012

Sri Satyendra Nath Mahanta, S/O- Late Swarup Ch. Mahanta - Complainant(s)

Versus

Branch Manager, National Insurance Co. Ltd., Balurghat Branch - Opp.Party(s)

18 Jun 2013

ORDER

This Complaint, u/s 12 of the C.P. Act, 1986 is at the instance of unfortunate parents of Madan Lal Mohanta, who as per the petition of the complaint, having valid driving license on the fateful day on 28.02.2010 was riding his motorcycle from Patiram towards Balurghat and sustained head-on-collision with another motorcycle and embraced death. He was holding policy from National Insurance Company Ltd. having Personal Accident Benefit of Rs.1,00,000/-. The petitioners preferred claim to the Insurance Company but the same was repudiated on the ground that the owner/driver was under the influence of intoxicating liquor. Hence the case.

 

            The OP-1 contested the case by filling a written version wherein the factum of the accident has been narrated pursuant to which the holder of the policy died. It is contended that a police case was registered regarding the accident and from the FIR and charge sheet it is clear that the son of the claimants along with his another motorcyclist companion were driving their respective motorcycle rashly and negligently  and thereby caused death of another motorcyclist coming from the opposite side. It is also contended that the son of the claimants was intoxicated as apparent from the PM report. According to policy condition no compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part resulting from an accident happening whilst such person driving the vehicle is under influence of intoxicant or drugs.  Hence, the prayer for dismissal of the case.

 

            We have carefully gone through the contentions of the parties and evidence, both oral and documentary, as filed by them.

 

            Admittedly, the son of the claimants, holder of a policy issued by the OP-1 on personal accident benefit scheme and holder of valid driving license, was driving his motorcycle from Patiram towards

 

                                                                                                Contd…P/3

Balurghat. He had another companion on another motorcycle riding in the same direction. It was 28.02.2010, the day of Holi. When they reached near Paranpur, Taltala more about 4-5 kilometers away from Patiram, Madan Lal Mohanta, since deceased (son of the complainants) suffered head-on-collision with one Sujit Kumar Mondal another motorcyclist, with his wife as pillion rider, from the opposite direction. Immediate after such collision the companion of Madan Lal also collided with the said two motorcyclists. Madan Lal and said Sujit Kumar Mondal succumbed to their injuries.

 

            Over this incident, a police case being Balurghat PS Case No.84/10 dt. 01.03.2010 was registered which in the court was registered as GR.186/10 . The case ended in charge sheet (vide Ext. 3-series).

 

            True it is that as per the contract between the Insured and the insurance Company, claim in a personal accident scheme will not be entertained if death or bodily injury is caused  in a motor vehicle accident while driving in an intoxicating condition vide insurance policy (Ext-4-series). Ld. Advocate for OP referring to the PM report (vide. Ext-4) pointed out that the stomach of the victim Madan Lal Mohanta contained blackish fluid and smell of alcohol. Accordingly he supports the letter of repudiation vide Ext.5. To fortify his argument he referred to the date of accident which was the day of Holi and according to him in such particular day propensity of some people specially the youngsters is to enjoy the effect of liquor or drugs. He forcefully submitted that unless the offender and his companion in another two-wheeler were really not intoxicated, there was no reason for them to ride across the road and collide against another motorcyclist following his left track.

 

               To refute such arguments Ld. Advocate for the petitioner submitted that mere presence of blackish substance and smell of alcohol as contents of stomach of Madanlal does not necessarily mean that he took liquor & was really intoxicated in the true sense of the term.

 

                                                                                                Contd…P/4

Even for the sake of argument it is assumed that he took liquor yet unless the quantity thereof could be ascertained how can  it be said that he was really intoxicated. According to him different persons become intoxicated under the influence of different quantity of the same or different type of liquor. It also varies according to the strength and quality of the liquor. To fortify his argument he placed reliance upon a decision reported in AIR[1975] Guwahati-3 where it has been held that “Even if the driver of the vehicle involved in the accident took liquor that would not disentitle the insured owner of the vehicle to the benefit of the policy unless the driver was under the influence of liquor because a person may take a peg or two of liquor yet he may not be under its influence”.

 

            In this context, Ld Advocate for the OPs categorically pointed out that the accident took place when said Madan Lal with his another motorcyclist companion were driving their respective motorcycles with high speed rashly and negligently and ultimately collided against another motorcyclist from opposite direction who was following his left side of the road. The location of this spot of accident by itself proves that Madan Lal and his companion lost control over their respective motorcycles, came across the road and collision took place at the extreme right side of the road. The reason for losing control must be due to the fact that they were under influence of liquor.

 

            Losing control over the motorcycle while riding may be because of intoxication where the intoxicated person because of consumption of sufficient quantity of liquor loses control over their faculties. It may also due to rashness and negligence of higher degree. Here, in the present case, there is no eye witness regarding consumption of intoxicating substance by the said Madan Lal and his companion. There is also no viscera report which could provide evidence of consumption of liquor by them. Mere presence of a blackish substance and smell of alcohol in the stomach of Madan Lal found at the time of PM examination does not necessarily mean that he was under influence of liquor sufficient to

 

                                                                                                Contd…P/5

cause loss of his physical and mental  faculties . That being the position it cannot be definitely concluded that the accident took place because of consumption of intoxicant/liquor by the said Madan Lal. Accordingly, the ratio of the decision of Hon’able Guwahati High Court relied upon by the Ld. Adv. for the complainants has got applicability in the fact and circumstances of the present case.

 

            Granting or issuance of policy insuring life on different eventualities emanates from a  legislation beneficial to the society. It is obtained not solely with profit-making motive but to secure financial stability to a family in case of untoward happening. If the claim of this nature is casually rejected merely on the ground that smell of alcohol was present in the stomach of the deceased, as in the present case, then the very object of such legislation will be frustrated, specially when there is no acceptable proof that he really consumed alcohol sufficient to cause loss of his physical and mental faculties that ultimately resulted a fatal accident.

 

            Regard being had to the entire facts and circumstances of the case and in view of the observations made above, we are unable to hold that said Madan Lal died in the accident while driving the motorcycle under influence of liquor. Hence, the complainants are entitled to the accidental benefit in respect of their deceased son whose life was covered by the insurance policy with personal accident coverage. The petitioners are also entitled to compensation for their harassment by the OPs in settling their claims in respect of the policy.

 

            The son of the claimants died bechalor as he submitted. Therefore, as per Hindu Succession Act, mother is the legal heir or deceased bechalor son. Accordingly, we propose that the total entilements be handed over to the mother of the holder of that policy who is one of the applicants.       Hence it is.

                                                O R D E R E D

            That the complaint u/s 12 of CP Act, 1986 is liable to be allowed  and is allowed on contest with costs of Rs. 1,000/-.

 

                                                                                                Contd…P/6

            That the OPs are directed to pay to Smt. Putul Mohanta wife of Sri Satyendra Nath Mohanta the total entitlements in respect of the policy under the personal accident benefit cover standing in the name of her son Madan Lal Mohanta since deceased together with interest @ 9% per annum calculated from the date of such entitlement till realization by an Account Payee cheques through this Forum within one month from the date of this order.

 

            That the OPs shall also pay compensation of Rs. 6,000/- to said Smt. Putul Mohanta by a separate account payee cheque within one month from this order. Out of the compensation amount, the recipient shall deposit Rs.1,000/- in the  “State Consumer Welfare Fund” (A/c No. 0093000100310261) payable at P.N.B. Balurghat Branch within 7 (seven) days of receipt of the cheque for compensation and produce proof of deposition to his Forum within next seven days.

 

            Let plain copies of this order be furnished to the parties forthwith free of cost.