IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday, the 29th day of October, 2009
Filed on 17.10.2008
Present
1. Sri. Jimmy Korah (President)
2. Sri. K.Anirudhan (Member)
3. Smt. N. Shajitha Beevi (Member)
in
CC/No. 236/2008
between
Complainant:- Opposite parties:-
1. Smt.Celin Varghese @ Laila 1. The Divisional Manager (Sr.)
Ellickal House, Pathirappally P.O. Divisional Office, LIC of
Alappuzha, Represented by her India, Jeevan Prakash
Power of Attorney Holder – P.B. No. 609, Nagampadom
the 2nd complainant Kottayam – 1
2. Sri. Thomas V.E. 2. The Branch Manager ( Sr.)
S/o E.A. Varghese LIC of India, Branch No.1
Ellickal House, Pathirappally P.O. Alappuzha
Alappuzha (By Adv. S.Devalal –
(By Adv. C. Muraleedharan) Opposite parties 1 and 2)
O R D E R
SRI. JIMMY KORAH (PRESIDENT)
The complainant’s case in a nutshell is as follows: - The 1st complainant is the wife of the deceased Mr.E.A.Varghese. The 2nd complainant is the son of the 1st complainant and the deceased. The deceased Mr. E.A.Varghese on 19th October 2006 met with a road accident and succumbed to the injuries thereof. At the material time of the deadly accident, the deceased was the holder of valid insurance policy issued by the opposite parties. As such the complainants were entitled to the sum assured Rs.80,000/(Rupees eighty thousand only) and the offered additional accident benefit sum. Strangely still, the opposite parties disbursed to the complainants only the sum assured Rs.80,000/- (Rupees eighty thousand only) depriving them of the additional benefit amount. The complainants approached the opposite party for the additional benefits of the policy. The opposite parties vide a belated letter dated 14th November 2007 repudiated the complainants' claim. The repudiation of the legitimate claim of the complainants is service deficiency on the part of the opposite parties. The complainant sustained material loss as well as mental agony. Got aggrieved on this, the complainant approached this Forum for compensation and relief.
2. On notice being served, the opposite parties appeared and filed version. The crux of the opposite parties' contention is that the addition accident benefit was denied to the complainant in view of S. 10(b) (i) of the conditions of the policy. The chemical analysis report of the deceased explicitly suggests that there was 8.5 ml of ethyl alcohol per one hundred milliliter of the deceased's blood. According to the opposite parties, thus the deceased was under intoxication at the material time of the accident. For the said valid reason of policy violation, the complainants were denied the additional accident benefit, the opposite parties contend. According to the opposite parties, the complaint is frivolous, and the same is to be dismissed with cost to the opposite parties.
3. The complainant’s evidence consists of the testimony of the "complainant himself as PW1, and the documents Exts. A 1 to A3 were marked. On the side of the opposite parties their manager was examined as RW1, and the documents Exts. Bl to B3 were marked.
4. Bearing in mind the contentions of the parties, the questions that crop up
before us for consideration are:-
(l) Whether the deceased was under the influence of intoxicating liquor that rendered the complainants ineligible for the additional accident benefits?
(2) Whether there is deficiency of service on the part of the opposite parties?
5. We cautiously perused the entire materials brought before us on record by the parties. It appears that the opposite parties haven't denied or disputed either the policy or the accidental death. What seems to be contended by the opposite parties is that at the material time of the accident, the deceased was under the influence of intoxicating liquor which by itself is an outright violation of one of the policy conditions. According to the opposite parties, the deceased under the influence of alcohol crossed the road carelessly to get hit by the offending vehicle. As such, there was violation of the policy conditions and the complainants are disentitled to the additional accident benefit. In the context of the opposite parties said contention, the sole question arises for consideration is whether the deceased was under the influence of intoxicating liquor at the time of the material accident. To put it differently, the fact to be ascertained is whether the death of the assured is the direct outcome of his declining of concentration followed by any consumption of intoxicating liquor.
6. True is that the Ext. B2 Chemical Analysis Finding Report suggests therein that there was presence of alcohol in the blood of the deceased. In the light of this, is it safe to arrive on a conclusion that the deceased was under the influence of alcohol at the material time? The mere presence of alcohol by itself in anyone cannot always be safely construed as he being under the influence of alcohol. The same by itself cannot ipso facto lead to the conclusion that the complainant was under the influence of alcohol. It is significant to note that in the Ext. B1 Chemical Analysis Finding Report there is no mention of the presence of alcohol in the viscera of the deceased which would have suggested that the deceased consumed liquor very close to the material accident. It is a matter of common knowledge that presence of alcohol can be there in one's blood even after days of liquor consumption. More over, the words 'presence and' influence' can never be equated. The expression 'presence' is not synonymous with 'influence' and vice-versa. When one is under the influence of alcohol, it will adversely affect his concentration and faculty leading to poor judgment. Going by the entire oral testimony and the documents placed on records, it is noteworthy that nothing is there to opine that the deceased was under the influence of alcohol at the material time. The opposite party has adduced no evidence to show that the deceased crossed the road carelessly and negligently. Even on a close scrutiny of the entire police records, nothing is there to suggest that the deceased crossed the road negligently under the influence of any intoxicating substance. A mere statement or suggestion is not enough to establish that the deceased was under the influence of alcohol. Barring a bare statement that the deceased was under the influence of alcohol, the opposite party did not move any further to prove its case. We regret we are unable to accept the 'contention advanced by the opposite parties. We have no hesitation to hold that the complainants are entitled to the additional accident benefit assured by the opposite parties.
In the result, the opposite parties are directed to pay to the complainants the assured additional accident benefit amount of Rs.80,000/- (Rupees eighty thousand only) with 12% interest per annum from the date of preferring the claim by the complainants. The opposite parties are further directed to pay an amount of Rs.7,000/-(Rupees seven thousand only) as compensation to the complainants. The said opposite parties shall comply with the order within 30 days of receipt of this order.
Pronounced in open Forum on this the 29th day of October, 2009.
Sd/- Sri. Jimmy Korah:
Sd/- Sri.K. Anirudhan:
Sd/- Smt.N.Shajitha Beevi:
Appendix:-
Evidence of the complainant:-
PW1 - Thomas V.E. (Witness)
Ext.A1 - Photo copy of the policy
Ext.A2 - Letter dated 14.11.2007
Ext.A3 - Power of Attorney (Photo copy)
Evidence of the opposite parties:-
RW1 - C. Kanakaraj (Witness)
Ext.B1 - Photo copy of the delegation document
Ext.B2 - Photo copy of the letter dated 17.5.2007
Ext.B3 - Photo copy of the claimant’s statement
Ext.B4 - Death claim paid policy copy
Ext.B5 - Photo copy of the post mortem certificate
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
