O R D E R<br /> Sri. Santhosh Kesavanath P., President:<br /> Case of the petitioner's is as follows:<br /> Petitioner is the nominee of a Medi-claim Insurance Policy, namely Jeevan Reksha Insurance Policy, taken by her husband. The petitioner states that policy was taken on 25..6..2001 from the National Insurance Company Ltd, City Branch, M.G Road, Thrissur and is valid from 25..6..2001 to 24..6..2006 with valid policy No. 570704/47/2001/9600499. According to the petitioner in the event of death caused to the insured, arising out of solely and directly by external violent and visible means.. the opposite party is legally liable to pay a compensation fixed as Rs. 1,00,000/-. The petitioner states that the insured, husband of the petitioner, was employed as a sales man in toddy shop No. 11 situated at Malam in Pampady Range. On 6..10..2002 at about 2 PM while the deceased was going to his house for lunch in his scooter at a moderate speed abiding the traffic rules was hit by a car bearing No. KL-5/L 4332, driven by one K.A Mathews. Due to the accident insured sustained fatal head injury and was later died. <br /> <br /> -2-<br /> The Manarcadu police registered a crime against the driver of the car, Sri. K.A Mathews. The petitioner reported the death of her husband to the opposite party but the opposite party repudiated the claim of the petitioner on the ground that insured consumed alcohol at the time of accident. Petitioner states that repudiation of claim of the petitioner on flimsy ground is a clear deficiency in service so, he prays for a direction to the opposite party to pay an amount of Rs. 1,00,000/- to the petitioner along with Rs. 10,000/- as compensation and Rs. 2,000/- as the cost of the proceedings.<br /> Opposite party filed version contenting that petition is not maintainable. According to the opposite party repudiation of the claim of the petitioner is on valid and reasonable grounds. The opposite party contented that the policy has not covered for compensation amounting Rs. 1,00,000/- . The opposite party contented that the liability of the company is as per the terms and conditions of the policy. The opposite party contented that accident was caused due to the negligent driving of the deceased Baiju. The wound certificate reveals that at the time of the accident the deceased was under the influence of alcohol. As per the 5th exception of the policy condition the insurance company is not liabile to pay compensation in respect of death of the insured person whilst under the influence of intoxication liquor or drugs. So according to opposite party repudiation of the claim is proper and there is no deficiency in service on their part and they pray for dismissal of the petition with their costs.<br /> Points for determinations are:<br /> i) Whether there is deficiency in service on the part of the opposite party?<br /> ii) Reliefs and costs?<br /> <br /> -3-<br /> Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A12 documents on the side of the petitioner and Ext. B1 and B2 documents on the side of the opposite party.<br /> Point No. 1<br /> The petitioner produced repudiation letter dtd: 29..7..2003 issued by the opposite party to the petitioner and said document is marked as Ext. A5. In Ext. A5 reason for<br /> repudiation is stated that since the accident has occurred whilst insured person has consumed alcohol, the opposite party is unable to entertained the claim. The opposite party produced the copy of insurance policy certificate and said document is marked as Ext. B1. In Ext. B1, 5th exception is that no compensation in resprect of death injury or disablement will be given to the insured whilst death was under the influence of intoxication. The counsel for the petitioner argued that, the petitioner, being an employee of toddy shop, it is quite natural to smell him alcohol and the petitioner was not in the habit of consuming alcohol. The petitioner produced a copy of wound certificate issued by the doctor, who examined the deceased Baiju, and said document is marked as Ext. A2 . In Ext. A2 the doctor stated that the petitioner is having smell of alcohol. The counsel for the petitioner also relied on a decision reported in AIR 1975 Guahati page No. 3 M/s. Assam Corporation and another Vs. Binu Rani. In the said dicitum it is stated even if driver of a vehicle involved in the accident took liquor that would not disentitle the insured the benefit of the policy unless the driver was under the influence of liquor because a person may take a peg or two and yet he may not be under its influence. Counsel for the opposite party vehumently argued kepting reliance on a decision reported<br /> <br /> -4-<br /> in 2005 CPJ 247 rendered by Tamil Nadu State Consumer Disputes Redressal Commission, Chennai in new India Assurance Company on the Vs. Maria Claude Borth Wisk and another. In the said case it was stated that exclusion clause will be applied if the insured driving vehicle after consuming liquor, met with accident. But in that case the consumption of liquor was proved by the statement of a pillion rider. So the fact circumstances and evidence of the said case is entirely different from this case. The petitioner produced the scene mahazar and is marked as Ext. A9. From the scene mahazer we find no negligence on the part of the deceased Baiju. Further more the police has registered a crime as crime No. 262/02 of Manarcadu Police Station against the driver of the car bearing Bo. KL 5-L/ 4332. So we cannot attribute that death was due to the consumption of alchahol and opposite party has not produced any evidence to prove that insured was under the influence of liquor. The simple statement in Ext. A2 about the smell of alcohol will not show any sign of drunkness or influence of intoxication by liquor. So, we are of the opinion that the repudiation of the claim on the ground that the insured was smelled alcohol is a clear deficiency in service on the part of the opposite party. So, point No. 1 is found accordingly.<br /> Point No. 2<br /> In view of finding in point No. 1, petition is to be allowed and petitioner is entitled for the reliefs sought for. In the result the opposite party is ordered to pay insured the amount covered by the policy ie. Rs. 1,00,000/- along with 6% interest from the date of repudiation till realisation and the opposite party is also ordered to pay Rs. 2000/- as cost of the proceedings. Since interest is allowed no compensation is ordered.<br /> <br /> -5-<br /> Order shall be complied with within 30 days of receipt of this order.<br /> Dictated by me transcribed by the Confidential Assistant, corrected by me and pronounced in the Open Forum on this the29th day of September, 2008.