IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 30^thday of March, 2021

Present: Sri. Manulal V.S. President

Smt. Bindhu R, Member

C C No. 245/2017 (filed on 08-11-2017)

Petitioners                                          : 1) Asha S. Pillai,

W/o. late Mr. R. Sasikumar,

MoothezhathuVeedu,

Govindamuttom P.O.

Kayamkulam, Alappuzha,

Pin – 690527.

2) Gokul S. Pillai,

-do-

3) Gargi S. Pillai,

         D/o. late Mr. R. Sasikumar,.

-do-

(Adv. Akash K.R.)

Vs.

Opposite Parties                                 : 1) ICICI Lombard General Insurance

Company Ltd. ICICI Lombard

House, 414, Veer Savarkar Marg,

Near Siddhi Vinayak Temple,

Prabhadevi, Mumbai – 400025.

Rep. by its Managing Director,

2) ICICI Lombard General Insurance

Company Limited, Trade Center,

1 st Floor, Sasthri Road, Kottayam,

Kerala – 686001.

(Rep. by its Branch Manager.

(For op1 and 2, Adv. Agi Joseph)

O R D E R

Smt. Bindhu R, Member

The complaint filed under Section 12 of the Consumer Protection Act,1986.

Complainants are the legal heirs of late one Sasikumar, who met with anaccident and died on the way to hospital on 18-05-2015 while he was riding

KL-56J999 scooter. The said R. Sasikumar had taken a personal protect policy

with the 1^stopposite party insurance company through the 2^ndopposite party

with policy no.411/MPC/76959309/00/000 for a sum insured of Rs.20,00,000/-

starting from 05-01-2013 for a premium of Rs.10,371/-. He died in the during

policy period. A crime was registered by Kayamkulam police as crimeno.1623/15 under Section 279 and 304 A of the IPC. The accident was caused

solely due to the rash and negligent  driving by the driver of the offending car.

The police had given final charge against the driver of the offending car for causingdeath by negligence. The 1^stcomplainant here in submitted the policy claimwith No.GEN000158442 to the 1^st opposite party through the 2^ndopposite party.But the same was repudiated on 30-11-2015 on the ground that the chemicalanalysis report of the deceased showed that the blood sample collected duringthe post mortem dtd.19-05-2015 contained alcohol and as per the “Clause (ii) b) ‘payment of compensation in respect of death, disablement, (whether of apermanent nature or of a temporary nature), injury, disease, illness,hospitalization of injured person whilst under the influence of intoxicatingliquor or drugs” fall outside the purview of policy coverage and the claimsubmitted is inadmissible. This ground for repudiation is not sustainable

because the insured had died in a road accident in which the police had filed finalcharge against the driver of the offending vehicle for causing death bynegligence. Mentioning of trance of alcohol in the chemical analysis reportonly does not infer that the deceased had consumed alcohol or was under theinfluence of alcohol. The fundamental cause of accident is the negligence fromthe part of the driver of the offending vehicle and at the time of accident thedeceased Sasikumar was in a fit state of physical alertness and was neverunder the influence of alcohol. The act of the opposite party in repudiatinggenuine claim of the petitioners amounts to deficiency in service and unfairtrade practice which caused severe mental pain and injuries to the petitioner andhence this complaint is filed.

Upon notice, the opposite parties appeared and filed version through the

Manager, Legal.

According to the opposite parties, the liability of the insurance company is onlyas per the terms and conditions and exception of the policy. At the time ofaccident, the deceased was under the influence of alcohol and deceased haddriven the vehicle after consuming alcohol is itself is a violation of policyconditions. The deceased violated Motor Vehicles Act and clause 5 (2) (b) ofthe policy conditions also. The post mortem report and the chemical analysisreport shows that the deceased was under the influence of alcohol. Accordingto the policy conditions negligence of the vehicle is not material for honouring the insurance claim. There is no deficiency of service from the part of oppositeparty as the reason for repudiation is true and correct. Hence there is no cause ofaction for this complaint and the complainant is not entitled for any relief asprayed for.

In the evidence part, the complainant produced Exts.A1 to A7 and

deposed in the box as Pw1. The opposite parties produced Ext.B1 along with

proof affidavit.

On perusal of the complaint, version and evidence on record, we frame

the following issues.

1. Whether the complainants have established the deficiency of service

onthe part of the opposite parties?

2) Whether the complainants are entitled for the relief sought for?

Point No.1 and 2

1. The 1^stcomplainant’s husband and  the2^ndand 3^rdcomplainants’ father  met with an accident and succumbed to death which was alleged tohave caused because of the rash and negligent driving of the driver of another car.The insurance policy taken by the deceased was repudiated on the ground thathe was under the influence of alcohol at the time of the accident which isalleged to be the deficiency of service on the part of the opposite parties.
2. The allegation of the complainant is that the repudiation on the ground that the deceased was under the influence of alcohol is false as it is evident fromthe circumstances that the accident took place due to the negligence of thedriver of the vehicle no KL056J 999. The counsel for the complainants at thetime of argument stated that Kayamkulam police registered a crimeNo.1623/15 against the driver of the offending vehicle under Section 279 and304(A) IPC and this clarifies the situation.The complainant’s further averment is that offending vehicle was a statecar of a Minister to the State driven by a driver who also was a government staff.The police being part of the state machinery would normally be inclined toregister a case against the insured if he had driven in a rash and negligent manner.But here in this case as they were convincedof the fact that the accident resulting in the death of the deceased was causedonly because of the negligence of the driver of the other vehicle.
3. Moreover, the counsel put forward the argument that mere presence of

alcohol mentioned in the chemical analysis report is not sufficient. There is noevidence to substantiate the allegation that the insured deceased had ridden thevehicle under the influence of alcohol. An array of judgements were cited bythe counsel to support his arguments .

4. The counsel further argued that as the opposite parties do not cite clause 5 (2)(C) of the exclusion clause in the repudiation letter, it is not sustainable.Moreover, the insured was not provided with the policy condition. He was not aware of the terms and conditions of the policy  and hence theinsurer cannot rely on the exclusionary clause. In Bharat Watch Company Vs.National Insurance Co. ltd. [2019 ICO 1334] Supreme Court has held that “Absenceof insured being made aware of terms of exclusion – The policy documents wasnot handed over to the insured by the insurer, then it is not open to the insurer torely upon the exclusionary clause”.
5.  The opposite party raiseda contentionthat the deceased was under the influence of alcohol at the time of accident asthe chemical analysis report shows 87% mg alcohol in the body of the deceased.Further mere consumption of alcohol and driving itself is an offence under theMotor Vehicles Act and also under Indian Penal Code. So claim of death arisingout of such a criminal act cannot be approved and he also has cited severaljudgments.
6. The counsel for the opposite party argued that the deceased was under controlof alcohol and drunken driving itself is an offence under Indian Law and hencethe policy can only be rejected. He produced an extract from MedicalJurisprudence and Toxicology by Dr.K.S.Narayan Reddy in which it is stated as “Medical Terminology: Under the influence means that due to drinking alcohol,a person has lost ( to any degree) some of the clearness of the mind and self-control that he normally possesses. Loss of judgment and the capacity for self-criticism occur long before the obvious symptoms of intoxication. Allindividuals with a blood alcohol level of 140mg%are intoxicated to the pointwhere they cannot deal with unusual, emergency or non customary problems.

Below 10 MG :Sober

20 to 70 mg%:Drinking

80 to 100 mg% : Under the influence

150 to 300 mg% : Drunk

400mg% and above : coma and death.

7.                The opposite party counsel has produced extract from Forensic Medicine byP.V.Guhraj in which Blood alcohol concentration and intoxicationis :

The degree of intoxication depends on the blood alcohol concentration.  Mild euphoria is detectable at 30 mg/100 ml of blood and concentrations of 40-50 mg/100 ml might impair visual sharpness co-ordination and reflex activity even in expert drivers in the majority of drivers involved in fatal accidents, the blood level of alcohol was 150 mg/100 ml or more.  As the individual reaction to alcohol is so variable it is not safe to fix a blood level as low, the clinical picture should also be taken into account for forming an opinion. The fatal concentration lies between 500-800 mg/100 ml.

7. Here we see that the deceased was riding amotor bike and anywhere there is no case that he was riding the vehicle in anegligent manner under the intoxication. Only in Ext. B2, it is mentioned thatthe blood alcohol content of the blood collected from the dead body contained87% alcohol. We cannot overlook the fact that the accident took place due tothe rash and negligent driving of the offending vehicle as per the police records.Even if the quantity of the Blood Alcohol  Content is mentioned in Ext.A5,there is no evidence whether from which part of the body it is collected, andwhether it was collected and preserved under proper care and observingprotocol.  Moreover, Ext.A5 is not supported with any worksheets or theaccepted procedure for the analysis etc.  Further, the body parts like liver,kidney and intestine were not examined and reported.
8. On a thorough reading of the above studies, we understand that though

postmortem blood alcohol is found in chemical analysis, it cannot be made a scale of index as the effect of blood alcohol upto intoxication varies from person to person as the individual reaction to alcohol is so variable it is notsafe to fix a blood level as an index of intoxication. As discussed supra, thepercentage level of blood alcohol itself cannot determine whether the personwas under the influence of alcohol or not in the absence of other clinical andcircumstantial evidence.The 1^stopposite party has failed to prove a direct nexus with the drunkenness of the deceased and the accident. Moreover, regarding post mortem, it is anaccepted fact that the body parts and blood would contain alcohol if thedeceased had consumed alcohol before death. But this is not conclusive. Afterreferring to texts and literature on studies in the field of forensic science, weunderstand that most of them say that an alternate chance also is there.

9.    An array of judgements were cited by the counsel to support his arguments.In Life Insurance Corporation of India Vs. Renjith Kaur, 2011(3)CPR266 (NC)National Consumer disputes Redressal Commission held “Mere presence ofalcohol even above usually prescribed limits is not a conclusive proof ofintoxication. Further in the case there is no evidence that there was nexusbetween the death caused by drowning and consumption of alcohol”. Sheelaand OrsVs. United India Insurance Co. Ltd. National Consumer DisputesRedressal Commission held “mere presence of alcohol even above usuallyprescribed limits is not a conclusive proof of intoxication. There is nothingsuggestive of alcohol related death in post-mortem. In National Insurance Co.ltd. Vs.Vinod Kumar, National Consumer Disputes Redressal Commission heldit is not possible to hold that the respondent was in fact under the influence ofalcohol or was heavily drunk or that he was not in a fit condition to drivethe vehicle in question due to the influence of intoxicant. In National InsuranceCo. ltd. Vs. Nalini and Anr. The Kerala State Consumer DisputesRedressal Commission held Accidental death policy-Nothing on record to showthat at the time of accident of drowning the insured was under the influence ofalcohol or any intoxicating drug. Repudiation rightly held to be unjustified. InDevkumar V. Mahesh Thakur &Ors [2013KHC 5403] the Chattisgarh HighCourt held Although the evidence shows that motorcyclist was under theinfluence of alcohol but it does not permit a driver of another vehicle to hit himand take benefit of the fact that he was under intoxication. In Bajaj AllianzGeneral Insuance Co. Ltd.Vs.AchalaRudranwasMarde [2015 CPJ 146] theNational Consumer Disputes Commission has after discussing several SupremeCourt and National Commission decisions upheld the position as aforesaidPolice investigation report, Panchnama clearly said that, the insured was hit in the motor bike accident by the rash and negligent driving of oncoming motorcyclist from opposite side – Also, the criminal proceedings have been lodged  - No details pertaining to the blood sample from which site it was collected and which preservative was used – Even the FSL report lacks, certain details about alcohol concentration in liver or other organs – Gross PM findings are not supported by any histopathological evidence of Acute Alcohol injury to the liver – Thus, in this instant case the PM and FSL reports appear to be inconclusive – Therefore, relying upon the evidence on record of the complainant and several judgements of Supreme Court it is concluded that, the OP want to take benefit of such post-mortem report and the exclusion clause in the policy, which is unjustified – Revision petition dismissed”.
10.    As Hon’ble National Commission observed in United India Insurance Co.Vs. Sheela& others, the report did not specify about the exact methodologyemployed by the chemical examiner’s lab in arriving at the concentration of220mg% of ethyl alcohol in the blood.  It is essential to do so, the work sheetspertaining to the analysis have not produced.  Therefore, even if theconcentration is 220mg% it cannot, on its own, be implicated as the cause ofdeath.  Pure ethyl alcohol  ingestion is rarely associated with fatality, unlesssomething else has been taken along with it to aggravate its effects or toproduce added toxicity.” 
11.     Honourable NCDRCin Royal Sundaram General Insurance vsDavubhaiBabubhaiRavaliya in 2018 observed citing their own decision in LIC of Indiaand another Vs. Ranjit Kaur, where the quantity of alcohol in the blood wasfound to be 865.2mg/100ml of blood. Ruling in favour of the complainant,this Commission inter-alia observed as under:

“It has also come in evidence that this by itself is not adequate proof at that thedeceased was intoxicated at the time of his death. As rightly observed by thelearned Fora below, the specific clinical picture of alcohol intoxication alsodepends on the quantity and frequency of consumption and duration of drinkingat that level and, therefore mere presence of alcohol even above the usuallyprescribed limits is not a conclusive proof of intoxication. Apart from this,there is also no evidence that there was a nexus between the death caused byelectric shock and consumption of liquor” Hon’ble National Commission, as discussed in the above case, has in LakshmiRohitAhya Vs. SBI life Insurance Co. Ltd taken the same view as in its owndecision in Baby Apoorava Ravi Vs. New India Assurance Co. Ltd“ There is no direct evidence of the deceased being under influence ofintoxicating liquor at the time he got drowned in the swimming pool.  The onlyevidence relied upon by the insurance company to substantiate the plea that he wasunder the influence of intoxicating liquor at the time he died, is the report of thelaboratory reporting presence of 103.14mg of ethyl alcohol per 100ml of theblood of the deceased.

12.   Relying upon Modi’s Medical Jurisprudence and Toxicology, 24 th  Edition,the learned counsel for the complainants submitted that the presence of103.14mg/100ml of the blood does not lead to the conclusion that the deceasedwas under the influence of intoxicating liquor.  He relied upon the followingextract from the above-referred text book.  It is generally believed that a person with a concentration of 0.1 per centalcohol in the blood appears to be gay and vivacious, and those with a

concentration of 0.15 percent alcohol in the blood are regarded as fit to drive amotor vehicle. This concentration of alcohol in the blood is regarded is apresumptive limit of safety, and may result from the rapid consumption of 8ounces of whisky of 4 or 5 pints of beer.

          Alcohol acts differently on different individuals and also on the same

individual at different times.  The action depends mostly on the environmentand temperature of the individuals and upon the degree of dilution of thealcohol consumed.  The habitual drunkard usually shows fewer effects from thesame dose of alcohol.  Barbiturates, benzodiazepines, antihistamines,tranquillizers, chlorpromazine and insulin, potentiate the action of alcohol,while epileptics or persons who have suffered a head injury may show anincreased effect to a small quantity of alcohol.

13.   It would thus be seen that in the opinion of the Author, the percentage of

alcohol in the blood would be 0.2% in case, the quantity of alcohol per 100ml of blood is 200mg.  Thus, a person who has 200mg alcohol per 100ml.of his bloodcan be said to be moderately intoxicated, if we go by the above referredopinion, a person with a concentration of 0.15% alcohol in the blood isregarded to be fit to drive a motor vehicle.  0.15% of alcohol in the blood comesonly if he has 150mg of alcohol per 100 ml. of his blood”.Here in the case in hand, in Ext.A4, post-mortem report, the deceased has sustained following injuries on his head.

1. Abrasion 8x4 cm, oblique left side of forehead, its lower inner end 1 cm outer to midline, 2 cm above eyebrow with a contusion 7x5x1 cm beneath.
2. ************************

7. Abrasion 3x3 cm on back of head across the midline 4 cm above occiput with a contusion 6x5x1 cm beneath.  Thick subdural  haemorrhage left parieto occipital region.

In the opinion portion of Ext.A4, it is stated that “died due to injuries sustained to head and abdomen”. Here in the case in hand the percentage of alcohol is only 87% mg.

14. In the light of the above discussed detailed arguments and the judgementsof the apex courts, we would like to opine that mere presence of alcohol in thebody do not by itself is an evidence to prove that the deceased was under theinfluence of alcohol at the time of accident. First of all the percentage of intakeof alcohol causes different reactions in different person, the effect can differfrom person to person and the climatic conditions also can effect. As per Ext.A4, the deceased was of weight 80 kg and height 169 cm, and moderatelybuilt well, nourished. To a person of 80 kg, 87 mg% of alcohol does not create much effects.

15.   Here, there are no facts and circumstances established by the opposite partywhich support the argument that the deceased was under control of alcohol atthe time of death. In the FIR also there is no mention that the accident occurreddue to alcohol intoxication “If the Insurance Co. wants to take the benefit of the         exclusion clause, in order to make it a case of no claim in the guise of the saiddefence, enjoined on the opposite party to prove that such a clause was notifiedand duly communicated to the insured.  It is not the duty of the insured to callfor these terms and conditions”.(Ms. Modern Insulators Ltd Vs. The OrientalInsurance Co.Ltd 200(1) apex courtyard 3)

16. In A3, final reportit is mentioned that the death occurred due to accident. 

Nowhere in any of the documents before us, it is mentioned about some othercircumstances which lead to the death of the deceased.  So we are of the viewthat the Blood Alcohol Content of 87mg% cannot be believed as the solereason for the death of the insured. Keeping apart that he would have drunken,we, as a forum constituted under a social legislation, considering the family ofthe deceased would like to find the point no 1 and 2 in favour of thecomplainants.

17.     In the light of the above detailed discussion, the contentions of the oppositeparties are not sustainable. Clause 5.2.C of the exclusion clause is that the death or disablement should be arising or resulting from the insured committing any breach of law” Here from Exbt A3, the final report of the police, it can be inferred that the death of the insured is arising and resulting from the accident in crime no.1623/15 for breach of law committed by the driver of the offending car. Regarding the exclusion clause also as the Hon’bleSupreme Court in 2020(1) online KLT has expressed the view that theprovisions of the policy must be read and interpreted in such a manner so as togive effect to the reasonable expectations of all the parties includingthe insured and the beneficiaries.

18. S.2(d)-Consumer Protection Act, 1986- The definitions of consumer under the Act is veryvide and it includes beneficiaries who can take benefit of the insurance availedby the insured.  The only thing left is the survival of the family. The 1^stopposite party havingreceived premiums for several months, has a bounden duty to compensate thepain and sufferings of the family of the deceased.    

Thus the repudiation ofthe insurance claim of the policy of the deceased Sasikumar by the 1^stoppositeparty is found to be a deficiency in service.

Hence the complaint is allowed directing the opposite parties to pay the amountof the policy sum insured Rs. 20,00,000/- to the complainant within 30 days of this Order.

Pronounced in the Open Commission on this the 30^thday of March, 2021.

Smt. Bindhu R, Member                  Sd/-

Sri. Manulal V.S. President             Sd/-

Appendix

Witness

Pw1 : Asha S. Pillai

Exhibits marked from the side of complainant

A1 : copy of personal protect policy schedule

A2 : Copy of death certificate of R. Sasikumar

A3 : Copy of final report dtd.19-05-15 by Kayamkulam police before the

Hon’ble Judicial First Class Magistrate Court, Kayamkulam.

A4 : Copy of post-mortem certificate dtd.19-05-2015                                        

A5 : Copy of certificate of chemical analysis

A6 : Copy of letter dtd.26-08-2015 issued by opposite party to R.Sasikumar

A7 : Copy of letter dtd.30-11-2015

Exhibits marked from the side of opposite party

B1 : Copy of policy with terms and conditions

                                                                                                          By Order

                                                                             Senior Superintendent