IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
ALAPPUZHA
Wednesday the 08th day of September, 2021
Filed on 20.03.2018
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. Sholy.P.R.BA, LLB(Member)
In
CC/No.83/2018
Between
Complainant:- Opposite parties:-
1. Smt. Swapna.S 1. Kerala State Insurance
W/o Late Sudheer.M Department,
Valia Velikkakathu Represented by Director
Pollethai.P.O, Trans Towees, Vazhuthakkad,
Kalavoor, Alappuzha Thaikkadu.P.O
Thiruvananthapuram -14
2. Theertha Sudheer 2. The Manager
D/o Late Sudheer District Insurance Officer
=do= Alappuzha
3. Sabarai Nath
S/o Late Sudheer
=do=
4. Thankama
W/o Manoharan
=do=
5. Manoharan
=do= .
(Adv. Sri.K.George)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act,1986
1. Material averments briefly discussed are as follows:-
The 1st complainant is the wife of late Sudheer, 2nd and 3rd complainants are his minor children, 4th and 5th complainants are the mother and father. Sudheer met with a motor accident at pathirapally Jn. Alappuzha and died on 25/12/2016. Sudheer was an employee of the District Court , Alappuzha working as process server and holding Group Personal Accident Insurance Scheme of Government Employees and Teachers, which was implemented through Kerala State Insurance Department. Crime No.1172/16 was registered by Traffic police station, Alappuzha for the incident and it was filed before the Hon’ble Judicial First Class Magistrate Court 1, Alappuzha. The deceased was healthy and energetic. The accident occurred due to the rash and negligent driving of the Driver of the offending vehicle the lorry who was not identified by the police department. Post mortem was conducted by the Medical Officer Government T.D.Medical College, Alappuzha and the report shows that the cause of death was due to the multiple injury sustained to the head and abdomen.
2. The complainants lodged an application before the opposite party for getting the benefits of Group Personal Accident Scheme with all relevant records. But it was rejected by the opposite party on 20/10/2017 and the complainants filed claim before the authority on 24/3/2017 but it was also rejected. Rejecting the applicants valid claim is illegal, arbitrary and deficiency in service. Even after repeated request of the complainants, opposite parties have not paid any amount. The complainants are entitled to get Rs.10,00,000/- as Group Insurance Accident Claim with interest at the rate of 12% per annum and Rs.50,000/- as damages sustained to the complainants for their mental pain, agony and loss of valuable time. Hence the complaint.
2. Opposite parties filed a joint version mainly contenting as follows:-
1. The complaint is not maintainable either in law or on facts. In the police report, it is evident from the statement of witnesses that the motor cycle driven by the deceased was skid and he fell down on the road resulting in severe injuries. There is no reference of rash and negligent driving of any lorry driver. The cause of death in the postmortem certificate is due to the multiple injuries sustained to head and abdomen. In the chemical analysis report of the blood sample, Ethyl Alcohol was detected as 310 mg per 100ml of blood, which reveals that the deceased was riding his vehicle under the influence of alcohol and it was the proximate cause of death. The alcohol content in the blood of the deceased was to the extent of 10 times the permissible limit prescribed under Indian Law, which is only 30%. Further it is submitted that driving by a drunken person is punishable under Section 185 of Motor Vehicles Act. Hence, this is a clear case of breach of law and the claim by the petitioner is liable to be dismissed as per GO (P) 616/10/Fin dated 23/11/2010 and GO(P) 606/12/Fin dated. 3/11/2012.
2. As per Para.6 of GO(P)616/2010/Fin dated 23/11/2020 no compensation shall be paid for death or disablement due to accident while under the intoxicating liquor or drugs. Also as per Para.7 GO(P) No.606/2012/Fin dated 3/11/2012 ‘ Death under influence of liquor will not be treated as accident even if it is happened due to ‘motor accident’, Electrical Shock, Drowning what so ever. In such cases the viscera-brain, lungs samples test, respiratory test by chemical examination will be produced when claims submitted in such doubtful cases. In such cases insurance claim will not sustain only because he had subscribed to GPAIS. In this case from the chemical examination report it is very well clear that the deceased was under the influence of alcohol at the time of death. Therefore the complainants are not entitled to the claim as per the provisions of the existing Government orders.
3. The claim was reported to the opposite parties on 20/2/2017 along with claim documents except chemical analysis report. After
repeated requests the chemical analysis report was received to this opposite party on 25/9/2017. After persuing the claim documents in accordance with the provisions of the GOs referred above, these opposite parties took the decision and rejected the claim on 20/10/2017. There is no delay or deficiency in service from the part of opposite parties. There is no time delay in processing the applicants claim as averred. The complainants are not entitled for any relief sought for and hence the complaint may be dismissed.
3. On the above pleadings following points were raised for consideration:-
1. Whether there is deficiency of service from the part of opposite parties?
2. Whether the complainants are entitled to receive an amount of
Rs. 10,00,000/- along with interest as prayed for?
3. Whether the complainants are entitled to realize an amount of Rs.50,000/- for mental agony and pain as prayed for?
4. Whether the rejection of claim by the opposite parties in view of the Government Orders is sustainable?
5. Reliefs and costs.
Evidence in this case consists of the oral evidence of PW1 and PW2, Ext.A1 to A12 from the side of the complainant. Opposite parties have not adduced any oral evidence. Ext.B1 was marked during the cross examination of PW1.
4. Point No.1 to 4:-
1. PW1 is the 1st complainant. She filed an affidavit in tune with the complaint and marked Ext.A1 to A12. During cross examination Ext.B1 was marked.
2. PW2 was working as Sub Inspector of Police at Alappuzha Traffic Police Station during 2016. He registered the crime No.1172/16 and identified Ext.A1 FIR. It was a road traffic accident. On 14/6/2017 he filed Ext.A5 Final Report. The accident occurred on 25/12/2016 at 8.30.PM. On his enquiry it was not revealed that sudheer had consumed alcohol.
3. Complainants 1 to 4 are the legal heirs of late sudheer who had an untimely death at the age of 43 yrs. Late Sudheer was working as a Process Server at The District Court, Alappuzha and on 25/12/2016 while he was riding his motor cycle along N.H-47 from North to south and reached Palm Fibre at Pathirapally Junction an accident occurred and Sudheer succumbed to his injuries. Since Sudheer was a government employee he was insured in Group Personal Accident Insurance Scheme(GPAIS). As per the policy conditions the legal heirs are entitled for Rs. 10,00,000/- on the accidental death of the insured. Accordingly they filed application
claiming the amount before the opposite parties. However as per Ext.A12 dated.20/10/2017 opposite parties repudiated the claim on a contention that at the time of accident he had consumed alcohol. Aggrieved by the act of the opposite parties his legal heirs filed the complaint alleging deficiency of service from the part of opposite parties. Opposite parties filed a version mainly contenting that as per the chemical analysis report ‘Ethyl Alcohol was detected as 310 ml per 100ml of blood’. Admittedly the accident occurred while late Sudheer was riding a motor bike. Riding motor bike by a drunken person is punishable under section 185 of Motor Vehicles Act. Further as per GO(P) No. 616/10/Fin. Dated. 23/11/2010 and as per GO(P) No. 606/2012/Fin. Dated3/11/2012 the claim is liable to be dismissed. Hence according to them there was no deficiency of service an so the complaint is only to be dismissed. 1st complainant who is none other than the wife of late sudheer was examined as PW1 and Ext.A1 to A12 were marked. During cross examination Ext.B1 copy of Certificate of Chemical Analysis was marked. Opposite parties have not adduced any oral evidence. The fact that late sudheer was insured under the GPAIS scheme is not in dispute. It is also an admitted case that late sudheer died in a road traffic accident on 25/12/2016. As per the terms and conditions of GPAIS the legal heirs are entitled for an amount of Rs.10,00,000/-.
The claim was repudiated as per Ext.A12 on a contention that at the time of accident sudheer had consumed alcohol. So the only question to be looked into is whether at the time of accident sudheer had consumed alcohol and if so opposite parties are entitled to repudiate the claim on that ground.
4. Ext.A1 is the FIR prepared by PW2 the then Sub Inspector with respect to the accident and Ext.A5 is the Final Report prepared by the same officer. In Ext.A1 it is stated that the accident occurred by the rash and negligent driving of the driver of the lorry which was the offending vehicle. However after investigation Ext.A5 Final Report was filed in which it is stated that the late Sudheer lost the control of the vehicle fell on the road and sustained injuries on his head and body. This attains significance since opposite parties have got a case that sudheer was unable to ride the motor cycle since he was under the influence of alcohol at the time of accident.
5. Ext.A6 is the Post Mortem Certificate dated.26/12/2016 issued by the Medical Officer, Department of Forensic Medicine, Govt T.D.Medical College,Alappuzha. after conducting post-mortem on the body of Sudheer. At the column other findings it is written as “ Body cavity emitting an alcohol like smell”. Ext.B1 is the Certificate of Chemical Analysis issued by the Asst. Chemical Examiner of Government of Kerala. It was marked through the cross examination of PW1. The learned counsel appearing for the complainant opposed marking of the same on a contention that witness was not examined. However chemical analysis report is admissible as evidence u/s 293 of Code of Criminal Procedure, 1973 and so the non examination of the witness who prepared the certificate is not a ground to reject the document. Blood of deceased Sudheer was preserved and sent for chemical analysis. From Ext.B1 report it is seen that 5 tests for ethyl alcohol and all the 5 tests were positive. Ethyl alcohol was detected in the blood sample. The sample contained 310 ml of ethyl alcohol per 100ml of blood. So from Ext.A6 post mortem certificate and Ext.B1 chemical examination report it is pellucid that at the time of accident Sudheer had consumed alcohol. The learned counsel appearing for the complainant relied upon the ruling of the Kerala State Consumer Dispute Redressal Commission in appeal No. 666 /13 dated 27/4/2015, ruling of the Hon’ble National Consumer Dispute Redressal Commission reported in 2014 SCC Online NCDRC 948 and the ruling of the National Consumer Dispute Redressal Commission in LIC of India and Another Vs. Smt. Ranjith Kaur (2008 CPJ 61 NC) and pointed
out that there are various factors to decide whether a person was intoxicated at the time of accident. Even the delay in transferring the body to refrigeration will amount to increase of the alcoholic content due to bacteria. It was also pointed out that Ext.B1 certificate of Chemical Analysis it is not known as to went the analysis was done. It was argued that the delay in analysis will increase the percentage of alcohol in the body due to bacteria. However it is to be noted that whenever blood is taken for analysis necessary preservatives will be added.
6. Per contra the learned Additional Government Pleader pointed out that as per GO(P) No.606/2012/Fin. Dated 3/11/2012 “ If a death is caused under the influence of alcohol claim can be rejected. Para .6 of the GO reads as follows:-
“ Death under influence of liquor will not be treated as accident even if it is happened due to ‘motor accident’, ‘electric shock,’ ‘drowning’ what so ever the case, viscera-brain, lungs samples test, respiratory test by chemical examination will be produced when claims submitted in such doubtful cases and occasion and in such cases insurance claim will not sustain only because he has subscribed to GPAIS”
From the evidence on record as discussed above it is crystal clear that at the time of accident deceased Sudheer had consumed alcohol and the accident occurred under the influence of liquor. From Ext.B1 chemical examination report it is seen that the sample contained 310ml of ethyl alcohol per 100 ml. No more evidence is required to show that he had consumed alcohol which may influence. This is to be read along with Ext.A5 final report which shows that it is an accidental death and it was not a case of Collusion with another vehicle.
7. The learned Additional Government Pleader also pointed out that when a claim is rejected claimants have a remedy to file an appeal before the Principal Secretary, Finance Department, Government of Kerala within 60 days. Without availing such a remedy the complaint was filed alleging deficiency of service. GO(P) No.616/10/Fin. Dated 23/11/2010 reads as follows:-
Procedure in case of rejection of claim
(a) if the member who suffers the accidental disablement of his/her nominees or dependents in case of accidental death are of opinion that the compensation claim rejected by the Kerala State Insurance Department is not in accordance with the terms and conditions of issuing the policy, he/she or they may make a complaint to the Principal Secretary, Finance Department, Government of Kerala within sixty days of the rejection of the compensation claim by the Department.
Here in this case the claim was rejected as per Ext.A12 dated 20/10/2017. Without filing an appeal as prescribed in the GO(P) No. 616 /10/Fin the complaint was filed before this Commission on 20/3/2018. As rightly pointed out by the learned Additional Government Pleader without availing an effective and efficacious remedy provided in the government order the complaint is filed. It is also noticed that though the
complainants produced Ext.A1 to A11 documents with respect to the accident including scene mahazor they omitted
to produce the chemical examination report since it was against them. The law in this regard is well settled by various judicial pronouncements. It was held by the Hon’ble Supreme Court in 2013 KHC 4040 (Export Credit Guarantee Corporation of India Ltd. Vs. M/s Garg Sons International)
“ Thus it is not permissible for the court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance. No exceptions can be made on the ground of equity. The liberal attitude adopted by the court, by way of which it interferes in the terms of an insurance agreement, is not permitted. The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement”
It was held by the Hon’ble High Court in 2018 (5) KHC 861 ( National Insurance Co. Ltd Vs. Sudhakaran and Others)
“ Insurance Law – Contract of Insurance – Interpretation of – Held, normal rule is that the conditions specified in a policy, which is contract of Insurance statutory in nature, has to be strictly construed.”
Hence assessing the evidence as a whole and in the light of the above discussion it is crystal clear that complainants are not entitled for getting the insurance amount, since there was violation of policy condition and so these points are found against the complainants.
5. Point No.5:-
In the result, complaint is dismissed. Parties are directed to bear their respective cost.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 8th day of September, 2021.
Sd/- Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Swapna.S(Complainant)
PW2 - R.Vasudevan(Witness)
Ext.A1 - Copy of FIR
Ext.A2 - Copy of Scene Mahazar
Ext.A3 - Copy of vehicle mahazar
Ext.A4 - Copy of Inspection Report
Ext.A5 - Final Report
Ext.A6 - Post mortem Certificate
Ext.A7 - Inquest Report.
Ext.A8 - Heir appearance Certificate
Ext.A9 - Copy of Driving Licence
Ext.A10 - Copy of RC Book
Ext.A11 - Copy of Insurance certificate
Ext.A12 - Copy of Document
Evidence of the opposite parties:-
Ext.B1 - Certificate of Chemical Analysis(Sub to Obj)
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
