KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL NO.932/03

JUDGMENT DATED.12.03.08

PRESENT:-

JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT

SMT.VALSALA SARANGADHARAN : MEMBER

The Divisional Manager,

United India Insurance Co. Ltd.,

Divisional Office No.II, 2^nd Floor,                   : APPELLANT

Malankara Buildings, Palayam,

P.B.No.5521, Thiruvananthapuram.

(By Adv.Sri.M.Nizamudeen & Others)

Vs

1.Krishnan Nair, residing at

Pottayil Veedu, Upaniyoor Desom,               : RESPONDENTS

Kalliyoor Village, Thiruvananthapuram.

2.Saraswathy Amma, W/o.Krishnan Nair,

residing at Pottayil Veedu, Upaniyoor Desom,

Kalliyoor Village.

(By Adv.Sri.V.Gopalakrishnan Nair)

3.The Divisional Manager, New India Insurance

Co. Ltd., Divisional Office No.II, II Floor,

Malankara Building, Palayam, Thiruvananthapuram.

(By Adv.Sri.Sreevaraham.G.Satheesh)

4.The Secretary, Kalliyoor Grama Panchayat,

Office of the Kalliyoor Grama Panchayat,

Kalliyoor PO, Thiruvananthapuram.

JUDGMENT

JUSTICE SHRI.K.R.UDAYABHANU: PRESIDENT

The appellant is the third opposite party/Insurance company in OP.78/01 in the file of CDRF, Thiruvananthapuram. The appellants are under orders to pay a sum of Rs.50,000/- the insured amount plus Rs.25,000/- as compensation and Rs.1,000/- as cost to the complainants who are the legal heirs of the deceased Manoj aged, 24.

2. It is the case of the complainants that their son Manoj died on 6.2.2000 in an accident on account of sinking of the country boat in which he and another person was engaged in collecting lotus flowers. It is mentioned that both of them died. The incident took place at about 3 pm in the back waters. The residents of the locality of Kalliyoor Panchayath were insured by the appellant under the scheme of Janatha Personal Accident Insurance Policy. The accident took within the period of policy coverage.

3. The opposite parties/appellant repudiated the claim contending that the chemical analysis report of the blood of the deceased showed the presence of ethyl alcohol. According to the appellant the same is sufficient to repudiate the policy and that the policy conditions enabled them to do so.

4. Only proof affidavits were filed and Exts.P1 to P9; Exts.D1 and D2 were marked. The Forum just discarded the contention of the appellant/third opposite party observing that the presence alcohol in the blood sample is not the cause of death. Evidently the Forum has not considered the matter properly.

5. The appellant has stressed the fact that as for Ext.D1 certificate of chemical analysis of the blood of the deceased it is mentioned that it contained Ethyl alcohol 40.25mg/100 ml. Ext.P2/D2 is a copy of the Janatha Personal Accident Insurance Policy. Part of Ext.D2 policy mentions CONDITIONS under the caption PROVISIONS that the company shall not be liable under the policy with respect to death of the insured person . . . whilst under the influence of intoxicating liquor or drug . . . The counsel for the appellant has contended that the content of ethyl alcohol in the blood sample would show that the above condition in the policy has been violated.

6. The counsel for the respondents/complainants have relied on the observations at Page 436, EXPERT EVIDENCE by FIELDS (3^rd Edition) wherein the accepted figures in deciding sobriety or intoxication are mentioned. As per the data provided therein blood alcohol of 60 mg per 100 cc would not make a man not sober. Only if the quantum of blood alcohol is 120 and 180 mg per 100 cc 50% of the subjects may be showing the symptoms of intoxication. It is only if the quantum is 180 mg per 100 cc intoxication would be resulted and that too probably. He has also relied on H.W.V COX Medical Jerisprudance and Toxicology page 689 (6^th Edition) wherein it is mentioned that up to 50 mg alcohol in 100 ml a person will be fit to drive. In the instance case alcohol contained in the blood as per Ext.D1 is 40.25mg/100ml. Hence it can not be held that the person was under the influence of alcohol. As per the policy condition the insurer is entitled to repudiate the policy only if the person was under the influence of intoxicating liquor. Consuming liquor and under the influence liquor are different. It has also to be noted that the other conditions mentioned are also such that would make a person exposed to severe risk ie; racing on wheels, hunting, big game shooting, mountaineering, engaging in winter sports, skiing and ice hockey. It appears the situation envisaged is not just drinking alcohol but under the influence of alcohol ie; the person was not having control of himself. However no other evidence in the matter has been adduced by the appellant. It is seen from the records produced that two persons died in the accident of sinking of the country boat. There is no evidence to show that other person was also drunk or under the influences of alcohol. In the circumstances and in the light of the evidence available we find that it is not be no proper for the appellant to repudiate the policy as such. We find that the contention of the appellant in this regard is devoid of merit.

The Forum has ordered the appellant also to pay compensation of Rs.25,000/- apart from the insurance amount of Rs.50,000/-. We find that the compensation of Rs.25,000/- ordered in addition to the insurance benefit is not warranted in the circumstances. Hence the order of the Forum is modified to the effect that the appellant would be liable to pay a sum of Rs.50,000/- to the complainants with 9% interest from the date of complaint till realization and also cost as ordered by the Forum. The amount shall be paid within two months of receipt of this judgment failing which the amount will carry 15% interest from the date of the complaint.

JUSTICE K.R.UDAYABHANU: PRESIDENT

VALSALA SARANGADHARAN: MEMBER

R.AV