SRI.R. VIJAYAKUMAR, MEMBER.
This is a complaint filed Under Section 12 of the Consumer Protection Act.
The case of the complainant is that the opp.parties denied the claim of accident benefit to the complainant and they have paid the amount under the heads of main policy only.
The case of the opp.parties is that the claim for accident benefit cannot be considered fully as the accident is caused while he was under the influence of intoxicating liquor. As per policy conditions 11 [b] [1] the legal heirs of the life assured is not at all entitled to get full coverage of the policy. The complainant filed affidavit and she was examined as PW.1 . Exts.P1 to P3 marked.
From the side of opp.parties DW.1 was examined. Exts. D1 to D6 marked.
The points that would arise for consideration are:
1.Whether the complainant is entitled to get full coverage of the Policy?
2. Whether there is any deficiency in service?
3. Compensation and cost?
POINTS 1 TO 3
For the sake of convenience, the points can be considered together.
The case of the complainant is that her husband had taken LIC Jeevan Saral Policy vide policy No.782898224 from the opp.parties . It was a double accident policy Death benefit sum assured under the main plan is
Rs. 3,00,000/- accident benefit sum Assured is Rs.3,00,000/- and the maturity sum assured is 1,26,372/- The total benefit of the policy is Rs.7,26,372/- Premium of the said policy were remitted regularly without any default.
The complainant’s husband who was the holder of the policy died on 1..7..2007 in an accident occurred at his home while he went upstair of the home slipped from stares fell down to the floor and was seriously injured .
After the death of her husband, complainant, the nominee and legal heir of the policy holder submitted a claim surrendering the original policy. The 2nd opp.party paid only basic amount of Rs.3,00,000/- and made other payment of Rs.43,200/. Out of the amount the 2nd opp.party deducted Rs.3675/- as unpaid premium. On 23..1..2008 total amount of Rs.3,39,525/- has been paid to the complainant as per cheque. The claim amount under the heads of Accident Benefit was not paid to the complainant. Even though the complainant repeatedly demanded, the opp.parties did not turn to settle the claim. Hence the complainant filed the complaint for getting the Accident Benefit and compensation for deficiency in service.
The opp.parties case is that each and every benefit of the said policy which was issued by the opp.parties is independent in nature. The death coverage amount is Rs.3,00,000/- and maturity Benefit Rs.1,26,372/- only is payable to the complainant. The death of the Life Assured was caused due to the over consumption of Alcohol. It does not come under accident and as per policy conditions 11 [b] [1] . It can be considered only as a negligence from the part of policy holder. The complainant is not entitled to get any more benefits. There is no deficiency in service from the part of opp.parties. Hence the complaint is to be dismissed.
Admittedly the complainant’s husband had taken Jeevan Saral policy of LIC vide Policy No.782898224 and it was a double accident policy. It is also admitted that main policy amount and maturity amount has been paid by the opp.parties.
The main point of contention in this case is whether the complainant is entitled to get any further benefits from the opp.parties and whether the opp.parties are liable to pay any more benefits to the complainant.
The learned counsel for opp.parties argued that the complaint is not at all entitled to get any further benefits from the opp.parties as per the policy condition 11 [b] [1] . The death happened due to the over consumption of Alcohol. Ext. D2 series and D3 exposes the fact. It is clearly mentioned in Ext. D2 FIS also. It is specifically reported in chemical analysis report, Ext. D3 series that “Ethyl Alcohol in Blood . Blood contention $63.25 Mg/100ML.
The learned counsel for the opp.parties argued that in the text book of Dr. K.S. Narayan Reddy [MD, D.C.P., Ph.D, F.A.M.S., F.I.M.S.A, F.I.A.M.S]. ‘The Essentials of Forensic Medicine & Toxicology’, 21st Edition 2002 it is specifically stated that the presence of Ethyl alcohol more than 50 Mg/100 ML of blood is sufficient to intoxicate a person and such a person can be considered as a person under the influence of intoxicating liquor. The deceased consumed over dose of alcohol and that led to the accidental fall from the terrace and subsequent death.
The learned counsel for the complainant argued that the death caused due to an accident . In cross examination DW.1 also admitted this fact. As per Ext. D3 also cause of death was due to chalking and head injury. Medical records also does not indicates any sign of influence of Alcohol. DW.1 is not an expert to say that the death was occurred under the influence of Alcohol. The opp.parties had not conducted any enquiry or have not taken any statement from anybody or visited the spot . The statements recorded in Ext. D2 were only hearsay. Even if the deceased had consumed Alcohol the opp.party cannot deny the policy amount.
On a careful verification of Ext. D1 it is seen in clause 11[b] [1] that the corporation will not be liable to pay the additional sum assured referred in [a] or [b] above if the disability or death of the life assured shall be caused by intentional self injury, attempted suicide, insanity or immorality or whilst the life assured is under the influence of intoxicating liquor, drug or narcotic etc.
On the basis of the above said clause of policy condition the opp.party had denied the further claim of the complainant alleging influence of intoxicating liquor
It is an admitted fact that the assured Wilson died on 31..10..2007 at 10.30 P.M. due to accident. The only eye witness of the incident, his wife, the complainant has stated in her affidavit that the accident was occurred as he had slipped from the step of staircase while he was going to the up stair and was seriously injured. While in cross examination she had admitted that he had fallen down from the terrace while he was vomiting.
Ext. D3 is the copy of the Postmortem report prepared by Dr.K. Sasikala, Associate Professor and Deputy Police Surgeon, Department of Forensic Medicine, Medical College, Thiruvananthapuram who conducted postmortem examination in the dead body of Wilson. P3 report shows that the life assured Wilson died due to the injuries sustained to him in the accident. Ext.D2 also reveals that the Life Assured died due to the accident falling down from the terrace.
It is stated in the last part of Ext. D3 Postmortem Report that “Stomach was full and contained meat and other identifiable food particles having no unusual smell, mucosa congested, sub mucosal bleeding present. Smell of Alcohol present while opening the body. Urinary bladder was empty. It is mucosa was normal. All other internal organs was congested otherwise normal.
Sample of blood prescribed and sent for chemical analyses.
Ext. D3 series is the copy of additional report prepared and issued by Dr.K. Sasikala, Much relied upon this report, the opp.party came to the conclusion that the Life Assured was under intoxication. In Ext. D3 chemical analysis report, it is stated that the report on blood preserved for chemical analysis received on April, 2008 Chemical analysis revealed Ethyl alcohol in blood. Blood contained 63.25 mg/100ML
The very pertinent aspect to be determined is as to whether the aforesaid quantity of Ethyl Alcohol present in the blood sample of the assured is sufficient to hold that the deceased was under the influence of intoxication at the time of the accident.
The learned counsel for the opp.party would argue that the presence of Ethyl Alcohol more than 50 mg/100ML of blood is sufficient to intoxicate a person and such person can be considered as a person under the influence of intoxicating liquor. The counsel had relied on the text book by Dr.K. S. Narayan Reddy [MD.DCP, PHD, FAMS, FIMSA, FIAMS] “The Essentials of Forensic Medicine and Toxicology”, 21st Edition in which it is specifically stated that the same.
It is further argued that in the present case even though the death occurred due to the fall from the terrace of the building , that fall or accident happened only due to the conscious negligence of the life assured and that does not come under the category of natural accident. The learned counsel also cited copy of the decision of CDRC in LIC of India V/s Snehalatha Baburaj in which the State Commission categorically specifies the importance of exclusion clause of the policy.
Regarding the above discussed aspects the learned counsel for the complainant relied on Medico-legal Manual which is an Authentic text book in this subject.. Drunkenness is described in chapter 40 of the Manual. Under Influence is very well defined in Sub heading “Medical Terminology” that under the influence means that due to drinking Alcohol, a person has lost [to any degree] some of the clearness of mind, self control that he normally processes. Loss of judgment and the capacity for self criticism occur long before the obvious symptoms of intoxication. All individuals with a blood alcohol level of 140 mg% are intoxicated to the point where 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
Thus we are of the considered view that 80 to 100 Mg% is essential for the stage of under influence of intoxication.
It is also very well explained about the mode of collection of blood sample as “spirit must not be used for clearing the skin and syringe must be free from any trace of alcohol. The skin is cleaned with a solution of 1:1000 mercuric chloride or washed with soap and water. Blood sample should be presented by the addition of 50 mg. of sodium chloride for 10 ml. followed by thorough shaking This prevents loss of Alcohol by glycolysis and bacterial action. Such samples will maintain their alcohol concentration for several weeks even at room temperature.
A screw capped glass bottle of “universal” size is suitable. Te container should be tightly clamped and sealed to prevent loss of alcohol by evaporation and labeled with name, date and time of taking specimens. If they are not transmitted at one to the laboratory, they should be refrigerated.
“Collection of Postmortem sample” in temperate climates, Post mortem blood Alcohol determination are completely valid for 36 hours after death. Several samples of blood should be collected from different points ie. the vein in the leg, the thigh or the arm. If the concentration of Alcohol the same in all these samples the exposure is extraneous because bacterial and chemical decomposition does not occur at exactly the same all over the body. Free blood in the pleural or pericardial cavities should not be used as false high results may be obtained due to gastric Alcohol diffusion after death.
It is not stated anything in Ext. D3 series regarding the mode of collection of blood sample and not specified that whether the sample was collected in the prescribed manner. The Doctor who conducted chemical analysis was not examined . The opp.party fails to prove that the Life assured was under the influence of intoxicating liquor at the time of the death caused by the accident. Hence the opp.parties have not justified in denying the further benefits of double accident policy on the basis of exclusion clause.
On the basis of the points discussed above, evaluating all the facts and circumstances and all the evidence before us we are of the view that there is deficiency in service from the part of opp.parties. The points found accordingly.
In the result, the complaint is allowed in part. The opp.parties are directed to pay the complainant the balance amount of Rs.3,00,000/- along with interest at the rate of 6% per annum from 30..1..2008 till the date of payment. The opp.parties are further directed to pay cost of proceedings Rs.1500/-
The order is to be complied with within one month of the date of receipt of the order.
Dated this the 31st day of May, 2012.
.
I N D E X
List of witnesses for the complainant
PW.1. – Biji Wilson
List of documents for the complainant
P1. – Copy of Policy
P2. – Copy of letter to the complainant
P3. – Death claim letter
List of witnesses for the opp.party
DW.1. – Chandrasekharan
List of documents for the opp.party
D1. – Policy with conditions
D2. – FIR and connected documents
D3. – Postmortem report cum chemical analysis report
D4. – Death claim calculation note
D5. – Claim settlement records
D6. –Intimation letter.
