Appeared at the time of arguments

Pronounced: 14^th September 2022

ORDER

PER HON’BLE DR. S. M. KANTIKAR, PRESIDING MEMBER

1.      This revision petition has been filed under Section 21(b) of The Consumer Protection Act, 1986 in challenge to the Order dated 15.07.2016 of the H.P. State Consumer Disputes Redressal Commission (in short the ‘State Commission’) arising from the Order dated 12.04.2016 of the District Consumer Disputes Redressal Forum, Solan (in short the ‘District Forum) in C.C. No. 81 of 2015.

2.      No one appeared for the petitioner (the ‘complainant’).

We heard the learned counsel for the respondent (the ‘insurance co.’).  

We also perused the material on record.

3.      Brief facts are that the complainant’s son, the deceased insured, had taken “Jeevan Anand” policy with profits and with accident benefit. The risk covered was Rs.4,70,000/- (Rs.2,35,000/- on account of sum assured and Rs.2,35,000/- on account of accident benefit). On 08.06.2014 the insured died due to accidental drowning in river. The insurance co. paid only Rs. 2,35,000/- against the sum assured but it repudiated the accident benefit claim on ground that the deceased insured was under the influence of alcohol (drunk) at the time of the accident which was a violation of condition no. 10(b)(i) of the policy.

4.      As such the issue germane to the dispute is whether the death of the insured deceased had occurred due to intoxication (influence of alcohol).

5.      The District Forum held that it has not been conclusively proved that the deceased was under the influence of alcohol. The District Forum also observed that as per the Post Mortem (PM) the death of the insured was due to ‘asphyxia’ and ‘wet drowning’, and not due to ‘intoxication’. It also noted certain material lapses and errors apropos the PM and the FSL reports, the relevant observations are reproduced below:

 “The report of FSL (Annexure-6) shows that although as per result ethyl alcohol was found in blood of the deceased to the extent of 59.45 mg%, but the at some time, it also transpires that the doctor concerned, who conducted the post mortem examination of the deceased failed to take urine sample. There is not even a single whisper in the aforesaid report as to whether any urine of the deceased was sent for chemical examination. Further as per the FSL report, traces of ethyl alcohol were detected in the parcels P5, P6 and P8 and not detected in parcels P2, P3, P4 and P7. Parcels P2, P3 & P4 do not relate to deceased/life assured, whereas, it contained blood/urine of Sh. Dheeraj Sharma & Santiksh Chadda. The result in this report does not distinguish as to whether urine of the deceased was received in the Forensic Science Laboratory. We are of the view that it was incumbent upon the doctor concerned or the authorities to take urine sample and send the same for chemical examination. Since as per FSL report, no urine sample was taken, therefore, it cannot be said that the deceased was under the influence of liquor.”

The District Forum allowed the complaint and directed the insurance co. as below:

“The opposite parties were jointly and severally directed to pay Rs. 2.35 lacs to the complainant on account of double accident benefit along with interest @ 9% per annum from the date of complaint till payment. The complainant is also held entitled to Rs. 25,000/- as compensation for mental harassment etc. and Rs. 5,000/- towards litigation charges.”

6.      The insurance co. filed appeal before the State Commission. The State Commission allowed the appeal and set aside the Order of the District Forum, consequently the complaint stood dismissed. It but altogether omitted to address the lapses and errors apropos the PM and the FSL reports which had been specifically pointed out by the District Forum. It only relied on the concerned condition of the policy, the relevant observations are reproduced below:

 10. Condition No. 10(b)(i) in the policy, Annexure R-1, provides that the Corporation shall not be liable to pay additional sum, on account of accident benefit, if the life assured is under the influence of intoxicating liquor, drug or narcotic when the accident takes place. The aforesaid exclusion clause is applicable to the facts of the present case, in view of our finding, hereinabove, that the life assured having more than 50 mg% of liquor in his blood, was intoxicated.

11. As a sequel to the above discussion, appeal is allowed, impugned order set aside and the complaint of respondent/complainant, is dismissed.

7.      The complainant has preferred the instant revision before this Commission.

8.      We would like to dwell further on the PM and the FSL reports. On careful perusal of the PM report it is evident that there are no findings or any evidence to prove that the stomach contents had smell of alcohol and whether blood and urine samples of the deceased were collected or not.   

As per the FSL report the blood alcohol concentration (BAC) was 59.45 mg%.  Even if it was so, let us see whether it constitutes intoxication to the human. For toxic effects of Blood Alcohol Concentration (BAC) we have gone through the standard text books on Forensic Medicine viz. Modi’s Jurisprudence and Lyon’s Medical Jurisprudence & Toxicology and we have also taken reference from AIIMS Manual for Physicians in National Drug Dependence Treatment Centre.  

As per Modi’s Jurisprudence a person who has consumed less than 150 mg of alcohol per 100 ml of his blood cannot be said to be under the influence of alcohol (intoxicated), whereas as per the text book of Lyon’s a person having 100 mg or more per 100 ml of blood will be said to be under the influence of alcohol. The AIIMS Manual states the BAC and its effects as below:

Thus, if we go by any standard lexicon, the BAC level 59.45 mg% is far less to say that the human was intoxicated as to be out of his senses or with reflexes impaired. Moreover, the material lapses and errors pointed out by the District Forum (quoted in para 5 above) create sufficient doubts about the BAC. It bears emphasis that admittedly the PM and the evidence categorically showed it was asphyxial death due to drowning.

9.      Thus, on the one hand there are material lapses and errors apropos the PM and the FSL reports and on the other hand even if BAC level 59.45 mg% is taken on its face the same is far less to say that the human was under the influence of alcohol as to be intoxicated beyond his senses or with reflexes impaired.

Considering the facts and evidence in the entirety, in our considered view, the insurance co. mechanically repudiated the accident benefit claim by taking recourse to its said condition no. 10(b)(i) in the routine without examining the relevant and material documents with the due and requisite application of mind, its act is neither correct nor justifiable. 

We may clarify that we are not adding to or subtracting from the relevant condition no. 10(b)(i) of the policy. We are only observing that on the basis of the evidence and material available on the record the said condition was not at all attracted in the present case.

10.    As such the District Forum appears to have appreciated the facts and evidence in the right perspective, and the State Commission appears to have erred in its appraisal.

11.    Based on the discussion above, the revision petition is allowed. The Order dated 15.07.2016 passed by the State Commission is set aside and the Order dated 12.04.2016 of the District Forum is affirmed and sustained.

The insurance co. shall comply with the award made by the District Forum within four weeks, failing which the District Forum shall forthwith undertake execution, for ‘execution’ and for ‘penalty’, as per the law.

12.    The Registry is requested to send a copy each of this Order to the parties in the revision and to their learned counsel. The stenographer is also requested to upload this Order on the website of this Commission immediately.