(Passed On 27/07/2015)

Per Mr. B.A. Shaikh, Hon’ble Presiding Member

1. This appeal is preferred by the original opposite party No. 1 (herein after referred to as appellant) against the order dated 16/09/2011, passed in consumer complaint No. 611/2010, by the District Forum, Nagpur, by which complaint has been partly allowed.
2. The facts in brief giving rise to present appeal are as under.

The respondent No. 1 herein is the original complainant. Her husband Mr. Rohit Ahuja (herein after referred to as deceased) had obtained a cash credit card from the respondent No. 2 herein (original OP No. 3). As per scheme of that card, if the cardholder dies before payment of the arrears outstanding against that card  the amount in arrears would be paid and further Rs. 3,00,000/- would be paid by the appellant/insurance company to his legal heirs. The deceased died in an accident on 24/04/2009 and at that time Rs. 16,821/- were outstanding as against the said cash credit card. The amount of Rs. 16,821/- was paid by the respondent No. 2 herein but sum assured of Rs. 3,00,000/- on account of accidental death of deceased was not given. Therefore the respondent No.1 filed consumer complaint before the Forum and prayed that direction be given to appellant as well as to the respondent No. 2 herein to pay her Rs. 3,00,000/- with interest at the rate of 18 percent per annum from 4/6/2009 till its full payment and also to pay her compensation of Rs. 1,00,000/- towards physical and mental harassment and cost of Rs. 20,000/-.

3. The appellant resisted that complaint by filing its written version. It admitted that it granted insurance coverage by way of master policy to respondent No. 2 covering their cash credit holders. The accidental benefit under the said scheme is not payable to the respondent No. 1 because the accident occurred when the deceased life assured was under intoxication and his blood contained 120 mg  of Ethyl Alcohol per hundred ml  and as he committed breach of law by driving the vehicle after consuming alcohol as above. Thus, according to appellant that as per clause No. 7.1.5 of master policy, the claim of respondent No. 1 is excluded and hence the claim proposal was repudiated. Therefore it was requested by the appellant that complaint may be dismissed.
4. The respondent No. 2 herein did not appear before the Forum though served with notice.  Therefore the complaint was proceeded exparte against the respondent No. 2 as per order dated 16/03/2011.
5. The Forum below after hearing appellant and respondent No. 1 herein came to the conclusion that though the deceased life assured was under influence of liquor, the accident did not take place due to that reason and therefore the respondent No. 1 is entitled to sum assured of Rs. 3,00,000/-. The Forum therefore directed the appellant under impugned order to pay to the respondent No. 1 sum assured of Rs. 3,00,000/- and compensation of Rs. 5,000/- towards mental harassment and cost of Rs. 2,000/-.
6. Feeling aggrieved by the said order, the original OP No. 1 has preferred this appeal. We have heard learned advocates of appellant and respondent No. 1. None appeared for respondent No. 2 though duly served with notice. Therefore this Commission proceeded exparte against respondent No. 2.
7. The learned advocate of the appellant has relied upon Clause No. 7.2.1(5) of the policy regarding exclusion of the claim if the death is occurred in the event of breach of law. Thus he argued that as per provision of Section 185 of Motor Vehicle Act, if the vehicle is driven after consuming liquor having 120 mg of alcohol  per 100 ml of blood, then  it is an offence punishable under said Section 185  of the Motor Vehicle Act. Thus he submitted that as the there is breach of provisions of Section 185 of Motor Vehicle Act and the death is occurred while committing breach of said law, the aforesaid exclusion clause is attracted and this fact was not considered by the Forum. Therefore he requested that impugned order is illegal as the exclusion clause is attracted and in the present case.

    He relied upon observations made in the following cases. 

1. Vikram Greentech (I) Ltd. and another Vs. New India Assurance Company Ltd., II (2009) CPJ 34(SC). It is observed that Court is not expected  to venture into extra liberalism that may result in rewriting contract/substituting terms not intended by parties.
2. Panni Devi Vs. LIC and others, III (2003)CPJ 15 (NC).  It is observed that though Doctor is not examined but we must give due weight to a statement recorded in the normal course of discharge of one’s duties.

8. On the other hand the learned advocate of respondent No. 1 supported the impugned order and submitted that the appellant when one’s paid Rs. 16,821/- towards payment of outstanding loan amount and discharged its part of the liability under the policy then the further claim of the respondent No. 1 cannot be repudiated by the appellant arising out of the same policy. He also argued that the claim is not hit by any of the exclusion clause of the policy as the appellant failed to prove that the deceased was under the influence of alcohol at the time of his death. He relied upon the observation made in following cases.
   1. LIC of India and another Vs. Seema Agrawal, IV (2009) CPJ 39, Chattisgarh, SCDRC, Raipur.  It is observed that some persons may have full control over their faculties even after consuming some quantity   of liquor and it is not mentioned in post mortem report as to whether deceased  was under influence of any Psychotic substance. Therefore repudiation of claim is not justified.
   2. Mohan Singh Vs. City Bank N.A. and another, I (2009) CPJ 112, Karnataka SCDRC, Bangalore.  It is observed that there was no evidence produced to prove that the driver was under influence of intoxicating liquor and the affidavit of Doctor who prepared post mortem report was not produced on record and mere smelling of alcohol in food does not mean that the person who died was under the influence of liquor.
   3. National Insurance Company Ltd. Vs. Suman Kanwar, IV(2008) CPJ 190 (NC). In that case the deceased fell from roof and died. The contention was that the head injury was occurred to him due to consumption of liquor. Therefore it is held that heavy burden lies on insurer to prove that deceased was unable to keep balance and fell down from roof only due to consumption of liquor and that such evidence was lacking on the part of the insurance. Therefore the order of the Forum allowing the complaint was upheld.
   4. LIC of India and another Vs. Sulakshana Sharma alias Soniya, III (2008)CPJ 418, Himachal Pradesh SCDRC, Shimla. It is observed that unless it is shown that the deceased was driving vehicle or accident attributable to his being intoxicated, the double accident benefit could not be denied by insurer.
   5. Himachal Pradesh Road Transport Corporation Ltd. Vs. New India Assurance Company Ltd., II(2007)CPJ 287, Himachal Pradesh SCDRC, Shimla. It is observed that it is incumbent upon OP to have shown that content of alcohol was so much to hold deceased under influence of intoxicating liquor and that mere consumption of liquor by itself does not make person intoxicated under its influence.

                 It is therefore requested by learned advocate of respondent No. 1 that  

           appeal  is liable to be dismissed.

9. The respondent No. 2 is proceeded exparte as it remained absent though duly served with the notice.
10. Thus it is seen that the appellant repudiated the claim on two grounds. Firstly the deceased was under the influence of alcohol when secondly he committed breach of law by driving the vehicle having in his blood 120 mg of alcohol  per 100 ml of blood.
11. The policy shows the three material exclusion clauses. The first exclusion clause No. 7.1.5 (i) is that when the death of the life assured is cause whilst, the life assured is under the influence of intoxicating liquor. The second exclusion clause No. 7.2.5 (iii) is that when the death of the life assured is cause by any breach of law committed by him. The third exclusion clause no. 7.2.1(5) is that when a person covered under the personal accident cover and his death is occurred or arose out of breach of law.
12. The learned advocate of appellant has stressed upon the exclusion clause relating occurrence of the death of life assured due to his committing breach of law. He has referred to the provision of section 185 of Motor Vehicle Act which provides that who ever while driving a motor vehicle has in his blood, alcohol exceeding 30 mg per 100 ml of blood detected in a test by breath analyzer,  shall be punished for the first offence with imprisonment for a term which may extent to six months or with fine which may extent to Rs. 2,000/-  or with both and for second or subsequent offence if committed within three years of Commission of previous similar offence with imprisonment for a term which may extend to two years or with fine which may extent to Rs. 3,000/-  or with both.
13. In the instant case, the deceased life assured was driving his vehicle at the time of his accident and under that accident he sustained injury and succumbed to those injuries. His post mortem examination was conducted by doctor and his viscera was preserved by doctor and sent for chemical analysis and report. The post mortem examination report and chemical analysis report are also filed on record which are not disputed. The post mortem examination report shows that visera of deceased was preserved for chemical analysis and it was sent for chemical analysis. The report of chemical analysis issued by Assistant Chemical Analyser shows that the stomach and loop of intestine with its contends and 1/3  lever, ½ spleen and ½ kidney contain 120 mg and 99 mg of alcohol per 100 grams. It also shows that the blood sample contains 101mg of Ethyl alcohol per 100 ml of blood.
14. Thus, it is crystal clear from the said report of chemical analyzer the deceased had in his blood more that 30mg of alcohol per 100 ml of blood, while he was driving the vehicle. Therefore he committed an offence punishable under Section 185 of Motor Vehicle Act. Thus, his death was occurred while committing the breach of law and hence aforesaid exclusion clause No. 7.1.5 and 7.2 is attracted and thus  claim can be said to have been rightly repudiated by the appellant.

15. The Forum has not considered the aforesaid exclusion clause of the policy as regards occurrence of death while committing breach of law and thus it erred in partly allowing the complaint. We therefore hold that the appellant has not rendered deficient service by repudiating the claim. The decisions relied upon by learned advocate of respondent No. 1 are on the point of driving the vehicle under the influence of alcohol which was not proved in those cases. However in the instance cases, it is proved that the deceased life assured died while committing breach of law that is while committing an offence punishable under Section 185 of Motor Vehicle Act that is he drove the vehicle having in his blood alcohol exceeding 30 mg per 100 ml of the blood. Therefore the aforesaid decisions relied upon by learned advocate by respondent No. 1 are not applicable to the present case.
16. In the result the appeal deserves to be allowed.

ORDER

1. The appeal is allowed.
2. The impugned order dated 16/09/2011, passed in consumer complaint No. 611 of 2010, is hereby set aside.
3. The complaint stands dismissed.
4. No order as to cost in appeal.