JUSTICE V.K.JAIN (ORAL)

Late Shri Ajay Gupta had taken a life insurance policy from the OP on 28.3.2008, for a sum assured of Rs. 5 crore. The said policy lapsed, but was later reinstated vide letter dated 21.6.2010. He died on 1.12.2010 after more than two years and 8 months of taking the said policy. A Post-Mortem on his dead body was conducted at Deen Dayal Upadhyay Hospital. His Viscera was taken and sent to Forensic Science Laboratory. An FIR dt. 2.12.2010  was registered at Adarsh Nagar Police Station against two persons, namely, Sunil Kumar and Vinay Kumar under Sections 304, 379, 411 and 34 of IPC. The said FIR resulted in charge sheet against them but they were acquitted by the Trial Court vide order dt. 29.11.2018 passed in Sessions Case No. 51972 of 2016.

2.      The claim lodged by the complainants for payment of the benefit under the policy taken by deceased Ajay Gupta was repudiated by the insurer vide letter dt. 1.3.2012 which to the extent, it is relevant reads as under:-

“Please accept our deepest sympathies to you and members of the family on the sad demise of Mr. Gupta.

We have investigated the matter and based on our findings, the Death Claim has been rejected as Mr. Gupta has committed suicide within one year of the reinstatement of the said policy.

We thereby confirm that your policy contract with Birla Sun Life Insurance company Limited now stands null and void.”

3.      Being aggrieved from the rejection of the claim, the complainants are before this Commission.

4.      The complaint has been resisted by the opposite party on the ground on which the claim had been repudiated. In nutshell, the case of the OP is that the deceased had committed suicide within one year of the reinstatement of the insurance policy.

5.      The exception clause contained in the insurance policy reads as under:-

“Suicide

If the Life Insured under this policy dies by suicide, whether medically sane or insane, within one year after the policy issue date or revival date, whichever is later, we will not pay the amount described in the Death Benefit provision.  In such circumstances, we will refund higher of Policy Fund Value or all premiums paid towards this policy.”

          It would thus be seen that if it is proved that the deceased had committed suicide within one year of the renewal of the policy, no benefit in terms of the insurance policy would be payable. Admittedly, the deceased had died within one year of the renewal of the policy. Therefore, the only question would be whether he had committed suicide or not.

6.      Since it is the insurer which seeks to bring the case within the four corners of the exception contained in the insurance policy, the onus, in my opinion, was upon the insurer to prove that the deceased had died by committing suicide. There is absolutely no direct evidence of the deceased having committed suicide. The case of the insurer is that he had committed suicide by consuming poison. There is no suicide note. There is no witness who may have seen the deceased consuming poison. The case of the insurer in this regard is based solely upon the Post Mortem Report and a medical opinion taken by the insurer from Dr. C.H. Asrani on 8.4.2011 on the basis of the Post Mortem Report. The said opinion to the extent it is relevant reads as under:-

As per Post Mortem report of LA: Findings are –

     Date – 02.12.2010

     NECK

     Tracheal Rings and Mucosa / Any foreign body in Trachea: Tracheal lumen congested and containing semi digested food present till bifurcation of trachea.

     CHEST (THORAX) –

     Lungs:       Bilateral lungs congested and oedematous on cut section and dissection exudating froth with blood.

     Due to any corrosive / irritant poison there is vomiting; but with the action of poison, person is not in full control of faculties / senses and this vomitus enters the lungs, what is known as Aspiration pneumonia.

Discussion

Keyword:

1. Cyanide is an extremely potent and fast-acting poison.

   Ref:

2. People who use cyanide to commit suicide of ten have ready access to the poison through their occupations.These occupations include chemists, jewellers, and others involved in pest control, mineral refining, photography, electroplating, dyeing, printing,

Ref:

7 Deaths.pdf

1. Effects occur rapidly following exposure to sodium cyanide, inhalation exposure to hydrogen cyanide gas released from sodium cyanide produces symptoms within seconds to minutes.

   Ref:

    

   Opinion required:

    

   Q. From the documents, is it evident whether it is a natural death?

    

   No. From the Charge Sheet submitted by Delhi Police and it is evident that it is a case of purposeful consumption of some poison, making it an unnatural death.

    

   Q. Pl elaborate on positive finding of trachea and lungs on post mortem.

    

   Knowing the facts of the case i.e. death due to cyanide consumption – due to any corrosive/irritant poison there is vomiting; but with the action of poison, person is not in full control of faculties/senses and this vomitus enters the lungs, what is known as Aspiration Pneumonia.  The findings of lungs and trachea correspond to aspiration of vomitus.

    

   Q. Studying the facts of the case, can it be opined whether consumption of cyanide was accidental or intentional?

    

   Because of swift effect, Cyanide is a drug of choice for suicide.  It is very unlikely to be accidental as traces in rodenticide etc. are very small and not fatal with small dose.  In this case, it has bene proven that LA had purchased cyanide just prior to his death.  All these facts point towards it being a purposeful consumption; i.e. suicidal. 

    

   Q. Is there any other factor that points to purposeful consumption and suicidal intent?

    

   As per the Charge Sheet submitted by Delhi Police it reveals: LA committed suicide due to financial problems by consuming some poison.  This fact points to PURPOSEFUL Consumption of some poison.

    

   Q. Is it related to any kind of past history of LA?

    

   Yes. LA had financial problems and he was unable to cope with it.”

7.      Though the affidavit of Dr. C.H. Asrani was not filed to prove his report, the learned counsel for the insurer has today place on record a photocopy of the affidavit of Dr. C.H. Asrani. The original affidavit has not been filed nor the same is available with the counsel. The Post Mortem Report which the learned counsel for the OP has filed today in the Court is also taken on record.

8.      The Post Mortem Report clearly shows that the cause of death was kept pending till the receipt of blood and viscera report. Thus no opinion as regards the cause of death was given in the Post Mortem Report at the time it was initially prepared on 5.1.2011. The report of FSL on the Viscera and other articles sent by the concerned police station to FSL was issued on 19.4.2011, after the insurer had already obtained the opinion of Dr. C.H. Asrani. Not even an attempt was made by the insurer to obtain  a fresh confirmatory opinion from Dr. C.H. Asrani, in the light of the Viscrea report dated 19.4.2011.

9.      The Viscera Report dated 19.4.2011 shows that three Exhibits were sent to the laboratory. The first parcel contained Ex. 1A, 1B and 1C which were described as under:-

          The second parcel contained blood of the deceased which was described as under:-

          The third parcel contained the glass which was described as under in the Post Morten Report:-

The result of examination given by Dr. Kanak Lata Verma, Sr. Scientific Officer of the FSL, reads as under:-

“RESULTS OF EXAMINATION

One Chemical Microscopic, TLC & GC-HS examination, (i) Exhibits ‘1A’, ‘1B’ & ‘1C’ were found to contain E     thyl Alcohol.

(ii) Exhibit ‘1C’ was found to contain Ethyl Alcohol 10.3 mg per 100 ml of blood.

(iii) Metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits ‘2’ & ‘3’.

(Emphasis supplied)

NOTE: Case Exhibits/Remnants of Exhibits sent to this laboratory for examination have been sealed with the seal of “KLV FSL DELHI”.

          It would thus be seen that no element of poison was found in the Viscera of deceased.

10.    After receipt of the Viscera Report, the medical officer of DDU Hospital, Hari Nagar, Dept. of FS which had issued the Post Mortem Report before receipt of the Viscera Report, gave an opinion regarding final cause of death of the deceased Ajay Gupta. The said opinion to the extent it is relevant reads as under:-

“After seeing the FSL report No FSL 2010/C-5515 dated 19.04.2011 and same was clarified on dated 25.05.2011 it is mentioned that the exhibits "C contained ethyl alcohol level of 10.3 mg/100 ml of blood. After going through PM report findings observed and noted (in PM report no. 1407/10) that no any external/internal injuries was found on the body of the deceased. However, internal findings (congestion of multiple internal organs) are supportive/consistent to death caused by asphyxia. The lumen of trachea was found congested and contained semi digested food up to the bifurcation of the trachea. Such complete obstruction of upper respiratory passage was sufficient to cause death in ordinary course of nature by manner of suffocation. In usual course the outcome of aspiration of vomits/bronchial secretion takes place under the altered sensorium like unconsciousness caused by head injuries stage of intoxication or many other pathological conditions. But in this case all above mentioned conditions were not associated as mentioned in PM report.  The ethyl alcohol level in blood was 10.3 mg/100 ml, was very negligible concentration and was insufficient to change the mental or physical conditions of the body. It is very clear that the cause of death was due to asphyxia caused by obstruction of upper respiratory as a resultant of aspiration of gastric contents under the stage of altered sensorium. The changing of consciousness (altered sensorium) is determined by internal stimulus (causing factors) or external stimulus. As per PM report findings nothing is suggestive of existing any internal factors and external factors like grave and sudden threatening/frightening cannot be ruled out. The manner of death is accidental caused by some unnatural factors/circumstances.”

(Emphasis supplied)

11.    The learned counsel for the insurer has pointed out that one more parcel mark as S-1 was sent to FSL and the result was issued by Dr. Kanak Lata Verma vide her report dated 10.5.2011. A perusal of the said report would show that the parcel contained coloured cubes stated to be sodium cyanide. On examination, it was found to contain sodium cyanide. Thus sodium cyanide was found in a plastic container which the police had seized during investigation of FIR No.294 of 2010 of Police Station, Adarsh Nagar. No evidence of sodium cyanide having been consumed by the deceased has, however, been produced. What the insurer was required to prove is that the deceased had consumed cyanide and that had resulted in his death. The Viscera report clearly negates consumption of cyanide by the deceased. Therefore, it would be immaterial if the sodium cyanide was found in a plastic container seized by the police during investigation of the case.

12.    Thus, it is evident from the perusal of the Viscera report issued by FSL and the final opinion given by the Dept. of Forensic Medicine of DDU Hospital that no evidence of consumption of cyanide by late Shri Ajay Gupta was found. The learned counsel for the insurer submits that there was delay on the part of the concerned police station in sending the Exhibits to the FSL, for chemical examination and the said delay may have resulted in the chemical examination not showing the traces of cyanide in the Viscera of the deceased. In my opinion, assuming that there was a delay on the part of the Investigating Officer in sending the Viscera of the deceased to the FSL that by itself would not prove the consumption of cyanide by the deceased. It is not a case where there is evidence of consumption of cyanide and thereafter there is  delay  in sending the Viscera to the laboratory. There is absolutely no evidence of the deceased having consumed cyanide. Therefore, the alleged delay on the part of the Investigating Officer in sending the Viscera to the FSL would not even remotely prove the alleged consumption of cyanide by the deceased.

13.    It transpired during course of arguments that the deceased was survived by his widow, two children and his mother Smt. Bimla Gupta. Admittedly, Smt. Bimla Gupta died during pendency of the complaint on 13.9.2013. The case of the complainant is that she had executed  a Will in her lifetime bequeathing her share in the insurance policy of Late Shri Ajay Gupta to the complainant. Subject to verification of the said Will by the insurer, the share of late Smt. Bimla Gupta in the benefit payable under the insurance policy shall be given to the complainants.

14.    For the reasons stated hereinabove, the complaint is disposed of with the following directions:-

(1)     The OP shall pay a sum of Rs.5 crore to the complainants.

(2)     75% of the aforesaid amount of Rs.5 crore shall be paid straightway to the complainants whereas the balance 25% of the sum assured shall be paid to them subject to verification of the purported Will of Smt. Bimla Gupta dated 17.10.2012.

(3)     While complying with this order, the OP shall be entitled to adjust the amount of Rs.1199367.80/- alleged to have been paid to the Income Tax Department towards the liability of late Sh. Ajay Gupta.

(4)     The OP shall pay simple interest on the amount of Rs.48800632.20 (Rs.50000000 – Rs.1199367.80) @ 8% to the complainants w.e.f. the date of institution of the complaint till the date on which the said amount is paid.

(5)     The OP shall also pay a sum of Rs.25,000/- as cost of litigation to the complainants.

(6)     The payment in terms of this order shall be made within three months from today.