KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.728/04 JUDGMENT DATED.11.02.08
PRESENT: SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRA MOHAN NAIR : MEMBER United India Insurance Co Ltd, Divisional Office, Ooppoottil Buildings, 2nd floor, P.B.No.210, K.K.Road, Kottayam, : APPELLANT Represented by its Deputy Manager, Regional Office, Ernakulam.
(By Adv.N.S.Mohamed Usman) Vs Mr.Saju.P.P, Padinjarakalamattathil, : RESPONDENT Njeerzhoor.P.O, Peruva, Kottayam JUDGMENT SRI.M.V.VISWANATHAN: JUDICIAL MEMBER The above appeal is directed against the order dated 5th day of May 2004 of the CDRF, Kottayam in OP.326/03. The complaint in the said OP.326/03 was filed by the respondent herein as complainant against the appellant as opposite party claiming insurance amount under the Personal Accident Policy issued by the opposite party/ insurance company in the name of deceased Joseph. The complainant is the nominee of the insured Joseph. The opposite party/insurance company repudiated the aforesaid claim on the ground that the accident occurred while the insured Joseph was under the influence of alcohol. Thereby the claim is hit by the exclusion clause No. 5 (b) of the Policy. The Lower Forum accepted the case of the complainant as nominee of the insured Joseph and directed the opposite party to pay the insurance claim with interest and cost. Aggrieved by the said order the present appeal is preferred by the opposite party/Insurance company. 2. We heard the counsel for the appellant/opposite party/insurance company and the respondent/complainant. The learned counsel for the appellant/insurance company relied on the grounds urged in the memorandum of the present appeal and canvassed for the petition that the insurance company is justified in repudiating the insurance claim under the exclusion clause No.5 (b) of Ext.D2 policy. He has also relied on the entries in Ext.X1(C1) case record produced from the Medical College Hospital, Kottayam and submitted that the case record would establish the case of the insurance company that the deceased Joseph (insured) sustained severe head injury while he was under the influence of alcohol. Thus, the appellant/insurance company requested for setting aside the impugned order passed by the lower Forum. On the other hand, the learned counsel for the respondent/complainant supported the findings and conclusions of the lower Forum and requested for dismissal of the appeal. It is also submitted that there is no acceptable evidence on record to prove the contention that the insured Joseph was under the influence of alcohol, at the time of the accident in which he sustained severe head injury. Thus, the respondent/complainant requested to uphold the impugned order passed by the lower Forum in O.P.326/03. 3. The points that arise for consideration are:- Whether the appellant/opposite party/insurance company can be justified in repudiating the claim on the strength of exclusion clause No.5(b) of the D2 policy? Whether the case of the appellant/opposite party that the insured Joseph sustained severe head injury while he was under the influence of alcohol can be accepted? Is there any legally sustainable ground to interfere with the impugned order dated.5.5.04 passed by the CDRF, Kottayam in OP.326/03?
4. Points 1 to 3:- The fact that the deceased Joseph was the insured under the D2 policy with A4 policy schedule and that the D2 policy was issued by the appellant/insurance company with the insurance coverage for Rs.75,000/-. The policy was in existence during the period from 17.5.02 to 16.5.03. There is also no dispute that the insured Sri.Joseph met with an accident on 16.3.03 by falling from top of the double storied building and sustained severe head injury and that the insured Joseph succumbed to the said injury on 19.3.03 while he was undergoing treatment at Medical College Hospital, Kottayam. The respondent/complainant is the nominee of the insured Sri.Joseph. So, on the death of the insured in an accident, the complainant being the nominee is entitled to get the insurance amount of Rs.75,000/-. But the insured claim put forward by the respondent/complainant was repudiated by the appellant/opposite party/insurance company on the ground that the insured sustained severe head injury while he was under the influence of alcohol. There is no dispute that under the exclusion clause No.5(b), the insurance company can very well repudiate the claim if the insured sustained severe head injury while under the influence of alcohol. The above said exclusion clause No.5 (b) is as follows: “Payment of compensation in respect of Death, injury or disablement of the insured whilst under the influence of intoxicating liquor or drugs” 6. The most important aspect for consideration is as to whether the insured Sri.Joseph was under the influence of alcohol at the time of the accident which occurred on 16.3.03. The appellant/opposite party relied on Ext.C1 (X1) case record maintained by Medical College Hospital, Kottayam and produced before the Forum below. The learned counsel for the appellant/insurance company drew our attention to page 4 of C1 case record. Under the said sub heading Habits, it is written as “an alcoholic”. There is nothing on record to show as to who has recorded above said entry ‘an alcoholic’. A person who has made such an entry has not been examined in this case. Moreover, there is nothing on record to substantiate the said statement regarding being alcoholic. It is at page 7 of C1 case record. It is written as no free fluid. There is nothing on record to substantiate above said statement that the patient Joseph was an alcoholic. The learned counsel for the appellant/insurance company much relied on the statement given by one K.K.Peter, the brother’s son of the insured Joseph. In the said statement it is recorded as follows:- The above said statement given by K.K.Peter would give the intication that the insured Joseph had consumed alcohol and that he fell down from the building by the slip of his foot. But the aforesaid statement cannot be taken to uphold. The contention of the appellant/insurance company that the insured Joseph fell down from the building under the influence of alcohol. It is to be noted that consumption of alcohol is different from being under the influence of alcohol. A person who consumed alcohol cannot be treated as one under the influence of alcohol. In this case the aforesaid statement recorded at page 9 of C1 case record would only show that the insured Joseph had consumed alcohol at the time of the incident which occurred on 16.3.03. The appellant has also relied on the entry at page 17 of C1 case record wherein it is written as smell of alcohol. The aforesaid statement was recorded on 16.3.03 at 7.15 pm. This would show that after the incident insured Joseph taken to the hospital and he was examined by the duty Doctor. There can be no doubt that at the time when he was taken to the hospital he was having the smell of alcohol. The doctor had occasion to smell alcohol. But there is nothing on record to show that the blood was taken for examination and on examination of the blood sample presence alcohol was detected. So, the smell of alcohol would not give the indication that the insured Joseph was under the influence of alcohol. The material on records would only give an indication that the insured had consumed alcohol. But there is no concrete evidence to come to a definite conclusion that the insured Joseph was under the influence of alcohol. 5. There can be no dispute about the question on whom lies the burden of proof, to attract the exclusion clause. Admittedly the appellant/opposite party has to establish their contention that the claim would fall under the exclusion clause No.5 (b) of D2 policy. But unfortunately the appellant/insurance company has not succeeded in establishing the contentiton that the insured was under the influence of alcohol, at the time of the accident which occurred on 16.3.03. If that be so, the Forum below can only be justified in holding that the claim would not fall under the exemption clause (exclusion) No.5 (b) of D2 policy and that the opposite party/insurance company is bound to honour the claim put forward by the complainant as nominee of the insured Joseph. We have no hesitation to accept the aforesaid finding of the Forum below. 6. The Forum below has also ordered interest at the rate of 9% per annum from the date of repudiation till the date of appeal. The materials available on record would make the opposite party justified in repudiating the claim at the first instance. It is to be noted that the opposite party is the Divisional Manager of the United India Insurance Co Ltd., Kottayam branch. Ext.X1 case sheet would show that the insured Joseph had consumed alcohol, at the time of the accident. In such a situation the officer of the insurance company will be reluctant to honour the insurance claim. No officer of the insurance company will take the risk in honouring in the insurance claim, after getting the records indicating the fact that the insured had consumed alcohol at the time of the accident. The statement given by the close relatives of the insured would also give an indication that the insured was under the influence of alcohol. It is stated by the close relatives of the insured that the insured had consumed alcohol and he fell down from the top of the building by the slip of his foot. So the issue regarding the acceptability of the claim put forward by the complainant as nominee of the insured can only be decided by a Competent Authority like the Forum below. The opposite party can be justified to some extent in repudiating the claim or not honouring the claim at the first instance, without getting the decision from the Competent Authority. In this situation, awarding of interest on the insurance amount from the date of repudiation cannot be justified. This commission is of the view that the complainant being the nominee of the insured is only entitled to get the interest on the insurance amount from the date of the impugned order passed by the Forum below ie., 05.05.04. We do not find any ground to interfere with the cost of Rs.1000/- ordered by the Forum below. So the impugned order is modified to such an extent. In all other respondents, the impugned order is confirmed. These points are answered accordingly. In the result the appeal is disposed as indicated above. The impugned order passed by the lower forum in OP.326/03 is confirmed with respect to the insured claim of Rs.75,000/- with interest at the rate of 9% per annum from the date of the said order.(05.05.04). The cost of Rs.1000/- ordered by the Forum below is also upheld. The order regarding payment of interest at the rate of 18% after the lapse of 45 days is cancelled. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
SRI.M.V.VISWANATHAN: JUDICIAL MEMBER
SRI.S.CHANDRA MOHAN NAIR: MEMBER
R.AV | 
