IN THE CONSUMER DISPUTES RESRESSAL FORUM, KOTTAYAM
Dated this the 8th day of June,2020
Present: Sri. Manulal V.S. Presidient
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
CC No. 10/18(Filed on20-10-18)
Complainants : 1) Beena Najeeb,
Puthenpeedikayil House,
Erumpoonnikara, Kannimala PO,
Kottayam.
2) Althaff P.Najeeb
-do-
3) Alsaf P Najeeb
(Minor) Repted by 1st plaintiff mother
and natural guardian the 1st Petitioner)
-do-
4) Hajara Beevi
-do-
(Adv. Ancy A.T)
Vs.
Opposite parties : 1) SBI General Insurance Co.Ltd, Co
operate & Registered Office Natraj 101,
201 &301 junction of western
expresshighway& Anderi(East)
Mumbai-400069 Rpted by the deputy
vice President Claims Health
2) The Manager,
State Bank of India(P&SB) 701015,
Erumeli, Kottayam Dist.
(Adv. P.G.Girija)
O R D E R
Smt..Bindhu.R, (Member)
The case of the complainant is as follows:
The husband of the 1st complainant had availed a group Personal Accident insurance policy bearing No.137714-0000-00 and certificate No.143824-0000-00. The sum insured was Rs. two lakhs. While the insurance policy was in force and effective, the husband of the 1st complainant died due to Neuroginic shock following squeezing of testicles by his neighbor, who was convicted Under Section 304 IPC in Sessions case No.423/15 by Hon’bleAddl.District &Sessions- Court, Kottayam. The cause of death was certified by Dr.Santhosh Joy, MD, Assistant Priofessor of Forensic Mediciene & Assistant Police Surgeon, Govt.Medical College Kottayam as Neuroginic shock due to squeezing of testicles on 23/7/15. The legal heirs of the deceased Najeemon P.H filed the claim petition before the insurance company for getting compensation on account of his death. The deceased died in a scuffle between him and accused in which the accused squeezed the testicles of the deceased. He was immediately taken to the Marry Queen Hospital, 26th mile and the doctors on examination reported that Najeemon was dead.The 1st complainant is the nominee of the insured and the 2nd and 3rd complainants are the sons and the 4th complainant is the mother of the deceased.
The 1st opposite party herein repudiated the claim of the complainants on the ground that the claim under this policy arising from being under the influence or use, abuse of drugs, alcohol or other intoxicants or hallucinogens unless properly prescribed by a physician and taken as prescribed is not covered under this policy. Hence on the basis of the terms and conditions, the claim is liable for repudiation, which we hereby do”. In the above clause the victim should be under the influence or abuse of drugs, alcohol etc. However in the postmortem certificate of the deceased. It is only recorded as ‘body cavities emitted alcohol like smell”. This itself will not prove that the deceased was under the influence of alcohol or abuse of drugs etc. In the repudiation letter insurance company have purposely added another word “use”. This will not find a place in the terms and conditions of the policy of the insurance. This addition cannot be allowed. By repudiating the claim the insurance company has committed deficiency of service by denying the claim on the ground of willful and deliberate denial of service to the consumers being the legal heirs of the deceased. The complainants filed this complaint seeking compensation for the redressal of their grievances.
Upon notice the opposite parties appeared through their counsels and filed their versions.
The 1st opposite party in its version denied all allegations against them in the complaint. The liability of the insurance company is only as per the terms and conditions and exception of the policy. As per the claim documents it is noted that the insured was murdered on 22/7/15. However viscera analysis report, final cause of death certificate and final police report received by insurance company clearly established that at the time of death of Najeemon, he was under the influence of alcohol. As per the exclusion clause in the policy the insurance company is not liable to pay the claim if the insured is only under the influence or abuse of drugs or alcohol. As per the postmortem report his body cavity emitted alcohol like smell. The blood test and urine test of the deceased shows that he was under the influence of alcohol. The reason for the repudiation of the claim is valid and legal as per the terms and conditions of the policy. The reason stated in the repudiation letter dated 12/7/17 is true and correct. There is no reason for any mental agony, strain and stress. There is no deficiency of service on the part of the opposite party. So there is no cause of action for filing this petition and the petition is liable to be dismissed.
The complainants adduced evidence vide affidavit along with documents marked as Exhibits A1 to A6 where as the 1st opposite party also filed proof affidavit along with Exhibit B1. No oral evidence for both the parties. Chemical analysis report was called for on application of 2nd Opposite party and marked as Exbit X1. Opposite party 2 has no evidence. The 2nd opposite party has filed version in which they have contended that there is no relief sought against the 2nd opposite party. So the complaint is bad for misjoinder of parties and there is no cause of action for the complaint.
All the evidences on record, were perused.
Points framed are:
i) whether there is any deficiency in service on the part of the opposite parties?
ii). Whether the complainants are entitled for the compensation?
iii).Reliefs?
Point no.1
The complainants filed the complaint for compensation against the wrong repudiation of the insurance policy of the deceased. The 1st opposite party admits the policy but repudiated the claim of the legal heirs of the deceased for the reason that the deceased was intoxicated due to the abuse of alcohol at the time of death.
Regarding this point, the insurance company repudiated the claim on the ground of the exclusion clause in the policy conditions “The company shall not be liable for any claim under this policy arising from …being under the influence or abuse of drugs, alcohol, or other intoxicants or hallucinogens unless properly prescribed by a physician and taken as prescribed…”
There is no doubt that such a clause in the policy agreement is essential to protect the company from the misuse of insurance coverage. Moreover, this exclusion is meant to reduce the habit of drunken driving. But, this exclusion clause cannot be used for rejecting all the claims under the presumption that the deceased was under control of the alcohol on a mere finding in the postmortem report.
Here, the 2nd opposite party relied on Exhibit A6 and X1,the postmortem report and chemical analysis report. In Exhibit A6, it is stated that the “body cavities emit an alcohol like smell”.In X1, the chemical analysis report, the result for the iodine test for ethanol is shown as positive and towards the conclusion part, it is found that the total blood alcohol content in the post mortem blood of the deceased was 75%mg.Again in the conclusion it is recorded as “no poison including ethyl alcohol was detected in item number 4, the sample preservative”.
At this juncture, the point to be discussed is whether mere finding in the postmortem report and chemical analysis report substantiate the reasoning of repudiation of the insurance claim?
A number of case laws are before us regarding this point. The 1st opposite party has failed to prove the drunkenness of the deceased has a direct nexus with the occurrence. Moreover, DW1, Dr.Santhosh Joy, who conducted the postmortem, has recorded in his report that a series of ante mortem injuries found on the body of the deceased including the injury caused to the scrotum “7.Abraded contusion 2x1x0.1cm on the front aspect of left half of scrotum 0.5cm outer to midline and 3cm below root of penis.
8.Abrasion 2x1.5cm on the front aspect of right half of scrotum 1cm outer to midline and 2 cm below root of penis”.
On dissection, the veins in both scrotum (pampiniform plexus) are filled with blood. A few veins above the left testis were seen ruptured with infiltration of blood around.”
Now, In the Sessions Case no.423/2015, Before the honourable District and Sessions Court, Kottayam the murder case of the deceased, Dr. Santhosh Joy, who conducted the postmortem had been examined as PW5. In the said case, the doctor has deposed that the injuries shown in the Exhibit A6 report, can be caused due to the forcible squeezing or pressing of the testicle by another person. He has further opined in Exbt A6 as well as deposed in the above case that the “death was due to neurogenic shock following squeezing of testicles”. Based mainly on this deposition and the postmortem report along with other evidences, the Honourable court convicted the accused under section 301 IPC. Here, it is pertinent that nowhere in the FIR or in the sessions case, the police or the accused has taken a contention that the deceased was under the control of alcohol and consequently he took part in the altercation actively. But on the other hand, it is noted in the FIR that the deceased was sitting on the veranda of his own house without creating any provocation and the other man attacked him and murdered.. Here no nexus is seen between the alcohol consumption of the deceased and his death. Moreover, in the postmortem report or the chemical analysis report, the area of the body is not specified from where the blood is taken or at what time the blood and urine is taken. Not only that, there is no mention of presence of alcohol in the stomach but only it is stated as ‘ an unusual smell’. No test result regarding the urine as alleged by the 1st opposite party. In Ext.A6, it is recorded as bladder is empty blood and viscera are taken and preserved. Now the point to be considered is whether the quantity of ethanol in the blood shown as 75%mg is high or not? For this we have gone through a number of medical texts and decisions of our apex courts. From all these literature, we assume that the quantity of blood can vary in its effect from person to person. In the case in hand, the deceased being a person of 173 cm height and 85 kg weight,75%mg is not too high. Not only that, even if the alcohol content is high, a person consuming alcohol in his own house peacefully has no direct connection in this kind of an incident.
The learned counsel for the complainant produced a decision of Chhattisgarh State Consumer Redressal commission in United India Insurance Co.Ltd.,Vs Smt.Adhaniya Bai & Others. In this decision the Honourable commission has obsereved.
“23. In the case of Himachal Pradesh Road Transort Corporation Limited Vs. New India Assurance Company Limited,II(2007)CPJ 287, a table has been given. In the above judgement, Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla has relied on Medical Jurisprudence and Toxicology, 7th Edition by HWV Cox, Table 7.5.1. The above table is as below:-
Table showing the Effects of Different Concentration of Alcohol.
Concentration of Minimum Behaviour and Remarks.
Alcohol in blood consumed volume sign.
(mg. 100 ml) of 70% proof Spirit
(ml.)
Upto 50 Less than 70 No change Slightly Dry and decent, fit
flushed face. to drive.
50 to 140 70 to 150 Majority are gay, Dry and decent, fit
vivacious and to drive.
talkative a few
may show
symptoms of more
severe
intoxication.
Around 150 150 to 200 Garrulous and A critical level.
aggressive. Delighted and
devilish, may be
dangerous in
control of a
vehicle.
150 to 200 250 to 300 Motor Delinquent and
incoordination disgusting. Unfit
slurred speech, to drive.
staggering Gait.
400 to 600 550 to 500 Comatosed. Dazed and
dejected.
Above 600 More than 700 Asphyxia and Dead drunk.
death.
Again the Honourable commission observes:
8. On the basis of aforesaid discussions, it cannot be held that driver of the insured vehicle, was intoxicated and the complainant committed any criminal act or any breach of policy condition. In fact policy document does not contain any such condition, under which it can be said that the OP/Insurance company, will not be having any liability in case anybody drives the vehicle merely consuming liquor”.
The Hon’ble commission has put reliance upon the decision of the Hon’ble National Commission in United India Insurance Co.Ltd. Through its Regional Office Vs.Sheela and ors.,2014(2)CPR734(NC):
8. Further, we put reliance upon, a judgment of this commission, in Life Insurance Corporation of India Vs. Smt.Ranjit Kaur, 2011(3) CPR 266 (NC) that mere presence of alcohol, even usually prescribed limits, is not a conclusive proof of intoxication. Further, in this case, there is also no evidence that there is nexus between the death caused by drowning and consumption of liquor. In the light of the principles laid down in the above decision, we are of the view that it is not roved that the deceaed was under the influence of liquor at the time of the accident. Even the investigation report issued by Mr. George Thattil(Insurance Investigator)does not support the petitioner/Op.”
Hence in the case in hand, the postmortem report clearly indicates the cause of death which has no nexus to the consumption of alcohol by the deceased.
Even if BAC was75%mg, the deceased has not initiated any quarrel or incidents leading to his death. There is no such allegation against the deceased in the FIR or in the sessions case, on the other hand, in the post mortem report it is shown that the cause of death is due to neurogenic shock following squeezing of testicles. From itself, it is evident that the consumption of alcohol by the deceased has no direct nexus with his death. So the repudiation of the policy claim is not justifiable. Hence we find that there is gross deficiency on the part of the opposite party and point no 1 is found accordingly.
For the sake of convenience point no 2 and 3 are considered together.
Point no 2&3
The deceased was the sole breadwinner of the house the death of the insured has caused huge loss to the family pushing them into severe mental agony, which is to be compensated in terms of money.
On the basis of the above discussions, we arrive at the decision to allow the complaint and pass the following order;
1.The 1st opposite party is directed to pay a sum of Rs. 2 lakhs being the insurance amount along with 9% interest per annum from 12/7/17 till realization.
2. The 1st opposite party is directed to pay Rs.12,000/- as compensation to the complainant.
3. The 1st opposite party is directed to pay Rs.5000/- as cost towards the litigation cost to the complainant.
The Order shall be complied with within 30 days from the date of receipt of copy of the order. If not complied as directed, the compensation amount will carry 6% interest from the date of order till realization.
Pronounced in the Open Forum on this the 8th day ofJune,2020.
Smt. Bindhu R, Member Sd/-
Sri. Manulal V.S. Presidient Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked on the side of complainant
A1-Copy of certificate of insurance
A2-Copy of First Information Report
A3-Copy of judgement sessions case No.423/15
A4-Copy of group personal accident insurance policy
A5-Copy of repudiation letter dtd 12/7/17
A6-Copy of Postmortem certificate
Exhibits marked on the side of opposite parties
B1-Copy of terms and conditions of policy
Court Exhibits
X1-Copy of Chemical Examioner’s Laboratory Department.
By Order,
Senior Superintendent.
