(Delivered on 24/11/2017)
Per Mr. S.B. Sawarkar, Hon’ble Member
1. The instant appeal is filed against the order of the District Forum, Wardha passed in complaint No. 81/2010 dated 29/12/2010 partly granting the complaint and directing as under,
a. The O.P. committed deficiency in service by repudiating the insurance claim of Kishor Raut.
b. The O.P. to provide the insurance claim of Rs.1,00,000/- and to provide an interest at the rate of 9% p.a. from the date of repudiation till final payment.
c. The O.P. to provide Rs.2,000/- for physical and mental harassment and cost of Rs. 1,000/- to the complainant in the span of 30 days from the date of receipt of the order. If not paid the directed amount would carry an interest at the rate of 12% from the date of the order.
d. After the submission of amount by the O.P. in the Forum the Registrar to divide the amount in three portions out of which portion one be given to the complainant No. 1 and remaining two portions be kept in the fixed deposit of a National Bank as selected by complainant No.1 in the name of complainant Nos.2&3 till they become major. Till this time the amount would not be withdrawn without the order of the Forum or no loan would be drawn upon it. However, the interest accrued upon it would be drawn by the complainant which be informed to the concerned Bank.
2. The complainant Nos. 1,2&3 filed a complaint to claim the insurance claim of the husband deceased life assured (DLA) for the policy taken from O.P. after accidental death of DLA on 08/09/2005. The O.P. repudiated the claim on 30/06/2009 upon which the complainants gave notice. After not getting reply filed complaint with a prayer to declare the O.P. to have committed deficiency in service in repudiation and to provide her the policy claim with all benefits and Rs. 50,000/- for physical and mental harassment and a cost of Rs.10,000/- .
3. On notice the opposite party (in short O.P.) Nos. 1&2 appeared and countered the complaint that the DLA had taken a policy of Rs. 1,00,000/- He died in the accident. However, at that time he was under influence of alcohol which was found in the Chemical Analysis. Also the nomination in the policy is of different person than the complainants. Hence, the repudiation does not involve deficiency in service.
4. The complainant submitted that the nominated person of the policy was father of the DLA who had died. Hence, the complainants are the legal heirs of the DLA and the postmortum report says that the DLA had died because of accident.
5. The O.P. claimed that the chemical analysis has shown that the viscera of the DLA contained 140 mg. of alcohol for 100 ml. of blood and blood contain 131 mg. of alcohol for 100 ml. Hence, he was under influenced and therefore cannot be paid with the claim.
6. The learned Forum held that though liquor type of substance is found in the blood of the DLA still the death is in the accident and an offence is registered against the another driver. The O.P. did not prove that the accident was caused by the DLA and the nexus between the alcohol and the death. Hence, the DLA has not violated the conditions of the policy. Therefore, denial of the claim is a deficiency in service. Also the National Commission has held that the policy claim can be paid to the legal heirs of the DLA and it is not binding to pay it to the nominated person who has died. Hence, passed the order supra.
7. Aggrieved against the order, the O.P. filed an appeal hence, is referred as appellant. Advocate Shri. Rahate and Advocate Shri Quazi appeared for the appellant. The original Complainant were referred as respondent Nos. 1,2&3 who already filed written notes of argument.
8. The advocate for the appellant submitted that the learned Forum overlooked the fact that the DLA was driving the vehicle under the influence of alcohol when he met with an accident. Which can be seen from the heavy amount of alcohol found in the viscera of DLA which is much above liquor influence requirement of 30 mg. /100 mg. of blood. The learned Forum held no nexus between alcohol and death when the DLA had died in the vehicle accident. When the DLA was under influence of liquor it clearly results in the breach of conditions of the policy. The influence condition itself proves the breach. Also the learned Forum has went to levying penal interest which cannot sustain under the decision of the Supreme Court. He relied on the following judgments.
National Commission Judgment passed in Dharmpal Vs. United Insurance Co. published at I (2013) CPJ 150 (NC). Wherein it is held that if the policy puts the restriction that driver at the time of driving the vehicle should not be under intoxication and when the driver was under influence of liquor this is violation of terms and conditions of the policy which has to be construed strictly. Hence, repudiation is justified.
10. He also filed the page 714 of the book “Estimation of alcohol” which showed sobriety with relation to presence of alcohol present in blood. It shows that up to 60 mg. the person is sober. Between 120to180 mgs only 50% persons remains sober. Above 180mgs intoxication takes place. The normal tolerable limit of alcohol is 20mg. per 100 cc.
11. The advocate for the a appellant submitted that the learned Forum passed an unreasoned order which deserves dismissal.
12. Advocate Shri Tigase had appeared for the respondent at the time of admission and had filed written notes of argument but remained absent.
13. The advocate for the respondent in his written notes of arguments submitted that the repudiation ground given by the appellant was absolutely false as the deceased was never drinking the alcohol and accident took place because of dash to his vehicle by the another vehicle. Hence, the DLI was not responsible for the accident. Also the appellant submitted that the policy was nominated in the name of the husband and sister of the DLI. However, it is the legal heirs of the deceased who are liable to get the benefit of the policy and not the nominee who might be equal share holders of the money. Therefore, the submissions of the appellant are not applicable in the present case and the repudiation is the glaring case of deficiency in service. Hence, the order of the learned Forum be maintained and appeal be dismissed with a cost of Rs. 2000/- upon the appellant.
14. We considered the contentions of both the parties. We do find that there is report of Chemical Analyser on record showing alcohol in the viscera of the deceased life assured which is almost to the extent of 140 milligrams per 100 gms in the various parts included in the viscera. It shows that it is beyond that level of sobriety as is submitted by the appellant by submitting the extract from the book which is 60 mgs. per 100 gms. It shows that with the increase in the percentage of the alcohol the intoxication rises. This itself is positively a breach in the conditions of the policy. We also find the learned Forum wrongly came to the conclusion that the alcohol percentage has no connection with the death of the DLI even when there was alcohol in his blood at the time of accident.
15. We further find that when a policy is properly provided with a nomination, the amount of the policy becomes payable to the nominee. The respondent can certainly file a Civil Suit in Civil Court for getting appropriate order and can thus claim the amount which legally belongs to the nominee. It is not for the appellant and also in the powers of learned Forum to decide the legal heirs of the DLA and provide the benefits of nominee to them.
16. These grounds clearly show that the learned Forum has stepped beyond the reasons to hold that there was no breach of the policy condition and allowed the complaint. Therefore, the order of the learned Forum deserves to set aside in the light of the case law submitted by the learned advocate of the appellant. The appeal therefore deserves to be allowed. Hence, the order below.
ORDER
i. The appeal is allowed.
ii. The order of the learned Forum is set aside. In the event the complaint stands dismissed.
iii. Parties to bear their own cost.
iv. Stay if any stands vacated.
v. Copy of the order be provided to both the parties, free of cost.