KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 364/2009 JUDGMENT DATED: 25-02-2010 PRESENT: SMT. VALSALA SARANGADHARAN : MEMBER SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER APPELLANTS 1. Life Insurance Corporation of India, Represented by Branch Manager, Branch Kozhikode. 2. The Divisional Manager, The Life Insurance Corporation of India, Divisional Office, Jeevan Prakash Building, Manamchira, Kozhikode. 3. The Branch Manager, Life Insurance Corporation of India, Kozhikode Branch, Manamchira. (Rep. by Adv. Sri. S.S. Kalkura) Vs RESPONDENTS 1. Snehalatha Baburaj, Mundamthara House, 34/895, Chulliyode Road, Civil Station, Kozhikode. 2. Rahul Baburaj (aged 10 years) Residing at -do- , -do-. 3. Rohan Baburaj (aged 8 years) Residing at –do-, -do-. 4. Rohit Baburaj (aged 5 years) Residing at –do-, -do-. (Respondents 2 to 4 are minors and are under the care and custody of their mother and natural guardian the 1st respondent) 5. Thankam aged 68 years Residing at –do-, -do-. JUDGMENT SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER Appellants were the opposite parties and respondents were the complainants in CC 94/2007, which was filed alleging deficiency of service on the part of the opposite parties in repudiating the claim for Double accident benefit with respect to the 4 insurance policies taken by the life assured Baburaj, who died in a road accident on 27-09-2004. The opposite parties entered appearance before the Forum below and filed joint written version denying the allegations in the complaint. They contended that there was no deficiency of service on their part in denying the Double accident benefit and that the said claim was repudiated on the basis of the exclusion clause attached to clause 10B of the policy, as the life assured was under the influence of intoxicating liquor at the time of death of life assured. Thus, the opposite parties justified their actions in repudiating the insurance claim with respect to Double accident benefit. 2. Before the Forum below, the first complainant was examined as PW1 and Exts. A1 to A7 documents were marked on the side of the complainants. An officer of the opposite party LIC of India was examined as RW1 and B1 to B7 documents were marked on their side. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 11-05-2009 directing the opposite parties to disburse the Double accident benefit to the complainants in respect of all the 4 insurance policies with compensation of Rs. 1,000/- and costs of Rs. 500/-. Hence the present appeal by the opposite parties in CC 94/2007 on the file of CDRF, Kozhikode. 3. The points that arise for consideration are: 1. Whether the appellants/opposite parties can be justified in repudiating the insurance claim made by the complainants with respect to Double accident benefit under the 4 insurance policies taken by the life assured Baburaj? 2. Whether the life assured Baburaj was under the influence of intoxicating liquor at the time of his death? 3. Is there any legally sustainable ground to interfere with the impugned order dated 11-05-2009 passed by CDRF, Kozhikkode in CC No. 94/2007? 4. Points 1 to 3: There is no dispute that the respondents/complainants are the legal heirs of the life assured Baburaj. The first complainant is the widow and complainants 2 to 4 are the children and the 5th complainant is the mother of the life assured Baburaj. Admittedly, Baburaj had taken 4 life insurance policies issued by the opposite party LIC of India and after death of the life assured Baburaj, the opposite party LIC of India settled the claim for the basic sum assured under the said 4 policies for Rs. 7,78,671/-. As per the said policies, the life assured had also opted for Double accident benefit. But, the said claim for Double accident benefit was repudiated by the opposite party, LIC of India. The only ground taken for repudiation of the Double accident benefit was that the life assured was under the influence of intoxicating liquor at the time of his death. 5. There is no dispute that the life assured Baburaj died on 27-09-2004 in a road traffic accident. The life assured sustained serious injuries in the said accident and he succumbed to the said injuries. Ext.P4 is copy of the postmortem report issued by Medical Officer who conducted postmortem examination on the body of the life assured Baburaj. The B4 postmortem report would show that the deceased died due to injuries to head and neck. Ext.B1 FIR would show that he life assured Baburaj died in a motor vehicle accident which occurred on 27-09-2004 by hitting of the offending vehicle bearing Registration No. KL 11 L 5185 against the motorcycle driven by the life assured Baburaj. It would further show that the police registered a crime against the driver of the offending vehicle for rash and negligent driving of the vehicle u/s 279 and 304(A) IPC. Admittedly, there was no negligence or carelessness on the part of the life assured Baburaj; but, the road accident occurred due to the rash and negligent driving of the offending vehicle by the driver of the same. A criminal case has also been registered against the driver of the offending vehicle. There is also no dispute regarding that aspect. 6. The opposite party LIC of India much relied on B2 certificate of Chemical Analysis issued by the Assistant Chemical Examiner to Government, Kerala and B3 letter issued by Dr. Rajendra Prasad V.K, Medical Officer. B4 postmortem report would show that at the time of the postmortem examination blood and urine were sent for chemical analysis. The aforesaid samples of blood and urine were subjected to chemical analysis by the Assistant Chemical Examiner to Government who issued B2 certificate of chemical analysis. The B2 certificate of chemical analysis would reveal the fact that blood and urine collected from the body of the life assured at the time of the postmortem examination was subjected to chemical analysis and ethyl alcohol content was found in the blood and urine of the life assured. B1 FIR would show that the road accident occurred at 12.30 noon on 27-09-2004. As per B4 postmortem report, the postmortem examination commenced at 4.10 p.m and concluded at 5.15 p.m on the same day. The samples of blood and urine for chemical analysis were collected during the course of postmortem examination. The aforesaid samples of blood and urine on chemical analysis revealed presence of ethyl alcohol in the said samples of blood and urine. The content of ethyl alcohol in blood was estimated at 57.50 mg per100 ml. The content of ethyl alcohol in urine was assessed at 115.0 mg per100 ml of samples. Thus, B2 certificate of chemical analysis would make in abundantly clear that ethyl alcohol was present in the blood and urine of the life assured Baburaj at the time of his death. The B3 letter was issued by Dr. Rajendra Prasad V.K, Medical Officer, Medical College, Calicut based on B2 chemical analysis report dated 18-04-2005. Thus, B2 to B4 documents would make it crystal clear that life assured Baburaj had consumed alcohol and that ethyl alcohol was present in his blood and urine at the time of his death in the road accident which occurred on 27-09-2004. 7. The next aspect for consideration is as to whether the aforesaid quantity of ethyl alcohol present in the blood and urine of the life assured is sufficient to hold that the life assured was under the influence of intoxicating liquor at the time of his death. The learned Counsel for the appellants/opposite parties much relied on the textbook by Dr. K.S. Narayan Reddy, M.D., D.C.P., Ph.D., F.A.M.S., F.I.M.S.A., F.A.F.&C., F.I.A.M.S. “The Essentials of Forensic Medicine and Toxicology” (21st Edition 2002) and argued for the position that presence of ethyl alcohol more than 50 mg per 100 ml of blood sample is sufficient to intoxicate a person and such a person can be considered as a person under the influence of intoxicating liquor. He has also submitted photocopy of the aforesaid authority Essentials of Forensic Medicine and Technology by Dr. K. Narayan Reddy. A reading of the aforesaid authority would show that the presence of ethyl alcohol between 50 to 150 mg% would affect the mental faculty of a person. It is stated that in such a condition mental concentration is poor and judgement impaired. The faculty of attention deteriorates rapidly. Recall memory is often markedly disturbed, in which the person cannot accurately recall certain situation, or even names of individuals whom he has known for years. The reaction time of individuals becomes impaired. The emotions are affected. Alcohol increases the desire for sex, but markedly impairs the performance, often resulting in prolonged intercourse without ejaculation. The aforesaid characteristics would give a clear indication that such a person is to be considered as one under the influence of alcohol. 8. The learned Counsel for the appellants has also relied on the decision rendered by the Hon’ble National Commission in Life Insurance Corporation of India and Anr. Vs. Priyanka Singh reported in III (2007) CPJ 436 (NC). In the aforesaid decision the Hon’ble National Commission had occasion to consider the Double accident benefit under a life insurance policy. The National Commission relied on the test book of Biochemistry and came to the conclusion that pre-intoxication 50-150 mg/dl Signs of instability, decreased neuromuscular coordination, judgment and control required for quick responses such as car driving. It was considered that a person having ethyl alcohol between 50 to 150 mg/dl has been considered as one under the influence of intoxicating liquor and ineligible for the benefits under Double accident policy. Thus, we are of the considered view that the presence of ethyl alcohol in the blood at 57.5% per 100 ml is sufficient to hold that the life assured was under the influence of intoxicating liquor. 9. The appellant/opposite party LIC of India placed reliance on the exclusion clause of the life insurance policy. The relevant exclusion is as follows: “The corporation shall not be liable to pay the additional sum refereed to in (a) or (b) above, if the disability or death of the life assured was whilst the life assured is under the influence of intoxicating liquor, drug or narcotic”. The clause 10(a) deals with benefit under Double Accident Policy in the event of death of the life assured. The aforesaid exclusion clause would make it clear that the LIC of India shall not be liable to pay the Double accident benefit in the event of death of the life assured under the influence of intoxicating liquor, drug or narcotic. In the present case on hand, the life assured Baburaj was under the influence of intoxicating liquor at the time of his death in the road traffic accident. So, the opposite party LIC of India is justified in repudiating the claim for Double accident benefit. There cannot be any deficiency of service on the part of the opposite parties (appellants) in repudiating the claim for Double accident benefit under the 4 life insurance policies taken by the life assured Baburaj. 10. The Forum below was of the view that there was no nexus between the cause of death of the life assured and the consumption of alcohol by the life assured. The Forum below did not consider the question as to whether the life assured Baburaj was under the influence of alcohol at the time of his death. The Forum below omitted to consider that aspect or question because of the fact that the life assured Baburaj died in a road traffic accident because of the negligence of the driver of the offending vehicle and there was nothing on record to show that there was negligence on the part of the life assured Baburaj. But, the Forum below omitted to note the exclusion clause attached to clause 10(a) and (b) of the conditions of policy. In the aforesaid exclusion clause, it is only stated that the LIC of India shall not be liable to pay the Double accident benefit in the event the life assured being under the influence of intoxicating liquor at the time of his death. In the present case on hand, the life assured Baburaj was under the influence of intoxicating liquor at the time of his death in the road traffic accident. If that be so, the aforesaid exclusion clause would come into operation and thereby the LIC of India cannot be made liable to pay the Double accident benefit to the nominees or legal heirs of the life assured. The Forum below failed to consider the material aspect of the contention adopted by the opposite parties regarding the exclusion clause under clause 10 (a) and (b) of the life insurance policy. The impugned order passed by the Forum below directing the opposite party to disburse the Double accident benefit to the complainants is legally unsustainable and the same is liable to be set aside. Hence we do so. These points are answered accordingly. In the result, the appeal is allowed. The impugned order dated 11-05-2009 passed by CDRF, Kozhikkode in CC No. 94/2007 is set aside. The complaint in CC No. 94/07 is also dismissed. The parties are directed to suffer their respective costs throughout. M.V. VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER Sr. | 
