BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
C.C. No. 179/2006 Filed on 28.06.2006
Dated : 16.02.2011
Complainant:
Jagadamma, W/o Sreedharan, Saraswathy Bhavan, Kariyil, Kazhakoottam P.O, Thiruvananthapuram.
(By adv. V. Manikantan Nair)
Opposite party:
The Divisional Manager, United India Insurance Company, V.J.T. Hall Road, Palayam, Thiruvananthapuram.
(By adv. R. Jagadish Kumar)
This O.P having been heard on 15.12.2010, the Forum on 16.02.2011 delivered the following:
ORDER
SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are that complainant is the mother of late Mr. Jayapalan, who died in a motor vehicle accident on 12.09.2004 at about 3.30 pm near Pattani curve along the Vithura-Ponmudi Road, that Mr. Jayapalan was a holder of Janatha Personal Accident policy from the opposite party vide policy No. 101303/47/61/11/28966/97, that the said policy was valid from 28.07.1998 to 27.07.2008, that the total sum assured to the policy holder is Rs. 1,50,000/-, that complainant is the nominee of the above policy, that she submitted the claim form with relevant documents to opposite party, that opposite party did not settle the legitimate claim of the complainant in time, that in order to cause much delay and to withhold the total assured amount, the opposite party insisted for unnecessary documents one after another as per letter dated 01.07.2005, so as to harass the complainant. It is submitted by the complainant that her only son died in the accident and her husband died years back and opposite party is duty bound to pay the assured amount as per the above said policy. Opposite party disallowed the assured amount. Hence this complaint to allow the complainant to realize Rs. 1,50,000/- with 12% interest from the opposite party along with compensation and costs.
Opposite party filed version contending interalia that the complaint is not maintainable, that a Janatha Personal Accident policy was issued to one Jayapalan, that whether the petitioner is related to Mr. Jayapalan is under challenge, that petitioner has not provided any documentary evidence to substantiate the claim, that from the documents obtained by opposite party it has come into evidence that late Jayapalan was fully intoxicated at the time of death and as per recitals of the policy the opposite party is not liable to compensate. Hence opposite party prayed for dismissal of the complaint.
The points that arise for consideration are:-
Whether the complainant is entitled to get the policy amount of Rs. 1,50,000/-?
Whether there is deficiency in service on the part of opposite party?
Whether the complainant is entitled to compensation and costs?
In support of the complaint, complainant has filed affidavit and has marked Exts. P1 to P8. In rebuttal opposite party has filed affidavit and has marked Exts. D1 to D5.
Points (i) to (iii):- Admittedly, the deceased Jayapalan was a policy holder of the opposite party vide policy No. 101303/47/61/11/28966/97 and the sum assured to Mr. Jayapalan was Rs. 1,50,000/- and the said policy was valid from 28.07.1998 to 27.07.2008. There is no point in dispute that the said policy holder died in motor vehicle accident on 12.09.2004. It has been the case of the complainant that she is the nominee as per the above policy, that her only son died in the accident and her husband died years back and she is entitled to get the policy amount. The very stand of the opposite party is that opposite party is not liable to compensate as the policy holder was fully intoxicated at the time of death. Ext. P1 is the copy of the policy certificate. As per Ext. P1 membership No. is 0850688023670, name of the policy holder: Mr. Jayapalan, Nominee : Jegathamma, Relationship : Mother, Period of insurance : 28.07.1998 to 27.07.2008, capital sum insured : Rs. 1,50,000/-, cover: death due to accident only. Ext. P2 is the copy of the FIR. Ext. P3 is the postmortem certificate. As per Ext. P3 stomach contained a hand full of soft rice and other unidentifiable food particles in 200 ml of watery fluid having an alcohol like smell and its mucosa was congested. As regards opinion as to cause of death, it is seen stated in Ext. P3 that death was due to head injury sustained. Ext. P4 is the copy of the charge sheet. Ext. P5 is the copy of the death certificate. Ext. P6 is the copy of the letter dated 11.01.2005 to Jagadamma requesting her to forward and comply with the requirements as stated therein. Ext. P7 is the letter dated 01.07.2005 from the opposite party to the complainant requesting her to forward and comply with the requirements as stated therein. Ext. P8 is the letter dated 24.03.2006 sent by opposite party to Mr. Jagadamma, the mother of late Sri. Jayapalan stating that in spite of their repeated reminders to forward the documents stated in earlier letters dated 01.09.2005, 19.10.2005, 07.02.2006 and 09.03.2006 in respect of the above said claim after giving sufficient time limit she has not responded to submit the documents mentioned therein. It is further stated in Ext. P8 that it is gathered from the postmortem certificate that Mr. Jayapalan was under the intoxication of liquor at the time of accident. Hence the claim is not payable as per the policy conditions. Complainant has been cross examined by the opposite party. Opposite party has filed affidavit stating that late Jayapalan was fully intoxicated at the time of death. Hence as per recitals of the policy the opposite party is not liable to compensate and the claim falls outside the scope of the policy recitals. Opposite party has furnished 5 documents which has been marked as Ext. D1 to D5. Ext. D1 is the copy of the charge in Crime No. 06/04 filed before the JFCMC-I, Nedumangadu. Ext. D2 is the Janatha Personal Accident policy certificate issued by opposite party to Mr. Jayapalan. S. Ext. D3 is the copy of the postmortem certificate issued by Directorate of Medical Education. Ext. D4 is the copy of the FIR. Ext. D5 is the copy of newspaper report. As per Ext. P8 letter issued by opposite party to complainant, opposite party closed the claim file on gathering information from Ext. P3 postmortem certificate that the above said Jayapalan was under the intoxication of liquor at the time of accident. Opposite party has never furnished report of Forensic Laboratory to show that the said Jayapalan got intoxicated under the influence of liquor. Opposite party laid on postmortem report only. The very stand of the complainant is that without analyzing the chemical analysis report it is not possible to come to the conclusion that the accident happened due to the driver being intoxicated under the influence of liquor. Without blood test nobody can come to the conclusion that the above said Jayapalan was intoxicated under the influence of liquor. It must be the duty of the opposite party to show that there was presence of alcohol in the blood. Further opposite party has to establish that even if alcohol content is found in the blood, the content of the alcohol exceeded to a prescribed limit so as to intoxicate the deceased under the influence of liquor. It is pertinent to note that mere consumption of alcohol does not cause intoxication unless it exceeded a particular limit. In Ext. P3 postmortem report what has been stated is that death was due to head injury sustained. It is further stated that stomach contained a hand full of soft rice and other unidentifiable food particles in 200 ml of watery fluid having an alcohol like smell and its mucosa was congested. Even in Ext. P3 postmortem certificate doctor has never mentioned that the watery fluid seen in the stomach was alcohol. The onus lies on the opposite party to substantiate their case that the life assured was under the influence of intoxicated liquor at the time of accident. Opposite party has not produced the result of the chemical analysis while the available postmortem certificate never mentioned about the percentage of alcohol in blood and percentage of alcohol in urine. The burden is on the part of the opposite party to show that accident happened due to the driver being intoxicated under the influence of liquor. From Ext. P3 postmortem certificate alone we cannot come to the conclusion that the life assured was in a state of intoxication at the time of death. There is no point in dispute that the life assured died due to head injury sustained in the accident. Unless and until it is proved by opposite party that the accident happened due to intoxication of liquor by way of chemical analysis report, we deem that the life assured died due to accident. The doctor who had issued the postmortem certificate has been examined as DW2. In her cross examination by the complainant she has admitted that during the process of decomposition bacteria like substance can produce alcohol. In her reexamination by the opposite party when asked whether bacteria produced alcohol was present in the dead body she said dead body was not decomposed. It is further to be noted that from Ext. P3, we can gather that death was due to head injury sustained, but it is uncertain whether head injury sustained was due to accident caused by intoxication of liquor. Without chemical analysis report we cannot come to the conclusion that the accident happened due to the deceased got intoxicated under the influence of liquor. We have no hesitation to hold that Ext. P3 postmortem certificate would not come to rescue the opposite party insurance company. As such the contention of the opposite party that the claim is not payable as per the policy conditions since Sri. Jayapalan was under the intoxication of liquor at the time of accident is not sustainable. Opposite party furnished no other documents to establish the intoxication of liquor at the time of accident. Mere submission without any material to substantiate the ground that at the time of accident the life assured was under the influence of alcohol is a vague statement. There is nothing on record to show that at the time of accident the insured was under the influence of liquor. It is pertinent to note that the best evidence was the chemical analysis report, but opposite party miserably failed in getting the chemical analysis report. It would have given a clear picture about the condition of the insured at the time of accident. Non-production of the chemical analysis report would give an indication that there was nothing in the analysis report indicative of the fact that the insured was under the influence of alcohol at the time of accident. Mere examination of the person who prepared the postmortem certificate alone will not disclose the condition of the insured at the time of accident. In view of the above and evidence available on record we are of the considered opinion that complainant, the nominee and mother of the deceased, is entitled to get the claim amount.
In the result, the complaint is allowed. Opposite party shall pay the complainant the assured amount of Rs. 1,50,000/- with 9% interest from the date of complaint (28.06.2006) along with cost of Rs. 2,000/- within two months from the date of receipt of this order.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16th day of February 2011.
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
BEENAKUMARI. A : MEMBER
Sd/-
S.K. SREELA : MEMBER
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C.C. No. 179/2006
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Jagadamma
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of policy certificate
P2 - Copy of FIR
P3 - Copy of postmortem certificate
P4 - Copy of charge sheet
P5 - Copy of death certificate
P6 - Copy of letter dated 11.01.2005 issued by opposite party to
complainant.
P7 - Copy of letter dated 01.07.2005 issued by opposite party to
complainant.
P8 - Copy of letter dated 24.03.2006 issued by opposite party to
complainant.
III OPPOSITE PARTY'S WITNESS :
DW1 - S. Ganesh Kammath
DW2 - Meena K.S
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Copy of charge sheet
D2 - Copy of policy certificate
D3 - Copy of postmortem certificate issued by Directorate of Medical Education.
D4 - Copy of FIR.
D5 - Copy of newspaper report.
Sd/-
PRESIDENT
