O R D E R

ADV. RAVISUSHA, MEMBER.

This is a complaint filed under Section 12 of the Consumer Protection Act. 1986.

Complainants are the legal heirs and dependants of Late Sri. Alexander Koshy, Mannil Puthen Veedu, Manchalloor, Pathanapuram who died in a road traffic accident on 3.10.2001.  1^st complainant is the wife and complainant 2 and 3 are the daughters of Late Sri. Alexander Koshy.  The first opp.party is the Insurance Company doing insurance business and is having divisional offices and branches all over India including the ones at Madras and Kollam.  During  the period of the existence of the said Janata  Personal Accident Policy the insured met with a Motor Accident and he died at 11.45 on 3.10.2001 while he was undergoing treatment at Medical College Hospital, “Thiruvananthapuram..  The Pathanapuram Police registered case in respect of the death of Sri.Alexander Koshy against the driver of the vehicle who caused the alleged accident.   After the death of Sri.Alexander Koshy, the 1^st complainant who is the wife and nominee of the insured submitted claim for the assured amount as per the Janata Personal Accident Policy to the 2^nd opp.party.  In respect of the said claim, the 2^nd opp.party sought several documents and clarifications from the 1^st complainant and she has promptly supplied all the said information and documents.  But , after a period of three years of the death of the insured, the 2^nd opp.party issued a letter dated 19.4.2004 to the 1^st complainant repudiating the claim stating that the deceased was under the influence of alcohol at the time of the accident and as per the policy there is no liability to the insurer to entertain claims arising out such incidents.  The accident happened not due to any negligence on the part of the deceased.   The case of the 2^nd opp.party is that the deceased was under the influence of alcohol at the time of accident and that is a situation which  excluder liability of the insurer.   The 2^nd opp.party has no case that the accident happened due to the negligence on the part of the deceased or that he himself invited his death.   The 2^nd opp.party accepted the proposal of the deceased and agreed that in case of the death of the insured in an accident during the period of validity of the insurance policy, the 2^nd opp.party will pay the sum assured to the nominee of the insured.  So the 2^nd opp.party is bound to pay the sum assured as per the Janata Personal Accident Policy to the complainants since Alexander Koshy died in an accident on 3.10.2001, that the death of the insured happened on 3.10.2001 and the 1^st complainant sent the claim form supported by relevant documents to the opp.party on 17.11.2001.  But with any rhyme or reason, the 2^nd opp.party, who is bound to settle the claim of the complainants expeditiously, instead dragged the matter for more than 3 years and finally repudiated the claim without any valid reasons.  While considering the claim of the complainants, the 2^nd opp.party adopted an unfair trade practice and there is deficiency in service on the part of the 2^nd opp.party while repudiating the claim of the complainants.  Hence filed  this complaint.

The opp.parties filed version contenting that, the complaint is not maintainable either in law or on facts.   The 1^st opp.party had issued a Janatha Personal Accident Insurance Policy to the deceased Alexander Koshy for a period from 25.11.1998 to 24..11..2008 for a sum insured of Rs.5,00,000/- as he being the holder of dollars save card No.103518.   The said policy is issued subject to the terms, conditions exceptions and exclusions governing the contract of the master policy.  It is specifically mentioned in the policy certificate of the insured policy.  It is specifically mentioned in the policy certificate that the insured person is covered under the policy as per the terms and conditions of master policy agreement Nol.4771060000846.  The  insured Alexander Koshy met with an accident  on 3.10.2001 at about 9.30 p.m. at a place called Pathanapuram.   The opp.party issued a claim form to the 1^st complainant and requested her to produce the Post Mortem report and the other documents required for processing the claim. The opp.party on verification of the Post Mortem certificate produced by the complainant has found that the stomach of the deceased contained unidentifiable food particles having alcoholic small.  It is mentioned in the post mortem certificate that sample of blood collected from the deceased has been preserved and sent for chemical analysis.   The opp.party thereafter collected the chemical analysis report issued from the department of Forensic Medicine.  Medical College, Thiruvananthpuram .  On verification of the Medical analysis report it is found that 46Mg. of Ethyl Alcohol is present in 100 Ml of the blood sample collected from the deceased.   The department of Forensic Medicine had sent a report dated 31.10.2002 to Judicial 1^st Class Magistrate Court, Punalur, stating the receipt of Blood sample preserved from the body of the deceased for chemical analysis and the result of the said sample after chemical analysis, it is stated that 46 Mg. of Ethyl Alcohol is present in 100ml of blood sample collected from the body of the deceased.   From the finding in the Post Mortem Certificate about smell of Alcohol and from the Chemical Analysis report of the blood sample collected from the deceased, it is undoubtedly proved that the deceased at the time of accident was driving the vehicle under the influence of alcohol and had committed an offence under section 185 of MV Act.    It is an offence under Section 185 of MV Act to drive a vehicle were the alcohol content exceeds 30 Mg  in 100 ml of blood .  In the instant case 46 Mg of Ethyl Alcohol is found in 100 Ml of the preserved blood of the deceased which far exceeds  the statutory percentage mentioned in MV Act.  It is an offence to drive a vehicle after consuming alcohol when the alcohol content exceeds 30 Mg  in 100 ml of blood as per Section 185 of MV Act.  It is obvious that the deceased was driving the motor cycle under the influence of Alcohol and the same has contributed the main cause for the accident.   The policy issued by the opp.party excludes liability in case were the accident is caused when the insured is under the influence of Alcohol.  Since the insured had consumed Alcohol much beyond the permitted statutory percentage the only legal presumption that can be drawn  is that the deceased was under the influence of alcohol at the material time of the accident   The deceased in fact had crossed the road abruptly without showing any signals to other users of the road or without noticing about the incoming vehicle passing through the road.   The risk of the insured is squarely excluded from the coverage of the insurance policy as per the exclusion clause given under the policy and as such the claim of the complainant was properly repudiated by the opp.party for valid reasons.  The opp.party repudiated the claim of the complainant on the basis of the exclusion clause given under the policy which was properly proved by medico legal evidence and the repudiation was properly communicated to the complainant vide letter dated 19..4..2004.   The repudiation of the claim was made by the opp.party after proper application of mind on sound legal basis.   The complainants have no manner of cause of action to raise any deficiency in service against this opp.parties in repudiating the claim of the complainant.  The complainant has no cause of action against the opp.parties 1 and 2 since there is no deficiency in  service performed by the opp.parties 1 and 2 in deciding the claim lodged by the complainant.  Hence prays for dismissal of the complaint.

Points that would arise for consideration are:

1.     Whether the insured has violated the terms and conditions of the policy?

2.     Whether there is deficiency in service on the part of the opp.parties

3.     Relief and costs.

For the complainant PWs.1 to 3 were examined and marked documents P1 to P8

For the opp.parties DWs.1 and 2 were examined and marked D1, D2, X1[a]. X1[b]  and X2

POINTS:

It is not disputed that the 1^st complainant’s husband Sri. Alexander  Koshy has taken Ext.P1 policy and that the policy was subsisting  when Sri.Alex Koshy  met with an accident on 3.10.2001.   The complainant submitted Ext.P2 claim which was repudiated by the opp.party as per Ext.P3 repudiation letter on the ground that  on the basis of the findings of the chemical analysis report, the deceased was under the influence of alcohol at the time of accident which comes within the provision 4[d] of Ext. D2 policy conditions.

          In the proviso [4]  of Ext. D2  says that the company shall not be liable under this policy for payment of compensation in respect of death, injury or disablement of the insured from [a]  Intentional self injury, suicide or attempted suicide [b]  which under the influence of intoxicating liquor or drugs.  Now the question is whether  Late Alexander Koshy violated the policy conditions prescribed in Ext. D2 policy.  When the 1^st complainant was examined as PW.1 she has admitted that the eligibility of claim is only on the basis of policy condition.   According to the complainant merely  because a person’s blood samples contains more than the allowed percentage of alcohol, it is no way means that the said person was intoxicated and more over if the intoxication  is the proximate and direct cause of  his death, then the opp.parties are entitled to repudiate the claim.  Complainant’s  counsel produced certain decisions also.  But here the position is different.   The  4^th proviso in Ext. D2 says that the opp.party shall not be liable under this policy for payment of compensation in respect of death, injury or disablement of the insured whilst under the influence of intoxicating liquor or drugs.   The said condition does not mean that the person must be in an intoxicated condition.   The condition only means that  at the time of accident if the person is under the influence of liquor, the company  shall not be liable to pay compensation.

          Complainant admitted that the deceased died in a Motor vehicle accident.   According to the complainant  on the basis of Ext.P7Final Report of Police the accident was happened due to the negligence of the driver who driven the Jeep on that day.  But the perusal of Ext.P8 Judgment in CC.1581/01 shows that  , the Judicial 1^st class Magistrate Court, Punalur  after taking evidence, acquitted the accused [driver of the jeep]  Under Section 255 [1] CRPC, on the finding that the accused is found not guilty for the offence with which he is charged.

          According to the opp.party the insurance policy is a contract in which the liability is determined  on the basis of the specific terms and conditions of the contract only.   The insurer has got every right to repudiate the claim if the violation as mentioned in condition No.4 of the policy is established.

          For establishing the said conditions opp.party produced Ext. X1 series and Ext. X2 and examined those persons who prepared the said documents.  As per postmortem  findings the stomach of the deceased contains firm rise and other unidentifiable food particles having an alcoholic smell.   DW.1 who conducted the postmortem collected blood samples and sent for chemical analysis report.  The perusal of Ext. X2 chemical analysis report shows that 100 ml. blood of the deceased contained  46 mg ethyl   alcohol.

          As per Sec. 185 of MV Act 1988 driving by a drunken person or by a person under the influence of drugs, whoever, while driving or attempting to drive, a motor vehicle has , in his blood, alcohol exceeding 30 mg per 100 ml of blood or is under the influence  of a drug to such an extent as to be incapable  of the exercising proper contact  over the vehicle .   As per X2  chemical analysis report the deceased Alexander Koshy was under the influence of alcohol, who had consumed alcohol exceeding the specified percentage  mentioned under Sec. 185 of MV Act 1988.

          The Ext. D2 policy condition shows that the company shall not be liable for payment of compensation in respect of death occurred whilst the insured person is under the influence of intoxicating  liquor or drugs.   The policy condition does not specify any percentage but merely says that ‘under the influence of intoxicating liquor or drugs’.  So as per proviso 4 of the policy condition, the mere state of the insured person under the influence of alcohol at the time of accident  is sufficient to attract the said condition.  In Ext. D2  policy condition, no where mentioned that the insurer has to establish that the cause of death is due to the intoxicated condition of the deceased .  In this case as per Ext. X2 chemical analysis report it is clear that the deceased was riding the motor cycle under the influence of alcohol.

          The complainant’s counsel argued that  the insurance company is not liable to pay compensation if the death injury or disablement shall be from under the influence of intoxicating liquor or drugs.  In reply the opp.party’s counsel argued that the exclusion clause 4 [a]  only will attract in respect of the death or disablement is from intentional self injury, suicide or attempted suicide.  When coming  to exclusion clause 4 [b]  the company shall not be liable under this policy for payment of compensation inrespect of death, injury or disablement from an accident whilst [while] the insured is under the influence of intoxicating liquor or drugs.   The meaning of the word while is as ‘during the  time that ‘.  Then exclusion clause 4 [b] of the policy is that, if the death, injury or disablement is caused whilst [during the time that][ the insured is under the influence of intoxicating liquor or drugs, the company shall not be liable to pay compensation under this policy.  On analysis of both counsel’s arguments we are of the view that the emphasis given in the arguments by the complainant’s counsel, that the company is not liable only if the death, was from intoxicating liquor is meaningless, which is never intended in the policy terms and conditions.  So the insurer is not liable  under  the policy if the accident which resulted to the death of the insured is during the time [while] the insured is under the influence of intoxicating  liquor or drugs.  So the argument put up by the complainant’s counsel that the death must be from intoxicating liquor or drugs is not a condition as warranted under the policy.   So the decision reported in 2010 [1] CPR 332 and the illustrations given in the argumentnotes of the complainant  are not applicable to the facts in issue of this case.

          Opp.party has proved the presence of alcohol in the blood of the deceased through ext. X2 chemical analysis report .  DW.2 who prepared Ext. X2 is also examined.   The complainant has not disputed the veracity of Ext. X2 report submitted by DW.2 and not even put a single question to DW.2 is challenging the findings given in the chemical analysis report..  opp.party’s   counsel  produced a decision reported  in 1997 CPj Vol.1 pages 72.  In that decision.   The Kerala State Commission held that the claim rejected by the opp.party is justified as insured was under influence of alcohol.  It is immaterial whether the accident has taken place due to the negligence of the insured or not.

          The complainant’s counsel produced a decision of the National Commission reported in 2011 [3] CPR 266 [NC] in support of his case.  In this decision, the National Commission observed that mere presence of alcohol even above the usually prescribed limit is not a conclusive proof or intoxication and that there should be nexus between death caused by electric shock and consumption of liquor.  Here in Ext. D2 policy, the only expression used in  4[b] of the policy.  It  is that the company shall not be liable under the policy for payment of compensation in respect of death of the insured in an accident while  under the influence of intoxicating liquor or drugs.   Through Ext. X2 chemical analysis report, the opp.party proved that the deceased was under the influence of alcohol, while the deceased was riding the  motor cycle at the time of accident.  When such a condition is proved  by the opp.party, there is no scope for interpreting the quantity of consumption of alcohol  and the frequency of consumption etc. in deciding whether a 0person is under the influence of alcohol or not as considered in the decision of National Commission

          Opp.party’s counsel produced decisions reported in 2006 CPJ Vol IV page NO.396 and  another decision reported in AIR 1966 page 1644.  In the above decisions the Hon’ble Apex Court held that while interpreting the terms and conditions of the policy, the duty of the court was to interpret the same in the manner so expressed in the policy

          In a decision reported in CPJ 2010 Vol IV page 321 held that if breach of fundamental conditions, a breach of law is   proved, the complainant is not entitled to get any compensation.  In this case the  claim preferred is not relating to 3^rd party but by the insured himself for the damages sustained to his vehicle.   The National commission in the above decision held that the complainant was using the vehicle in breach of fundamental condition as well as breach of law and as such he is not entitled to get any compensation.

Since  the violation of Proviso   4 [b] of the policy condition is proved, the opp.party is entitled to repudiate the claim.   There is no deficiency in service on the part of the opp.party.  Complainants are not entitled to get compensation from the opp.party.

          In the result the complaint fails and the same is dismissed without cost.

Dated this the 31^st day of October, 2012.

I N D E X

List of witnesses for the complainant

PW.1. –Kunjumol Alex

PW2. – Thomas Chacko

PW.3. – U.G. Praveen

List of documents for the complainant

P1. – Policy certificate

P2. – Claim form

P3. – Repudiation letter

P4. – FIR

P5. – Wound certificate

P6. – Postmortem certificate

P7. – Final report

P8. – Certified true copy of Judgment in CC.No.1581/01

List of witnesses for the opp.party

DW.1. – Sasikala

DW.2. – Mercy.S.

List of documents for the opp.party

D1. – Certificate of chemical analysis for the year 2002

D2. – Policy certificate

X1. – Postmortem report

X1 [a] Postmortem certificate

X1[b] Report to be forwarded with the material objects  sent for chemical examination.

X2. – True copy of certificate of chemical analysis NO.4929/2002