KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL.NO.356/2004

JUDGMENT DATED: 29.5.2010

PRESENT

SRI.M.V.VISWANATHAN      : JUDICIAL MEMBER

SRI.M.K.ABDULLA SONA     : MEMBER

National Insurance Company Ltd.,                : APPELLANT

Thrissur Branch represented by its

Manager,

Ambika Arcade,

M.G.Road,

Thrissur.

(By Adv.Rajan P.Kaliyath)

                  Vs.

1. Sreedevi, w/o P.P.Shaji,                           : RESPONDENTS

    Punnathattel House,

    Muzhuvannoor.

(By Adv. Thomas M.Jacob)

2.  Kunnathunadu SNDP Union

     rep. by its Secretary,

     Kunnathunadu SNDP Union,

     Perumbavoor.

(By Adv. Lean Jose.P)

3. Pathari,

    Punnathattel House,

    Muzhuvannoor Post,

    Perumbavoor,

    Kunnathunadu Taluk.

4. Bhavani,

   W/o PAthari,

     -do-do-

5.  Kannan Shaji, 7 years,

     S/o Late P.P.Shaji,

    a minor represented by his

     Guardian Pathari,

              -do-do-.

6. KArthika Shaji 3 years,

    D/o Late P.P.Shaji,

    a minor represented by her guardian

     Pathari

                    -do-do-

JUDGMENT

SRI.M.V.VISWANATHAN      : JUDICIAL MEMBER

          The above appeal is directed against the order dated 8^th March 2004 of the CDRF, Ernakulam in OP.No.193/02.  The complaint therein was filed alleging deficiency in service on the part of the opposite parties 1 and 2 in not releasing the insured sum of Rs.50,000/- with respect to the policy of insurance issued in the name of deceased P.P.Shaji, the husband of the complainant.

          2. Notice was served on opposite parties 1 and 2 and that the 2^nd opposite party remained absent.  The 1^st opposite party/National Insurance Co.Ltd., Thrissur branch represented by its Manager entered appearance and filed written version denying the alleged deficiency in service.  The 1^st opposite party justified their action in repudiating the insurance claim on the strength of exception clause No.5(b) of the policy.  It was contended that insured Shaji died whilst under the influence of intoxicating liquor or drug and so 1^st opposite party/National Insurance Company is not liable to honour the insurance claim with respect to the death of the insured Shaji.  Thus, the 1^st opposite party prayed for dismissal of the complaint in OP.193/02. 

          3. Before the Forum below the complainant was examined as PW1 and Ext.A1 to A12 documents were marked on the side of the complainant.  From the side of the 1^st opposite party Ext.B1 to B4 documents were marked.  On an appreciation of the evidence on record, the Forum below found deficiency in service on the part of the opposite parties 1 and 2 and they were directed to pay insurance amount of Rs.50,000/- to the complainant and additional opposite parties 3 to 6 being the legal heirs of the insured Shaji and the said insured amount of Rs.50,000/- has been  apportioned among the complainant and opposite parties 3 to 6.  The opposite parties 1 and 2 are also directed to pay the complainant a sum of Rs.1000/- towards the cost of the proceedings.  It is against the aforesaid impugned order, the present appeal is filed by the 1^st opposite party/National Insurance Co.Ltd..

          4. We heard the learned counsel for the appellant/1^st opposite party and the 1^st respondent/complainant.  The counsel for the appellant/1^st opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He relied on copy of the personal accident insurance policy(group) produced as additional document in this appeal and argued for the position that the claim is not sustainable because of the exception clause 5(b) of the group insurance policy.  It is further submitted that the A1 insurance certificate under Sree Narayana Suraksha Scheme was issued subject to the terms and conditions of the group insurance policy issued by the National Insurance Co.  He also relied on B2 inquest report prepared by the Kunnathnad police in crime No.80/2000 and B3 final report in the said crime No.80/2000 and argued for the position that the insured Shaji died whilst under the influence of alcohol and that the death of Shaji occurred as a direct consequence of consumption of alcohol. The appellant justified their action in repudiating the insurance claim.  It is further submitted that there occurred delay on the part of the complainant in submitting insurance claim and there was violation of policy condition.  Thus, the appellant/1^st opposite party prayed for setting aside impugned order passed by the Forum below.  On the other hand, the learned counsel for the 1^st respondent/complainant supported the impugned order passed by the Forum below and argued for the position that the insured Shaji died due to drowning.  He also relied on Ext.A4 postmortem certificate, Ext.A5 final opinion issued by the Medical Officer and further submitted that the insured Shaji had an accidental death due to drowning.  Thus, the 1^st respondent/complainant prayed for dismissal of the appeal.

          5. The points that arised for consideration are:-

          1) Whether there was deficiency in service on the part of the appellant/1^st opposite party National Insurance Co. in repudiating the insurance claim with respect to the group insurance policy certificate issued by the appellants/National Insurance Co.  in favour of the insured Shaji?

          2)Whether the appellant/1^st opposite party/National Insurance Co. is succeeded in establishing their case that the insurance Co. is not liable to honour the insurance claim on the strength of the exception clause 5(b) of the personal accident insurance policy(group) issued to the insured Shaji through the 2^nd opposite party Kunnathnad S.N.D.P Union. Perumbavoor?

          3)Whether the Forum below can be justified in passing the impugned order directing the opposite parties 1 and 2 to pay insurance amount of Rs.50,000/- to the complainant and opposite parties 3 to 6?

          4) For the sake of convenience the parties to this appeal will be referred to according to their status and rank before the Forum below in OP.193/02.

          6. Points 1 to 3:-

          There is no dispute that the 1^st opposite party/National Insurance Co., Thrissur branch had issued a policy to deceased P.P.Shaji as insured and that the said insurance policy was issued based on a personal accident group insurance policy through the 2^nd opposite party/S.N.D.P.Union, Kunnathnadu, Perumbavoor.  As per the said personal accident group policy the insured persons were insured for a sum of Rs.50,000/- each.  Admittedly  P.P.Shaji, the husband of the complainant Sreedevi was also the insured  for a Sum of Rs.50000/- and the said policy was issued through the 2^nd opposite party/Kunnathnad S.N.D.P.Union, Perumbavoor. Ext.A1 is the insurance certificate issued by National Insurance company through the 2^nd opposite party/Kunnathnad S.N.D.P.Union, Perumbavoor under the scheme Sree Narayana Suraksha Pathathi.  Ext.A1 certificate was signed by the branch Manager of Naitonal Insurance Co., Thrissur branch and the Secretary of Kunnathnad S.N.D.P.Union, Perumbavoor.  The said policy was issued to the insured P.P.Shaji.  It is also to be noted that the said certificate was issued subject to the terms and conditions of the National Insurance Co.  The definite case of the 1^st opposite party/National Insurance Co. is that the conditions incorporated in the personal accident Insurance policy (group) will bind the insured persons.  The aforesaid personal accident insurance policy (group) has been produced by the appellant as the additional document along with the details of the persons insured under the said group policy.  The terms and conditions of the said group insurance policy are stipulated in the said group insurance policy which has been produced as an additional document in this appeal.

          7. As per the personal accident insurance policy (group)  there are exception clauses incorporated  in the said group policy.  The 1^st opposite party/Naitonal Insurance Co. much relied on clause 5(b) of the exception clause contained in the group insurance policy.  It is as follows: “that the Co. shall not be liable  under this policy for payment of compensation in respect of death, injury or disablement of the insured person whilst under the influence of intoxicating liquor or drugs.

          8. A corresponding exception clause is also incorporated in Ext.A1 insurance certificate.  The aforesaid exception clause in Ext.A1 insurance certificate is as follows:-  Clause 6(d)   “8T[K =LBWk /U*Uz*Pda #<W*XD_^ D@UdWk8Dc} A:_^} ABdWACWka $E*JW[3 %=\BT,^ AXD^ %tT*Wk !HW+hP”

Thus, the personal accident group insurance policy and Ext.A1 insurance certificate would make it clear that death of the insured whilst under influence of intoxicating liquor or drug is excluded by the aforesaid group insurance policy.

          9. The next aspect to be considered in this case is as to whether the insured P.P.Shaji died whilst under the influence of intoxicating liquor or drugs.  Admittedly the insured P.P.Shaji died on 19.3.2000.  Ext.A2 death certificate issued by Registrar of Births and Deaths, Mazhuvannur Grama Panchayat would establish the death of the insured Shaji on 19.3.2000.  It is also an admitted fact that the insured Shaji had an accidental death on 19.3.2000 and Kunnathnadu police registered a crime as crime No.80/2000 in Kunnathunadu police station.  Ext.A3 is the FIR in the aforesaid crime No.80/2000  Kunnathnadu police station under the caption unnatural death.  The aforesaid FIR was lodged based on the first information statement given by one Sura, the younger brother of the insured Shaji.  The FIR was given in the early morning of 20.3.2000 at 3.45AM.  As per the first information statement it was reported that insured Shaji went to the nearby canal for taking bath after 10PM on 19.3.2000 and he had an accidental fall and sustained injury on his head and died due to drowning.  The death occurred on the way to the hospital.  Ext.A3 FIR would show that the life assured Shaji had an accidental death due to drowning on the night of 19.3.2000.  It can also be seen that the first informant removed Shaji to the hospital and on the way the said Shaji died.  There is nothing in the first information statement regarding consumption of alcohol by deceased Shaji.

          11.Ext.A4 is copy of the postmortem certificate issued by the Medical Officer and District Police Surgeon, General Hospital, Ernakulam who conducted postmortem examination on the body of deceased Shaji. In the said postmortem certificate the cause of death is shown as death due to drowning.  It would also show that viscera blood and internal organs etc. were sent for chemical examination.  Ext.A5 is the final opinion given by the Medical Officer after getting the report of chemical examination.   In A5 final opinion it has been opined that no poison detected including ethyl alcohol in the items forwarded for chemical examination.  The final opinion has been given as the death due to drowning.  Thus, the A5 final opinion would make it clear that the death of insured Shaji occurred due to drowning.

          12. The learned counsel for the appellant/1^st opposite party argued for the      position that the complainant failed to produce the report of chemical examination and that the Forum below has not considered the relevancy of the report of chemical examination.  It is to be noted that Ext.B4 is the case diary in crime No.80/2000.  In Ext.B4 case diary the certificate of chemical analyses is also incorporated.  A perusal of the aforesaid certificate of chemical analyses dated 12.1.01 issued by Joint Chemical Examiner would make it clear that the contents  of stomach, small intestine were subjected to chemical  examination and the result was negative.  It would also show that the internal organs such as liver, kidney etc. were also subjected for chemical examination and all the results were negative.  It is specifically reported in the said certificate of chemical analyses that no poison including Ethyl alcohol was detected in items 1,2, and 5 which were subjected for chemical examination.  Item No.5 was blood etc. taken from the body of the deceased at the time of the postmortem examination and no alcohol or other intoxicating liquor could be detected in the said blood sample.  Thus, the argument of the learned counsel for the appellant/1^st opposite party that the chemical examination report was not available for    perusal cannot be  accepted.  The chemical examination report would also make it abundantly clear that the deceased Shaji was not under the  influence of alcohol or intoxicating drug at the time of his death.  It can very safely be concluded that the insured Shaji was not under the influence of liquor or drugs at the time of his death  If that be so, the contention of the 1^st opposite party/Insurance Co. that the death of the insured person(Shaji) occurred whilst under the influence of intoxicating liquor or drug can not be upheld.  Then, the repudiation of the insurance claim by the 1^st opposite party/Insurance Co. under the aforesaid exception clause is legally unsustainable.  The aforesaid repudiation of the insurance claim would amount to deficiency of service.

          13. The appellant/1^st opposite party/Insurance Co has urged in the appeal memorandum that there occurred delay in submitting the insurance claim and that the Forum below did not consider the said issue regarding delay in submitting the claim.  It is to be noted that 1^st opposite party/Insurance Co. had no such contention in their repudiation letter or in the reply lawyer notice regarding the delay in submitting the claim.  It is true that in para 5 of the written version it was contended that there was abnormal and deliberate delay in reporting the death of shaji as the claim was reported  only in 26.6.2000 resulting in grave prejudice to the  opposite party in collecting factual details and cause of death.  Ext.A10 is the lawyer notice dated 11.1.2002 issued at the instance of the complainant to the opposite parties 1 and 2 claiming the insurance amount of Rs.50,000/- with respect to the  Janatha Accident Insurance policy issued in the name of the Shaji under the Sree Narayana Suraksha Pathathi.  Ext.A6 is the reply lawyer notice dated 20.1.2002 issued at the instance of the 1^st opposite party/National Insurance Co..  In Ext.A6 reply lawyer notice the only reason or ground stated for repudiating the insurance claim is that the insured Shaji died whilst under the influence of intoxicating liquor or drugs.  There was no case in Ext.A6 lawyer notice regarding delay in submitting the insurance claim.  Ext.A9 is the repudiation letter  dated 25.12.01 issued by 1^st opposite party/National Insurance Co.  In the aforesaid repudiation letter the reason for repudiation is stated that the death of the insured occurred due to consumption of intoxicating  liquor or drug “A:_^} ABdWACWka $EBW[3 %=\BT,^ AXD^ %tT*Wk !HW+^} AC7^ "kUEBada #<W*XD_^ D@UdWk8Dc

But, there was no contention that the insurance claim is being repudiated on account of delay in submitting the insurance claim.  Thus, Ext.A6 reply lawyer notice and A9 repudiation letter would make it abundantly clear that the contention in the written version regarding the delay in submitting the insurance claim was adopted as an after thought and without any justifiable reason or ground.  The Hon’ble National Commission in M/s Abhilash Jewellary Vs. National India Assurance Co. Ltd. Reported  in 2003 (I) CPR 85 (NC) has held that new ground for repudiation can not be permitted.  It is further held that insurance Co. should not be allowed to take up plea of violation of the policy condition which was not a ground for repudiation,  that such a ground is to be treated as an after thought advanced for the first time in the written version to repudiate the claim; that  such belated ground itself would amount to deficiency in service.  In the present case on hand, the 1^st opposite party/Insurance Co.  had no such ground in their repudiation letter or in the reply lawyer notice;  but the new ground regarding delay in submitting the insurance claim has been raised for the first time in the written version.  It can be treated that the aforesaid ground is taken as an after thought so as to deny the legitimate claim some how or other.

          14.  More over, in Ext.A1 insurance certificate the details are given with respect to the steps to be taken to get the benefit under the policy.  But nowhere in Ext.A1 it is stated that in the event of death of the insured the claim must be submitted immediately.  It is only stated that in case of the death of the insured, postmortem certificate, death certificate, FIR and doctors certificate are to be produced.  It is further to be noted that in the present case the death of the insured occurred on 19.3.2000 and B1 claim was submitted on 16.6.2000.  It can be seen that the B1 claim was submitted within 3 months of the death of the insured .  It is also to be noted that the aforesaid claim was submitted by 3^rd opposite party, the father of the insured.  It is also to be noted that the complainant and opposite parties 3 to 6 were not in a position to submit the  claim immediately after the unnatural death of the insured.  There can be no doubt that complainant, the widow of deceased Shaji and opposite parties 3 to 6, the parents and the children of the insured shaji were in intolerable sorrow and grief and they could not think of the insurance claim.  So, the delay of less than 90 days in preferring the insurance claim can not be treated as inordinate delay .  It is too much on the part of the 1^st  opposite party/Insurance co. to contend that the said delay was deliberate.  The facts and circumstances of the case would make it clear that the aforesaid delay of less than 90 days can be treated as reasonable and natural.  It is too much on the part of the 1^st opposite party/Insurance Co. in denying the legitimate claim of the complainant and opposite parties 3 to 6.  So, this Commission have no hesitation to reject the aforesaid contention of the appellant/1^st opposite party.  The Forum below has rightly directed the opposite parties 1 and 2 to pay the insurance claim of Rs.50,000/- to the complainant and opposite parties 3 to 6 being the legal  representatives and legal heirs of the insured Shaji who had an accidental death due to drowning on 19.3.2000.  No sustainable ground is available warranting interference with the impugned order passed by the Forum below.  The present appeal deserves, nothing but dismissal.  These points are answered accordingly.

          In the result the appeal is dismissed.  The impugned order dated 8^th March 2004 passed by CDRF, Ernakulam in OP.193/02 is confirmed.  The appellant is also liable to pay Rs.1000/- to the 1^st respondent/ complainant towards cost in this appeal proceedings.

          SRI.M.V.VISWANATHAN      : JUDICIAL MEMBER

          SRI.M.K.ABDULLA SONA     : MEMBER

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