PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 22nd day of September 2012
Filed on : 18/03/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 156/2011
Between
Jomy Pappaly, : Complainant
Pappaly house, (Adv. Tom Joseph,
Erumathala P.O., Court road, Muvattupuzha)
Colony Pady, Aluva-12.
And
The Sr. Divisional Manager, : Opposite party
Oriental Insurance Co. ltd., (By Adv. M.G.K. Menon,
Pattamana Building, R.S. Road, CC/39/1729, Southrailway
P.B. No. 49, Aluva-683 101. Station road,
Ernakulam-682 016)
O R D E R
A Rajesh, President.
To put it shortly, the case of the complainant is as follows:
The complainant is the holder of Nagarik Suraksha policy issued by the opposite party. As per the policy conditions the policy holder is eligible for Rs. 1,00,000/- towards hospital expenses. While so the complainant met with a motor vehicle accident on 01-08-2010 while he was driving his motor cycle. He was taken to Carmel Hospital, Aluva and thereafter was shifted to Lissie Hospital, Ernakulam. Since there was no Neuro Surgeon he was again referred to Sree Sudheendra Hospital, Ernakulam. He had to spend Rs. 3,00,000/- towards treatment expenses. Subsequently a claim for insurance was lodged with the opposite party. The opposite party repudiated the claim of the complainant by letter dt. 13-01-2011 stating that the complainant was under the influence of alcohol at the time of accident. The reasons stated for rejection of the claim is not sustainable. The complainant is entitled to get insurance claim of Rs. 1,00,000/- together with interest @ 15% p.a. This complaint hence.
2. The version of the opposite party is as follows:
The opposite party had issued a Nagariksuraksha personal accident policy in favour of the complainant for the period from 07-02-2010 to 06-02-2011. The medical certificate issued from Lissie Hospital reveals that the complainant was under the influence of Alcohol at the time of accident. As per clause No. 4 of exclusion in the policy the opposite party is not liable to pay any compensation to the complainant. The complainant has suppressed material facts about his health in the proposal form submitted by him. The opposite party has repudiated the claim of the complainant after careful scrutiny of the claim papers. There is no deficiency in service on the part of the opposite party.
3. No oral evidence was adduced by the complainant. Exts. A1 to A4 were marked on his side. The witness for the opposite party was examined as DW1 and Exts. B1 to B9 were marked on the side of the opposite party. Exbt. X1 also was marked. Heard the counsel for the parties.
5. The only question that comes up for consideration is whether the complainant is entitled to get an insurance claim of Rs. 1,00,000/- with interest or not?
6. It is not in dispute that the complainant was holding a Nagarik Suraksha personal accident policy for the period from 07-02-2010 to 06-02-2011 with sum assured of Rs. 1,00,000/-. It is also not in dispute that the complainant happened to meet with an accident on 01-08-2010 at about 4.30 p.m. and he was taken to Carmel Hospital, Aluva for first aid and thereafter referred to Lissie Hospital, Ernakulam and again referred to Sree Sudheendra Hospital Ernakulam for expert management.
7. The insurance claim of the complainant was rejected by the opposite party vide Ext. A1 letter dated 18-12-2010 which reads as follows:
“On close scrutiny of the papers submitted by you to support of your claim viz-a-viz the terms and conditions of the policy issued, we regret you that your claim is not tenable on the following grounds.
Exclusion No.4 of Section II of the policy issued to you. ie:
o. Section II (Reimbursement of hospitalization expenses
following bodily injury caused by and arising out of accident.)
o. EXCLUSIONS (APPLICABLE TO SECTION II OF THE
POLICY). The company shall not be liable to make any
payment under this policy in respect of any expenses
whatsoever incurred by the insured person in connection
with or in respect of :
o. Exclusion No. 4 – use of alcohol
. You had put up a claim under Section II of the policy
(hospitalization section) Your Claim intimation/claim form/letters statements state that you had met with an accident while riding your motorcycle on 01-08-2010 at 4.00 pm. You were taken to Lissie Hospital Ernakulam, where their doctors medically examined you lab tests, X- rays & CT Scan were also done at Lissie Hospital. You were then referred to Sree Sudheendra Medical Mission, Ernakulam and had undergone craniotomy and were discharged on 13-08-2010.
. We had conducted an investigation into the claim and have reliable information that at the time of accident, you were under the influence of alcohol.”
8. Subsequently the complainant caused Ext. A2 letter to the opposite party to reconsider the rejection of the claim in view of Ext. A3 medical certificate issued from Sree Sudheendra Medical Mission Hospital, Ernakulam. Ext. A2 request as well was rejected by the opposite party stating one more reason that the complainant has suppressed his previous ailments at the time of inception of the policy.
9. Ext. X1 the certificate issued from Lissie Hospital, Ernakulam not dated goes to show that the complainant was under the influence of Alcohol at the time of examination by the doctor. Ext. A3 is the certificate issued from Sree Sudheendra Medical Mission Hospital, it is stated that through out clinical examination, no evidence of alcohol intoxication could be elicited. It is also stated that no smell of alcohol could be detected from the breath of the complainant. The leaned counsel for the opposite party vehemently and vigorously contented that the insured was under the influence of Alcohol at the time of accident and as per clause No. 4 in the exclusion in Ext. B1 insurance policy the opposite party is not liable to pay insurance claim to the complainant. The learned counsel for the complainant refuted the contentions of the opposite party by relying on the decision of the Hon’ble National Consumer Disputes Redressal Commission in National Insurance Company Ltd. Vs. Soma Devi and others II (2012) CPJ 50.
10. According to the Hon’ble National Commission no critical or substantive evidence to indicate that diseased was in inebriated condition which resulted in his accidental fall. The Hon’ble National Consumer Disputes Redressal Commission observes that both postmortem report and investigators report merely state that diseased had consumed alcohol. The Hon’ble National Consumer Disputes Redressal Commission made a further observation that the documents would not contain details about the actual amount of alcohol consumed or type of intoxicants consumed is necessarily inadequating proof. The Hon’ble National Consumer Disputes Redressal Commission also had occasion to observe in Life Insurance Corporation of India & Anr Vs. Ranjit Kaur 2011 (3) CPR 266 mere presence of alcohol even above usually prescribed limits is not a conclusive proof of intoxication.
11. The above observations of the Hon’ble National Commission squarely is applicable in this case and to be held. In the instant case apart from the nomenclature in Ext. X1 nothing is on record to substantiate the contention of the opposite party that the complainant was under the influence of alcohol and the time of accident to furtherance. The foregoing discussions read squarely above the repudiation of the claim relying on clause IV in Ext. B1 policy is unsustainable for adequate reasons. The opposite party in Ext. A4 letter took another contention that the complainant has suppressed his previous ailment in his proposal form which does not find a place in any of the documents submitted by the parties, rejected hence.
12. In the result, we partly allow complainant and direct that the opposite party shall pay insurance claim to Rs. 1,00,000/- to the complainant together with interest at the rate of 12% p.a. from the date of complaint till realization.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order.
Pronounced in the open Forum on this the 22nd day of September 2012
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of repudiation letter
A2 : Copy of letter dt. 05-02-2010
A3 : Copy of certificate dt. 13-12-2010
A4 : Copy of letter dt. 13-01-2011
Opposite party’s Exhibits :
Ext. B1 : Copy of Nagrik suraksha Individual schedule
B2 : Copy of letter dt. 31-08-2010
B3 : Copy of letter
B4 : Copy of letter dt. 01-11-2010
B5 : Copy of letter dt. 14-12-2010
B6 : Copy of certificate
B7 : Copy of letter dt. 09-08-2012
B8 : Copy of office note dt. 31-11-2010
B9 : Copy of letter dt. 08/12/2010
X1 : Hospital record
Depositions :
DW1 : Dr. V.O. Antony
