Delhi

West Delhi

CC/14/708

Pinki - Complainant(s)

Versus

United India Insurance - Opp.Party(s)

10 Sep 2018

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (WEST)

150-151; COMMUNINTY CENTER ; C-BLOCK; JANAK PURI; NEW DELHI

CASE NO. 708/14

1. Smt. Pinki  W/o Late Sh. Jeewan Lal Suneja
2. Mr. Sagar    S/o  Late Sh. Jeewan Lal Suneja
3. Ms Anupriya   D/o  Late Sh. Jeewan Lal Suneja   
4. Ms Vineeta D/o Late  Sh. Jeewan  Lal Suneja,                                                                

All R/o   C-13, Punjabi  Basti , Nangloi ,New Delhi-110041.                                              …….. Complainants

VERSUS

United India Insurance Co. Ltd. A-1, Tagore  Market, Kirti Nagar, New Delhi -110015                                                    ...…. Opposite Party

       

O R D E R

 

 

K.S. MOHI, PRESIDENT

 

The complainant has filed the present complaint against the O.P under section 12 of Consumer Protection Act, 1986.  The facts as alleged in the complaint are that deceased Shri Jeewan Lal  Suneja , husband of complainant no. 1 and father the complainant no. 2 to 4, was holding a mediclaim policy  bearing  No.  221600/48/12/06/00005447 valid  from 16.03.2013  to midnight  of 15.03.2014. Unfortunately Sh. Jeewan  Lal  Suneja  met with an accident  on 02.12.2013 under Nagloi  Metro Station and was  removed to the Sanjay  Gandhi Memorial Hospital,Mangolpuri and from  there he was shifted  to sh. Balaji  Action Medical  Institute, FC-34, A-4, Paschim Vihar, New Delhi where  he  breathed  his last on 10.12.2013 due to injuries  sustained in the road accident.  The police has  also registered a criminal  case FIR No. 435/2013  u/s 279/337 IPC at   Police Station  Nangloi Delhi. In the hospital the deceased  incurred  medical expenses  of Rs. 4,00,000/- but the hospital  authorities  keeping in view  poor and critical  condition of deceased gave relaxation /deduction of about Rs. 1,40,000/- and  balance payment  of Rs. 2,60,000/- was made  by the petitioner.  The petitioner  informed  the OP  about  medical expenses  and requested to make  the payment  but OP directed petitioner  to supply certain  documents which were  supplied in due course.  Ultimately  the OP rejected the claim of complainant  vide  letter  dated 31.12.2014 stating that there was  “smell  of alcohol present” therefore the claim  of the complainant  was closed as “ NO CLAIM”  hence  the petitioner approached this Forum for payment of Rs. 2,60,000/- +other expenses  of Rs. 40,000/-  with damage of Rs. 1,00,000/- from OP.

2.     The OP filed written statement  taking preliminary objection inter-alia that the complainant have not approached this Forum  with clean hands as per terms and condition of  policy  they were entitled to claim also that deceased Jeewan Lal Suneja was under the influence of alcohol  when  he met with road accident near Nagloi Metro Station.  Since the medical papers included  MLC indicated “ smell of alcohol  present”  therefore claim  was not payable because of violation of terms and condition No. 4.3 of insurance policy.  On merits  OP admitted the issuance of mediclaim policy in  favour of complainant  but pleaded exclusion  clause to repudiate  the claim. 

3.     Complainant has filed his affidavit in evidence testifying all the facts stated in the complaint. She exhibits document  CW-1/1 to CW-1/5 .  On the other hand Sh. Rakesh Kumar Taneja has filed his affidavit in evidence on behalf of O.P.  Written submissions have also been filed by both the parties.

4.     We have heard  Counsel for parties  and perused the record.

5.     The pleadings of parties as delineated above  would  demonstrate  that OP rejected the claim on the basis  of policy term and condition No. 4.8 which reads as under:-

“ convalescence, genera debility, run-down  condition of rest cure, congential external disease or  defect or anomalies, sterility, venereal disease, intension  self injury  and use of intoxication drugs/alcohol are excluded  not-  payable  under the policy”  

5. Now the question arises as to whether  mere smell  of alcohol at the time of accident  would exclude  the claim of the complainant or not.  The answer is in negative .  Counsel for claimant has relied on authority of National commission a reported in III(2014) CPJ 64(NC)  which held as under:-

“Consumer Protection Act, 1986-  Sections 2(1)(g), 14(1) (d) 21(b) – Insurance accidental  benefit – Death  by drowning –Alcohol  being detected  in blood-Claim  repudiated- Deficiency in service –District  Forum dismissed complaint-State Commission allowed appeal- Hence revision-Mere presence of alcohol , even usually  prescribed limits, is not conclusive proof of intoxication- No evidence that there is  nexus between death caused by drowning and consumption of liquor- There is nothing suggestive of alcohol-related death in post-mortem report-One need to be absolutely convicted about  reliability  of chemical  examiner’s  analysis- Repudiation not justified.”

6.     He  cited  another  authority wherein  the National commission relying upon its own  decision  of 2011 reported in LIC of India  Vs Smt. Ranjit Kaur III(2011) CPJ 232(NC) held  that mere presence of alcohol even   within usual   prescribed limits  is not  the conclusive  proof of intoxication.

7.     In the  instant case there is a mention of “smell of alcohol “ in MLC of deceased which does not lead us any where.  The exclusion clause  of  terms and conditions of the policy would  have been applicable had deceased been under the influence of alcohol  which resulted in the road accident. Obviously  there is no nexus between smell  of alcohol and  the accident. Even otherwise no blood test of deceased was taken  to ascertain                 the  quantum  of alcohol found in the blood .  Above  all postmortem  report  would show that the death is due to shock associated with damage  for head and abdominal strucks  as a result of  blunt force impact which could be possibly in  RTA  as alleged.  All injuries  are antemortem.

8.    Keeping  in view  the discussion stated above,  we are of  the considered view that repudiation of the claim of the complainant  by OP was highly unwarranted and unjustified, therefore, we award a sum of                             Rs. 2,00,000/-   being the  sum insured  in favour of complainant  and asagainst the OP with interest @ 6% p.a. The complainant is also awarded  compensation of Rs. 30,000/- towards  harassment inconvenience  and litigation expenses.

   Copy of this order be sent to the parties as per rules.

   File be consigned to the record room. 

  Announced this___ ___ day of __September _______ 2018.

 

                                                                                                                       ( K.S. MOHI )                                                    (PUNEET LAMBA)                                                                                  PRESIDENT   

                MEMBER