Smt. M. Shreesha, Incharge President
Aggrieved by the order of C.C.No.24/2011 on the file of District Forum, Nizamabad, the opposite party preferred this appeal.
The brief facts as set out in the complaint are that the complainant is the mother of the insured Sri Madhu Reddy who took an insurance policy valid from 28-5-1999 for an amount of Rs.1,20,000/- with accidental benefits. While so, on 21-3-2010 the insured died in a motor vehicle accident and the complainant made a claim with the opposite party and the opposite party paid an amount of Rs.57,982/- through cheque under the policy after some deductions but denied the accidental benefits on the ground that the insured was driving the said motor vehicle under the influence of alcohol. The complainant got issued a legal notice on 28-4-2011 which was replied by the opposite party that their repudiation is justified. Hence the complaint seeking direction to the opposite party to pay the accident benefit amount of Rs.1,20,000/- with interest, compensation and costs.
Opposite party filed their written version admitting the issuance of policy covering the period from 28/5/1999 and also admit the reply given by them to the legal notice and submit that as per the post mortem report the insured died due to head injury and intra cranial bleed under Ethyl Alcohol intoxication and as the death is under the influence of alcohol, they have rightly repudiated the accident benefit. The opposite party submitted that the claim for basic sum assured of Rs.1,20,000/- + bonus of Rs.57,600/- + interim bonus of Rs.4,560 and paid the net amount of Rs.57,982/- to the nominee after recovery of outstanding loan of Rs.1,16,000/- with interest of Rs.8,178/- which was availed by the policy holder during his life time. The FCL report also proves that he was under the influence of alcohol and therefore there is no deficiency in service on their behalf in rejecting the claim for accident benefit and prayed for dismissal of the complaint.
The District Forum based on the evidence adduced i.e. Exs.A1 to A10 and B1 to B4 and the pleadings put forward, allowed the complaint in part directing the opposite party to deposit Rs.1,20,000/- with interest @ 9% p.a. from the date of reply notice i.e. from 10-5-2011 till the date of realization and the opposite party is further directed to pay Rs.2,000/- towards compensation for deficiency of service and negligence on the part of the opposite party and to pay Rs.1,000/- towards costs within one month.
Aggrieved by the said order, the opposite party preferred this appeal.
The brief point that falls for consideration is whether there is any deficiency in service on behalf of the opposite parties and if the complainant is entitled to the relief claimed for in the complaint?
The facts not in dispute are that the complainant is the mother of the insured, Sri Madhu Reddy, who died on 21-3-2010 in a motor vehicle accident evidenced under Ex.A1, FIR. Exs.A2 and A3 are the copies of the statements of the nominee and other witnesses in the FIR and Ex.A4 is the panchanama and Ex.A5 is the post mortem report dated 21-3-2010. The main point that falls for consideration herein is whether the insured was under the influence of alcohol at the time of the accident?
The learned counsel for the respondent/complainant filed written arguments and contended that the A.P. Forensic Science Laboratory is not accompanied by any affidavit and as such there is no proper evidence on record and submitted that alcohol consumption is different and alcohol intoxication is different, and that % of the intoxication has to be proved. He submitted that there are studies which shows lot of post mortem diffusion of alcohol from stomach to heart and if the blood for chemical examination is preserved from the heart, there is a variation of the alcohol concentration from the actual BCA (Blood Alcohol concentration) at the time of death and relied on the judgement reported in LIC OF INDIA v. SMT.SHANTI TEGTA of Himachal Pradesh State Consumer Disputes Redressal Commission in F.A.No.110/2010 dated 12-11-2919 wherein the same proposition was discussed.
The learned counsel for the respondent further submitted that the appellant failed to prove the percentage of alcohol consumption and its effect on driving and relied on NATIONAL INSURANCE COMPANY v. SOMADEVI and others reported in 2012 (2) CPR NC 467 wherein it was held that the actual quantity of alcohol concentration proof is required for estimating intoxication as per the table and it clearly laid the table at what level the person is unfit to drive and submitted that in the instant case there is no record to show the amount of alcohol consumed. The post mortem and investigators report merely stated that the deceased had consumed alcohol without giving any details, the actual amount of alcohol or the type of intoxication. The learned counsel for the appellant submitted that the facts in the instant case are different in the sense that it is not the investigators report that is relied upon but the final report which is based on the Forensic Science Laboratory report based on which it is stated that the head injury and intracranial injury is because of ethyl alcohol âintoxication. It is pertinent to note that the final report has used the word intoxication which can be construed that the deceased was under the influence of alcohol at the time of the incident and therefore merely the percentage of the amount of alcohol not being mentioned does not in any way improve the case of the respondent/complainant. The learned counsel for the appellant drew our attention to Ex.A5, which is the post mortem examination report, which shows in the stomach contents, that there is a smell of alcohol and a black colour liquid which was sent for FSL examination. A brief perusal of the final report (Ex.B2) of the Police states as follows:
âThe viscera of the deceased, (D1) sent to RSFL, Kamareddy and the expert has opined that items 1 and 2 are analysed and ethyl alcohol is present in both of them. Further the medical officer, Dr.M.Srikanth Reddy CAS has issued final opinion stating that the cause of death of the deceased is due to âHead injury and intra cranial bleed, (RTA) under ethyl alcohol intoxicationâ.
Ex.B4 is the opinion given by A.P. Forensic Science Laboratory where in it is clearly stated that ethyl alcohol is present in the sample of the stomach contents of the life assured M.Madhu. Clause 10 b (i) of the insurance policy states that the amount will not be paid, if the death is due to accidental bodily injury while under the influence of liquor or drugs. Keeping in view this clause and also that the opposite party has established by documentary evidence that the life assured died in an accident but under the influence of alcohol, which is excluded in their policy, we are of the considered view that the opposite party has rightly repudiated the claim and hence there is no deficiency in service on their behalf.
While it is the contention of the respondent/complainant that the percentage of alcohol has not been mentioned, equally it is an admitted fact that the deceased had consumed alcohol, which is confirmed by the viscera which was sent to the Forensic lab and the report given by the said lab. Ex.B4 which is the final opinion report states as follows:
Head injury and intracranial bleed (R.T.A) under ethyl alcohol Intoxication. (FSL report enclosed).
This report evidences that the deceased was intoxicated. The dictionary meaning of the word âintoxication is as follows:
Intoxicated (of alcoholic drink or a drug) cause (someone) to lose control of their faculties or behaviour
The facts and circumstances in the present case establish that the deceased was under the influence of alcohol as the expert who examined the viscera of the deceased opined that the injured was under âethyl alcohol intoxication. Therefore, in the instant case the contention of the respondent/complainant that the percentage of alcohol was not mentioned is unsustainable.
Keeping in view the aforementioned reasons, we are of the considered view that the repudiation by the insurance company U/s.10(b)(i) is justified.
In the result this appeal is allowed and the order of the District Forum is set aside and consequently the complaint is dismissed. No costs.