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2006 DIGILAW 444 (CHH)

THE ORIENTAL INSURANCE CO. LTD. v. ANJU MALHOTRA

2006-09-29

R.S.AWASTHI, V.K.AGARWAL, VEENA MISRA

body2006
ORDER R.S. Awasthi, Member:- 1. This is an appeal under section 15 of the Consumer Protection Act, 1986 (‘the act’) directed against the order passed by the District Consumer Disputes Redressal Forum, Durg, (hereinafter referred to as the District Forum for brevity) in complaint no. 82/06. 2. District Forum allowing the complaint has directed the OP to pay Rs.5,00,000/- along with a compensation of Rs.5,000/- and Rs.500/- as cost of the complaint to the Complainant. 3. Facts not in dispute are that the complainant's husband Ganeshram had obtained a Janta Personal Accident Policy from the OP/Appellant through the Steel Workers Union for the period from 9/01/1999 to 8/01/2011. The policyholder Ganeshram met with an accident while driving a motor cycle and expired on 5/04/05. 4. Claim lodged with the OP/Appellant was repudiated on the ground that the policy in question was cancelled after due intimation to the INTUC through whom it was issued and thus it ceased to exist on the date of death of the Insured. It was also stated that the deceased Insured was intoxicated at the time of accident and in view of the exclusion clause under sub clause 4 was disentitled from claiming the assured amount. 5. Learned Counsel for the Appellant assailed that impugned order on the ground that as a result of cancellation, the policy in question did not exist on the date of the accident and therefore, the appellant was not liable for payment of any claim. It was also submitted that the deceased was intoxicated at the time of the accident. Thus, there was a breach of the terms of the policy and hence, no claim could be made out by the complainant. Reference was made to the medical records relating to the treatment, Post Mortem Examination Report, and other relevant documents. 6. Defending the impugned order, it was submitted by the learned counsel for the Respondent/Complainant that the District Forum has rightly held that the alleged cancellation of the policy did not affect the rights of the complainant. It was also submitted that there is nothing on record to hold that the insured deceased was under the influence of alcohol at the time of accident. 7. First Question for consideration is whether the policy in question ceased to exist as a result of cancellation, as claimed by the appellant, on the date when the cause of action arose. 8. 7. First Question for consideration is whether the policy in question ceased to exist as a result of cancellation, as claimed by the appellant, on the date when the cause of action arose. 8. The District Forum has elaborately discussed issue in the impugned order and in view of several orders referred to in the impugned order further reiteration does not appear necessary. Therefore, in our opinion, the policy in question was very much effective on the date of accident. 9. Next comes for consideration, the question whether the deceased policy holder was intoxicated at the time of accident and if so effect thereof? It is pertinent to note in the above regard that the remark of the doctor on duty in the OPD dated 26.03.05, it would appear that the said remarks as above are that there was smell of alcohol from the breath of the insured and he was intoxicated. The copy of the said OPD ticket is on record. It was the first finding of the doctor immediately after the accident and would go to show that the deceased was under intoxicated condition. 10. So far as Post Mortem report is concerned, it only states about the head injury. However, it may be noted that Post Mortem was conducted much later after the accident and could possibly not throw any light regarding the state of intoxication of the deceased insured at the time of accident. 11. Reference has been made to the provisions of section 185 of the Motor Vehicles Act whereby a person is liable for punishment in case of blood alcohol level exceeding 30mg per 100mg. The said norm may apply to commission of an offence under the act. Present complaint relates to deficiency in service and bonafides of repudiation with reference to the terms of the policy. Moreover, the remarks in the OPD ticket regarding intoxication seem to have escaped notice. As regards absence of traces of alcohol in the post mortem examination, it is noted that the alcohol presumably consumed on or before 26/03/05, date of accident could not have been found in the body till the date of death on 5/04/05, after ten days. Therefore, the remark regarding intoxication in the OPD may not suffice for prosecution of the deceased for an offence under the Motor Vehicle Act but, it certainly is a breach of the terms of the policy. Therefore, the remark regarding intoxication in the OPD may not suffice for prosecution of the deceased for an offence under the Motor Vehicle Act but, it certainly is a breach of the terms of the policy. Therefore, we find ourselves unable to ignore the remark regarding intoxication in the OPD ticket prepared immediately after the accident. Thus, in view of breach of terms of the policy, the repudiation of the claim cannot be termed as unjustified. In any case, it appears that appellant insurance company had sufficient and reliable material showing that the deceased insured was under intoxication and the decision to repudiate his claim therefore appears to have been taken after due application of mind. Such a repudiation cannot be termed as deficiency in service and would render the appellant liable under Consumer Protection Act 1986. 12. In view of the above discussion and from the material on record, in our opinion, the appeal succeeds. Impugned order is set aside. Parties shall bear their own costs. Appeal Allowed.