1. Smt. Shishma Devi W/O late Shri Nittu Ram
2. Master Mukesh minor son of Sh. Nittu Ram
through mother-cum-natural guardian Smt. Shishma Devi.
3. Miss Amita minor daughter of late Shri Nittu Ram through mother-cum-natural guardian Smt. Shishma Devi,
All R/O VPO Kaloti, Tehsil Chirgaon, District Shimla, H.P.

… Complainants.
Versus

1. The Executive Engineer, Irrigation and Public Health Division, Rohru, Tehsil Rohru, District Shimla, H.P.

2. The New Indi Insurance Company Limited,
Divisional Office Kasumpti, Shimla-9,
Through its Divisional Manager.

…Opposite Parties.

Coram

Shri Pritam Singh (District Judge) President.
Ms. Karuna Machhan, Member (Female)
Mr. Charanjit Singh, Member (male)
………………………………………………………………………

For the complainant: Ms. Dheeraj Bansal, Advocate vice
Mr. Peeyush Verma, Advocate

For the Opposite Party
No.1: Mr. Anoop Sharma, A.D.A.

For the Opposite Party
No.2: Mr. Ratish Sharma, Advocate.


O R D E R:
Pritam Singh (District Judge) President:-This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The case of the complainants in brief is that their predecessor-in-interest late Shri Nittu Ram who was working as daily waged beldar with the Op No.1 in IPH Department at Rohru had been duly insured with the OP No.2 for a sum of Rs.2,00,000/- in case of accidental death during the course of his employment under the scheme ‘Janta Personal Accident Insurance Policy’ and the premium for the same had been paid by the OP No.1. That on 04.04.2003 their predecessor-in-interest late Shri Nittu Ram after finishing his duty at 5 PM left for his residence at V.P.O. Kolti and while on its way to his house, he had accidental fall and received fatal injuries resulting his spontaneous death. As such, death of the deceased occurred during the course of his employment with the OP No.1 and thus the OPs are duty bond to pay his death insurance claim of Rs.2,00,000/- to complainants who did not pay the same despite repeated request. As such, non-payment of the insurance claim by the OPs amounts to deficiency in service and unfair trade practice. Hence, feeling dissatisfied and aggrieved by the act of the OPs, the complainant perforce filed this complaint against the OPs.


2. The complaint is resisted by OPs No.1 and 2 who took some preliminary objections regarding maintainability of complaint, and violation of the terms and conditions of the insurance policy. On merits, the OP No.1 admitted that late Shri Nittu Ram was working as daily wages Beldar with them since 02.01.1995 and was duly insured for Rs.2,00,000/-. It is, however, denied that the deceased Nittu Ram died during the course of his employment with them. The OP No.2 in its reply alleged that the deceased at the time of death was under the influence of liquor who died by fall under the influence of alcohol due to its excessive consumption. As such, there being no deficiency in service, the complaint is sought to be dismissed. Thereafter, the parties led evidence in support of their claim/counter claim.



3. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the complaint.


4. Undisputedly, predecessor-in-interest of the complainants late Shri Nittu Ram who was working as daily waged Beldar with the Op No.1 in IPH Department at Rohru had been duly insured with the OP No.2 under the scheme Janta Personal Accident Insurance Policy for sum of Rs.2,00,000/- in case of accidental death during the course of his employment and the premium for the same had been paid by his employer. The complainants alleged that on 04.04.2003 their predecessor-in-interest late Nittu Ram after finishing his duties at 5 PM left for his residence at V.P.O. Kaloti and while on its way to house had accidental fall and received fatal injuries resulting his spontaneous death. As such, his death took place during the course of his employment with the OP No.1, therefore, the OPs were duty bond to pay the insurance claim of Rs.2,00,000/- consequent upon the death of their predecessor-in-interest. But the aforesaid insurance claim was not settled by OPs on one pretext or other.



5. As stated above, the deceased Nittu Ram was duly insured under the scheme Janta Personal Accident Policy with the OP No.2 for a sum of Rs.2,00,000/-. But, the insurance claim preferred by the complainants was repudiated by the OP No.2 on the ground that the deceased had consumed excessive alcohol who was in a state of intoxication and in state of intoxication he got fall and sustained fatal injuries causing his spontaneous death. As such, the OP-Company is not liable to pay the insurance claim of the complainants as the death of the insured occurred due to excessive consumption of the liquor which death is not covered under the insurance contract. The OP-Company has also relied upon the copy of the insurance cover Annexure R-1. As per exclusion clause of this insurance cover the natural death and death due to disease not covered. Similarly, death, injury or disablement from intentional self injury, suicide or attempted suicide and death whilest under the influence of intoxicating liquor or drugs is not covered. The OP-Company further relied upon the post-mortem report of the deceased Annexure R-1/2. As per the contents of this post-mortem report, the deceased was in a state of intoxication with alcohol and died due to cardiac arrest. The OP-Company also relied upon the report of the Chemical Examiner Annexure R-1/7. As per the contents of this chemical report in the blood sample of the deceased the percentage of the alcohol was found 423.2 milligrams, whereas in the sample of deceased urine the percentage of the alcohol was found 322.0 milligrams. Thus, it was excessive percentage of alcohol present both in the blood and urine sample of the deceased. Hence, as per this report of the Chemical Examiner Annexure R-1/7, the deceased was in a state of intoxication due to consumption of excessive alcohol. As discussed above, as per the exclusion clause insurance policy Annexure R-1, if the death takes place whilest under the influence of the intoxicating liquor, the Insurance Company is not liable to pay the LRs of the insured deceased, the insured sum under the aforesaid Janta Personal Accident Insurance Policy.



6. It may be stated that at the request of the complaints, the Chemical Examiner Dr. B.R. Rawal was summoned for cross-examination who he was cross-examined by the complainants on 03.07.2007. But in his cross-examination also nothing substantial has been extracted by the learned counsel for the complainants to challenge the veracity of the report issued by him. No doubt, in cross he stated that he cannot say with certainty that if the dead body remains under water for 4 days it would result in puterification, but then reasserted that the quantity of the alcohol found in this case is based on national and international established methods and added that the deceased in view of the contents of the alcohol was highly drunk. Therefore, on oath statement of this witness leads support to report of the Chemical Examiner Annexure R-1/7 according to which, deceased was highly drunk as the contents of the alcohol present in his blood and urine were highly excessive.


7. The learned counsel for the complainants, however, contended before us that the deceased expired on 04.04.2003, whereas his dead body was subjected to post-mortem on 08.04.2003 and during this period it remained under the water. He further submitted that the blood and urine sample of the deceased were sent to Chemical Examiner for analysis on 26.04.2003 and the Chemical Examiner Analyzed these blood and urine samples of the deceased & issued report on 2nd July, 2003. But, there is nothing either in the report of the Chemical Examiner Annexure R-1/2 or in the statement of Dr. B.R. Rawat that the sample of the blood and urine during this period were properly preserved and were not subjected to puterification. Therefore in the circumstances no reliance can be placed to the report of the Chemical Examiner and the statement of Dr. B.R. Rawat who chemically examined the aforesaid samples of the blood and urine and issued this report. We have considered the contention. But, it may be stated the quantity of the alcohol present in the blood and urine sample of the deceased and so reflected in the Chemical Examiner report is highly excessive. Therefore, even if no precaution was taken to preserve the samples of blood and urine before these were finally examined by the Chemical Examiner even then it cannot be said by any stretch of imagination that the percentage of the alcohol present in the urine and blood sample of the deceased increased to this extent as the samples were not properly preserved.


8. The learned counsel for the complainants also did not cite any case law authority to substantiate his contention that in case sample of the blood and urine are not properly preserved before these are finally chemically examined, the alcohol in such a excessive quantity can be found in these samples due to puterification. Therefore, keeping in view the report of the post-mortem and report of the Chemical Examiner, it can safely concluded that the deceased had consumed excessive alcohol and he was in a state of intoxication who might have received accidental fall and sustained fatal injuries which caused his spontaneous death. Needless to state that the OP-Company has relied upon the report of Dr. D.J. Dass Gupta, Annexure A-1 who reported that the percentage of alcohol both in blood and urine of the deceased was of such a high quantity that it can be stated with certainty that the deceased had consumed excessive alcohol and he was in a state of intoxication. The OPs have also placed on record the affidavit of Dr. D.J. Dass Gupta to prove his report Annexure A-1. Therefore, it can be safely concluded that the death of the deceased took place as he had consumed excessive alcohol who under the influence of intoxicating liquor got accidental fall and died. As such, this insurance claim is not covered as per special exclusion clause of insurance policy Annexure R-1. Therefore, we are of the considered opinion that the insurance claim of the complainants being excluded under special exclusion clause was rightly repudiated by them.



9. For the foregoing reasons, we hold that there is no merit in the complaint and it being without any substance is liable to be dismissed. It is ordered accordingly. No order as to the costs.