Insurance company cannot be exempted from granting claim when person himself had not contributed to occurrence of accident in any manner

NATIONAL INSURANCE CO. LTD. V. STATE OF KERALA & ORS.
WP(C) NO. 21669 OF 2012
KERALA HIGH COURT

THE HIGH COURT HELD THAT merely because a person has consumed alcohol in excess of the limit prescribed under the penal provisions of the Motor Vehicles Act, 1988, it could not be said that he was 'under the influence of the alcohol', and the insurance company cannot be exempted from granting the claim when the person himself had not contributed to the occurrence of the accident in any manner.

BRIEF FACTS

1. The writ petition is filed by the National Insurance Company challenging Exhibit P9 award dated 03.01.2012 passed by the Insurance Ombudsman, Kochi in complaint No. IO/KCH/GI/11-003- 986/2010-11 under the provisions of the Redressal of Public Grievances Rules, 1998, by which the Ombudsman allowed the complaint and directed the petitioner insurance company to pay an amount of Rs. 7,00,000/- to the 4th respondent(SMT. HAIRUNISSA M.U.), wife of the deceased/insured, within 15 days of receipt of the acceptance letter; and failing which to pay 9% interest from the date of filing of the complaint i.e., 17.03.2011 till payment.

2. The 4th respondent’s husband, namely one K.S. Shibu, who was employed as a Lascar in the Irrigation Department of the Government of Kerala, died on 19.05.2009 in an accident involving a motorcycle ridden by him and a tourist bus.

3. The deceased was covered under Exhibit P1 personal accident Group policy, andtherefore, according to the 4th respondent, she is entitled to the death benefit under the policy.

4. But, despite the claim raised before the petitioner company, the same was rejected on the ground that the death occurred while the deceased was under the influence of intoxicating liquor or drugs.

5. According to the 4th respondent, the repudiation of the claim was not legal and proper and the deceased was not at all negligent in riding the motorcycle. It was also pointed out that an FIR and a charge sheet was laid against the driver of the bus and therefore, sought for appropriate direction before the Ombudsman for the release of the compensation in terms of the policy.

6. On the other hand, the petitioner Insurance Company contended that even though an accident occurred during the policy period from 01.01.2009 to 31.12.2009, as per the post mortem report, the stomach contained fluid with spirituous odour, and chemical analysis revealed that the blood sample contained 154.79 mgms of ethyl alcohol per 100 ml of blood and therefore, the death occurred while the deceased was under the influence of intoxicating liquor.Accordingly, based on the exception clause 5(b) contained in Exhibit P1 policy conditions, the claim was repudiated by the petitioner company.

7. The Ombudsman found that the accident occurred when the tourist bus overtook a car, and in that process, hit the motorcycle of the deceased. It was further found that the deceased had been keeping to the proper side of the road, while it was the tourist bus that had gone over to the wrong side. The Ombudsman further observed that, "the mere consumption of alcohol is entirely different from the stage under the influence of alcohol", and the instant accident had entirely occurred due to the negligence of the bus driver. Accordingly, the Ombudsman directed the Insurance Company to pay an amount of Rs. 7,00,000/- to the wife of the deceased.

OBSERVATIONS & DECISION OF THE COURT

8. The Court observed that "influence of alcohol on the senses and faculties varies from person to person. Influence of alcohol, in my considered view, would mean that due to consumption of alcohol, the normal senses and faculties of the person should have been overpowered by the alcohol and thereby lost the average mind temporarily; or that he was not in a position to control himself; or an inebriated condition prevailed upon the person, thus losing the capability,strength, and fitness to control and ride the motorcycle by himself and thereby fully or partially contributing to the accident".

9. Before the High Court, it was contended by Advocate on behalf of the Petitioner that the liability of the Company was contractual and the decision of the Ombudsman was clearly contrary to the terms of the contract. It was contended that the Insurance Contract as well as the Memorandum of Understanding based on which the contract of insurance is issued, govern the rights and liabilities of the parties, which specificallyexcludes the compensation for death or disability arising out of 'whilst under the influence of intoxicating drugs or alcohol' under the exclusion clause of 5(b) in the Insurance Contract and clause 4 of the MoU. Since the deceased had consumed alcohol exceeding the limit of 30 mg per 100 ml of blood prescribed under Section 185 of the Motor Vehicles Act, 1988, as revealed by the Chemical analysis report, it was contended that the insurance company was excluded its liability for payment of claim.

10. Advocate and Senior Government Pleader on the other hand, contended that the accident was solely due to the rash and negligent driving of the tourist bus driver, and the deceased had not contributed to the same in any manner. In the instant case, the Court found that there was no case of contributory negligence on the part of the deceased in the accident, in spite of the presence of the alcohol.

11. The Court Observed that only case projected by the Insurance Company is on the basis of the chemical analysis report that the alcohol content in blood is exceeding thehe limit prescribed in Section 185 of the Act 1988, which by itself is not sufficient to have the advantage of the exclusion clause in favour of the insurer.

12. The advocate of wife of the deceased refers case of Babu K and another v. Union of India [2017 (4) KHC 137] wherein it is held that mere consumption of alcohol or liquor is not at all sufficient to bring a person under exemption of " intoxication".

"6. The expression "intoxication" which is greater in gravity has to be understood under this perspective, rather than a mere "drunkenness". Further, the expression "intoxication" has to be read along with the purpose of the Section as it is an exception attached to Section 124A which is resting on the principle of nofault liability in the grant of compensation to the victim who suffered injury or death due to an untoward incident as defined under the Act. So, "intoxication" must have a dominant role in the real cause of untoward incident. In other words, "intoxication" represents the state of the victim at the time of incident, due to consumption of alcohol or drugs which lead to him/her as victim to the incident. The initial burden to prove the role of intoxication in causing the accident is on the Railway/respondent.

13. Here in the case on hand, the complainant could very well establish before the Ombudsman by producing adequate and convincing evidence that there was no contributory negligence on the part of the deceased in the accident. That apart, the expression ‘under the influence of intoxicating liquor or drugs’ would depend upon person to person, irrespective of the quantity of alcohol or the drug consumed. Sometimes, there could be a situation where a person who has consumed only a lesser quantity of alcohol would be under the influence of alcohol than a person consuming more amount of alcohol. This is to say, the influence of alcohol would depend upon the bodily strength and capacity of person to person and there cannot be any static and rigid principle on that aspect.

14. To put it differently, the influence of alcohol on the senses and faculties varies from person to person. Influence of alcohol, in my considered view, would mean that due to the consumption of alcohol, the normal senses and faculties of the person should have been overpowered by the alcohol and thereby lost the average mind temporarily; or that he was not in a position to control himself; or an inebriated condition prevailed upon theperson, thus losing the capability, strength, and fitness to control and ride the motorcycle by himself and thereby fully or partially contributing to the accident

15. There is no case for the Insurance Company that the deceased was in such a condition and contributed at least partially to the accident. But, the only case projected by the Insurance Company is on the basis of the chemical analysis report that the alcohol content in blood is exceeding the limit prescribed in Section 185 of the Act 1988, which by itself is not sufficient to have the advantage of the exclusion clause in favour of the insurer. Facts being so, I propose to consider a few judgments rendered by the Apex Court.

16. Thus, taking into consideration the factual and legal W.P.(C) No. 21669/2012 : 24 : circumstances discussed above, I am of the considered and clear opinion that the petitioner Insurance Company has not made out a case to interfere with the award of the Ombudsman, there being no arbitrariness, illegality, unfairness, or any other legal infirmities justifiable to be interfered with in a proceeding under Article 226 of the Constitution of India.

CONCLUSION

The court rightly held that mere consumption of alcohol does not absolve that the deceased was under influence of intoxication and behaviour of a person will depend on the financial health of person after consumption of alcohol. Unless a policyholder contributed in the accident due to intoxication ,an insurance company is not allowed to repudiated insurance claim.

DISCLAIMER: The case law presented here is only for sharing information and knowledge with the readers. In case of necessity do consult with insurance professionals.