caselaws.org
Supreme Court of India
Narbada Devi . vs H.P. State Forest Corp. . on 22 March, 2021Author: Mohan M. Shantanagoudar
Bench: Mohan M. Shantanagoudar, Ajay Rastogi
1
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6379 OF 2010
NARBADA DEVI AND ORS. …APPELLANT(S)
VERSUS
H.P. STATE FOREST CORPORATION …RESPONDENT(S)
& ANR.
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J. :
1. This appeal arises out of order and judgement of the
National Consumer Disputes Redressal Commission, New Delhi
(hereinafter ‘National Commission’) dated 24.04.2009 (hereinafter
‘Impugned Order’), allowing Revision Petition No. 331 of 2007
filed by the Respondent No.1 herein, Himachal Pradesh State
Forest Corporation (hereinafter ‘HPSFC’), against the order dated
9.10.2006 passed by the Himachal Pradesh State Consumer
Signature Not Verified
Digitally signed by
ASHWANI KUMAR
Date: 2021.03.22
16:52:13 IST
Disputes Redressal Commission, Shimla (hereinafter ‘State
Reason:
Commission’) in Appeal No. 281/2004.
2
2. The facts leading to this appeal are as follows: Om Prakash
(hereinafter ‘deceased’) was an employee of Respondent No.1
HPSFC posted as a Chowkidar (daily wages) at their Divisional
Office, Chopal. On the night of 7.10.1997, the deceased was
coming from Banal Depot to Thundal along with one
Chandermohan, the forest guard. On the said night, there was
heavy rain and storm, therefore, the deceased might have been
trapped in it. On the morning of 8.10.1997, on the way to Village
Thundal, the deceased was found in a hapless condition around
9:00 AM, smelling of alcohol. When the Chowkidar, Mohan
Singh, saw the deceased, he called the Forest SubInspector, and
the deceased was removed to the quarter of Chandermohan. Over
there, he was given hot water bath and massaged. However, he
subsequently died at about 1:00 PM on 8.10.1997. Thereafter,
the forest guard, Chandermohan reached Chopal and lodged FIR
on 9.10.1997 at about 2:30 P.M. The Assistant Manager of
Respondent No.1HPSFC issued a certificate to the effect that the
deceased had died on duty while he was working as a dailyrated
Chowkidar.
3. The PostMortem Report dated 10.10.1997 stated that no
injury was seen on any part of the body of the deceased. Further,
3
that the cause of death was probably asphyxia resulting from
regurgitation of food articles into larynx and trachea after
consumption of alcohol amounting to about 34.5 mg per 100 ml
of urine, which was calculated as per the chemical examiner’s
report. Expert opinion dated 6.07.1998 was obtained from one
Dr. D.J. Das Gupta, M.D. & Former Professor & Head of
Department of Medicine and Principal, Indira Gandhi Medical
College, Shimla, which stated that the cause of death is due to
alcohol ingestion and regurgitation of food into larynx. Medical
opinion was also obtained from one Dr. D.S. Puri, M.D. & former
Professor & Head of Department of Medicine, Indira Gandhi
Medical College, Shimla. As per his opinion dated 17.08.2002,
“this level of alcohol in blood and urine is sufficient to cause deep
sleep”.
4. Under the Janta Personal Accident Insurance Scheme
(hereinafter ‘Insurance Scheme’), Respondent No.1HPSFC had
taken the Janta Personal Accident Insurance Policy dated
24.05.1996 (hereinafter ‘Insurance Policy’) for its 3008 employees
from Respondent No.2The New India Assurance Company
Limited (hereinafter ‘Insurance Company’). Under the Insurance
Scheme, there was an insurance coverage of Rs. 1 lakh for all
4
employees who were willing to opt for the said Scheme.
Respondent No.1HPSFC had been depositing premium for its
employees, including the deceased, under the Insurance Policy,
which was effective during the period from 22.01.1997 to
21.01.1998. Consequently, the legal heirs of the deceased, i.e.,
the Appellants herein laid a claim before the Respondent No.2
Insurance Company under the Insurance Policy; however, the
Insurance Company repudiated the claim vide letter dated
17.07.1998 and hence, the claim was not settled.
5. Aggrieved by the Insurance Company’s repudiation of their
claim, the Appellants herein filed a consumer complaint under
Section 12 of the Consumer Protection Act, 1986 (‘Consumer
Protection Act’) before the District Consumer Disputes Redressal
Forum, Shimla (‘District Forum’), alleging deficiency in service on
part of the Insurance Company and claiming insurance amount
of Rs. 2 lakhs along with interest and cost. By order dated
13.09.2004, the District Forum held that the Insurance Company
had wrongly repudiated the claim and was liable to make
payment and indemnification of the insured amount of Rs. 2
lakhs to the Appellants.
5
5.1 The reasoning given by the District Forum was as follows:
The Forum observed that the only issue to be considered is
whether the death is natural or accidental. In case of the former,
Respondent No.1HPSFC would be liable for compensating the
Appellants, and in case of the latter, the Insurance Company
would be liable. The District Forum then considered the
definition of asphyxia in the Medicolegal Manual by Dr. K.S.
Narayan Reddy which states that “Asphyxia is a condition caused
by interference with respiration, or due to lack of oxygen in
respired due to which the organs and tissues are deprived of
oxygen (together with failure to eliminate CO2), causing
unconsciousness or death.” The District Forum therefore
concluded that death by asphyxia could not be termed natural
and concluded that the death of the deceased was not natural
but accidental. The District Forum further observed that the
quantity of alcohol found in the deceased’s body was not
sufficient to cause death in the normal course and that the
opinion dated 6.07.1998 given by Dr. D.J. Das Gupta (supra)
could not be relied on as he had not examined the body of the
deceased.
6
6. Thereafter, the Respondent No.2Insurance Company filed
an appeal before the State Commission, which was listed as
Appeal No. 281/2004. The State Commission in its order dated
9.10.2006 observed that the body of the deceased did not have
any external injury or mark of violence, and therefore opined that
the death was not accidental. Hence, the State Commission
concluded that the Insurance Company could not be held liable
under the Insurance Policy. However, the State Commission
modified the District Forum’s order to the extent that the liability
set out in the District Forum’s order would be that of Respondent
No.1HPSFC and not of the Insurance Company, relying upon the
decision of the National Commission in The New India
Assurance Co. Ltd. v. Smt. Jamuna Devi & Ors., (2002) 3 CPJ
64 (NC).
7. Aggrieved, the Respondent No.1HPSFC approached the
National Commission by way of Revision Petition No. 331 of
2007, which was allowed vide the Impugned Order dated
24.04.2009. The National Commission observed that the State
Commission had rightly held that the deceased’s death was not
accidental and therefore, the Insurance Company had no
statutory liability to compensate the loss of life of the deceased as
7
per the terms of the Insurance Policy. Further, that Respondent
No.1HPSFC cannot be held liable under the Insurance Policy
since it was only acting as a mediator for depositing the premium
of employees with the Insurance Company. However, the National
Commission observed that Respondent No.1HPSFC could not
avoid liability under the Workmen’s Compensation Act, 1923
(hereinafter, ‘1923 Act’). The Appellants herein had already
presented a claim before the Commissioner, Workmen’s
Compensation, Chopal (hereinafter ‘Commissioner’), seeking
compensation under the 1923 Act, and the Commissioner had
passed award dated 28.08.2003 directing Respondent No.1
HPSFC to pay a sum of Rs. 1,52,887.50/ along with interest
@12% p.a. to the Appellants herein. HPSFC had appealed against
the said award before the Hon’ble High Court of Himachal
Pradesh, Shimla and the Hon’ble Court had passed an interim
order on 6.11.2003 directing stay of operation and execution of
the Commissioner’s order dated 28.08.2003. Hence the National
Commission held that the matter was already subjudice before
the Commissioner and it would not be proper for it to record its
finding. The Revision Petition was accordingly allowed. Aggrieved,
the Appellant has come before this Court.
8
8. Learned counsel for the Appellants has argued that that the
terms and conditions of the Insurance Policy were never
communicated to the insured persons nor were they supplied
with a copy of the Insurance Policy. The deceased was not told
that the Insurance Policy was applicable only in the case of
accidental death and therefore, the Respondent No.1HPSFC is
liable to pay compensation to the Appellants for the death of the
deceased.
8.1 The learned counsel for the Appellants further contended
that the Insurance Scheme is in addition to the Appellants’
entitlement to compensation under the 1923 Act and while all
employees of Respondent No.1HPSFC are entitled to
compensation under the 1923 Act, compensation under the
Insurance Policy is available only to those who pay the premium.
Therefore, a claim before the Commissioner under the 1923 Act
cannot preclude a claim under the Insurance Policy.
8.2 Lastly, the Appellants have contended that as per the law
laid down in Jamuna Devi (supra), even if the Insurance Policy is
not applicable, Respondent No.1HPSFC may be held liable for
paying compensation to the Appellants herein. Further, that
9
Respondent No.1HPSFC was acting as a mediator between the
insured/deceased and the Insurance Company and hence there
was a tripartite agreement which entitles the Appellants to file a
case against the Respondent No.1HPSFC.
9. Per contra, the learned counsel for Respondent No.1HPSFC
argued that under the Insurance Policy, if the insured died an
accidental death, regardless of whether such death takes place
within the course of employment or not, the Insurance Company
would be liable. However, the Respondent No.1HPSFC had no
liability under the Insurance Policy whatsoever. If the death does
not arise out of accident, neither the Insurance Company nor
HPSFC would be liable. The State Commission and the National
Commission rightly recorded concurrent findings that the death
was not accidental, however, the State Commission and the
District Forum considered the issue on the wrong premise that in
case the death was accidental, the Insurance Company would be
liable and otherwise, Respondent No.1HPSFC would be liable.
Further, that the deceased was an employee of Respondent No.1
HPSFC and not a consumer since the definition of “service” under
the Consumer Protection Act excludes from its ambit services
10
rendered under the contract of employment between employer
and employee and hence the complaint was not maintainable
under the Consumer Protection Act qua the Respondent No.1
HPSFC. Lastly, that HPSFC could be held liable only under the
provisions of the 1923 Act and not under the Insurance Scheme
as it was only a mediator for depositing the premium of
employees with the Insurance Company.
10. Learned counsel for the Respondent No. 2Insurance
Company contended that the deceased died a natural death,
which is not covered under the Insurance Policy. The Insurance
Policy only covers “bodily injury resulting solely and directly from
accident caused by outward, violent and visible means (including
sterilization risks)”. Since there is no evidence to show that the
deceased met with any accident and the PostMortem Report also
shows that no bodily injury was caused to the deceased, the
claim is not payable under the said Policy.
10.1 It was additionally pointed out that Proviso 4 to the
Insurance Policy contains an exclusion clause, whereby it is
clearly provided that if the insured dies whilst under the
11
influence of intoxicating liquor or drug, claim under the Policy
will not be payable.
10.2 The facts of the present case show that on the night before
his death, the deceased was heavily drunk, and had gone and
slept outside on a cold, rainy October night in Chopal. In case of
excessive drinking and cold weather, asphyxia is the final
medical complication. Therefore, the learned counsel for the
Insurance Company submitted that the Appellants’ claim is not
maintainable under the Insurance Policy conditions, particularly
Proviso 4. It was further pointed out that there is neither any
direct evidence nor any bodily injury to prove the Appellants’
claim that the deceased died due to having suffered a fall during
the storm at night. The learned counsel also placed reliance on
the expert opinions of Dr. D.J. Das Gupta dated 6.07.1998
(supra) and Dr. D.S. Puri dated 17.08.2002 (supra) to show that
the deceased was in an intoxicated state at the time of death.
Hence, the learned counsel for the Insurance Company
submitted that the present appeal is liable to be dismissed.
11. We have heard the learned counsel for the parties at length
and have considered the materials placed on record as well as the
12
findings of the three consumer forums. In the facts and
circumstances of the case, we do not find any reason to interfere
with the impugned order dated 24.04.2009 passed by the
National Commission for the reasons mentioned below.
12. From a bare perusal of the Insurance Policy, as quoted
supra, it is clear that only if the insured sustains any bodily
injury resulting solely and directly from accident caused by
outward, violent and visible means, the Insurance Company
would be liable to indemnify the insured. Therefore, as per the
Insurance Policy, only accidental death of the insured shall be
indemnified. As noted above, the PostMortem Report clearly
indicates that there were no injuries found on the body of the
deceased. The probable cause of death as per the Final Opinion
in the PostMortem Report is asphyxiation caused by alcohol
consumption and regurgitation of food into larynx. As such, we
find it difficult to conclude that the deceased’s death was
accidental. Further, the expert opinions of Dr. D.S. Puri and Dr.
D.J. Das Gupta (supra) also show that the cause of death was
due to consumption of alcohol. In light of the explicit terms of the
Insurance Policy, we find that the National Commission and the
13
State Commission have rightly held that the deceased’s death
was not accidental, and that the Insurance Company would not
be liable to settle the Appellants’ claim.
13. As for the liability of the Respondent No.1HPSFC, we are of
the opinion that the Respondent No.1HPSFC was only acting as
a mediator for depositing the premium of employees with the
Insurance Company and had no liability as such under the
Insurance Policy. The liability of Respondent No.1HPSFC, if any,
would be under the 1923 Act, proceedings under which have
already been settled by the Commissioner, as recorded in the
Impugned Order.
14. At this stage, we consider it pertinent to deal with the
contention raised by the Appellants that Respondent No.1HPSFC
ought to be directed to pay compensation in place of the
Insurance Company on the basis of the judgment in Jamuna
Devi (supra). In the facts of Jamuna Devi, the deceased
employee in that case was also insured under the same
Insurance Scheme. Upon his death, a claim was raised which
was repudiated by the Insurance Company. When the matter
came before the National Commission by way of revision petition,
14
the National Commission held that the death was not accidental
and therefore, repudiation of the claim by the Insurance
Company was correct. However, the National Commission
observed from the records that the deceased therein was given to
believe that the policy covered natural death as well. The National
Commission also considered the fact that before the introduction
of the Scheme, a communication dated 23.01.1996 was
addressed by the Financial CommissionercumSecretary (PW) to
all Heads of Departments under the Government of Himachal
Pradesh giving details of the Insurance Scheme and the benefits
arising therefrom. The said letter mentioned “death” as one of the
events covered by the insurance scheme, however, it did not
specify only accidental death. Therefore, the National
Commission held that the employer in that case was liable to
make payment of compensation.
15. In our considered opinion, the judgment passed by the
National Commission in Jamuna Devi (supra) is peculiar to the
facts and circumstances of that case. There is nothing on record
to show that the deceased in the present case was given to
believe that the Insurance Policy covered natural death as well.
15
Therefore, the directions issued in Jamuna Devi would not be
applicable to the present case.
16. At this juncture, we may also observe that in the
communication dated 23.01.1996 addressed by the Financial
CommissionercumSecretary (PW) (mentioned supra), it was
stated that the Insurance Scheme would cover death due to any
type of accident including road, natural calamities like
landslides, floods, drowning, treefalling, avalanches, etc.
However, the Appellants have not adduced any evidence to prove
their contention that there was indeed a storm on the night of
7.10.1997 and that the deceased fell to his death as a result, so
as to lend support to their argument that the present case may
be covered in the broader terms of the Insurance Scheme as
envisaged in the letter dated 23.01.1996.
17. Be that as it may, the Provisos of insurance policy
specifically disclose that compensation will not be paid in respect
of injury of the injured if he is under the influence of intoxicating
liquor. The relevant Proviso 4 of the insurance policy reads thus:
“PROVISOS
16
Provided always that the company shall not be
liable under this policy to:
4) Payment of compensation in respect of death,
injury or disablement of the insured from (a)
intentional (illegible) suicide or attempted suicide,
(b) whilst under the influence of intoxicating
liquor or drug (c) or (illegible) by insanity, (d)
arising or resulting from the insured committing
any breach of the law with criminal intent.”
The aforesaid Proviso 4 makes it amply clear that the
injured is not entitled to compensation since on facts it is proved
that he was intoxicated and that was due to intoxication.
18. In light of the aforementioned observations, we decline to
interfere with the Impugned Order passed by the National
Commission. Accordingly, the Appeal stands dismissed. No order
as to costs.
…..……………………………………..J.
(MOHAN M. SHANTANAGOUDAR)
.…………………………………………J.
(VINEET SARAN)
NEW DELHI,
MARCH 22, 2021
Comments