Point of Law: Expression “intoxication” which is greater in gravity has to be understood under this perspective, rather than a mere “drunkenness.”

JUDGMENT :

SHAJI P. CHALY, J.

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, 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. Brief material facts for the disposal of the writ petition are as follows:

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

3. 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. Whatever that be, it is an admitted case of the Insurance Company that the policy was issued covering the Government employees and teachers for the period from 01.01.2009 to 31.12.2009. So also, as per the Memorandum of Understanding entered into by and between the Insurance Company and the Government of Kerala, the sum assured in the case of accidental death is Rs. 7 lakhs.

4. The Ombudsman, after taking into account the available evidence before it, has found that charge is laid against the driver of the tourist bus under Sections 279 and 304A IPC; the contents of the final report would reveal that the motorcycle was proceeding from south to north along NH 47; that the offending tourist bus was proceeding from north to south along the same road; that as per the description of the accident, the tourist bus overtook a car which was proceeding ahead of it and in that process, the bus hit against the motorcycle, which was proceeding in the opposite direction; and that the description of the scene of occurrence would reveal that the accident took place at the extreme western margin of the road and therefore, it is clear that the deceased was keeping proper side. It is further found that the bus went over to the wrong side of the road and hit the motorcycle resulting in the accident. The Ombudsman has also relied upon the location sketch prepared by the Village Officer and it was found that the accident took place at the western road margin indicating that the deceased was keeping to the proper side of the road.

5. The Ombudsman also evaluated the postmortem certificate and found that the cause of death was the head injury suffered by the deceased; and that the stomach contained 30ml of br