IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 WP(C).No. 32243 of 2008(L) --------------------------------------- PETITIONER(S): ----------------------- NANDINI JAYARAJAN,W/O.LATE P.B.JAYARAJAN CHOORAKKATTUPARAMBIL HOUSE, HILL PALACE NORTH GATE, THIRUVANKULAM, THRIPUNITHURA. BY ADV. SRI.C.S.AJITH PRAKASH SRI.T.D.SALIM SRI.PAUL C.THOMAS RESPONDENT(S): ------------------------- 1. THE INSURANCE OMBUDSMAN, PULINAT BUILDING 2ND FLOOR, OPP.COCHIN SHIPYARD, M.G.ROAD, ERNAKULAM, KOCHI-682015. 2. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LTD, DIVISIONAL OFFICE NO:IV, P.B.NO:42, 2ND FLOOR, PALAKKAT BUILDING, MARKET JUNCTION, THRIPUNITHURA. 3. DEPUTY MANAGER, REGIONAL OFFICE, METRO PALACE, GROUND FLOOR, NORTH RAILWAY STATION ROAD, ERNAKULAM, COCHIN-682018. 4. DEPUTY GENERAL MANAGER (HR),BHARAT PETROLEUM CORPORATION LIMITED, KOCHI REFINARY, AMBALAMUGHAL, KOCHI. R4 BY ADV. SRI.E.K.NANDAKUMAR BY GADV. SRI.GEORGE CHEIRAN (THIRUVALLA). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.32243/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE POLICY DOCUMENT ISSUED BY THE 2ND RESPONDENT INSURANCE COMPANY TO BPCL/KOCHI REFINERY COVERING THE PERIOD ON 2005-06. P2:- COPY OF THE FIR ALONG WITH THE F1 STATEMENTS REGISTERED BY AMBALAMEDU POLICE STATION. P3:- COPY OF THE INQUEST REPORT PREPARED AND FILED BEFORE THE SUB DIVISIONAL MAGISTRATE MOOVATTUPUZHA DTD. 30.12.2005. P4:- COPY OF THE POSTMORTEM REPORT OF THE PETITIONER'S HUSBAND. P5:- COPY OF THE REPORT DTD. 31.3.06 ISSUED FROM THE CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM. P6:- COPY OF THE POSTMORTEM CERTIFICATE AND FINAL OPINION AS TO THE CAUSE OF DEATH ISSUED FROM THE POLICE AND FORENSIC SURGEON. P7:- COPY OF THE REFER REPORT FILED UNDER SECTION 173 OF CR. PC. 241/06. P8:- COPY OF THE LETTER DTD. 5.4.07 INDICATING THE DEPOSIT AMOUNT BEFORE THE COMPENSATION COMMISSIONER BY THE INSURANCE COMPANY. P9:- COPY OF THE LETTE DTD. 9.4.07 ISSUED BY THE PBCL COMPANY TO THE PETITIONER. P10:- COPY OF THE LETTER DTD. 4.4.07 ISSUED BY THE INSURANCE COMPANY TO THESENIOR MANAGER, BPCL. P11:- COPY OF THE LETTER DT. 28.1.08 ISSUED BY DEPUTY MANAGER REGIONAL OFFICE INTIMATING THE REPUDIATION OF THE CLAIM. P12:- COPY OF THE LETTER DTD. 28.2.08 ALONG WITH IN PROFORMA ISSUED FORM THE OFFICE OF THE INSURANCE OMBUDSMAN. P13:- COPY OF THE CONSENT LETTER OBTAINED FROM THE PETITIONER BY THE OMBUDSMAN. P14:- COPY OF THE CLAIM PETITION FILED BY THE PETITIONER DT. 2.4.08 BEFORE THE OMBUDSMAN. P15:- COPY OF THE AWARD OF THE OMBUDSMAN DTD. 30.4.08 DISMISSING THE COMPLAINT. tss W.P.(C) NO.32243/2008 P16:- COPY OF THE REGARDING THE BLOOD ALCOHOL CONTENT SHOWING THE EFFECTS AT DIFFERENCT LEVELS AND THE APPROXIMATE BLOOD ALCOHOL PERCENTAGE EXTRACTED THROUGH INTERNET FROM THE SITE OF WIKIPEDIA FREE ENCYCLOPEDIA. P17:- NUMBER OF DRINKS TO BE CONSUMED TO REACH THE BAC AT A LEVEL OF 160 MG IN 100 ML OF BLOOD AS WORKED OUT FROM THE INTERNET SITE OF WISCONSIN DEPARTMENT OF TRANSPORTATION. P18:- A GRAPH SHOWING THE BLOOD ALCOHOL CONCENTRATION OBTAINED FROM THE ENCYCLOPEDIA BRITANNICA. P19:- THE RANGE OF TOXICITY OF HYDROGEN SULPHIDE GAS (H2S) EXTRACTED FROM THE INTERNET. TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 32243 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of January, 2011 J U D G M E N T The petitioner in this writ petition is the widow of an employee by name P.B. Jayarajan of the 4th respondent- Bharat Petroleum Corporation Limited, who died in an industrial accident on 30.12.2005 at 10.15 am. On the fateful day he, a general workman in the plant of the 4th respondent, was deputed by the Senior Maintenance Engineer to attend to a hydrogen sulphide gas leak of the Sulpher Recovery Plant. He was accompanied by another workman by name Prasanth. The plant is a big building having the height of a three storied building and the workman had to climb a ladder to reach the platform to attend to the leakage. He and the co-employee climbed the ladder and examined the point of leakage in the presence of another workman. According to the petitioner, while tightening a bolt, the workman fell unconscious on the W.P.(C)No. 32243 of 2008 -2- platform and he was taken to the Occupational Health Centre of the BPCL and the duty doctor referred him to a full fledged hospital. He was taken to the Vijayakumaran Memorial Hospital, where he was declared dead. All the workmen of the plant were covered by a Group Personnel Accident Insurance Policy, Ext.P1. The widow of the deceased workman, the petitioner herein, preferred an insurance claim which was repudiated by the Oriental Insurance Company on the ground that, the chemical analyst's report showed that the workman was under the influence of liquor. After the postmortem, the viscera was sent for Chemical Examiner's analysis and in the report it was mentioned that the blood sample contains presence of liquor. Therefore relying on Clause 5 of Ext.P1, which excluded payment of compensation if the accident occurred while the workman was under the influence of intoxicating liquor or drugs, the claim was repudiated. The petitioner filed a complaint before the Insurance Ombudsman, Kochi- the 1st respondent herein. The Insurance company also W.P.(C)No. 32243 of 2008 -3- agreed for resolution of the dispute before the Insurance Ombudsman. The petitioner filed a detailed complaint dated 02.04.2008, Ext.P14, before the Insurance Ombudsman producing along with the same 9 documents in support of her case. According to the petitioner, the matter came up before the Ombudsman for hearing on 30.04.2008 and on the same day Ext.P15 award was passed accepting the contention of the Insurance Company that the workman was under the influence of liquor and therefore by virtue of Clause 5 of Ext.P1, the liability of the Insurance Company was excluded. The petitioner is challenging the said order in this writ petition. The petitioner has produced a host of materials to show that the Chemical Examiner's report could only have been a mistake insofar as it is next to impossible that the blood sample of the workman would contain alcohol. According to the petitioner, the workman entered duty on the fateful day at 8.30 am in the morning and he was deputed for the fateful duty at 10.15 am. The employer never had any case that he was under the W.P.(C)No. 32243 of 2008 -4- influence of alcohol. Moreover the workman was doing the work along with a co-employee deputed along with him, in the presence of another employee also. There is no material anywhere to show that the workman was under the influence of liquor at the relevant time. Therefore the repudiation by the Insurance Company as well as the rejection of the complaint by the Insurance Ombudsman is clearly vitiated is the contention of the petitioner. Inter alia the petitioner contends that the Ombudsman had not considered the complaint of the petitioner in the right perspective and on the date when the complaint came up for hearing itself passed the award without affording an opportunity to the parties to adduce and rebut evidence. The petitioner seeks the following reliefs: “i) to call for the records leading to the Ext.P10, P11 and P15 order of the Insurance Ombudsman, and quash the same by issuing a writ of certiorari or any other appropriate writ or order by this Hon'ble Court, on the ground that the finding is totally perverse, illegal and not supported by any evidence. ii) to declare that the invocation of the exclusion clause of Ext.P1 policy, to repudiate the claim of insurance made by the petitioner consequent to the death of her husband is illegal, wrong and bad in law. W.P.(C)No. 32243 of 2008 -5- iii) to issue a writ of mandamus or any other appropriate writ directing the 2nd and 3rd respondents to withdraw the repudiation and to honour the claim of the petitioner relating to her deceased husband in the BPCL company as per the terms of policy conditions and grant all monitory benefit within a time frame with reasonable interest.” 2. The Insurance Company as well as the employer has filed counter affidavit/statement. The employer in their statement states that there was no abnormal behaviour in the workman when he attended to duty. The petitioner also relies on expert material in her attempt to prove that the chemical analysis report can only be a mistake in the peculiar circumstances of the case. A reply to that effect has also been filed. 3. I have considered the rival contentions in detail. 4. Ordinarily it is highly unlikely that the superior officer would not detect a person coming for duty under the influence of alcohol that too to the extent stated to have been found in the blood sample. Fellow workman who accompanied the particular workman could not have been unaware of the fact, if the workman was actually under the W.P.(C)No. 32243 of 2008 -6- influence of liquor. The lethal character of hydrogen sulphide is not in dispute. In such circumstances no prudent employer would depute a person who was under the influence of alcohol for such a dangerous assignment. It must be remembered that the time was 10.15 in the morning and the workman had entered duty at 8.30 in the morning. Ordinarily unless the workman is an alcoholic he would not consume liquor before 8.30 in the morning. If he was in fact an alcoholic then it is not possible that the superior officer and other employees would not detect such habit of the workman. At least fellow workmen would have noticed it and reported to the superior officer. Nothing of that sort is in evidence in this case. In view of the materials supplied by the petitioner there is reason to doubt the correctness of the Chemical Examiner's report also. But a conclusive opinion regarding the same cannot be lightly taken without examining in detail evidence to be adduced by the parties including expert evidence, evidence of the employer and the fellow workmen as well. In such W.P.(C)No. 32243 of 2008 -7- circumstances it was not proper on the part of the Insurance Ombudsman to treat the case lightly and dispose of the matter within a month of filing of the complaint itself without giving an opportunity to the parties to adduce evidence for and against. In view of my above finding, I feel that, the parties should be given another opportunity, especially in view of the fact that the petitioner has lost the bread winner of the family and admittedly the workman is covered by Ext.P1 insurance policy. In the above circumstances Ext.P15 order of the 1st respondent- Insurance Ombudsman is quashed. The Insurance Ombudsman shall reconsider the complaint after affording an opportunity to both parties to adduce evidence for and against including oral evidence of experts as well as that of the superior officer of the deceased workman and co- workers. Fresh award, after taking evidence and hearing the parties, shall be passed as expeditiously as possible at any rate within six months from the date of receipt of a copy of this judgment. W.P.(C)No. 32243 of 2008 -8- 5. A doubt has been expressed before me by counsel as to whether the Ombudsman can take such elaborate evidence in view of Rule 14 of the Redressal of Public Grievances Rules, 1998 under which the Ombudsman has been appointed. Rule 14 reads thus: “14. Ombudsman to act fairly and equitably.- (1) The Ombudsman may, if he deems fit, adopt a procedure other than mentioned in sub-rules (1) and (2) of Rule 13 for dealing with a claim: Provided that the Ombudsman may ask the parties for necessary papers in support of their respective claims and where he considers necessary, he may collect facutal information available with the insurance company. (2) The Ombudsman shall dispose of a complaint fairly and equitably.” I am of opinion that, the Rule does not exclude power of the Ombudsman to take any form of evidence whatsoever. In fact for a fair and equitable consideration of the case Ombudsman should have the power to take evidence in appropriate cases. Therefore I am of opinion that in a particular case where it is necessary to take oral evidence apart from documentary evidence in order to come to a just and equitable conclusion, the Ombudsman has the W.P.(C)No. 32243 of 2008 -9- power to take such evidence. As such, I do not think that there is any basis for the apprehension of the parties regarding the power of the Ombudsman to take oral evidence as well. The writ petition is disposed of as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/