Case: NARBADA DEVI AND ORS Vs. H.P. STATE FOREST CORPORATION &amp; ANR

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 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 Post-Mortem 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 Post-Mortem Report is asphyxiation caused by alcohol consumption and regurgitation of food into larynx. As such, we find it difficult to conclude that the deceaseds 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 State Commission have rightly held that the deceaseds 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.1-HPSFC, we are of the opinion that the Respondent No.1-HPSFC 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.1-HPSFC, 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.1-HPSFC 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, 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 Commissioner-cum-Secretary (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. 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 Commissioner-cum-Secretary (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, tree-falling, 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 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. We have heard the learned counsel for the parties at length and have considered the materials placed on record as well as the 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 Post-Mortem 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 Post-Mortem Report is asphyxiation caused by alcohol consumption and regurgitation of food into larynx. As such, we find it difficult to conclude that the deceaseds 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 State Commission have rightly held that the deceaseds 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.1-HPSFC, we are of the opinion that the Respondent No.1-HPSFC 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.1-HPSFC, 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.1-HPSFC 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, 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 Commissioner-cum-Secretary (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.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 Commissioner-cum-Secretary (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, tree-falling, 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:-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.