Narbada Devi . vs H.P. State Forest Corp. . on 22 March, 2021


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Supreme Court of India

Narbada Devi . vs H.P. State Forest Corp. . on 22 March, 2021

Author: Mohan M. Shantanagoudar

Bench: Mohan M. Shantanagoudar, Ajay Rastogi

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                                                           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.

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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,
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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
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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.

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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.

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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
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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.

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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
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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
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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
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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



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