Kerala High Court
Sreedevi. M vs State Of Kerala on 6 February, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WP(C) NO. 6768 OF 2022
PETITIONER:
SREEDEVI M.,
AGED 41 YEARS, W/O. LATE VIJAYAKUMAR,
ULLATTIL HOUSE,
KRISHNAKRIPA, URAKAM P.O.,
THRISSUR DISTRICT-680 562.
BY ADVS.LINDONS C.DAVIS
E.U.DHANYA
SWATHY A.P.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
FINANCE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 INSURANCE DIRECTOR,
INSURANCE DIRECTORATE,
INSURANCE DEPARTMENT, TRANS TOWERS,
VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.
SRI. RAJEEV JYOTHISH GEORGE, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
-2-
W.P.(C) No.6768 of 2022
"C.R."
JUDGMENT
Dated this the 6th day of February, 2024
This is the second writ petition filed by the
petitioner, after having obtained a judgment earlier in
W.P.(C).No.12693/2020.
2. The petitioner is stated to be the wife of late
Vijayakumar, who unfortunately died of drowning, after
having accidentally tripped into a well on 18.10.2018.
The petitioner says that her husband was covered by a
Group Personal Accident Insurance Scheme ('Scheme' for
short), namely Ext.P9; and thus that she was entitled to
compensation to the sum of Rs.10 lakhs, but that this was
denied on the allegation that her husband, at the time of
death, was under the influence of alcohol. She says that
this was irrelevant because, what is important as per
Ext.P9 policy was the verified cause of death, which,
according to her, cannot be attributed to the influence of
alcohol - assuming that her husband was under such at
the relevant time.
3. The petitioner says that she, therefore, had
approached this Court through the aforementioned writ
petition, namely, W.P.(C).No.12693/2020, which was
disposed of, directing the competent Authority to
reconsider the case, which has now entered in Ext.P8,
wherein, it has been reiterated that, as per Ext.P9 policy,
particularly Clause 6 thereof, any death due to accident,
while under the influence of alcohol, would stand
excluded from its ambit.
4. The petitioner submits that, therefore, she has
been now constrained to challenge clause 6 of Ext.P9
because, the denial of a claim in the case of death, even if
the accident was at a time when the deceased was under
the influence of liquor - but the cause of death being not
attributable to such condition - is arbitrary and
capricious. She thus prays that the reliefs sought for in
this writ petition be granted.
5. Sri.Lindons.C.Davis - learned counsel for the
petitioner, vehemently argued that the impugned clause
in Ext.P9 is irrational and, therefore, untenable; and that,
going by the various binding precedents, namely, Central
Inland Water Transport Corporation Ltd. v. Brojo
Nath [1986 (3) SCC 156] and L.I.C. Of India & Anr v.
Consumer Education & Research Centre & Ors.
[1995 (5) SCC 482], this Court is obligated to set aside
such clauses, if it is found to be unjust and unfair. He
argued that, since the Group Personal Accident Insurance
Scheme was propounded as per Government orders, it is
amenable to judicial review and that his client is,
therefore, constrained to approach this Court because,
even going by the police reports, namely Ext.P1, her
husband did not die on account of consumption of alcohol,
but because he accidentally tripped and fell into a well,
which could have happened even to a person who was not
under the influence of alcohol. He concluded arguing
that, therefore, his client's challenge to clause 6 of Ext.P9
is for good reason because, what is relevant to be
determined is not whether the deceased was under the
influence of alcohol, but if the cause of death had any
direct nexus to it.
6. In response, the learned Government Pleader -
Sri.Rajeev Jyothish George, vehemently supported Ext.P9,
saying that the object of the Group Personal Accident
Insurance Scheme is to cover deaths which are beyond
the control of human intervention or action. He submitted
that, therefore, as is available in any other contract of
insurance, Ext.P9 contains a proviso to clause 6, wherein,
it mandates that no compensation shall be paid for death
or disablement arising out of intentional self-injury,
suicide, attempted suicide, death or disablement due to
accident, while under the influence of intoxicating liquor
or drugs. He pointed out that, in fact, there is one more
exemption provided in the said proviso, namely, in the
case of death or disablement while breaching law with
criminal intent. He submitted that, these causes are
stipulated with loadable intent because, otherwise, it
would be used as a premium by unscrupulous people for
the purpose of obtaining compensation under it, by either
intentional self-injury or an attempt to suicide or such
other.
7. Sri.Rajeev Jyothish George - learned Government
Pleader, thereafter, submitted that it would not be
necessary for this Court to look into the validity of clause
6 of Ext.P9 'Scheme', at least in this case, because, Ext.P1
final report, read along with Ext.P3 chemical analysis
report, would render it indubitable that the deceased had
consumed a large amount of liquor, thus being unable to
control himself, causing him to trip into the well and to
unfortunately die due to drowning. He argued that, when
the facts involved are so clear and undisputed, the
allegation of the petitioner, that the cause of death was
not attributable to the consumption of liquor by the
deceased, becomes untenable and beyond reason. He
vehemently asserted that, even a cursory reading of
Ext.P1 final report, along with Ext.P3 chemical analysis
report, would establish that the repudiation of the claim
by the Insurance Directorate was without error, and
hence prayed that this writ petition be dismissed.
8. It is evident from the afore narrative and the
pleadings on record, that the petitioner has approached
this Court through this writ petition because, when her
claim was directed to be reconsidered in the judgment
issued in the earlier round of litigation, it culminated in
Ext.P8, wherein, the Government took the specific stand
that, on account of Clause 6 of Ext.P9 Group Insurance
Scheme, the said claim cannot be considered because the
deceased was under the influence of alcohol at the time of
his unfortunate death. She has, therefore, chosen to
challenge the said clause itself as being untenable and
without any rational connection to the objectives sought
to be achieved; and she asserts, through her learned
counsel, that it operates oppressively because, even the
case of death of a person who may be under the influence
of alcohol, but for no reason that can be attributed to
such influence, would stand excluded.
9. This Court certainly would have considered the
afore contentions more intently but for the fact that
Ext.P3 Chemical Analysis Report - which remains
undisputed and uncontested - establishes that the
deceased was under the influence of alcohol indicative of
not merely casual drinking, but of heavy indulgence. This
is because, the sample of the deceased is certified to have
contained 185 mg of methyl alcohol per 100 ml and this
certainly establishes that he was in such an inebriated
state, even not to have been aware the circumstances
around him. To add to this, the police report, namely
Ext.P1, says that the well had a protective wall around it;
and therefore, normally except in the case of a person
being incapacitated to be aware of the circumstances or
being subjected to an external force applied on him, the
falling to the same, thus causing drowning is improbable.
Even according to the petitioner and going by the police
reports, there was no external force applied on the
deceased and he appears to have fallen into the well
being oblivious of the danger that was lurking while he
was walking through the property of his friend.
10. All the afore is suggestive of the fact that the
death occurred unfortunately on account of the factum of
the deceased having imbibed large volume of liquor; and
hence the argument of the petitioner, that Clause 6 of
Ext.P9 would not be attracted in this case, the death
being not on account of consumption of liquor, cannot
find my favour.
11. In fact, this is exactly what has been stated by
the Government also in Ext.P8; and hence, when the
factual factors remain uncontested without dispute, the
challenge to the proviso to Clause 6 of Ext.P9 insurance
scheme would be more or less academic in nature, at
least as far as the case is concerned, since it would not, in
any event, inure any benefit to the petitioner. This is
because, even this Court is to read down the impugned
proviso to hold that a case of death on account of an
accident, which is not directly on account of the
consumption of liquor, would not be attracted under its
purlieu, it would not help the petitioner, since, in this
case, it is without much of doubt that, unfortunately, the
victim succumbed on account of the factum that he was
unable to physically control himself.
In the above circumstances, I do not think it is
necessary for this Court to answer the argument of the
petitioner regarding the validity of the proviso to Clause 6
of Ext.P9 Group Insurance Scheme conclusively; but I
deem it necessarily to peripherally say that the said
clause cannot be found to be capricious because, it is
intended to avoid any temptation from any person to
cause self injury or disablement, solely for the purpose of
the cover of insurance. The proviso does not really impose
any unreasonable restriction but only stipulates that an
injury or disablement, caused on account of an accident
due to the influence of alcohol, or while under such
influence, would stand excluded. Prima facie, this Court
cannot find fault with it, nor can I find it to be capricious.
However, this is an issue that is left open to be decided in
future cases, if it becomes so required.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
bpr/anm
APPENDIX OF WP(C) 6768/2022
PETITIONER'S EXHIBITS
Exhibit P1 A COPY OF FINAL REPORT DATED
31.10.2018 WITH RESPECT TO DEATH OF
VIJAYAKUMAR.
Exhibit P1(A) THE RETYPED LEGIBLE COPY OF 1ST PAGE
OF EXHIBIT P1
Exhibit P2 A COPY OF THE LETTER DATED 20.8.2019
ISSUED FROM THE OFFICE OF THE 2ND
RESPONDENT
Exhibit P3 A COPY OF THE TEST REPORT OF THE
REGIONAL CHEMICAL EXAMINERS
LABORATORY, ERNAKULAM DATED 11.2.2019
Exhibit P4 A COPY OF THE LETTER NO
INSU/G/P.O.A.I.S/M3/T 001906036 DATED
26.5.2020 OF THE 2ND RESPONDENT
Exhibit P5 A COPY OF THE GO(P) NO 606/2012/FIN
DATED 3.11.2012
Exhibit P6 A COPY OF THE GO(P) NO 133/2017/FIN
DATED 21.10.2017
Exhibit P7 A COPY OF THE APPEAL DATED 16.6.2021
SUBMITTED BEFORE THE 1ST RESPONDENT
Exhibit P8 A COPY OF GO(MS) NO 6315/2021/FIN
DATED 25.9.2021
Exhibit P9 A COPY OF THE GROUP PERSONAL ACCIDENT
INSURANCE SCHEME AS PER GO(P) NO
616/2010/FIN DATED 23.11.2010
