Kerala High Court
Sheeba.A.K vs The New India Assurance Company ... on 11 June, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 11TH DAY OF JUNE 2024 / 21ST JYAISHTA, 1946
WP(C) NO. 15161 OF 2024
PETITIONER:
SHEEBA.A.K
AGED 49 YEARS, W/O. LATE RAJEEVAN,
KIZHAKKAYIL(DYARAKA), AMMATHARIMUKKU,
CHENDAYAD P.O, KANNUR DT., PIN - 670692.
BY ADV ANILKUMAR V. (VAZHARAMBIL)
RESPONDENTS:
1 THE NEW INDIA ASSURANCE COMPANY
THALASSERY JEEVANJYOTHI, TC ROAD,
CHIRKKARA, THALASSERY
KANNUR DT. PIN - 670104
REPRESENTED BY ITS DIVISIONAL OFFICER.
2 THE GENERAL MANAGER
INDIRA GHANDI CO-OPERATIVE HOSPITAL
MANJODI, THALASSERY, KANNUR - 670103.
3 THE NEW INDIA ASSURANCE COMPANY
NON SUIT CLAIMS HUB, 2 ND FLOOR,
SADHOO BUILDING, NEAR OLD BUSSTAND,
KANNUR, KANNUR DT. REPRESENTED BY ITS
DIVISIONAL OFFICER, PIN - 670001.
BY ADV.SRI.LAL K JOSEPH, STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.06.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C)No.15161 of 2024
:2:
JUDGMENT
Dated this the 11th day of June, 2024
The petitioner states that the petitioner's husband,
Mr.Rajeevan, while riding his Activa, accidentally skid and fell
on the public road and due to that he sustained injuries. When
he was examined in the 2nd respondent hospital without
conducting any objective and confirmative scientific tests, the
doctor recorded in the Wound Certificate that Rajeevan is
"under influence of alcohol". At night of the same day,
Rajeevan died due to heart attack. On the basis of said
certificate, 3rd respondent-Insurance Company has repudiated
the insurance claim.
2. The petitioner submits that the finding of doctor that
the deceased was under the influence of alcohol, is under
challenge firstly on the ground that there was no confirmative
scientific evidences taken by the doctor either in the form of
blood test or urine test or breath analyser test. No thorough
physical examination of the patient was conducted and
recorded by the doctor to ascertain whether the patient was
under the influence of alcohol or not.
3. It is noted by the doctor that the patient was
conscious and oriented. There is no record that the patient
was violent at the time of examination. If the patient
consumed alcohol, it will be rightly reflected in the post
mortem report of the deceased. In the post mortem report of
stomach, there is no finding that the deceased was an
alcoholic (it is to be noted that the patient died within the six
hours of the accident). The CT Scan of head plain of the
deceased did not reveal that the patient was under the
influence of alcohol.
4. The petitioner further submitted that if a person is
seen drunken or intoxicated or suspected to be drunken, or
intoxicated at the time of medical examination, the concerned
doctor is legally bound to prepare drunken certificate as per
Kerala Medico Legal Code and also to record the
circumstantial evidence in it or in the Wound Certificate
showing the physical condition of the patient to ascertain the
alcoholic consumption, otherwise it cannot be legally presume
that the person is under the influence of alcohol. Nothing is
done by the doctor in this regard. Adding of mere word under
that `the influence of alcohol' in the wound certificate is not
legally sufficient.
5. The deceased Rajeevan was not under the
influence of alcohol while riding the vehicle or at the time of
medical examination. The 1st respondent-Insurance Company
is relying on an inadequate, incomplete and incoherent
Wound Certificate to repudiate the insurance claim on the
ground of alcohol consumption. No Insurance Company can
deny the claim on hypothetical, speculative and imaginative
grounds, contends the Counsel for the petitioner.
6. I have heard the learned Counsel for the petitioner
and the learned Standing Counsel representing respondents
1 and 3. Notice to the 2nd respondent is dispensed with.
7. It is seen from Ext.P4 Wound Certificate that the
doctor commented after investigation that the deceased was
under the alcohol influence. Ext.P4 would also show that the
deceased was not willing to continue treatment and went
away against medical advice.
8. Counsel for the petitioner would submit that the
finding that the deceased was under the influence of alcohol
is incorrect. That observation was made without conducting
any tests. The blood sample has not been preserved as
required under the Kerala Medico Legal Code.
9. Be that as it may, these are disputed questions of
fact that cannot be gone into in a writ proceeding. The dispute
involved is of an insurance claim, which is a pure civil dispute
that can be decided only after gathering evidence. This issue
cannot be adjudicated in a writ petition under Article 226 of
the Constitution of India.
The writ petition is therefore disposed of permitting the
petitioner to approach the appropriate Court / forum as the
petitioner may be advised.
Sd/-
N. NAGARESH
JUDGE
ams
APPENDIX OF WP(C) 15161/2024
PETITIONER'S EXHIBITS
Exhibit P1 THE TRUE COPY OF THE RC OF ACTIVA
BEARING NO. KL 58 P 5468 DATED
26.02.2015 OF THE PETITIONER'S HUSBAND
RAJEEVAN ISSUED BY RTO THALASSERY
Exhibit P2 THE TRUE COPY OF THE DRIVING LICENSE
DL NO. KL 58 19920001006 ISSUED BY THE
SRTO THALASSERY OF RAJEEVAN ISSUED BY
RTO THALASSERY
Exhibit P3 THE TRUE COPY OF THE INSURANCE POLICY
BEARING NO.76260031220100021271 DATED
19.02.2023 OF RAJEEVAN ISSUED BY THE 3
RD RESPONDENT
Exhibit P4 THE TRUE COPY OF THE WOUND CERTIFICATE
OF RAJEEVAN DATED 19.10.2023 ISSUED BY
2 ND RESPONDENT
Exhibit P5 THE TRUE COPY OF THE FIR BEARING
NO.1036/2023 OF THE PANOOR POLICE
Exhibit P6 THE TRUE COPY OF THE SCAN REPORT DATED
12.10.2023 OF RAJEEVAN ISSUED BY 2 ND
RESPONDENT
Exhibit P7 THE TRUE COPY OF THE POST MORTUM
REPORT OF RAJEEVAN DATED 13.10.2023
ISSUED BY THE GOVERNMENT HOSPITAL
THALASSERY ISSUED BY GOVT. GENERAL
HOSPITAL THALASSERY
Exhibit P8 THE TRUE COPY OF THE DEATH CERTIFICATE
DATED 31.10.2023 OF RAJEEVAN ISSUED BY
SECRETARY KUNNOTHPARAMBAGRAMA
PANCHAYATH
Exhibit P9 THE TRUE COPY OF THE REPUDIATION
LETTER DATED 29.12.2023 ISSUED BY THE
3 RD RESPONDENT
Exhibit P10 THE TRUE COPY OF THE RELEVANT PAGES OF
MEDICO- LEGAL CODE DATED NIL ISSUED BY
THE GOVERNMENT OF KERALA
Exhibit P11 TRUE COPY OF DISCHARGE SUMMARY OF
RAJEEVAN DATED 12.10.2023 ISSUED BY
THE 2 ND RESPONDENT HOSPITAL
