IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32243 of 2008(L)
1. NANDINI JAYARAJAN,W/O.LATE P.B.JAYARAJAN
... Petitioner
Vs
1. THE INSURANCE OMBUDSMAN, PULINAT
... Respondent
2. THE DIVISIONAL MANAGER, ORIENTAL
3. DEPUTY MANAGER, REGIONAL OFFICE,
4. DEPUTY GENERAL MANAGER (HR),BHARAT
For Petitioner :SRI.C.S.AJITH PRAKASH
For Respondent :SRI.E.K.NANDAKUMAR
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :17/02/2011
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No. 32243 of 2008
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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
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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
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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
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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.
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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
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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
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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.
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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
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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/