NANDINI JAYARAJAN Vs. INSURANCE OMBUDSMAN

JUDGEMENT

(1.) 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 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 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 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:

(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.) 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: