Punjab

Ludhiana

CC/15/286

Ramesh Kumar - Complainant(s)

Versus

Bharti Axa Gen.Ins.Co.Ltd - Opp.Party(s)

R.P.Singh Adv.

16 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.286 of 28.04.2015

Date of Decision          :   16.02.2017

 

Ramesh Kumar s/o Sh.Sham Lal r/o # 4944, Ward No.10, Guron Colony, Machhiwara, Tehsil Samrala, District Ludhiana.

….. Complainant

Versus 

1.Bharti Axa General Insurance Company Limited, Regd. Office at 1^st Floor, Ferns Icon, Survey No.28, Doddanekundi, Bangalore-560037, through its Managing Director.

2.Bharti Axa General Insurance Company Limited, Branch Office at Unit No.6 and 7, 3^rd Floor, Kunal Tower, Mall Road, Ludhiana-141001, through its Branch Manager/Head.

 

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant              :         Sh.G.S.Sikka, Advocate & Sh.Ravinder Pal

                                                  Singh,  Advocate.      

For Ops                           :         Sh.Rajeev Abhi, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                           Complainant purchased a Renault Duster car model No.RXE by paying price of Rs.9,21,545/- on 4.9.2013. The said car was got registered with the Registration Authorities of Ludhiana vide registration No.PB-10-DT-0008. This car was got insured from Ops in the next year on 4.9.2014 for sum of Rs.7,60,500/-(IDV) under the comprehensive package of “Depreciation Cover” with validity period from 4.9.2014 to midnight of 3.9.2015. Driver of the vehicle also was insured for sum of Rs.2 lac. On the night of 12.2.2015 at about 9:00 PM, when the son of the complainant namely Mr.Karan Vir Verma was returning from Ludhiana to his home at Machhiwara via Kohara, then owing to foggy weather and poor visibility on the road upto 10-15 meters only, the said car met with an accident. Temperature of that date was about 12-13 Degree Celsius. Above said Karan Vir Verma was driving the car and nephew of the complainant namely Manoj Kumar was in another car following him. When these cars reached near village Prithipur, then suddenly vehicle driven by the son of complainant went towards kacha road and struck with a Eucalyptus Tree standing at the left side on the road. It is claimed as if due to foggy weather, the said Mr.Karan Vir Verma could not see the way properly and that is why the vehicle went out of control. Said Karan Vir Verma sustained multiple injuries. Thereafter, complainant and his nephew, who were coming in another car just behind the car driven by Mr.Karan Vir Verma, immediately rushed the complainant’s son to Fortis Hospital, Ludhiana. The injured reached the said hospital for treatment on 12.02.2015. Unfortunately on the next very morning on 13.2.2014(13.2.2015 infact) at 9:25 AM, death of son of complainant took place due to hemorrhage and shock on account of sustained multiple injuries. Postmortem of dead body was conducted. DDR of the accident was recorded by the police of Police Station Khumm Kalan, Ludhiana. Ops were informed about the accident and the claim was lodged by submitting the documents. Inspection of the vehicle was conducted by the surveyor M/s Bansal and Company deputed by Ops on 26.2.2015 at Padam Cars Pvt. Ltd, Ludhiana. Estimate of repair prepared by the surveyor was of Rs.10,64,564/-, which clearly establishes that the vehicle was having total loss. Ops repudiated the claim of the complainant vide letter dated 25.3.2015 issued by OP2 on the ground that the complainant was under

influence of liquor/alcohol while driving the vehicle, when the accident took place. Reliance on postmortem report of Fortis Hospital, Ludhiana with respect to Column V specifically was placed. That report read as under:-

“Pale & contains semi digested food mixed with alcohol. Smell of alcohol present.”

No quantity/percentage of liquor intake was mentioned in the said report. So, repudiation of claim alleged to be improper. It is claimed through complaint itself as if complainant’s son had consumed only one peg of whisky which was 30 ml in quantity. That peg of whisky was consumed before taking meals/dinner at about 6:00 PM. On that day, the complainant consumed liquor of about 90 ml quantity and that is why, he asked his son Karan Vir Verma to drive the vehicle. Said Mr.Karan Vir Verma was in full sense and was able to drive the vehicle. Accident in question took place due to foggy weather condition and poor visibility as well as due to technical machinery failure. Mere presence of little alcohol and its smell in the stomach during postmortem does not suggest that the deceased was heavily drunk. So, repudiation of claim alleged to be illegal. By pleading deficiency in service on the part of Ops, prayer made for directing Ops to pay amount of Rs.7,60,500/- along with interest @18% per annum from the date of repudiation of claim dated 25.3.2015 till payment. Rs.2 lac claimed as insurance amount for the death of son of the complainant, who was driving the vehicle. Compensation for mental agony and sufferings of Rs.2 lac and litigation expenses of Rs.35,000/- more claimed.

2.                 In joint written statement filed by Ops, it is pleaded interalia as if the complaint is barred by section 26 of the Consumer Protection Act, 1986(Hereinafter in short referred to as ‘Act’); repudiation of claim is as per terms and conditions of the policy; complainant alleged to be estopped by his act and conduct from filing this complaint because he has suppressed the material facts from this Forum. It is also claimed that in view of involvement of intricate question of law and facts requiring elaborate evidence, civil court of competent jurisdiction alone can decide the complaint. Admittedly, the vehicle in question was insured with Ops and after the accident, the claim was submitted. That claim was duly registered, entertained and processed and repudiated as per the terms and conditions of the policy. M/s Bansal & Co., Valuers, Surveyor and Loss Assessor, Ludhiana was appointed as surveyor. The said surveyor personally inspected the vehicle in question, took the photographs and other documents and thereafter, prepared the report dated 12.3.2015 under signatures of Shri Vijay Bansal. In that report, it is specifically mentioned that postmortem report of the driver mention as if abdomen stomach (pale) and contain semi digested food mixed with alcohol as well as smell of alcohol was present. In view of that report of surveyor, it was found as if driver Mr.Karan Vir Verma was under influence of intoxicant/liquor and as such, in view of violation of policy terms and conditions, the insurance claim not entertainable. Further, the surveyor gave independent assessment for holding that repair liability of the car exceeds 75% of the IDV. Salvage evaluation assessed approximately at Rs.2,25,000/-. Based on the valuation and IDV, the liability on NOS basis assessed by the surveyor at Rs.5,34,500/-. However, that recommendation for settlement of claim on NOS basis was subject to the terms and conditions of the policy. After receipt of that report and scrutinizing the documents, claim of the complainant was rightly repudiated vide letter dated 25.3.2015. So, it is claimed that there is no deficiency in service on the part of Ops. Each and every other averment of the complaint denied.

3.                 Complainant to prove his case tendered in evidence his affidavit Ex.CW1/A as well as affidavit Ex.CW2/A of Sh.Manoj Kumar(nephew of the complainant) along with documents Ex.C1 to Ex.C17 and thereafter, his counsel closed the evidence.

4.                 On the other hand, counsel for OPs tendered in evidence affidavits Ex.RA and Ex.RB of Ms.Shivali Sharma, Manager(Legal) of Ops and of Sh.Vijay Bansal of M/s Bansal & Co.Valuers, Surveyor and Loss Assessor along with documents Ex.R1 to Ex.R22 and then closed the evidence.

5.                 Written arguments in this case submitted by both the parties. Oral arguments even addressed and those were heard. Records gone through minutely. 

6.                 It is vehemently contended by counsel for complainant that DDR qua the accident in question Ex.R8=Ex.C2 was lodged immediately after the accident and as through report Ex.C7 dated 13.2.2015 itself alcohol(Ethanol) Serum was not detected in the body of Karan Vir Verma(deceased) and as such, Ops unable to prove as if deceased Karan Vir Verma was under the influence of liquor or alcohol at the time of taking place of accident in question. This report Ex.C7 of private laboratory is not correct regarding non detection of alcohol(Ethanol)serum because in the postmortem report of the deceased produced on record as Ex.C3=Ex.R13 by both the parties, it is specifically mentioned that stomach of the deceased was pale and contains semi digested food mixed with alcohol and smell of alcohol present. If the alcohol and alcoholic smell is present in the stomach of deceased at the time of conducting of postmortem, then certainly case of Ops fully believable that driver had consumed alcohol immediately before or at the time of driving of the vehicle in question. As the semi digestive food was found present in the stomach and as such, same shows as if this food was consumed just few hours not more than six before death. So, in view of detection of alcohol and alcoholic smell being present in the stomach at the time of conduct of postmortem, there is no escape from the conclusion that deceased was under influence of alcohol at the time of driving of the vehicle.

7.                 Even it is stated in the complaint and through affidavit Ex.CW1/A of complainant Sh.Ramesh Kumar that deceased had consumed one peg i.e.30 ml of liquor with some eatable before starting driving. Rather, the complainant claims that he accompanied his son Karan Vir at that time of consumption of liquor.               This Ramesh Kumar claims through complaint himself as if he consumed 90 ml of liquor, but his son Karan Vir consumed 30 ml of liquor only. When such admission of consumption of liquor suffered by the complainant himself, then report Ex.C7 of private laboratory not correct that alcohol (ethanol) serum was not detected.  Admission binds a party and as such, contents of postmortem report referred above are correct that actually alcohol was present.

8.                 As per contents of page no.1 of terms and conditions of insurance policy cover note Ex.R22, the insurance company not liable to make any payment in respect of any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured, is under influence of intoxicating liquor or drugs. Complainant claims himself to be the owner of the vehicle in question, which was driven by his son Karan Vir Verma at the time of accident. The admission suffered by the complainant in the complaint and through affidavit establishes that the complainant as well as his son together consumed liquor before handing over of the vehicle for driving to Karan Vir Verma and as such, certainly the vehicle in question was driven by the driver under influence of liquor with full knowledge and consent of the complainant. Being so, in view of exclusionary clause referred above of Ex.R22, the insurance company not liable to pay the claim amount. So, repudiation of claim is fully justified in such circumstances being in accordance with the terms and conditions of the contract of insurance which is binding on the parties.

9.                 In DDR Ex.R8 recorded on the basis of statement of complainant Ramesh Kumar,mention is not made regarding the consumption of liquor prior to the accident in question by the driver Karan Vir Verma. Rather, mention there in made only of the fact as if due to foggy weather visibility was poor, on account of which, vehicle after  going imbalanced struck against the standing Eucalyptus Tree.          So, DDR or police report lodged by the complainant by concealing the facts regarding driver being under influence of liquor or alcohol at the time of accident. Only that person will suppress such like facts at the time of lodging of DDR, who is to get some undue benefit. Ex.R12 is the registration certificate of the vehicle which shows that the complainant is owner of the vehicle in question. In view of suppression of facts from the police regarding driver under influence of liquor, it is obvious that though complainant tried to suppress the material facts, but they stood revealed by the contents of postmortem report Ex.R13=Ex.C3. It is not at all mentioned in the exclusionary clause as to how much the quantity of liquor or  alcohol required for holding a driver not under the influence of alcohol. So, submissions advanced by counsel for complainant has no force that as the degree of consumed alcohol was less than that one specified in Section 185 of The Motor Vehicles Act, 1988 and as such, repudiation of claim is unjustified.

10.               As per law laid down in case titled as Sujata vs. Bajaj Allianz General insurance Company Limited-2015(3)CPJ-104(N.C), a person cannot be said to be intoxicated unless alcohol level exceeds the prescribed limit. Whether that alcohol level exceeds the prescribed limit, can only be confirmed through Blood Alcohol Concentration (BAC) is the ratio of above cited case. That level in this case was not there because consumption of 30 ml of alcohol alone took place and as such, it is vehemently contended by counsel for the complainant that repudiation of claim is unjustified. In the reported case, FSL report was obtained for showing that blood alcohol concentration upto 50 mg per 100 ml of blood is tolerable. Name of brand    of liquor consumed by the complainant or his son is not mentioned in the complaint or in the submitted affidavits or any other evidence produced on record. So, it is not sought to be proved that blood alcoholic concentration was less in the consumed brand of liquor by the complainant and his son before accident in question. Moreover, it is not sought to be proved that alcoholic concentration present in the blood of the deceased was upto the limit of 50 mg per 100 ml of blood. Even consumed 30 ml of liquor of high fermentation level may cause alcoholic concentration in excess of 50 mg per 100 ml of blood. So, non-mentioning of the brand of consumed liquor or the degree at which fermented or the affect thereof on the blood itself are the circumstances enough to establish that the complainant virtually unable to prove that deceased consumed liquor in tolerable limits. Rather, the complainant tried to suppress the factum of consumption of liquor by him and his son while lodging the DDR. That suppression of fact from the police leads to the inference as if the story regarding consumption of 30 ml of liquor even may not be true. It is admitted by the complainant himself in the complaint as well as through affidavit that he due to consumption of 90 ml of liquor was not in senses, due to which, on account of unfitness of driving, he handed over the vehicle for driving to his son. However, the existence of alcohol smell or the presence of alcohol in stomach at the time of conduct of postmortem report enough to infer as if the alcohol beyond the permissible limit was consumed by the deceased and that is why the same remained present in the stomach even at the time of conduct of postmortem at about 3:15 PM i.e. after 12 hours of taking place of accident, which as per contents of Ex.R8 took place on intervening night between 12.2.2015 and 13.2.2015. Had the limit of consumed liquor been less, then certainly the alcohol would not have remained present in the stomach even after about 6 hours of death of the driver. That death took place at 9:25 AM of 13.2.2015 as per contents of Ex.C3=Ex.R13, but the postmortem conducted at 4:10 PM. In view of non specification of any limit of alcohol consumption by the driver in the terms and conditions of the policy Ex.R22, it has to be held that consumption of any quantity of liquor at the time of driving of vehicle by its driver will be a violation of terms and conditions of the policy.

11.               As per law laid down in cases titled as Dharam Pal vs. United India Insurance Company Limited-I(2013)CPJ-150(N.C.); New India Assurance Co.Ltd. vs. Maria Claude Borthwisk and another-III(2015)CPJ-247(Tamil Nadu State Consumer Disputes Redressal Commission, Chennai) and Tejbir Singh vs. Oriental Insurance Company Limited-I(2013)CPJ-446(N.C.), it is obvious that if the policy put restrictions on the driver at the time of driving the vehicle of not driving the same under influence of liquor, but he does so after consuming liquor or whisky, then in view of the breach of terms and conditions of the policy, repudiation of claim is justified. Rather, in case of New India Assurance Co.Ltd. vs. Maria Claude Borthwisk and another(Supra), it has been specifically held that a person driving the vehicle after consuming the Whisky and Beer would definitely be under the influence of liquor. So, in case from the statement of the witness, it is made out that the driver at the time of driving or immediately before that  had taken liquor, then repudiation of claim is justified. This is made out from the ratio of case Dharam Pal (Supra). Law laid down in case of Dharam Pal (Supra) is the latest law on the subject as compared to law laid down in case of National Insurance Co.Ltd. vs. Vinod Kumar-2008(1)CPJ-494(N.C) and as such, the law laid down in case of Dharam Pal (ibid) to be given precedence. Being so,benefit from ratio of case National Insurance Co.Ltd(Supra) (Ex.C14) is not available to the counsel for the complainant.

12.               It is not a case of non disclosure of pre-existing disease sufferance and as such, benefit from ratio of case Birla Sun Life Insurance Co.Ltd. vs. Keshav Lal and others-2008(3)R.C.R.(Civil)-637(Hon’ble Punjab & Haryana High Court) cannot be gained by the counsel for the complainant. Certainly insurance company cannot rely on hidden conditions in medical claim insurance policies as per law laid down in case New India Assurance Company Limited vs. Smt.Usha Yadav and others-2008(3) R.C.R.(Civil)-111(Hon’ble Punjab & Haryana High Court), but present is not a case of enforcement of hidden conditions. Rather, it is a case, in which, everyone knows that driving under influence of liquor on a public road is an offence under the Motor Vehicles Act, 1988. Driving under influence of liquor causes greater public nuisance for the others on the road, but driving a vehicle with more passengers in the vehicle is less harmful or is not at all harmful and as such, benefit from case Jagdish Rana vs. National Insurance Company Limited-2013(2)CPJ-48(N.C.) cannot be availed by the counsel for the complainant. In the case of National Insurance Co.Ltd. vs. Vinod Kumar(Supra), it was not proved that insured was driving the insured vehicle under influence of alcohol, but the same is not the position in the case before us because postmortem report of deceased reveals so. So, complainant not entitled for insurance claim on non standard basis even. For the same reasons, benefits from ratio of case New India Assurance Co.Ltd. vs. Narayan Prasad Appaprasad Pathak-2006(2)CPJ-144(N.C.) cannot be availed by the counsel for the complainant because that is a case, in which, passengers in excess of carrying capacity were there in the accidental vehicle.

13.               As repudiation of claim is in accordance with the terms and conditions of the policy and as such, other arguments pales into insignificance. In view of repudiation being as per the terms and conditions of the policy, there is no deficiency in service on the part of Ops and nor the same is an act of unfair trade practice.

14.               Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to the parties free of costs as per rules.

15.                         File be indexed and consigned to record room.

 

                       (Param Jit Singh Bewli)                          (G.K.Dhir)

                                  Member                                          President

Announced in Open Forum

Dated:16.02.2017

Gurpreet Sharma.