Haryana

Karnal

CC/339/2018

Rohit - Complainant(s)

Versus

HDFC ERGO General Insurance Company Limited - Opp.Party(s)

Vikash Yadav

04 Oct 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                          Complaint No. 339 of 2018

                                                          Date of instt.28.11.2018

                                                          Date of Decision 04.10.2019

Rohit son of Shri Rajbir Singh age 22 years resident of village Behrampur, Tehil Bapoli, District Panipat mobile no.9053474797 UID no.671550407057.

                                                …….Complainant.

                                        Versus

HDFC Ergo General Insurance, SCO 237, 2^nd floor, Sector-12, Karnal through authorized signatory/Branch Manager.

 

                                                                         …..Opposite Party.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary…….Member

 

 Present:  Shri Vikas Yadav Advocate for complainant.

                   Shri Sanjeev Vohra Advocate for opposite party .

                 

                   (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant got insured his vehicle bearing registration no.HR-60F-5098 from OP, vide policy no.2311201707474400000, valid from 14.03.2017 to 13.03.2018 for the sum assured of Rs.4,65,000/-. The vehicle of the complainant met with an accident on 03.02.2018 at about 11.00 p.m. within the area of Police Station Kaithal Sadar, District Kaithal. At the time of accident the said vehicle was driven by the complainant. Due to rash and negligent driving of the driver of offending vehicle Sonalika Tractor, complainant received multiple and grievous injuries. The said vehicle was badly damaged in that accident. The information was given to the OP by the complainant, vide claim no.C230017264186. A case FIR no.33 dated 04.02.2018 was also registered in this regard. After receiving the information from the complainant, the official of the OP take necessary action and accident spot was inspected by one official of the OP. The damage was assessed by the surveyor and submitted the report to their company. The complainant took his damage vehicle at authorized service centre at M/s Vijay Motors, Panipat and the mechanic of the service centre gave estimate of the abovesaid vehicle and the same was submitted to the OP. Thereafter, complainant visited the office of OP so many times for his claim but OP repudiated the claim of the complainant, vide letter dated 16.05.2018 on the ground that any accident loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge consent of the insured is under the influence of intoxication liquor or drugs. The OP rejected the claim of the complainant on the false ground. In this way there was deficiency in service on the part of the OP. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OP, who appeared and filed written version raising preliminary objections with regard to maintainability; cause of action; jurisdiction and concealment of true and material facts. On merits, it is pleaded that the insured vehicle met with an accident on 03.02.2018 and as a result of the same sustained damages. It is further pleaded that after receiving the intimation regarding the alleged accident, the OP appointed an IRDA licensed Surveyor, Ajay Mahajan, as mandated under section 64 UM of the Insurance Act, 1938 for verification and assessment of the damages caused to the insured vehicle, further, simultaneously an investigator was also appointed in order to verify the facts of the alleged accident. During investigation and verification of documents, per se, the Medico Legal Examination, it was found that during medical examination of the patient, he had alcoholic smell which establishes the fact that the driver/insured(Rohit) of the vehicle at the time of accident was under the influence of Alcohol. As per terms and condition of the policy a loss is not payable if the driver is found to be under the influence of Alcohol. It is violation of policy terms and condition. So, claim of the complainant was rightly repudiated and intimation in this regard was duly given to complainant through letter dated 16.05.2018. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Complainant tendered into evidence his affidavit Ex.CW1/A and documents Ex.CW1 to Ex.CW9 and closed the evidence on 22.04.2019.

4.             On the other hand, OP tendered into evidence affidavit of Shweta Pokhriyal Ex.RW1/A and documents Ex.R1 to Ex.R10 and closed the evidence on 17.09.2019.

5.             We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

6.             The case of the complainant, in brief, is that the complainant insured his vehicle from the OP, vide policy no.2311201707474400000, valid from 14.03.2017 to 13.03.2018 for the sum assured of Rs.4,65,000/-. The vehicle of the complainant met with an accident on 03.02.2018 at about 11.00 p.m. within the area of Police Station Kaithal Sadar, District Kaithal. In the said accident the vehicle of the complainant badly damaged. An FIR no.33 dated 04.02.2018 was registered by the complainant in this regard. Intimation regarding the said accident was also sent to the OP and OP appointed his surveyor for verification of the accident and assessment of loss. Complainant requested the OP to release his genuine claim but OP did not pay the claim and lastly repudiated the same on the false ground.

7.             On the other hand, the case of the OP is that during investigation it was found that the driver/insured(Rohit) of the vehicle at the time of accident was under the influence of Alcohol. As per terms and condition of the policy a loss is not payable if the driver is found to be under the influence of Alcohol. It is violation of policy terms and condition. So, claim of the complainant was rightly repudiated and intimation in this regard was duly given to complainant through letter dated 16.05.2018.

8.             Admittedly, the vehicle in question was insured at the time of accident for the sum assured of Rs.4,65,000/-. The vehicle in question was met with an accident on 3.2.2018 at about 11.00 p.m. with the tractor. FIR no.33 dated 4.2.2018 was registered in the Police Station Sadar, Kaithal. The OP appointed an IRDA Licensed Surveyor, Ajay Mahajan and simultaneously an investigator was also appointed by the OP. The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.CW1. The operative part of the said letter reproduced as under:-

“On the basis of the information and documents furnished and collected during survey, Mr. Rohit was driving the said vehicle at the time of accident as intimated in the loss intimation and further mentioned in the claim form duly filled and signed by yourself and submitted to us in support of your claim, we had appointed an investigator in your claim. During investigation & verification of documents, it has come to light that Mr. Rohit was under the influence of alcohol at the time of accident.

Kindly note that as per the terms and condition of the policy a loss is not payable if the driver as mentioned in the policy is found to be under the influence of alcohol.

The term 2 of the policy is reproduced herein below for convenience:

“The company shall not be liable to make any payment in respect of:

(c)  Any accident loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge consent of the insured is under the influence of intoxication liquor or drugs.”

As per MLR Ex.R2, the complainant had alcoholic smell. To prove that the complainant was under the influence of liquor, the report of blood and urine is mandatory as per law. But the concerned Doctor did not take the sample of blood and urine of the complainant to ascertain that the complainant was under the influence of liquor. There are so many syrups in which smell like a liquor come out. So without the report of blood and urine it cannot be said that at the time of accident, the complainant was under the influence of liquor. Moreover, the concerned Doctor who has Leglo-medically the complainant, has not examined by the OP to prove his version. Thus, in these circumstances, we are of the confirmed views that act of the OP while repudiated the claim amounts to deficiency in service and unfair trade practice.

9.             As per estimate Ex.CW3, the net cost of repair amount is Rs.8,99,192.40 but Insured Declared Value (IDV) of the vehicle in question is only Rs.4,65,000/-. So the complainant is entitled for the IDV of the vehicle in question.

10.            Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to pay Rs.4,65, 000/- as insured amount to the complainant with interest @ 9% per annum from the date of repudiation of the claim till its realization subject to furnishing of subrogation letter, transfer of ownership of vehicle, indemnity bond and undertaking by the complainant within 15 days in the name of OP. We further direct the OP to pay Rs.20,000/- to the complainant towards compensation for mental and physical harassment and to pay Rs.5500/- as litigations expenses. This order shall be complied with within 30 days from the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced:

Dated:04.10.2019                                                                       

                                                                  President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

               

 

        (Vineet Kaushik)          (Dr. Rekha Chaudhary)

            Member                               Member