Delhi

StateCommission

A/10/657

CHOLAMANDALAM MS. GEN. INSU. CO. LTD. - Complainant(s)

Versus

HIMANSHU MALHOTRA - Opp.Party(s)

18 Mar 2016

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                       Date of Decision: 18.03.2016

First Appeal No. 657/2010

(Arising out of the order dated 02.07.2010 passed in complaint case No. 1474/2009 by the District Consumer Disputes Redressal Forum (New Delhi) Barracks Kasturba Gandhi Marg, New Delhi)

In the matter of:

1. Cholamandalam MS General Insurance Company Limited

6, Pusa Road, Ist Floor

Karol Bagh, New Delhi-110005

 

2. Cholamandalam MS General Insurance Company Limited

Dare House, 2^nd Floor

No. 2, NSC Bose Road

Chennai-600001                                         .......Appellants

 

Versus

 

Mr. Himanshu Malhotra

S/o Sh. S.C.Malhotra

R/o BF-103, Shalimar Bagh

New Delhi-11008                                                  ......Respondent

                                                                  

CORAM

 

SH N P KAUSHIK                              -                       Member (Judicial)

SH. S.C. JAIN                                    -                       Member

 

1.         Whether reporters of local newspaper be allowed to see the judgment? Yes

2.         To be referred to the reporter or not? Yes

 

S C JAIN – MEMBER

JUDGEMENT

1.      This appeal has been filed by the appellant against the orders dated 02.07.2010 passed by the Ld. District Forum-VI, New Delhi in Complaint Case No. 1474/2009 wherein the Ld. District Forum-VI has ordered the appellant/OP to pay a sum of Rs. 6,80,405/- to the respondent/complainant which is the insurance amount subject to the condition that the respondent/complainant will give indemnity bond to the appellant/OP and fill all the necessary forms and will get the vehicle transferred in the name of the appellant/OP with the transport department and will have no claim in this vehicle if the same is traced out later on.

ii. On account of mental agony and harassment to pay a sum of Rs. 1,00,000/- as compensation to the complainant and shall also pay an amount of Rs. 10,000/- towards costs of litigation.

2.      Brief facts of the complaint were that the complainant/respondent got his car Hyundai Accent DL-4CS8001 insured with the OP/appellant for the period from 29.11.2006 till 28.11.2007.
3.      The said car while it was driven by one Sh. Rajat Jain S/o Sh. Rajender Kumar who is the friend of the complainant met with an accident when it was hit by some unknown vehicle near Mahipalpur flyover in Delhi near Radison Hotel, opposite Airport Inn Hotel causing damage to the front portion of the car badly and the police officials of the Police Station, Vasant Kunj, New Delhi registered an FIR with regard to the said accident as the car was damaged badly. The respondent/complainant lodged the claim with appellant/OP and when the insurance company did not allow the claim considering the vehicle to be total loss complainant filed the complaint before the District Forum-VI, New Delhi. The respondent/complainant also filed the case before the court of Ms. Deepa Sharma Judge MACT Delhi and as the car was financed by ICICI Bank, Bank also filed a suit for recovery of the amount against the complainant/respondent.
4.      The OP/appellant contested the case before the District Forum and submit that the claim is not payable as there is an inordinate delay of almost 45 days in informing them from the date of the alleged accident and secondly OP/appellant contested their case on the ground that the complainant had violated the terms and conditions of the insurance policy by not informing the incident of the accident immediately upon the occurrence as per policy term number one. The other stand taken by the OP/respondent before the Ld. District Forum was that the vehicle was being driven by the driver under the influence of liquor and thus the complaint merits to be dismissed which is also in contravention of provisions of Section 185 of Motor Vehicle Act as well as in violation of Terms provided under Clause ‘C’ of General Exceptions provided under the policy.
5.      The Ld. District Forum rejected the contention raised by the OP/appellant that the driver was under the influence of liquor at the time of accident and has stated in its order that the OP/appellant had simply relied upon the medico legal report issued by Sir Ganga Ram Hospital wherein the complainant was found to be under the influence of liquor at 03:45 am. But mere cursory mention of alcohol or smell of alcohol in the medico legal report is not sufficient to establish that the driver was under the influence of liquor and that the liquor consumed was to such an extent that the driver had lost his senses and was unable to control the vehicle resulting in the accident and the Ld. District Forum further stated in its order that there was absolutely no mention in the medico legal report that the complainant/respondent’s vision was blurred and his gait was staggering and speech incoherent. No proper blood test was also conducted to ascertain the quality of alcohol found in the blood and the District Forum merely on above grounds allowed the complaint without dealing with the question of delay in informing the insurance company.
6.      Aggrieved by the above order the appellant/OP filed the present appeal. Notice was sent to the respondent, who appeared and contested the appeal.
7.      The appellant filed the appeal mainly on the ground that the District Forum failed to consider that there was breach of condition No. 1 of the policy as the accident was reported after a delay of 45 days and the District Forum ought to have held that the appellants are not liable in view of breach of condition No. 1 of the policy committed by the respondent/complainant. The OP further took the ground that the District Forum failed to appreciate that the terms and conditions of the policy under exclusion clause were not considered rightly which is as under:

“Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the Insured. Notice shall also be given in writing to the Company immediately the Insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give raise to a claim under this Policy. In case of theft or criminal act which may be the subject of a claim under this Policy the Insured shall give immediate notice to the Police and co-operate with the Company in securing the conviction of the offender.”

8.      Ld. District Forum has omitted to see that the MLC of Sh. Rajat Jain at Sir Ganga Ram Hospital where he was admitted for treatment clearly states that the person driving was under the “influence of alcohol” which is precise term appearing in the exclusion under the policy and the District Forum has failed to go through the casualty card of Sir Ganga Ram Hospital which clearly records “patient admitted as a case of alleged history of RTA when their car met with an accident at around 3:30 a.m. Patient is under the effect of alcohol.” The casualty card further records the Doctor’s observations as under:

”Patient was under the influence of alcohol”.

9.  The appellant further states that in view of the above mendico record the Ld. District Forum had wrongly held that there was no breach of condition of the policy and Ld. District Forum had omitted to appreciate that even the other occupants whose MLC was on record were also found to have been under the influence of alcohol as noted in the hospital records.
10.  We have heard the submissions made by the parties and have gone through the record. It is very much evident that as to the delay in informing the accident of about 45 days the respondent/complainant had simply said that the delay was only on account of their illness and they could not inform the insurance company well in the time but they had informed the police who had lodged the FIR on the same day. The Hon’ble National Commission in the case of the New India Assurance Company V/s Trilochan Jane in First Appeal No. 321/2005 had held that the delay in informing the insurance company can be fatal and an independent right to the investigation by the insurance company is deprived. The same view had been confirmed by the Apex Court also that the condition and the exclusion clause cannot be interfered with and they should be read as they are.
11. There are General Exceptions which are applicable to all Sections of the policy and are as under:

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

(c) any accidental loss or damage suffered by whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.

12)        We are of the view that the Ld. District Forum has erred in holding that this condition does not stipulated any degree of influence of liquor and this condition is only applied when the vision is blurred, gaze staggering and speech incoherent is not correct and is also not inaccordance with the terms and conditions of the policy, but the exclusion clause simply provides that if the driver is under the influence of liquor then the claim is not payable and driver was found to be under the influence of liquor as per Medical Report.

13. As regards the other ground that the complainant/respondent had informed the insurance company about the accident after 45 days of the occurrence of the incidence, the complainant/respondent had not denied this fact and simply stated that he could not file the claim immediately after the accident because of his treatment which does not hold good and if it is provided in the terms and conditions that the complainant should file the claim immediately upon the occurrence of the accident as provided under Condition No. 1 in the insurance policy then there should be no deviation from that as had been hold several Hon’ble National Commission in :

1. Sapna Real Estate vs. Lata Kishore Kharangate III (2006) CPJ 289 (NC).
2. In Revision Petition No. 3096 of 2011 decided on 23.09.2015 titled as Asstt. Vice President Asstt. (claims) TATA AIG vs. K.Lalitha.

This view had been taken by Apex Consumer Court in many other cases also.

14. Keeping in view the exclusion clause and the conditions provided in the insurance policy, we are of the opinion that the District Forum had erred in allowing the complaint and ordering for the payment of the claim amount to the respondent/complainant and the District Forum has failed to appreciate the facts of the case in its totality, therefore, we allow the appeal and set aside the impugned order passed by the Ld. District Forum-VI on 02.07.2010 in Complaint Case No. 1474/2009. Complaint is accordingly also dismissed.
15. Copy of the order be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.
16. FDR, if any, deposited by the appellant be released as per rules.

 

(N P KAUSHIK)

MEMBER (JUDICIAL)

 

 

(S C JAIN)

MEMBER

​