DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 160 of 15-04-2011

Decided on : 08-11-2011

Hardeep Singh aged about 35 years S/o Sh. Resham Singh, R/o Village Gumti Kalan, Tehsil Phul, District Bathinda.

.... Complainant

Versus

1. IFFCO Tokio General Insurance Co. Ltd., 4^th & 5^th Floor, IFFCO Tower, Plot No. 3, Sector 29, Gurgaon (Haryana) 122001, through its MD.

2. Iffco Tokio General Insurance Co. Ltd., 2^nd Floor, Garg Type Emporium, Opp. Nirankari Bhawan, G.T. Road, Bathinda.

3. State Bank of Patiala through its Branch Manager Rampura Phul, District Bathinda.

..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Smt. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

Smt. Sukhwinder Kaur, Member

For the Complainant : Sh. H S Dhillon, counsel for the complainant

For the Opposite parties : Sh. Varun Gupta, counsel for opposite party Nos. 1 & 2.

Opposite party No. 3 already exparte.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). In brief, the case of the complainant is that he got insured his Hundai i20 Car bearing Engine No. 865935, Chasis No. 181140 XE with opposite party Nos. 1 & 2 vide Cover Note No. 70441551 valid from 13-07-2010 to 12-07-2011. The complainant paid the premium as demanded by the opposite parties. The complainant also got the said car registered with Registration Authority vide Registration No. PB-40-8556. The car of the complainant met with an accident on 25-08-2010 and FIR No. 227 dated 26-8-2010 U/S 279/337/338/427 IPC has been registered in this regard in Police Station, City Barnala. Due to accident, the car in question was extensively damaged and the complainant got it repaired and spent approximately Rs. 3,87,378/- besides the expenses on account of carrying the said vehicle to the workshop after the accident. The complainant gave the intimation of accident to the opposite party Nos. 1 & 2 and requested them to appoint the surveyor and loss assessor to assess the loss. The opposite parties appointed the surveyor who conducted the survey, took photographs and assured the complainant to get the claim honoured at the earliest possible. The opposite party Nos. 1 & 2 have not honoured the claim of the complainant without any reasonable cause. The complainant got issued legal notice calling the opposite party Nos. 1 & 2 to honour the lawful claim of the complainant. The complainant alleged that he has been repeatedly requesting the opposite party Nos. 1 & 2 to admit and honour his lawful claim, but to no effect. Hence, he has filed the present complaint.

2. The opposite party No. 1 & 2 filed its joint written reply and admitted that Hundai i20 Car of the complainant is insured with opposite party Nos. 1 & 2 vide Cover Note. No. 70441551 valid from 13-07-2010 to 12-7-2011. It has been pleaded that accident took place on 25-8-2010. The complainant was taken into custody by the police and he was medico legally examined from Civil Hospital, Barnala on 25-8-2010 at 5.40 p.m. and Dr. Parvesh Kumar, Medical Officer, after examining the complainant, made his report that there was smell of alcohol coming from the breath of the complainant, speech shurred, complainant unable to walk in a straight line and he was unable to perform finger nose test, pupils delated, reaction to light sluggish, was talking excessively and he refused to give blood and urine sample. The complainant signed the medical report. In this way, the complainant was driving the car under influence of liquor at the time of accident. Under the terms and conditions of the policy and the Motor Vehicles Act, no one can drive the vehicle under intoxication and in this way, the complainant has committed breach of the term i.e. duty of care. The damage and loss of the vehicle has resulted due to own wrongs of the complainant who has violated the terms and conditions of the policy and the provisions of the Motor Vehicles Act and Rules made thereunder. The opposite party Nos. 1 & 2 deputed the surveyor who inspected the vehicle and submitted his survey report. The investigator was also deputed by the opposite party Nos. 1 & 2, who contacted the complainant and asked him to supply the relevant papers, but he remained un-cooperative and the matter lingered due to lapses on the part of the complainant himself. The opposite party Nos. 1 & 2 have pleaded that the claim of the complainant is under process due to scrutinization of voluminous documents relating to the accident and the complainant would be informed with regard to the decision of his claim.

3. Sh. Rajinder Singla, Authorised Representative appeared on behalf of opposite party No. 3 and filed written reply that complainant has taken loan against the vehicle in question and hence, the insurance claim be credited in his loan account. Thereafter none appeared on behalf of opposite party No. 3 and as such, exparte proceedings were taken against it.

4. Parties have led their evidence in support of their respective pleadings.

5. Arguments heard. Record alongwith written submissions submitted by the parties perused.

6. The learned counsel for the complainant submitted that the vehicle in question was duly insured with opposite party Nos. 1 & 2 and the complainant is entitled to the insurance claim regarding the loss caused to the vehicle in the accident but the opposite parties have withheld his lawful claim without any reasonable cause and excuse. He submitted that the complainant was not under the influence of the alcohol at the time of accident. The medical examination report of the complainant has been procured/manipulated by the opposite party Nos. 1 & 2 in connivance with the doctor concerned in order to mar the lawful claim of the complainant. The complainant was admitted in Kumar Hospital, Rampura Phul on the date of accident and it was nowhere stated by the doctor concerned that the complainant was under the influence of alcohol or any other intoxicant. There was absolutely no negligence on the part of the complainant in the accident rather the false case has been registered against him. His signatures were obtained on blank papers by the police on the pretext of taking appropriate action against the culprit who caused the accident. The learned counsel for the complainant further submitted that the vehicle of the complainant met with an accident and there was also a legal and valid insurance policy of the said vehicle at the time of accident and the complainant was also holding a legal and valid driving licence at the time of accident and as such, he is entitled to the amount of insurance claim.

7. On the other hand, the learned counsel for opposite party Nos. 1 & 2 submitted that the accident took place on 25-8-2010 and the case FIR No. 227 dated 26-8-2010 has been registered in PS City Barnala against the complainant. The complainant was taken into custody by the police immediately and he was medico legally examined from Civil Hospital, Barnala on 25-08-2010 at 5.40 p.m. Dr. Parvesh Kumar, Medical Officer, after examining the complainant, made his report that there was smell of alcohol coming from the breath of the complainant, speech shurred, unable to walk in a straight line, unable to perform finger nose test, pupils delated, reaction to light sluggish, talking excessively and in a grandiose manner and was uncooperative towards the doctor and he refused to give blood and urine sample. The report was signed by the complainant and in this way, he was driving the car under influence of liquor and as such, he has committed breach of the term.

8. These are undisputed facts between the parties that Hundai i20 Car of the complainant was insured with opposite party Nos. 1 & 2 vide Cover Note. No. 70441551 valid from 13-07-2010 to 12-7-2011, Ex. C-4, for the IDV of Rs. 6,62,000/-. The car in question met with an accident on 25-8-2010.

9. The plea of the opposite parties is that the complainant was taken into custody by the police and he was medico legally examined from Civil Hospital, Barnala on 25-8-2010 at 5.40 p.m. and Dr. Parvesh Kumar, Medical Officer, after examining the complainant, made his report Ex. R-5 that there was smell of alcohol coming from the breath of the complainant, speech shurred, unable to walk in a straight line, unable to perform finger nose test, pupils dilated, reaction to light sluggish, talking excessively and in a grandiose manner and was uncooperative towards the doctor and he refused to give blood and urine sample. The claim of the complainant has been withheld by the opposite party Nos. 1 & 2 on the ground that after the accident, he was examined by Dr. Parvesh Kumar, Medical Officer, Civil Hospital, Barnala and as per his medical report, the complainant was under the influence of liquor at the time of accident. The said Dr. Parvesh Kumar, Medical Officer, Civil Hospital, Barnala was summoned by this Forum on the application of the opposite party Nos. 1 & 2. He got recorded his statement which is reproduced hereunder :-

   “Statement of Dr. Parvesh Kumar, Medical Officer, Civil Hospital,Barnala. RW-1

   I agree that Nachhatar Singh, head Constable 614 of PP Handiya has moved an application regarding examination of Hardeep Singh S/o Resham Singh R/o Gumti Kalan on 25-8-2010. It was written in the application that the above mentioned person seemed to have drunked alcohol. The copy of the same application is placed on file as Ex. R-5. I have done the examination of above mentioned Hardeep Singh at 5.40 o.m. Dated 25^th August, 2010 and I have given my examination report which is on the file as Ex. RW-1/A. I have written on the report that above mentioned Hardeep Singh has signed at the time of examination. The above mentioned Hardeep Singh was not admitted. I have handed over the medical examination report to the person who had moved an application. In the report, it is mentioned that Hardeep Singh refused to give blood and urine sample. The persons who are brought by the police for physical and medical examination for alcohol are not entered in the Emergency OPD register.

   Cross examination by the counsel for the complainant

   I have not brought any record today. I am present in the court empty handed without any document.

   Volunteered because I have given my report on the application moved by the police personnel and same was handed over to the police personnel after examination in original. It is incorrect to suggest that I have given any report on 25-08-2010. I have seen the report in the court today which is not Medico Legal Proforma. It is not bed head ticket. I cannot say whether government hospital should keep record of every medical examination of persons brought by police. The government hospital does not issue any receipt or keep any record of persons brought by police for medical examination, which is my personal opinion and I am not talking about rules and regulations of government hospital. If there are injuries on the person of the patient, then medico legal report is required. The medico legal proforma is there for that purpose. It is wrong to suggest that I am deposing falsely. It is further wrong to state that I have given any false opinion.”

10. The said medical officer has stated that he handed over the report to the person who moved application for medical examination of the complainant. He has admitted this fact that Medico Legal Proforma is there for medical examination report and the report issued is not on the Medico Legal Proforma. He has further stated that the government hospital does not issue any receipt or keep any record of persons brought by police for medical examination, which is his personal opinion and he is not talking about rules and regulations of government hospital. A perusal of medical report Ex. R-5 reveals that the report has been written on the application itself without any proforma whereas the said doctor has categorically stated in his above said statement that medico legal proforma is there for such reports. Further he has stated that it is his personal opinion that government hospital does not issue receipt or keep the record and he is not talking about rules and regulations of government hospital. Being a Medical Officer, in Civil Hospital, Barnala, it is not expected from him to show unawareness regarding the rules and regulations of the government hospital. Moreover, when the complainant allowed the said Medical Officer to medically examine him and followed his instructions such as walking on straight line, finger nose test, reaction to light sluggish etc., then there was no reason for the complainant for refusal for giving blood and urine for test. A perusal of FIR Ex. R-6 reveals that it was got recorded on 26-08-2010 at 12.45 p.m. whereas the date and time mentioned on the medical report is 25-08-2010 at 5.40 p.m. Hence, keeping in view the facts and circumstances, statement got recorded by the said doctor, and the record placed on file, this Forum is of the view that the medical examination report Ex. R-5 without any government printed proforma and hospital stamp is not valid and cannot be relied upon Thus, withholding the claim of the complainant by the opposite party Nos. 1 & 2 without any valid reason amounts to deficiency in service on their part.

11. Moreover, is also settled position of law as emerged from Section 185 of the Motor Vehicle Act that driving by a drunken person or by a person under the influence of drugs whoever, while driving or attempting to drive a motor vehicle has in his blood alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser or is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle. It has been held by the Hon'ble State Commission, Himachal Pradesh, Shimla in the case titled 2007(1) CPJ 388 New India Assurance Co. Ltd., Vs. Karam Chand :-

    “Consumer Protection Act,. 1986 – Section 2(1)(g) Motor Vehicles Act, 1988 – Section 185 – Insurance – Drunken driving – Accident of vehicle – Claim repudiated – Contention, alcoholic smell came out of breath of driver – Mere smell of consumption of alcohol not relevant, quantity of alcohol in blood is relevant and determinative factory – No evidence that alcohol exceeded 30 mg of per 100 ml. of blood – Plea rejected – Insurer liable to pay alleged loss less salvage value.”

    The Hon'ble Chattisgarh State Commission, Raipur, in the case titled 2009(1) CPJ 546 Life Insurance Corporation of India & Another Vs. Seema Aggarwal, has held :-

    “.....Words like heavily drunk or smell of alcohol from breath, not sufficient to convey that persons driving under influence of intoxicating substance – Deceased driving under influence of intoxicating liquor/drug, not proved – Insurer liable – Additional benefit under policy entitled.”

    The support can be sought from the observations of the Hon'ble State Commission, Madhya Pradesh, Bhopal in the case titled 2003(2) CPC 681 National Insurance Co. Ltd., Vs. M/s. Paras Oil Extraction Ltd.,wherein it has been held :-

    “Consumer Protection Act, 1986 – Section 14 and 15 – Insurance claim – Driver under influence of liquor – Insured vehicle DCM Toyota met with an accident – Claim was assessed at Rs. 1,68,500/- which was allowed by District Forum with 12% interest and cost of Rs. 1,000/- Insurance Company had repudiated the claim as driver at the time of accident was under the influence of liquor – Blood and urine test was not carried by doctor – Mere smell of liquor from his mouth is not sufficient to prove that he was not fit for driving the vehicle – Insurance Company has failed to discharge its burden of proving the allegation – Complainant is entitled to claim of Rs. 1,68,000/- as assessed by surveyor – However rate of interest is payable at the rate of 6% per annum for period of 5 years only – Impugned order modified.”

12. Moreover, blood and urine test is must for the confirmation of the alcohol content in the blood. In the Text book “The Doctor and the Law : Medical Ethics, Medical Councils - Medical Jurisprudence and Toxicology – In para 11 at page 88 under the heading “Use of force in medical examination” it has been mentioned :-

    “When the accused in police custody refuses to be medically examined, but the compulsions of law require him to be medically examined, the law allows the use of necessary force for the purpose.

    Thus, S. 53 of the Code of Criminal Procedure 1973, provides that while making a medical examination of the accused person at the request of police officer, not below the rank of sub -inspector, such force as is necessary for the purpose, may be used. Direction under S. 53, Cr. PC that blood and semen samples of the accused be taken for medical examination, is not hit by art 20(3) of the Constitution of India. A magistrate or court has, however, no power under S. 53, Cr. PC to pass an order compelling the accused to allow a medical practitioner to extract blood for analysis. A person released on bail does not cease to be an arrested person and can still be subjected to medical examination. It permit the use of such force as is reasonably necessary for that purpose.

    Whatever discomfort may be caused when samples of blood and semen are taken from an arrested person, it is justified by the provisions of ss 53 and 54, Cr PC and does not come within the mischief the testimonial compulsion within the meaning of art 20(3) of the Constitution.”

13. Under Section 53(1) of the Cr PC, an examination of the accused can be carried out by a medical officer at the request of the police even without his consent and by use of force if necessary. Such examination may include taking of fluids in cases of suspected intoxication.

14. The opposite party Nos. 1 & 2 have stated in para No. 4 of their written reply that they have deputed the surveyor who inspected the vehicle and submitted his report. But, neither the survey report has been placed on file nor the amount assessed by the surveyor has been mentioned in the written reply or any other document of the opposite parties. Sh. Rajan Singla, was deputed as Investigator by the opposite parties to investigate the matter that too after filing the complaint by the complainant as the said Investigator has mentioned at page 2 of his report Ex. R-3 :-

    “I have discussed the matter in details with him and he verbally stated that on the fateful day i.e. 25-08-2010 he alongwith his friends was returning from Ludhiana to Rampura Phul near Barnala his car was met with an accident with another Baleno Car No. HR 70-3876. Both vehicles damaged badly. I was driving the car at the time of accident.

    I had intimated the Insurance company but they delayed the claim in settlement then I have filed a consumer complaint case against the Insurance company and so that my advocate has stopped me to sign any document without his consent.”

15. A perusal the Registration Certificate Ex. C-5 of the car in question reveals that the month and year of manufacture of Car is 05/2010. It was insured vide Insurance Cover Note Ex. C-4 for the IDV of Rs. 6,62,000/-. The accidental car was got repaired by the complainant from authorized repairers of Hyundai i.e. Raja Motors, Bathinda. A Certificate Ex. C-11 of Raja Hyundai – Raja Motors is reproduced hereunder :-

    “This is certify that we received full payment Rs. 3,87,378/- from Mr. Hardeep Singh S/o S. Resham Singh, vehicle details : Hyundai I20, PB03ST7855, against Invoice No. B201004648.

    Repair Type : Accidental claim, claim type non-cashless.”

16. Hence, keeping in view the facts, circumstances and the evidence on file, this Forum is of the view that it would meet the ends of justice if the complainant is allowed Rs. 3,87,378/- being the claim amount. Thus, this complaint is accepted with Rs. 10,000/- as cost and compensation against opposite party Nos. 1 & 2 and dismissed qua opposite party No. 3. The opposite party Nos. 1 & 2 are directed to pay Rs. 3,87,378/- alongwith cost and compensation to the complainant.

    The compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non-compliance within the stipulated period, an amount of Rs. 3,87,378/- would carry interest @ 9% from the date of institution of this complaint i.e. 15-04-2011 till realization.

17. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced

08-11-2011

(Vikramjit Kaur Soni)

President

( Amarjeet Paul)

Member

(Sukhwinder Kaur)

Member