Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 382
Instituted on : 07.08.2019
Decided on :07.12.2022.
Vinod Kumar age 47 years, son of Kawal Singh, resident of Village Fatehpur, Bindroli, Sonipat.
………..Complainant.
Vs.
Iffco Tokio General Insurance company Ltd., Iffco Towers, 4th and 5th Plot no.3, Sector 29, Gurgaon, through its Manager.
……….Opposite party.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER.
Present: Sh.K.C.Bhardwaj, Advocate for the complainant.
Sh. Anurag Malik, Advocate for opposite parties.
ORDER
TRIPTI PANNU, MEMBER:
1. Brief facts of the case as per the complainant are that he is the registered owner of vehicle bearing registration no. HR-10V-3491, which was insured with the opposite party for a period from 28.08.2016 to 27.08.2017 for a value of Rs.441600/-. Said vehicle met with an accident on 19.02.2017 and was badly/totally damaged. FIR No.81 dated 19.02.2019 was registered in P.S. Sampla. Complainant duly intimated the opposite party immediately about the damage of the said vehicle and lodged his claim alongwith required documents and completed in all manner. The opposite party appointed the surveyor who submitted his report regarding the damages of the vehicle in the office of opposite party. On asking of surveyor, complainant handed over the said vehicle in Libra Ford, Delhi. The complainant suffered total damage of the said vehicle to the tune of Rs.493149/- and submitted all the bills in the office of respondent. Due to non passing of the claim amount by the respondent, said vehicle was remained in Ford, Delhi for a long period and complainant suffered a huge loss. Complainant visited the office of respondent repeatedly to get the claim but despite his repeated request, claim has not been disbursed to the complainant. The act of opposite party is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite party may kindly be directed to pay a sum of Rs.493149/- alongwith interest @ 18% per annum from the date of accident till the date of actual realization of the whole of the amount, Rs.150000/- as compensation and Rs.22,000/- as litigation expenses to the complainant.
2. After registration of complaint, notice was issued to the opposite party. Opposite party in its reply has submitted that on receipt of information on 06.03.2017 after an inordinate delay about the loss/damage, the claim was duly entertained and the respondent company appointed the surveyor. The surveyor inspected the damaged vehicle and assessed the loss of Rs.269042/- on considering the depreciation, salvage and excess etc. which need to be borne by the inured. The surveyor has mentioned in his report that driver of the inured vehicle was under influence of alcohol at the time of accident as mentioned in FIR Moreover, as per the FIR, 3 boxes of liquor were recovered from the car. On this FIR was lodged u/s 61/1/14 of Punjab Excise Act, 1914. This is clear cut violation of policy terms and conditions and against the law. Hence the claim was not payable. Respondent rightly ‘No Claim’ the file after legal process. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs..
3. Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C12 and has closed his evidence on dated 18.08.2021. On the other hand, ld. counsel for the opposite party has tendered affidavits Ex.RW1/A and Ex. RW1/B and documents Ex.R1 to Ex.R5 and has closed his evidence on dated 28.01.2022.
4. We have heard learned counsel for the parties and have gone through written arguments submitted by ld. counsel for the opposite party as well as material aspects of the case very carefully.
5. In the present case the surveyor as per his survey report Ex.R5 has assessed the loss amounting to Rs.269042/- but the claim of the complainant has been repudiated by the opposite party vide its letter Ex.R3 on the ground that driver was under influence of alcohol at the time of accident. At the time of arguments, Ld. Counsel for the opposite party has filed written submissions alongwith copy of award ‘Annexure-JN-A’ and also placed reliance upon the judgment dated 12.04.2021 of Hon’ble Supreme Court of India as reported in SPL (Civil) No.12489/2021 titled as Iffco Tokio GIC Ltd. Vs. Pearl Beverages Ltd., whereby Hon’ble Supreme Court (para no.106-A) has held that: “Firstly, in the MLC, in regard to the driver, the Report, interalia, indicates that smell of alcohol”.
6. No doubt, as per FIR lodger Mahabir Singh, he has stated in the FIR that the driver was under the influence of liquor. But no such record has been placed on record by the insurance company to prove the same. No MLR, no blood report has been placed on record by the respondent. Affidavit of the complainant to this effect has also not been placed on record by the insurance company. We have perused the law cited above by ld. counsel for the opposite party. The Hon’ble Apex Court has not decided the case only on this sole ground. They have considered the other relevant facts regarding the nature and manner of accident Hon’ble Apex Court in clause G of para no.106 has held that : “The requirement under Section 185 of the Motor Vehicles Act is not to be conflated to what constitutes driving under the influence of alcohol under the policy of insurance in an Own Damage claim. Such a claim must be considered on the basis of the nature of accident, evidence as to drinking before or during the travel, the impact on the driver and the very case set up by the parties”. And in clause H of para no.106 it is held that : “The other aspect, which is pressed is, as regards the manner in which the accident itself occurred. In this regard, it is clear that in any such case, this is an important circumstance, which may establish that the driver was under the influence of alcohol”. As per the Apex Court, the nature of the accident should be considered. In the alleged judgment, held by the Apex court, the occupants were found under the influence of liquor. But in the present case there is no evidence placed on record by the opposite party regarding the drinking before or during the travel by the driver. In this way, the manner of accident was different from that as mentioned in the order of Apex Court in Iffco Tokio GIC Ltd. Vs. Pearl Beverages Ltd.(Supra). Hence the authority cited above by ld. Counsel for the opposite party is not fully applicable on the facts and circumstances of the present case. As such repudiation of claim by the opposite party is illegal and amounts to deficiency in service and opposite party is liable to pay the claim as per survey report Ex.R5 amounting to Rs.269042/-.
7. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party to pay the alleged amount of Rs.269042/-(Rupees two lac sixty nine thousand and forty two only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e.07.08.2019 till its realization and also to pay a sum of Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees ten thousand only) as litigation expenses to the complainant within one month from the date of decision.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
07.12.2022.
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Nagender Singh Kadian, President
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Tripti Pannu, Member.
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Vijender Singh, Member.
