Haryana

StateCommission

A/1039/2015

NIC - Complainant(s)

Versus

ISHWAR SINGH - Opp.Party(s)

B.S.TAUQUE

19 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                               

                                      First Appeal No.1039 of 2015

                                      Date of Institution:07.12.2015

                                      Date of Decision: 19.09.2016

 

1.      National Insurance Company Ltd., Regional Office-2, SCO No.337-340, Sector-35 B, Chandigarh.

2.      National Insurance Company Ltd., through its Branch Manager, G.T. Road, Karnal.

                                                …Appellants/opposite parties

 

Versus

 

Ishwar Singh son of Shri Rishal Singh resident of Biru Colony, near Sector-32, Karnal, District Karnal.

                                                …Respondent/complainant

 

CORAM:   Mr. R.K. Bishnoi, Judicial Member

                   Mrs. Urvashi Agnihotri, Member

 

Present:     Mr. B.S. Tanque, Advocate for the appellants.

Mr. Himanshu Sharma, Advocate for the respondent.

 

                                       O R D E R

 

Mrs. URVASHI AGNIHOTRI, MEMBER

 

1.      National Insurance Company Ltd. and Ors.-OPs are in appeal against the Order dated 19.10.2015 passed by the learned District Consumer Disputes Redressal Forum, Karnal (for short ‘District Forum’), whereby the complainant of Ishwar Singh-Complainant has been allowed and OPs have been directed to make the payment of 75% of the total amount of claim i.e. Rs.2,03,908/- to the complainant within a period of thirty days with a sum of Rs.5500/- as compensation for harassment.

2.      Briefly stated, the complainant got insured his swift car bearing Registration No.HR-05/AB-5390 with the OPs for a sum of Rs.3,94,408/- through Karnal Motors Pvt. Ltd., Karnal from whom the said card was purchased, being authorized dealer of Maruti Udyog Ltd., The OP issued policy No.95101031116130323003 which was valid from 16.11.2011 to 15.11.2012. On 08.01.2012, the car met with an accident in the area of Police Station Sadar, Jind and the vehicle was totally damaged. Two occupants of the car also died in the accident. The incident was reported to the Police and daily diary report was recorded in that regard. Factum of the accident and damage to the car was brought to the knowledge of OP immediately. Surveyor was appointed who surveyed the car and assessed the loss. The complainant submitted the claim form along with necessary documents to the surveyor of the OP, but the matter was delayed unnecessarily. Ultimately, the claim was repudiated, but no written communication was sent to the complainant, thus, there was deficiency in service on the part of the OP due to which the complainant suffered mental agony apart from financial loss for the realization of which along with the payment of full amount of IDV Claim of the car, the complainant approached the District Forum.

3.      In reply OPs submitted that on receipt of information regarding damage to the car, Sh. I.B. Mehta, was appointed as surveyor to assess the loss to the vehicle, who assessed the liability on net of salvage basis of Rs.2,03,908/-. After going through the investigation reports, OPs wrote letter dated 12.11.2012 regarding gross violation on the part of driver, who was driving the vehicle under the influence of liquor at the time of accident. This act on the part of complainant amounted to violation of the policy terms and conditions, hence, no claim was payable to him. The other allegations made in the complaint have been denied. According to OP, there was no deficiency in service and unfair trade practice on their part. However, the learned District Forum rejected the pleas raised by the OPs and accepted the complaint vide order dated 19.10.2015.

4.      Against this order, the OP has filed Appeal before us contending that the learned District Forum has accepted the complaint without any legal justification. The OPs are not liable to pay the claim as there was violation of the condition of the policy, because the driver, who was driving the vehicle, had consumed liquor and was under its influence. Therefore, according to the appellant the impugned order is totally wrong and illegal.

5.      We have heard the learned counsel for the parties and have also gone through the record. The complainant has successfully established on record the material facts in support of his claim by leading adequate documentary evidence. The vehicle was insured with the OPs and the accident took place during the validity period of the insurance policy. The accident was reported to the Police as well as the OPs-insurance company promptly, which go to substantiate the otherwise truthful version of the complainant. The surveyor and loss assessor appointed by the Company itself rightly came to the conclusion that the vehicle was involved in the accident and damage was substantial to justify the claim. Despite all this, the OPs repudiated the claim on the excuse that the driver of the vehicle was smelling of liquor and had consumed alcohol. Therefore, according to the Exclusion Clause of the policy. No claim whatsoever was payable to the insured of the vehicle, if the driver was “under the influence of alcohol”.

6.      A close perusal of the record shows that the medical officer concerned did not take the blood sample for the test of the slcohol and even in the postmortem report there was no mention about the actual quantity/level consumed by the deceased. The mere fact that there was smell of liquor consumed by the deceased does not prove that he was “under the influence of alcohol”. Hence, the rejection of the claim by the OPs is wholly against the record, the terms and conditions of the insurance policy and amounts to deficiency in the service on their part. The law on the subject is settled by the Hon’ble National Commission in their judgment M.Raja Gangu Vs. LIC, reported as 2015 (1) C.P.J 676: 2015 (2) CLT 99:2015 (1) C.P.R. 749 as under:-

“9.  In our view, it was not a conclusive report from the FSL. It leads us nowhere. There was no mention of any alcohol concentration so that we can decide whether the person was intoxicated or not? We have perused several literature and medical texts in Medical Jurisprudence and Toxicology, which have clearly defined about effect of different  concentration of alcohol. It is pertinent to note that as per medical text, the alcohol concentration up to 50 mg per 100 ml of blood is tolerable; such person will not show any signs of intoxication.

10.  Intoxication is perceived as a state of mind in which a person loses self-control and his ability to judge. As per Section 185 and 202 of the Motor Vehicles Act, it would be considered intoxicated only if the person is tested and found to have more than 50 mg of alcohol in his blood, per 100 ml. In the present case, except for a mere noting in the Final Opinion Report and the FSL report, no test had been done to ascertain whether Blood alcohol concentration (BAC) had exceeded the legally stipulated limit. The mere smell of alcohol or presence of ethyl alcohol in the tissue samples cannot lead to an inference that a person is incapable of taking care of himself”.

7.      In view of the aforesaid factual and legal position, the appeal filed by the OPs is wholly without any merit, hence, dismissed with no order as to costs. It is relevant to bring on record that the present appeal has filed only by the OPs-Insurance Company and there is no cross appeal for the enhancement of the claim amount from 75% to 100%. Therefore, the complainant will be entitled only to the amount already awarded by the learned District Forum.

8.      Statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.

 

September 19^th,                        Urvashi Agnihotri                   R.K. Bishnoi

2016                                          Member                                Judicial Member

                                                  Addl. Bench                          Addl. Bench

 

 

 

R.K