PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of October 2012
Filed on : 20/03/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 182/2010
Between
Rijin T. Raj : Complainant
Thelakatt house, (By Adv. Tom Joseph, Court
Varikoli P.O., Puthencruz, road, Muvattupuzha)
Ernakulam.
And
1. M/s. ICICI Lombard General : Opposite parties
Insurance Co. Ltd., (By Adv. R.Ajit Kumar Varma,
Zenith house, Keshavrao, 39/1747, Chittoor road,
Khade Marg, Mahalaxmi, Ernakulam South, Cochin,
Mumbai-400 034. Pin-682 016)
2. M/s. ICICI Lombard General
Insurance Co. Ltd., IIIrd Floor,
Kannankeri Estate, Marine Drive,
Shanmugham road,
Kochi-682 031.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant is the owner of the Tanker Lorry bearing Reg. No. KL-40-A-6059. The vehicle was insured with the second opposite party for the period from 18-10-2009 to 17-10-2010. While so the vehicle hit against a parked vehicle on 24-12-2009 at 10.45 p.m. at Angamaly. The vehicle was damaged extensively and the driver and the persons accompanied the driver were injured seriously. Subsequently a claim was lodged with the opposite parties. But the claim was repudiated by the 2nd opposite party by their letter dated 10-02-2010 alleging that the driver of the vehicle was under the influence of intoxicating liquor. The reason given for repudiation is absolutely baseless. The driver of the vehicle Mr. Saibin Antony is not having the habit of consuming intoxicating liquor. It is pertinent to note that the driver was shifted to Ernakulam medical centre at 12.30 A.M. i.e. after 3 hours. No such entry of smell of alcohol was made in any of the treatment records there. The complainant had taken out a vehicle survey by Mr. Tom Jose a licensed surveyor and had assessed the loss at Rs. 4,89,225/-. The complaint is entitled for Rs. 4,89,225/- along with interest at the rate of 12% from the date of claim till realization. He is also entitled for Rs. 1,00,000/- towards compensation for the mental agony and hardships suffered due to the repudiation of the claim. This complaint hence.
2. The version of the opposite parties is as follows:
The complainant had insured his vehicle bearing Reg. No. KL-40-A/6059 with the opposite parties. The liability of the opposite parties is limited to the terms and conditions of the policy. The vehicle met with an accident on 24-12-2009. A claim has been preferred with the opposite party but the same has not been payable since the driver at the time of accident had been under the influence of intoxicating liquor. This is specifically stated in the medical records of the Little Flower Hospital, Angamally. There is express prohibition in the policy against such drunken driving. Therefore the opposite parties have no legal liability to indemnify the complainant to pay any amount as claimed by the complainant.
3. The complainant and his witnesses were examined as PWs1 to 4, Exts. A1 to A6 were marked. No oral evidence was adduced by the opposite parties. Ext. B1 was marked. Exts. X1 also was marked. Heard the learned counsel for the parties.
4. The points that came up for consideration are as follows:
i. Whether the complainant is entitled to get insurance claim
from the opposite parties. ?
ii. Whether the opposite parties are liable to pay compensation
and costs of the proceedings to the complainant. ?
5. Point No. i. Admittedly the complainant’s vehicle bearing Regr. No. KL-40A 6059 was insured with the opposite parties. It is not in dispute that during the currency of the policy the vehicle met with an accident on 24-12-2009. It is also not in dispute that the insurance claim of the complainant was repudiated by the opposite parties stating that the driver of the vehicle was under the influence of intoxicating liquor.
6. Ext. X1 is the case sheet of PW2 maintained at Little Flower Hospital, Angamaly who was driving the vehicle at the time of accident. According to the opposite parties it is stated in Ext. X1 that PW2 was under the influence of intoxicating liquor which is prepared immediately after the accident. The opposite parties maintain that as per the terms and conditions of Ext. B1 policy the opposite parties are not liable to pay insurance claim to the complainant. Evidently it is stated in Ext. X1 that “smell of alcohol” was present while examining PW2. However nothing is on record to show that PW2 was under the influence of alcohol at the time of accident. The learned counsel for the complainant refuted the contentions of the opposite party by relying on the decision of the Hon’ble National Consumer Disputes Redressal Commission in National Insurance Company Ltd. Vs. Soma Devi and others II (2012) CPJ 50.
7. According to the Hon’ble National Commission no critical or substantive evidence to indicate that diseased was in inebriated condition which resulted in his accidental fall. The Hon’ble National Consumer Disputes Redressal Commission observes that both postmortem report and investigators report merely state that diseased had consumed alcohol. The Hon’ble National Consumer Disputes Redressal Commission made a further observation that the documents would not contain details about the actual amount of alcohol consumed or type of intoxicants consumed is necessarily inadequating proof. The Hon’ble National Consumer Disputes Redressal Commission also had occasion to observe in Life Insurance Corporation of India & Anr Vs. Ranjit Kaur 2011 (3) CPR 266 mere presence of alcohol even above usually prescribed limits is not a conclusive proof of intoxication.
8. The opposite parties did not have a case that they have deputed an insurance surveyor to assess the damages of the vehicle as and when they received the insurance claim application from the complainant for which no reason is forthcoming on the part of the opposite parties. As per Section 64-UM (2) of the Insurance Act 1938 the insurer is to obtain a report of an approved surveyor or loss assessor. In this case it is lacking for which the opposite parties have no explanation, law seems to have been taken lightly for whatsoever reason. However having come to know that the opposite parties had not sought the services of a surveyor or loss assessor the complainant themselves arranged for assessment of damages by PW4. PW4 who is an independent surveyor prepared Ext. A6 survey report . Since the opposite parties failed to assess the damages by deputing an independent surveyor, the only option available before us is to rely on Ext. A6 survey report alone. As per Ext. A6 the complainant is entitled to get an insurance claim of Rs. 4,89,225/- from the opposite parties. The complainant is entitled to get the amount from the opposite parties with interest.
9. Point No. ii. Before going further we make it clear that this case dose not call for compensation since the opposite parties had timely acted in good faith.
10. In the result, we partly allow the complaint and direct that the opposite parties shall jointly and severally pay Rs. 4,89,225/- to the complainant with interest @ 9% p.a. from the date of complaint till realization.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 31st day of October 2012
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Copy of certificate
cum policy schedule
A2 : Copy of survey report
dt. 04/03/2010
A3 : Copy of certificate
dt. 16-02-2010
A4 : Certificate dt. 10-02-2010
A5 series : Copy of retail invoice
A6 series : Survey report dt. 23/04/2010
X1 : Medical record of Little
flower hospital
Opposite party’s Exhibits :
Ext. B1 : Certified copy of the
insurance policy.
Depositions:
PW1 : Rijin T. Raj
PW2 : P.J. Joseph
PW3 : Shaibin Antony
PW4 : Tom Jose
