DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.523/2012
Shri Ganesh Baswala
S/o Shri Fakir Chand
House No.180A, Street No.6
Shyam Enclave, Najafgarh
New Delhi-110043
….Complainant
Versus
M/s National Insurance Co. Ltd.
Through its Directors
Flat No.101-106, N-1, BMC House,
Connaught Place,
New Delhi-110001
….Opposite Party
Date of Institution : 03.10.2012
Date of Order : 30.12.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms. Kiran Kaushal
1. Facts of the case as pleaded by the complainant are that Complainant insured his vehicle, Maruti Esteem from M/s National Insurance Company Ltd., hereinafter referred to as OP. The said vehicle was covered for the risk of theft and accidental damage with the Insured Declared Value of Rs. 2,56,608/-. The policy was valid from 31.03.2010 till 30.03.2011 for which the complainant paid Rs.8,998/- as premium.
2. It is stated that the insured vehicle met with an accident on 26.10.2010 due to rush and negligente driving of the driver of one Tavera. The complainant sustained injuries in the accident and an FIR was registered against the driver of offending vehicle. Copy of the FIR is annexed as Annexure C-3. Complainant informed OP regarding the accident and sought claim from OP. Thereafter OP appointed a surveyor who assessed loss of the vehicle as “Complete Loss” and told that the claim of the complainant will be paid within 15 days. But to the shock of the complainant , OP repudiated the claim of the complainant stating that complainant was under the influence of Alcohol at the time of driving the said vehicle. It is stated by the complainant that no alcohol test was ever conducted at time of preparing MLC nor was he booked by the Delhi police for drinking and driving. Complainant pursued with the matter with OP, however as OP did not pay insurance claim of the complainant.
- Complainant approached the commission for direction to OP to pay Rs.2,56,608/- towards insurance claim/cost of the vehicle @24% p.a from the date of loss till the date of payment. Additionally, it is prayed that Rs.1,20,000/- be paid to the complainant towards damages for harassment, tension and cost of litigation.
4. OP resisted the complaint stating interalia that OP has rightly repudiated the claim of the complainant on the ground that as per the MLC report, the complainant who was driving the vehicle at the time of accident was under the influence of alcohol. The said claim has been repudiated as it is in violation of terms & conditions of insurance and provisions of motor vehicle act/ rules. It is stated that the MLC of the driver was conducted immediately after the accident and the driver was found under the influence of alcohol. Hence, OP is not liable to pay any claim to the complainant.
5. OP further states that without prejudice to the other objections and without admitting any liability on its part, it is submitted that the surveyor deputed to assess the loss has assessed the loss due to the accident ,to the tune of Rs.85,000/- on Repair Cash loss basis. Hence, the liability of OP, if any, should not accede the assessed amount of Rs.85,000/-. Therefore, it is prayed that the present complaint be dismissed with cost.
6. Rejoinder is filed on behalf of the complainant. Evidence by way of affidavit and written arguments are filed on behalf of the parties. Submissions made on behalf of the complainant are heard.
7. On perusal of the material placed before us, it is noticed that OP has resisted the complaint on two grounds. First ground taken by OP is that as per Surveyor’s and MLC report, driver of the vehicle was under the influence of the alcohol at the time of accident and the said fact is violation of terms & conditions of the insurance policy and provision of Motor Vehicle Act/Rules.
Relevant portion of Surveyor’s report is reproduced as under:
‘‘ when the complainant’s vehicle was taking a turn towards Mianwali Nagar, a Tavera suddenly appeared from the Peeragari side in a high speed and hit hard the left side of the insured car, causing heavy damages. The insured, who was driving the car received injuries and was taken to hospital. As per the MLC Report smell of alcohol was coming out from the mouth of the insured at that time of examination by the doctor’’.
8. Complainant has placed his reliance on Oriental Insurance Co. Ltd. Vs M. Suresh passed by Hon’ble NCDRC in R.P No.881 of 2013 wherein it is held that no scientific method was adopted to show that the person was under the influence of alcohol. OP has chosen not to file the M.L.C. report of the Complainant which was given to OP by the surveyor. Moreover, no blood test report is stated to have been done to measure the alcohol content in 100 ml of blood. It cannot be concluded that smell of the alcohol coming from the mouth of the insured would mean that the driver was under the influence of alcohol. Therefore we are of the opinion that OP has failed to establish the fact that the driver of the vehicle at the time of accident was under the influence of alcohol and the accident was caused due to his negligence.
9. The second bone of contention between the parties is that as per the surveyor report complainant claims that the vehicle be considered to be ‘Total Loss’ and OP states that the surveyor has assessed the loss to the tune of Rs.85,000/- on ‘Repair Cash’ loss basis. We have gone through the surveyor’s report wherein both Total loss and Repair Cash loss has been assessed and calculated. No justified reason is forthcoming to deny the ‘Total Loss’ claim to complainant.
10. We are of the considered view that as OP has not been able to establish that the complainant was under the influence of alcohol, so as to deny him the insurance claim. We, thus, allow the complaint and direct OP to refund the IDV of the vehicle i.e Rs.2,56,608/- with interest @6% from the date of filing of the complaint within 03 months from today from the date of order, failing which OP shall pay Rs.2,56,608/- @10% from date of filing of the complaint till realization.
File be consigned to the record room and order be uploaded on the website.
