Delhi

New Delhi

CC/499/2013

Satender Kumar - Complainant(s)

Versus

M/S. National Insurance Company Ltd. - Opp.Party(s)

28 May 2016

ORDER

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

 NEW DELHI-110001

 

Case No.C.C./499/2013                          Dated:

In the matter of:

SH. SATENDER KUMAR,

S/o Sh. Mahesh Chand,

R/o H.NO. 337/34, Master Colony,

Tughalkabad, New Delhi

        ……..COMPLAINANT

VERSUS

1.     THE MANAGER,

        National Insurance Company Ltd.,

        Office At: Maruti Business HUB,

        D.O. VII, 50, Janpath,

        New Delhi-110001

 

2.     THE MANAGER,

        National Insurance Company Ltd.,

        Direct Agency Branch:

        C-9,1^st Floor, Central Market,

        Lajpat Nagar,

        New Delhi_110024.

               .... OPPOSITE PARTIES

AND

Case No.C.C./500/2013                          Dated:

In the matter of:

SH. SATENDER KUMAR,

S/o Sh. Mahesh Chand,

R/o H.NO. 337/34, Master Colony,

Tughalkabad, New Delhi

        ……..COMPLAINANT

VERSUS

 

1.     THE MANAGER,

        National Insurance Company Ltd.,

        Office At: Maruti Business HUB,

        D.O. VII, 50, Janpath,

        New Delhi-110001

 

2.     THE MANAGER,

        National Insurance Company Ltd.,

        Direct Agency Branch:

        C-9,1^st Floor, Central Market,

        Lajpat Nagar,

        New Delhi_110024.

               .... OPPOSITE PARTIES

 

 

PRESIDENT: S.K. SARVARIA

 

ORDER

 

By this common final order, we shall decide the two complaint cases filed by the same complainant against same insurance company being opposite party as the common questions of facts and law are involved in these two complaints between the same parties and the OP has filed affidavit in evidence in one complaint case 500 of 2013 for both cases. These two cases are filed by the Complainant on account of repudiation of the medical claim by the OP insurance company in complaint case No. 499/2013 and repudiation of the insurance claim, with regard to insured vehicle in question in complaint case number 500/2013. We are dictating this final joint order in complaint case number 500/2013 and the complaint case number 499/2013 shall be disposed of accordingly and a true copy of this order shall be placed in that complaint file.

In the complaint case number 499/2013, the complainant has claimed the medical claim in respect of his son, Mr Abhishek who was injured in the accident in question and on whom expenditure for medical treatment in the hospital in the sum of Rs. 43,883/- was done by the complainant. The complainant has prayed for the following reliefs in that case:

1. Honour the claim of the complainant and pay a sum of Rs.43,883/- towards the payment of bills.
2. Pay interest at the rate of 18% from 30/10/2011 till realization.
3. Pay a sum of Rs. 44,000/- towards the expenses incurred in travelling etc. by the complainant.
4. Pay a sum of Rs. 2,00,000/- towards the mental pain and agony suffered by the complainant.
5. Any other order as deemed fit and proper in the circumstances of the case may also please be passed in favour of complainant and against the OP.

 

In the complaint case number 500/2013 the complainant has claimed expenditure incurred for getting the insured car repaired and the compensation etc as follows:

1. Honour the claim of the complainant and pay a sum of Rs. 3,57,922/- towards the payment of bills.
2. Pay interest at the rate of 18% from 24/12/2011 till realization.
3. Pay a sum of Rs. 50,000/- towards the expenses incurred in travelling etc. by the complainant.
4. Pay a sum of Rs. 2,00,000/- towards the mental pain and agony suffered by the complainant.
5. Any other order as deemed fit and proper in the circumstances of the case may also please be passed in favour of complainant and against the OP.

 

The OP insurance company in these two cases has filed separate written statements disputing the claim of the complainant, but admitting the fact that insurance policy in question was obtained by the complainant, and alleging that the insurance claim in these two cases was rightly repudiated by the OP insurance company as at the time of accident in question; the son of the complainant, Mr Abhishek was driving the vehicle under the influence of the alcohol and was smelling alcohol.

 In the rejoinder to the respective written statements in these two cases, the complainant has denied the averments made therein and has reaffirmed the facts stated in the respective complaint. In support of his case, the complainant has filed his affidavit in evidence. On behalf of OP insurance company, the affidavit in evidence of Ms. Meenakshi Singhal, Administrative Officer of the OP insurance company is filed in complaint number 500/2013 for both the cases. The complainant has filed written arguments also.

We have heard the learned counsel for the parties in these two complaint cases and have gone through the written arguments filed on behalf of the complainant, record of the case and relevant provisions of law.

In these two cases it is not disputed that the complainant being owner of Maruti Swift Car bearing registration number DL3C-AZ-8360 (in short insured car) had obtained a motor car insurance policy number 120675623 valid with effect from 8/2/2011 to 7/2/2012 from the OP insurance company by paying premium of Rs. 11,526/- against assessed insured value of Rs.3,50,005/- in complaint case number 500/2013. Undisputedly, in complaint case number 499/2013 the complainant had obtained a medical claim insurance policy bearing                        No. 354804/48/10/8500001030 from the OP insurance company, which was valid up to 24/2/2013 for cashless hospitalisation in network hospitals up to the claim of Rs. 100,000/- for himself and his wife and Rs.50,000/- for his daughter and son. It is also not disputed that the said insured car on 30/31-10-2011 at about 12.10 a.m. met with an accident with a tempo No. DL-1L J-3343, near Mathura Road, Bhairon Marg at T point causing death of tempo driver and injuring the driver of the insured car and son of the complainant, Mr Abhishek. The said son of the complainant was hospitalised and obtained medical treatment from the Batra Hospital and Medical Research Centre. The insured car was got repaired by the complainant from Maruti service Masters, F 39, Okhla industrial area, Phase-II, New Delhi-110020 and a bill in the sum of  Rs.3,57,922/- was issued in the name of complainant by the said Maruti Service Station. It is also not disputed that in both the cases the insurance claims of the complainant were repudiated on the ground that the son of the complainant was driving the insured vehicle under the influence of the alcohol and was smelling alcohol.

In the backdrop of the above admitted facts in these two cases, the only question to be decided is whether repudiation by OP insurance company of the medical claim in case number 500/2013 and of insured vehicles repair claim in case number 419/2013 on the ground that son of the complainant was under influence of liquor while driving the insured vehicle in question at the time of accident in question, is proper or justified.

In M/s. New India Assurance Co. Ltd. v. Ashminder Pal Singh  :2015(2) CLT 237 : 2015(2) C.P.R. 345 : 2015(2) C.P.J. 758 (N.C.), relied on behalf of complainant the honourable National Commission has made the following observations:

"9. Learned Counsel for the petitioner has not cited any judgment in which it was held that merely on the basis of smell of liquor in breathing, driver of the vehicle can be held to be under influence of intoxicating liquor. On the contrary, learned Counsel for the respondent has placed reliance on judgment of this Commission in I (2008) CPJ 494 (NC) - National Insurance Co. Ltd. v. Vinod Kumar in which it was observed as under:

"Learned Counsel for the petitioner has pointed out that the respondent-Vinod Kumar-Insured who was driving the insured vehicle in question at the relevant time when the vehicle met with an accident was under the influence of alcohol. In this connection, he has referred to the discharge paper dated 31st May, 1999 issued by the St. Stephen's Hospital, Delhi which reads "alleged alcohol intake". Assuming that this is correct record of the hospital, we are at a loss to understand as to who alleged that the respondent Vinod Kumar had taken alcohol. The said discharge slip does not record any symptoms which would be commensurate to that of a person under the influence of alcohol or other intoxicant. Though it is claimed that a police report was made immediately after the accident but it has not been filed on record. Under the circumstances, it is not possible for us to hold that the respondent was in fact under the influence of any intoxication of alcohol or any other drug what to talk of holding that the respondent was heavily drunk or that he was not in a fit condition to drive the vehicle in question due to the influence of intoxicant. Therefore, we do not see any infirmity or illegality or jurisdictional error in the order passed by the State Commission requiring interference by this Commission. Revision Petition being devoid of any merits is as such dismissed".

This Commission in R.P. No. 3243 of 2007 - National Insurance Co. Ltd. Soma Devi & Ors. in which it was observed as under:

"Both the post-mortem report and the investigators report merely state that the deceased had consumed alcohol without giving any details about the actual amount of alcohol consumed or the type of intoxicants consumed. Even if the post-mortem report stating that the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed.

Consumption of liquor is not a test for application of exclusionary clause of the policy, what is contemplated in the exclusionary clause of the policy is something more than merely consumption of liquor. Driver may not be under influence of intoxication of liquor at the time of accident. In the present case appellant has not provided any evidence of proof that respondent was under influence of intoxication at the time of accident and learned State Commission rightly allowed complaint."

 

In M. Raja Gangu v. Life Insurance Corporation of India  2015(1) C.P.J. 676 : 2015(2) CLT 99 : 2015(1) C.P.R. 749 (NC)relied on behalf of complainant the honourable National Commission has made the following observations:

 

               "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 the effects 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 Sections 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 30 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 ethyle alcohol in the tissue samples cannot lead to an inference that a person is incapable of taking care of himself.

11. We are unable to get convinced, that the deceased person was in intoxicated state of alcohol. Further, the OP filed a counter affidavit which appears to be misleading about the concentration of alcohol. In this context, we place reliance upon the judgment of this Commission passed in the Revision Petition 2481-82 of 2013 titled United India Insurance Co. Ltd v. Sheela & Ors. The Special Leave Appeal (Civil) No 26791-92 of 2014 preferred by United India Insurance Co. was dismissed by Hon'ble Supreme Court, on 8.10.2014 . Another judgment passed in Revision Petition 3934/2013 decided on 1/12/2013 in Bajaj Allianz General Insurance Co. Ltd. v. Smt. Achala Rudraniwas Marde also dovetails with our view.

12. It should be borne in mind that, a person cannot be said to be intoxicated unless alcohol level exceeds the prescribed limit which can only be confirmed through Blood Alcohol Concentration (BAC) is most commonly used as a metric of alcohol intoxication for legal or medical purposes. Therefore, the State Commission's observations appear to be unscientific one. "

In Life Insurance Corporation of India v. Ranjit Kaur  : 2011(2) DNJ 54 : 2011(3) C.P.J. 232 : 2011(3) C.P.R. 266 : 2011(4) CLT 388 (NC)relied on behalf of complainant the honourable National Commission has made the following observations:

 

"11. The fact that death of the insure was caused because of the electrocution during the subsistence of the insurance policy is not in dispute. The only issue under dispute is whether the insure was intoxicated at the time of his death which as per the exclusion clause in the Insurance Policy would justify repudiation of the double accident benefit insurance claim. While it is a fact that the Chemical Examiner in his report had stated that the blood alcohol concentration in the body of the deceased was 86.25 mg per 100 ml. of blood which as per the American Medical Examinations definitions is higher than the alcohol concentration level of impairment, it has also come in evidence that this by itself is not adequate proof that the deceased was intoxicated at the time of his death. As rightly observed by the leaned fora below, the specific clinical picture of alcohol intoxication also depends on the quantity and frequency of consumption and duration of drinking at that level and, therefore, mere presence of alcohol even above the usually prescribed limits is not a conclusive proof of intoxication. Apart from this, there is also no evidence that there was a nexus between the death caused by electric shock and consumption of liquor."

In United India Insurance Co. Ltd. v. Sheela:2014(2) C.P.R. 734 : 2014(3) C.P.J. 64 (N.C.)relied on behalf of complainant the honourable National Commission has made the following observations:

"8. Further, we put reliance upon , a judgment of this Commission in, Life Insurance Corporation of India v. Smt. Ranjit Kaur 2011, (30) CPR 266 (NC) that mere presence of alcohol, even usually prescribed limits, is not a conclusive proof of intoxication. Further, in this case, there is also no evidence that there is nexus between the death caused by drowning and consumption of liquor. In the light of the principles laid down in the above decision, we are of the view that it is not proved that the deceased was under the influence of liquor at the time of the accident. Even the investigation report issued by Mr. George Thattil (Insurance Investigator) does not support the Petitioner/OP.

9. Hence, in entirety of our discussion, there is nothing suggestive of alcohol-related death, in the post-mortem report. We have certain apprehension in allowing this revision petition, because it pertains to issue relating to non-payment of claim on account of alcohol being detected in substantial concentration in the blood. One need to be absolutely convinced about the reliability of the chemical examiner's analysis. It is unfortunate and it also appears that a responsible Forensic Medicine and Chemical Analysis department had made a causal approach to the PM investigations. The PM certificate is, with a lot of errors which raise many doubts. In such a situation, we are of considered view that the complainant should get benefits. Accordingly, we agree with the impugned order of State Commission, and dismiss this revision petition. No orders as to costs."

In complaint case number 499/2013 the repudiation of the medical insurance reimbursement bill was done by the OP insurance company on the ground that as per clause number 4.8 of the insurance policy Mr Abhishek the son of complainant was under the influence of the liquor. In the complaint case number 500/2013 the repudiation of the insured car repair bill in question is made by the OP insurance company on the ground that as per the provisions of Motor Car Policy Section-1. "Loss or damage to the vehicle insured condition No. 2 C" any accident loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs and since, as per MLC Mr Abhishek the son and driver of the insured vehicle violated the said condition of the policy so, the insurance claim was repudiated. This does not seem to be a justified ground for repudiation of the claim of the complainant in both cases in the light of Ashminder Pal Singh's case (supra),M. Raja Gangu's case (supra), Ranjit Kaur 's case (supra) and Sheela's case (supra) relied on behalf of the complainant for the simple reason that in the MLC the only fact indicated is of smell of alcohol from son of the complainant, Mr Abhishek and not the fact that in his blood sample the alcohol contents were more than the requisite quantity Violating the Provisions of Motor Vehicle Act. Therefore, we are compelled to hold that in both complainants, the repudiation of the insurance claim in question by the OP insurance company is unjustified.

Now the question arises what should be the appropriate and reasonable insurance claim and relief which can be granted to the complainant? In complaint case No. 500/2013 the complainant has claimed Rs. 357,922/- towards car repair charges, interest at the rate of 18% per annum from 24/12/2011 to 24/4/2013 amounting to Rs.85,900/-, expenses incurred by the complainant, Rs.50,000/-, compensation for mental pain and agony Rs. 200,000/- and pendantelite and future interest total amount of Rs. 6,93,822/-. As per the report dated 26/3/2012 of VP Singhal and company the Surveyor and Loss Assessors the loss of vehicle assessed by him in the accident in question is in the sum of Rs. 186,858.89 and at one place in his report the said Surveyor and Loss Assessor has opined that in view of the depreciation, the repair liability was less than Rs.2,00,000/- which was still economical and advisable as the said vehicle is a patrol Swift car having very little salvage value and as such insured was asked to get the car repaired with limited repair liability, but definitely no cashless. The Surveyor and Loss Assessor has after in-depth analysis of the damages suffered by the insured vehicle in question has assessed the value of the loss of vehicle/damages in the sum of Rs. 1,86,858.89. Although the complainant has produced the bill in the sum of Rs. 3,57,922/- but has failed to show why and in what manner the report of the Surveyor and Loss Assessor was not justified. Therefore, the value of loss assessed by Surveyor and Loss Assessor appointed by OP insurance company cannot be overlooked and we hold that the complainant is entitled to the insurance claim in the sum of Rs. 186,858.89/- as assessed by surveyor and loss assessor. We also hold that the complainant is entitled to the simple interest at the rate of 12% per annum on this amount for the pre complaint period from 24/12/2011 to 24/4/2013 amounting to Rs.29,897/- making a total of Rs.216756/-. The compensation claimed in the sum of Rs. 200,000/– and expenses, including travel expenses in the sum of Rs. 50,000/– look to be higher side. We feel that the compensation for mental agony and harassment in the sum of Rs. 75,000/– including the expenses incurred, including litigation cost shall meet the ends of Justice in this case.

In the complaint case number 499/2013 the complainant is entitled to the amount of Rs. 43,883/– towards the payment of bills and should also get interest at the rate of 12% per annum from 30/10/2011, the same interest during the period of pendency of the complaint and till realisation of the said amount. However, the claim of compensation in the sum of Rs. 2,00,000/– and Rs. 44,000/– towards the expenses incurred in travelling, et cetera seems to be on quite higher side. We are of the view that since the reimbursement of medical claim with interest is allowed to the complainant, the complainant is entitled to the compensation in the sum of Rs.30,000/– including the litigation cost.

In view of the above discussion, we allow both the complaints partially. In complaint case number 499/2013 the complainant is entitled to the reimbursement of medical expenses in the sum of Rs. 43,883/– along with interest at the rate of 12% per annum from 30/10/2011 till the  realisation of the amount. In addition, the complaint is also found entitled to the amount of  Rs.30,000/– from the OP insurance company towards compensation for mental agony and harassment suffered by the complainant, including the litigation cost and travelling expenses, et cetera. In case the said amount of Rs. 30,000/- is not paid by the OP insurance company within a period of one month from date of receipt of this order, then the complainant shall be entitled to recover the same along with simple interest at the rate of 12% per annum from the date of this order till recovery of the said amount of Rs. 30,000/–.

In the complaint case number 500/2013 the OP insurance company is directed to car repair claim of Rs. 186,858.89/– along with the simple interest amount on it amounting to Rs/ 29,897/– making the total of  Rs. 216,756/– along with pendantelite simple interest at the rate of 12% per annum from the date of filing of the complaint till realisation of the said amount. In addition, the OP is also directed to make the payment in the sum of  Rs. 75,000/– to the complainant towards mental agony, harassment, travelling and expenses, litigation cost etc. In case the said amount is not paid by the OP insurance company to the complainant within a period of one month from the date of receipt of this order, then the same shall be recoverable by the complainant along with simple interest at the rate of 12% per annum from the date of filing of the present complaint till realisation of the said amount.

This final order be sent to the server. A copy each of this joint final order in both complaints be sent to both parties by post free of cost. The true copy of this order be filed in complaint case number 499/2013, which complaint shall also be disposed of accordingly. The file be consigned to the record room.

Pronounced in the open Forum on 28/5/2016.

 

 

(S K SARVARIA)

PRESIDENT

 

                                              (H M VYAS)

MEMBER