DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.419 of 18-07-2016

Decided on 21-03-2017

Dev Raj Jindal aged about 54 years S/o Lahori Ram S/o Milkhi Ram

R/o # 15799, Street No.9/3B, Guru Gobind Singh Nagar, Bathinda.

........Complainant

Versus

1.National Insurance Co. Ltd., Divisional Office, The Mall, Bathinda, through its Divisional Manager.

2.Tata Motor Finance Ltd. Opp. Allankar Cinema 2, Goniana Road, Bathinda, Punjab-151001, through its Branch Manager.

3.Mehta Motors (Tata), Bibi Wala Road, Bathinda, through its Authorized Representative/Manager/Owner.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Sh.Naresh Garg, Advocate.

For opposite party No.1: Sh.Rakesh Mangla, Advocate.

For opposite party No.2: Sh.J.S Kohli, Advocate.

Opposite party No.3: Ex-parte.

ORDER

M.P Singh Pahwa, President

1. The complainant Dev Raj Jindal (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties National Insurance Co. Ltd. and Others (here-in-after referred to as opposite parties).

2. Briefly, the case of the complainant is that he is the owner of car Indica Vista Regd. No.PB-03AA-4911. It is duly hypothecated with opposite party No.2. It was duly comprehensively insured with opposite party No.1 vide insurance certificate No.25331031140150036029 w.e.f. 24.10.2014 to 23.10.2015 under cashless arrangement under tie up arrangement of manufacturer service centre opposite party No.3 and opposite party No.1.

3. It is alleged that opposite parties never supplied any complete insurance policy with terms and conditions to the complainant till date. They issued only cashless insurance certificate. As per complainant, the vehicle met with an accident on 7.6.2015 at about 5:45 PM,on Main Road, Village Budh Singh Wala with one scooter No.PB-29R-5251 and motorcycle No.PB-29L-1766 in the revenue limits of P.S. Bhaga Purana District Moga. The car was badly damaged. In this accident, one scooter driver has died and motorcyclist was injured. The concerned police registered the F.I.R No.84 dated 8.6.2015 at P.S Bagha Purana on the statement of Gurpreet Singh, brother of the injured person. At that time, the car was being driven by the complainant. He was also injured in the accident. After getting released the car on Sapuradari, the complainant shifted the car to authorized service centre at Bathinda i.e. opposite party No.3. After collecting the necessary papers from the complainant i.e. photocopies of D.L, R.C and F.I.R, opposite party No.1 deputed the surveyor Mr.Dinesh Goyal, Bathinda. He visited the authorized service centre and surveyed the vehicle and collected the documents from the complainant under cashless insurance scheme. Opposite party No.3 started repair of the vehicle and took the amount of Rs.35,500/- (Rs.20,000/- on 21.7.2015 vide receipt No.3927 and Rs.15,500/- on 25.7.2015 vide receipt No.3961) from the complainant on account of depreciation against total loss of Rs.1,38,281/- under cashless insurance agreement.

4. It is further alleged that the surveyor and opposite party No.1 never sent any survey report to the complainant. Although, it is mandatory under the rules of IRDA. The surveyor prepared the survey report of net loss payable of Rs.1,01,632/- under the directions of opposite party No.1 after deducting the depreciation as per GR-9 of IMT.

5. It is further alleged that the complainant enquired about his cashless insurance claim of Rs.1,01,632/- from opposite party No.1 and its surveyor, but they did not give him satisfactionary reply and revealed that in F.I.R Gurpreet Singh, brother of the deceased stated that it seems that the complainant has used drug/alcohol. As such, opposite parties did not pay the claim.

6. It is also alleged that opposite party No.1 also appointed illegally one investigator without taking necessary and mandatory permission from the controller of insurance as per Insurance Act. However, the doctors of the civil hospital also confirmed that after examination, it is confirmed that the complainant was not under the influence of alcohol and toxic effect. The complainant time to time demanded his claim from opposite party No.1 and told it that he never used any drug/alcohol and also revealed that Gurpreet Singh, brother of the deceased adamantly gave this statement without any proof. The complainant was immediately admitted in the civil hospital. His examination was immediately done by the government doctors. They also gave in writing that he was not under the influence of alcohol or toxic effect.

7. It is further alleged that after all the enquiries and submitting all the documents as demanded by opposite party No.1, it did not settle the claim. Now, the complainant received letter dated 21.4.2016 (after 10 months) whereby opposite party No.1 has rejected his claim on illegal ground that any accidental 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 drug.

8. It is further alleged that due to non-payment of the claim by opposite party No.1 to the complainant or opposite party No.3, the complainant has been caused mental agony, pains and had suffered to the tune of Rs.50,000/- as opposite party No.1 has denied the claim against the facts. Opposite parties have failed to provide the services.

   On this backdrop of facts, the complainant has prayed that opposite party No.1 be held liable to make him the loss amount of Rs.1,01,632/- or directly to opposite party No.3 alongwith interest @ 18% per annum. He has claimed damages to the extent of Rs.50,000/- and litigation expenses to the tune of Rs.10,000/-. Hence, this complaint.

9. Upon notice, opposite party Nos.1 and 2 appeared through their counsel whereas opposite party No.3 appeared through its representative. Opposite party Nos.1 and 3 contested the complaint by filing their separate written version. In the separate written version, opposite party No.1 has raised the legal objections that the complaint has been filed by the complainant only to injure its goodwill and reputation. The complaint is false, frivolous and vexatious to the knowledge of the complainant. Opposite party No.1 is entitled to special cost from the complainant U/s 26 of 'Act' to the tune of Rs.10,000/-.That this Forum has no jurisdiction to try and entertain this complaint as the claim of the complainant has been repudiated after thorough investigation. The intricate questions of law and facts are involved in this complaint, which require voluminous documents and evidence for determination. It is not possible in the summary procedure under 'Act'. The appropriate remedy, if any, lies only in the civil court. The complainant has concealed the material facts and documents from this Forum.

   As per opposite party No.1, true facts are that on receiving the intimation regarding the accident, it deputed its surveyor to conduct the spot survey to investigate the claim of the complainant. From the investigation, it is learnt that at the time of accident, the complainant was found to be driving the insured vehicle under the influence of liquor. Dr.Ashu Dihana examined Dev Raj Jindal and written in her report that 'breath smells of alcohol, but he is not under the toxic effect of alcohol. Blood sample was taken at the time of examination', but the contents of the blood sample or report were not traced anywhere. When Investigator enquired from Dr.Ashu Dihana about the blood sample or report, she revealed that the blood sample was given to the police for further necessary action through the concerned department and she does not know the where-about of the blood sample or contents of the blood sample report. On enquiry from the police, they revealed that they have neither received any blood sample either from Dr.Ashu Dihana or any concerned department nor report is available with them. Therefore, from the investigation, there is clear cut foul smell on the part of insured. Accordingly, vide letter dated 4.4.2016, the complainant was informed that as per Section 1 of the policy, the claim is not maintainable. Before repudiating the claim he may say anything, he may let opposite party No.1 know within 10 days. However, no clarification was given by him in this regard. Accordingly, the claim was repudiated by the competent authority on this ground. The intimation in this regard was given to the complainant vide letter dated 21.4.2016.

   Further legal objections are that the complainant is not 'consumer' as defined under 'Act'. He has violated the terms and conditions of the policy. He has no locus-standi or cause-of-action to file this complaint. The complaint is not maintainable. There is no deficiency in service or unfair trade practice on the part of opposite party No.1.

10. On merits, it is admitted that the vehicle was insured with opposite party No.1. Opposite party No.1 issued the policy documents containing full details of the terms and conditions of the policy. All other averments of the complainant are denied. Opposite party No.1 has reiterated its stand as taken in the legal objections and detailed above. In the end, opposite party No.1 has prayed for dismissal of complaint.

11. It is relevant to mention that during the pendency of complaint, counsel for opposite party No.2 suffered a statement that the loan account of the complainant is clear. As such, opposite party No.2 has no concern with this complaint. Therefore, opposite party No.2 did not want to file the written version to the main complaint.

12. In the separate written version, opposite party No.3 has also raised the legal objections that this complaint is not maintainable. However, if this Forum passed the claim amount, it is liability of opposite party No.1 only and same is payable to opposite party No.3 under cashless insurance scheme.

13. On merits, opposite party No.3 has simply pleaded that the facts are matter of record. It is admitted that opposite party No.3 has already repaired the vehicle under cashless insurance scheme and claim is payable to opposite party No.3 by opposite party No.1.

14. It is also relevant to mention that after filing the written version, none appeared on behalf of opposite party No.3. As such, ex-parte proceedings were taken against it.

15. Parties were asked to produce evidence.

16. In support of his claim, the complainant has tendered into evidence his affidavits dated 18.7.2016 and 18.10.2016, (Ex.C1 and Ex.C8); photocopy of D.L, (Ex.C2); photocopy of R.C, (Ex.C3); photocopy of F.I.R, (Ex.C4); photocopy of insurance, (Ex.C5); photocopies of letters, (Ex.C6, Ex.C7, Ex.C16); affidavit of Gurpreet Singh dated 7.10.2016, (Ex.C9); photocopy of survey report, (Ex.C10); photocopy of re-inspection report, (Ex.C11); photocopy of survey fee bill, (Ex.C12); photocopies of receipts, (Ex.C13 and Ex.C14); photocopy of tax invoice, (Ex.C15) and submitted written arguments.

17. To rebut the claim of the complainant, opposite party No.1 has tendered into evidence affidavit of Sunil Verma dated 7.12.2016, (Ex.OP1/1); photocopy of insurance policy, (Ex.OP1/2); photocopies of letters, (Ex.OP1/3 to Ex.OP1/5); photocopy of F.I.R, (Ex.OP1/6); photocopy of claim intimation, (Ex.OP1/7); photocopy of claim form, (Ex.OP1/8); photocopy of proclaiming report, (Ex.OP1/9); photocopy of survey report, (Ex.OP1/10); photocopy of re-inspection report, (Ex.OP1/11); photocopies of letters, (Ex.OP1/12 to Ex.OP1/15, Ex.OP1/17, Ex.OP1/19, Ex.OP1/21, Ex.OP1/24 to Ex.OP1/26); photocopy of report of doctor, (Ex.OP1/16); photocopy of report of S.H.O, (Ex.OP1/18); photocopy of investigation report, (Ex.OP1/20); photocopy of e-mail, (Ex.OP1/22); photocopy of fact finding report, (Ex.OP1/23) and closed the evidence.

18. Opposite party No.2 has closed the evidence without tendering any document on 14.12.2016.

19. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for complainant.

20. Learned counsel for complainant has submitted that it is not admitted that the complainant got his car insured with opposite party No.1 under cashless arrangement. The vehicle met with an accident on 7.6.2015. The complainant lodged the claim regarding damage to the car. Opposite party No.1 deputed the surveyor Mr.Dinesh Goyal and at the instance of opposite party No.1, opposite party No.3 started the repair of the vehicle. The total cost of the repair after excluding depreciation was worked out Rs.1,01,632/-. This amount was to be paid by opposite party No.1 to opposite party No.3 as insurance was cashless. Opposite party No.1 has not paid this amount and it has rather repudiated the claim vide letter dated 21.4.2016, (Ex.OP1/3).

21. It is further submitted by learned counsel for complainant that from the repudiation letter, (Ex.OP1/3), it is made out that opposite party No.1 has come to the conclusion of consumption of liquor only from the contents of F.I.R. No other evidence has been collected by opposite party No.1 to justify the repudiation of claim. Copy of F.I.R is also brought on record as Ex.C4. F.I.R was got registered on 8.6.2015 at about 2:30 AM whereas accident took-place on 7.6.2015 at about 5:45 PM. In the ending part of F.I.R, author of F.I.R Gurpreet Singh has alleged that the driver was in inebriated condition. This statement shows that the informer Gurpreet Singh was not witness to consumption of liquor. His statement is only based on hearsay information.

22. It is further submitted by learned counsel for complainant that Dev Raj Jindal (complainant) was admitted in Civil Hospital, Bagha Purana after accident. He was medicaly examined by Dr.Ashu Dihana. Opposite party No.1 obtained the report from Dr.Ashu Dihana as Ex.C16. In her report, the doctor has clarified that she has examined the complainant Dev Raj Jindal at CHC, Bagha Purana and has written that there is breath smell of alcohol, but he was not under the toxic effect of alcohol. Therefore, only medical evidence with opposite party No.1 was that Dev Raj Jindal (complainant) breath smell of alcohol. Of-course, in her report, the doctor has further mentioned that blood sample was taken, which was given to the police for further action. Thereafter, she was not in the knowledge of contents of report and blood sample. In case, there was any adverse report from the blood sample, investigator was certainly to collect the same. It is to be inferred that nothing was against the complainant in his blood sample. Opposite party No.1 was not only to prove that the complainant has consumed liquor, but it was also to prove that he was under the influence of liquor. Mere consumption of liquor is not an offence. Even breath of alcohol smell cannot be presumed consumption of alcohol. Opposite party No.1 has failed to prove that the complainant has violated any terms and conditions of the policy. Therefore, repudiation of the claim is not justified.

    To support these submissions, learned counsel for complainant has also cited cases law, which are summarized as under:-

    i) I 2007 CPJ 388 New India Assurance Co. Ltd. Vs. Karam Chand;

    ii) I 2016 CPJ 196 (NC) National Insurance Co. Ltd. Vs. Dhiraj Sharma;

    iii) Decision of Hon'ble State Commission, Delhi rendered in Complaint No.C-47/2002, Decided on 27.3.2009 in case title Shri Ashminder Pal Singh Vs. The New India Assurance Co. Ltd.

23. On the other hand, learned counsel for opposite party No.1 has submitted that the insurance policy is contract. Parties are bound by terms and conditions contained in the policy. It is not disputed that as per policy Condition No.1, the company is not liable to make any payment in respect of any accidental loss or damage suffered whilst insured or any person driving the vehicle, with the knowledge and consent of the insured, is under influence of intoxicating liquor or drugs. It is not disputed that at the time of accident, none of representative of opposite party No.1 was expected to be present. Some facts are to be inferred from the attending circumstances. The complainant has admitted that his vehicle met with an accident on 7.6.2015. It is also admitted that he was taken to CHC Bagha Purana on account of injuries. He was medicaly examined at CHC Bagha Purana. The report dated 7.6.2015 is on record as Ex.OP1/5. It was categorically mentioned that 'patient smell alcohol breath and blood sample was taken'. In the subsequent report, (Ex.OP1/21) also, Dr.Ashu Dihana clarified that the blood sample was given to the police for further necessary action. Thereafter she is not in the knowledge of contents of report. In these circumstances, it is to be inferred that the complainant has connived with the police and hushed up the blood sample. When there is positive report that the complainant was alcohol smell, there is no evidence to rebut this report. The inference is that the complainant has violated the material condition of the policy. Therefore, opposite party No.1 is justified to repudiate the claim.

    To support these submissions, learned counsel for opposite party No.1 has relied upon decision of Hon'ble State Commission Pb. rendered in First Appeal No.222 of 2012, Decided on 4.7.2014 in case of Iffco Tokio General Insurance Company Ltd. Vs. Hardeep Singh.

24. Learned counsel for opposite party No.2 has submitted that opposite party No.2 has been unnecessary dragged into litigation. No deficiency in service can be attributed to it. No relief has been claimed against it.

25. We have given careful consideration to these submissions and gone through the cases law cited by learned counsel for complainant and opposite party No.1.

26. Undisputed facts are that the complainant got his car insured with opposite party No.1 and insurance was valid for the period from 24.10.2014 to 23.10.2015. The car met with an accident on 7.6.2015. The complainant lodged the claim. The surveyor appointed by opposite party No.1 has assessed the loss to the tune of Rs.1,01,632/-. Opposite party No.1 has repudiated the claim vide letter dated 21.4.2016, (Ex.OP1/3). This letter reveals that the claim has been repudiated on the ground that immediately after accident, the complainant was caught and brought in the police station under influence of liquor. From the contents of the letter, it can be inferred that only evidence with opposite party No.1 is contents of F.I.R wherein it is mentioned that the complainant was under the influence of liquor. He was also examined after accident in CHC Bagha Purana on that very date i.e. 7.6.2015. The report of doctor is brought on record as Ex.OP1/5. In this report, it is mentioned that patient's smell alcohol breath, but not under the toxic effect of alcohol. Of-course, it is further mentioned that blood sample was taken, but no report of blood sample is brought on record.

27. The point for determination is whether breathing alcohol smell will meet out the requirement of Section 185 of Motor Vehicle Act, 1988 or not, which prescribed punishment for driving by a drunken person or under influence of drugs.

28. As per Section 185 of Motor Vehicle Act, 1988, driving by a drunken person is an offence. For sake of convenience, this Section is reproduced as under:-

    “Driving by a drunken person or by a person under the influence of drugs:- Whoever, while driving or attempting to drive a motor vehicle-

    a) has, in his blood, alcohol exceeding 30 mg. Per 100 ml. of blood detected in a test by a breath analyser, or

    b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.

    Explanation: For the purposes of this section, the drug or drugs specified by the Central Government in this behalf by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle.”

29. A perusal of aforesaid Section reveals that in order to bring home guilt U/s 185 of Motor Vehicle Act, it is to be proved that the driver has in his blood alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser. Of-course, the blood sample was taken, but there is no report produced by opposite party No.1. Therefore, it is to be inferred that from the blood sample, nothing adverse was detected to prove that the complainant was under influence of liquor. Moreover the doctor has categorically mentioned that patient was not under the toxic effect of alcohol.

30. The legal position regarding consumption of liquor and under influence of liquor is also cleared in judgments relied upon by counsel for complainant.

    In case of Shri Ashminder Pal Singh Vs. The New India Assurance Co. Ltd. (Supra), Hon'ble State Commission, Delhi has observed that there is vast difference between taking liquor and being under its influence. Whenever a person is under the influence of intoxicant or liquor or drug, his reasoning and reflexes and other skills should be undermined to an extent that the accident or damage should be the direct result of the influence. Had there been no such distinction nothing prevented the insurance companies from mentioning in the policy that if the driver had taken liquor, the policyholder would be disentitled for the claim. But it is not so because there is difference between taking or smelling alcohol may be within permissible limits that does not affect reasoning or reflexes of the person than being under the influence of intoxication.

    Similarly, in case of New India Assurance Co. Ltd. Vs. Karam Chand (Supra) also, Hon'ble Himachal Pradesh State Commission, Shimla has observed that however, when a reference is made to Section 185 of Motor Vehicle Act, in order to succeed it was incumbent upon the appellant to have shown by cogent and reliable evidence that the alcohol exceeded 30 mg. of per 100 ml. of blood detected in a test by a breath analyser. There is nothing on record to that effect.

31. The judgment relied upon by counsel for opposite party No.1 is not applicable as facts of the cited case are clearly distinguishable. In the cited case, after accident, driver was taken into custody and was sent for his medical test and his medical report was as under:-

    “Patient conscious, smell of alcohol coming from breath of the patient, speech shirred, patient unable to walk in a straight line. Patient unable to perform finger nose test. Pupils declared reaction to Right Sluggish. Patient talking excessively and in a grandiose manner. BP 140/100 PR. 80/mt. Patient's attitude towards the examiner was uncooperative and he refused to give blood and urine samples.”

    Therefore, in the cited case, there was positive evidence to attract the requirement of Section 185 of Motor Vehicle Act and driver has refused to give blood and urine samples. Therefore, this case law is not helpful to opposite party No.1.

32. Keeping in view the facts of the case, the conclusion is that opposite party No.1 was not justified to repudiate the claim of the complainant and order of repudiation is not sustainable and stands set-aside.

33. Now, coming to the amount of claim/compensation. The complainant has pleaded that it is cashless policy. This fact is not disputed. He has also pleaded that he has paid a sum of Rs.35,500/- on account of depreciation claim and a sum of Rs.1,01,632/- is payable to opposite party No.3. Opposite party No.3 has admitted this fact.

34. For the reasons recorded above, the complaint is partly accepted with Rs.10,000/- as cost and compensation against opposite party No.1 and dismissed qua opposite party Nos.2 and 3. Opposite party No.1 is also directed to pay Rs.1,01,632/- to opposite party No.3.

    It is made clear that if the complainant has paid any amount to opposite party No.3, out of due amount of Rs.1,01,632/-, the complainant can claim refund/adjustment from opposite party No.3.

35. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

36. The complaint could not be decided within the statutory period due to heavy pendency of cases.

37. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced:-

    21-03-2017

    (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member