Chandigarh

DF-I

CC/326/2021

Mukesh Singh - Complainant(s)

Versus

National Insurance Co. Ltd. - Opp.Party(s)

Munish Thakur

05 Dec 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/326/2021
Date of Institution	:	17/05/2021
Date of Decision	:	05/12/2023

 

1. Mukesh Singh, aged 36 years s/o late Sh. Tehal Singh r/o House No.3160, Sector 23-D, Chandigarh.
2. Santosh, aged 62 years w/o late Sh. Tehal Singh r/o House No.3160, Sector 23-D, Chandigarh.

… Complainants

V E R S U S

National Insurance Company Limited having registered office at 3, Middleton Street, Kolkatta 700071 also having regional office at SCO No.332-334, Sector 34-A, Chandigarh through its Chief Regional Manager NK Marwari.

… Opposite Party

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

       

                                                                       

ARGUED BY	:	Sh. Munish Thakur, Advocate for complainants
	:	Ms. Nidhi Ayer, Advocate for OP

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Mukesh Singh and another, complainants against the aforesaid opposite party (hereinafter referred to as the OP).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that Sh. Tehal Singh (deceased), father of complainant No.1 and husband of complainant No.2, was running a restaurant business under the name and style of M/s Tehal Singh Dhaba in partnership with his brother, Prem Chand vide partnership deed dated 19.12.2008 (Annexure C-1). In the year 2017, deceased purchased an Audi Q3 car bearing registration No.CH-01-BP-2601 (hereinafter referred to as “subject car”) and got the same registered in the name of partnership firm vide certificate of registration (Annexure C-2). Immediately after purchasing the subject car, the same was got insured by the deceased from the OP in the name of the partnership firm and thereafter the same was renewed vide policy (Annexure C-3) w.e.f. 25.10.2018 to 24.10.2019 (hereinafter referred to as “subject policy”) on payment of premium of ₹38,236/-. The subject policy covered third party legal liability, own damage and personal accident cover (by charging additional premium of ₹750/-) and offered personal accidental coverage of ₹15.00 lacs in case of death/disability of the owner/ insured. The deceased/insured was having valid driving licence (Annexure C-4).  On the intervening night of 21/22.8.2019 around 1:40 a.m. when the subject car was being driven by the deceased/insured Tehal Singh reached near Sector 22/23 light point, Chandigarh, it met with an accident when another vehicle bearing registration No.HR-26-AW-5040 (hereinafter referred to as “the another vehicle”), coming from Sector 35 Kisan Bhawan chowk side all of a sudden had hit the front left side of the subject car and the said accident had taken place due to the rash and negligent driving of the driver of the other vehicle who had sped away from the spot.  On seeing the critical condition of the deceased/insured, his nephew Lalit, who was following the subject car in another car, shifted the insured to General Hospital, Sector 16, Chandigarh and after some time on further finding his condition critical, the insured was shifted to Ivy Hospital, Sector 71 Mohali. The matter was reported to the police by aforesaid Lalit in pursuance to which FIR (Annexure C-7) was recorded.  However, during the treatment of the insured at Ivy Hospital, he died on 28.8.2019 as per death summary (Annexure C-5) and the post mortem examination report is (Annexure C-6). Thereafter, claim was lodged with the OP, but, the same was repudiated by the OP vide letter dated 15.7.2020 (Annexure C-9) on the ground that as per General Regulations of Indian Motor Tariff, Personal Accident (PA) cover cannot be given to a partnership firm.  In this manner, the aforesaid act of the OP amounts to deficiency in service and unfair trade practice. OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, concealment of material facts, cause of action, delay in giving intimation to the OP and also that the complainants have suppressed material facts at the time of examination of the deceased at GMSH-16, Chandigarh and smell of alcohol was noticed by the medical officer.  On merits, admitted that the subject car was insured with the answering OP at the relevant time in the name of the firm, but, the claim was repudiated on the ground that the firm is not entitled for personal accident cover as per general regulations of Indian Motor tariff.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainants is denied.  The consumer complaint is sought to be contested.
3. In replication, complainants re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the subject car was registered in the name of M/s Tehal Singh Dhaba (of which deceased Tehal Singh and his brother Prem Chand were the partners), as is also evident from the certificate of registration (Annexure C-2), and the subject car was insured with the OP vide insurance policy (Annexure C-3), which was issued in the name of Tehal Singh Dhaba (Prop Tehal Singh), Booth No.1121-A, Sector 22B, Chandigarh valid w.e.f 25.10.2018 to 24.10.2019, and the subject car having been driven by Tehal Singh on the relevant date, time and place, was hit by the another vehicle and immediately after the accident the driver of the other vehicle had sped away from the spot  and the insured was firstly shifted to GMSH-16, Chandigarh from where he was shifted to Ivy Hospital, Mohali and he succumbed to the injuries on 28.8.2019,  the case is reduced to a narrow compass as it is to be determined if the OP is unjustified in repudiating the personal accident claim to the complainants on the demise of Tehal Singh on the ground that the subject car was registered in the name firm or on the ground that the deceased was found with smell of alcohol at the time of his treatment in the hospital, and the complainants are entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainants, or if the OP is justified in repudiating the claim of the complainants on the ground that the subject car was registered in the name of firm of which deceased was only a partner and the deceased was found with smell of alcohol and the instant consumer complaint is liable to be dismissed, as is the defence of the OP. 
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the terms and conditions of the subject policy (Annexure C-3), medical record (Annexure R-1) and the repudiation letter (Annexure C-9), and the same are required to be scanned carefully.
   3. The learned counsel for the complainants contended with vehemence that as the OP/insurer itself has issued the subject policy in the name of Tehal Singh Dhaba  through its proprietor Tehal Singh and has also issued the personal accident coverage of the proprietor by receiving premium of ₹750/-, in addition to the premium on other heads i.e. third party claim, own damage etc., and had also inserted the name of complainant No.1/Mukesh Singh as nominee of the owner/driver of the vehicle while giving the personal accident cover, the OP cannot now repudiate the claim of the complainants for personal  accident of their predecessor, Tehal Singh on the ground that the policy could not have been issued for the personal accident cover while issuing the same in the name of firm.
   4. On the other hand, learned counsel for the OP contended with vehemence that even as per General Regulation 36 of the Indian Motor Tariff, personal accident cover cannot be granted where a vehicle is owned by a company, a partnership firm or a similar body corporate or where the owner driver does not hold a valid driving licence and, in the case in hand, as it has come on record that Tehal Singh was only a partner to the extent of 50% share in the firm with his brother Prem Chand, who was having remaining 50% share, complainants are not entitled for the reliefs as prayed for.  In support of his case, learned counsel for the OP has relied upon the order of the Hon’ble National Commission in United India Insurance Co. Ltd. & Anr. Vs. Pushpa Devi Mantri & Ors., 2017 SCC OnLine NCDRC 777.
   5. There is no force in the contention of the learned counsel for the OP as the ratio of law laid down in the aforesaid order is not applicable in the present case on the ground that the facts of the present case are different from the facts in the aforesaid order of the Hon’ble National Commission.
   6. In the case in hand, subject policy (Annexure C-3) was in the name of Tehal Singh Dhaba. The subject car and the relevant clause qua personal accident cover detail of the same is reproduced below for ready reference :-

“Personal Accident Cover Details	CSI per head
Owner driver of the vehicle Nominee : Mr. Mukesh Singh”	₹15,00,000.00

7. In the ‘Schedule of Premium’, under the ‘Legal Liability’, premium is shown as ₹750/- for personal accident making clear that premium for the personal accident of the owner cum driver of the vehicle Tehal Singh was collected by the OP to the tune of ₹750/- by specifically mentioning that in the case of personal accident, Mukesh Singh (son of the insured) shall be the nominee. Even as per GR 36 of Indian Motor Tariff, compulsory PA cover cannot be granted where a vehicle is owned by a company, a partnership firm, or a similar body corporate or where the owner/driver does not hold an effective driving licence and in all such cases where compulsory PA cover cannot be granted, additional premium for compulsory PA cover for owner – driver should not be charged and the compulsory PA cover provision in the policy should also be deleted. 
8. In the case in hand, as it has come on record that the OP itself has not complied with the provisions of G.R 36 of the Indian Motor Tariff by not deleting the compulsory PA cover provision in the subject policy, as mandated above, rather has chosen to collect the premium of ₹750/- from Tehal Singh proprietor/ driver/insured against the personal accident cover of ₹15.00 lacs, now the OP cannot back out from the terms and conditions of the subject policy, knowing fully well that it had issued the subject policy in the name of Tehal Singh Dhaba through its proprietor Tehal Singh for third party risk and personal accident cover. Had the OP not received the aforesaid premium of ₹750/- from the deceased/insured for personal accident cover while issuing the subject policy, the deceased/insured had the option to get himself insured for his personal accident cover independently and as the OP had opted to accept the premium of ₹750/- from the insured driver Tehal Singh, repudiation of the claim of the complainants on the demise of their predecessor in the accident of the subject car is totally unjustified.
9. The OP has further resisted the claim of the complainants on the ground that, at the time of treatment, insured was having smell of alcohol, as has been opined by the medical officer in his medical report (Annexure R-1), and the said act amounts to gross violation of the terms and conditions of the subject policy and the claim of the complainants was rightly repudiated by the OPs.  Relevant portion of the report is reproduced below for ready reference:-

        “BREATH SMELL OF ALCOHOL PRESENT AT THE TIME OF EXAMINATION.”

10. In this regard, reliance on behalf of the OP has been placed on the judgment of the Hon’ble Apex Court in the case of Iffco Tokio General Insurance Co. Ltd. Vs. Pearl Beverages Ltd., III (2021) CPJ 44 (SC) in which it was held that the insurer is not required to establish that there was alcohol intoxication and equally it need not be shown that vehicle was driven by a person who was chronic alcoholic, rather what is required to be shown is at the time of driving the vehicle, resulting in accident, the driver was under the influence of alcohol. The gist of the said judgment is reproduced below for ready reference :-

        “(i) Consumer Protection Act, 1986 — Sections 2(1)(g), 23 — Motor Vehicles Act, 1988 — Sections 185, 203, 204, 205 — Indian Penal Code, 1860 — Sections 279, 427 — Insurance — Drunken driving — Accident of vehicle — Total loss — Influence of intoxicating liquor — Exclusion clause — Claim repudiated — Alleged Deficiency in service — Exclusion requires driving of vehicle by person under influence of intoxicating liquor — Mere presence of alcohol in any small degree would not be sufficient — Court cannot re-write contract and hold that mere presence of alcohol, in slightest degree, is sufficient to exclude liability of insurer — It requires something more, namely, that driver of vehicle was at time of accident acting under influence of intoxicating liquor — It must be shown that in facts and circumstances of each case that consumption of liquor had, if not caused accident, which undoubtedly would bring accident within mischief of clause but at least contributed in perceptible way to causing of accident — To be under influence of alcohol must be understood as question going to facts and matter to be decided with reference to impact of consumption of alcohol on particular driver — If in case without there being any blood test, circumstances, associated with effects of consumption of alcohol, are proved, it may certainly go to show that person who drove vehicle, had come under influence of alcohol — Manner in which vehicle was driven, may again, if it unerringly points to person having been under influence of alcohol, be reckoned — Evidence of unsteady gait, smell of alcohol, eyes being congested, apart from actual consumption of alcohol, either before commencement of driving or even during process of driving, along with manner in which accident took place, may point to driver being under influence of alcohol — It would be finding based on effect of pleadings and evidence — Repudiation justified.

[Paras 35, 36, 50, 51]

(ii)    Motor Vehicles Act, 1988 — Section 185 — Drunken driving— Section 185 deals with driving or attempting driving of motor vehicle by person with alcohol in excess of 30 mg per 100 ml in blood which is detected in test of breath analyser — Being criminal offence, it is indisputable that ingredients of offence must be established as contemplated by law which means that case must be proved beyond reasonable doubt and evidence must clearly indicate level of alcohol in excess of 30 mg in 100 ml blood and what is more such presence must be borne out by test by breath analyser. [Para 53]

(iii) Consumer Protection Act, 1986 — Sections 2(1)(g), 23 — Motor Vehicles Act, 1988 — Sections 185, 203, 204, 205 — Evidence Act, 1872 — Section 106 — Insurance — Drunken driving — Accident of vehicle — Total loss — Influence of intoxicating liquor — Exclusion clause — Claim repudiated — Criminal offence vis- a-vis deficiency of service — Burden of proof — Facts within special knowledge — If prosecution has not filed case under Section 185, that would not mean that competent Forum in action alleging deficiency of service, under Consumer Protection Act, is disabled from finding that vehicle was being driven by person under influence of alcohol — Presence of alcohol in excess of 30 mg per 100 ml. of blood is not indispensable requirement to enable Insurer to successfully invoke clause — Where there is no scientific material, in form of test results available, it may not disable insurer from establishing case for exclusion — Totality of circumstances must be considered — Scope of enquiry, in case under Consumer Protection Act, which is summary proceeding, cannot be lost sight of — What is required to be proved is driving by person under influence of alcohol — There is no case for respondent that terms of contract to exclude liability of appellant, are in any way illegal — It cannot then be said that merely because there is no test performed, Insurer would be deprived of its right to establish case which is well within its rights under contract — Burden of proof, insofar as appellant insured seeks to establish exclusion of liability is concerned, burden of proof is upon it — What was nature of alcohol and what was quantity of alcohol consumed, and where he had consumed, it would certainly be facts within special knowledge of person who has consumed alcohol — Driver has not indicated when he has consumed alcohol — It would be “disproportionately difficult” for insurer in facts to have been proved as to whether driver has consumed liquor on empty stomach or he had food and then consumed alcohol or what was quantity and quality of drink (alcohol content) which would have been circumstances relevant to consider as to whether he drove vehicle under influence of alcohol — Driver has merely stated that he was not under influence of intoxicating liquor and he was in his full senses — There are no interrogatories served on driver by appellant — Unlike in proceeding in Court, ordinarily insurers may not be in position to cross examine — Effects of drinking by way of signs discernible, after accident took place, in facts, cannot be said to be within knowledge of driver only — Insurer or his agent may not have been given notice at that stage — It would not be proper or legal to hold that in such circumstances, insurer would still be in position to prove through breath test or blood test that driver was under influence of alcohol — Repudiation justified.

[Paras 57, 58, 76, 77, 78, 79, 81, 82, 83, 103]

(iv) Res ipsa loquitur — Drunken driving — Influence of intoxicating liquor — Principal is used in cases of tort and where facts without anything more clearly and unerringly points to negligence — Principle of Res ipsa loquitur, as such, appears to be inapposite, when, what is in question, is whether driver was under influence of alcohol — Though principle as such is inapplicable, manner in which accident occurred may along with other circumstances point to driver being under influence of alcohol. [Para 85]

(v) Consumer Protection Act, 1986 — Sections 2(1)(g), 23 — Motor Vehicles Act, 1988 — Sections 185, 203, 204, 205 — Indian Penal Code, 1860 — Sections 279, 427 — Insurance — Drunken driving — Accident of vehicle — Total loss — Influence of intoxicating liquor — Exclusion clause — Claim repudiated — Alleged deficiency in service — What is in a summary proceeding noteworthy, is in the setting of the width of road (a road near India Gate, New Delhi) and the thinnest possible traffic, and without slightest excuse, hitting at the footpath with massive force, not being able to maintain control, hitting the electric pole, the wall of the children park—Impact is so much that it led to the overturning of car and what is more, catching fire of the vehicle — NCDRC was in error in conflating requirement under Section 185 of Act, with that under exclusion clause in contract of insurance in question — Requirement under Section 185 of Motor Vehicles Act is not to be conflated to what constitutes driving under influence of alcohol under policy of insurance in Own Damage Claim — Such claim must be considered on basis of nature of accident, evidence as to drinking before or during travel, impact on driver and very case set up by parties — FIR has been prepared on basis of Report of Police Officer — Use of FIR in criminal case is to be distinguished from its employment in consumer case — This is so, in particular, when FIR is relied upon by complainant himself — Case set up of respondent that person driving car had not consumed liquor, is clearly false — Person driving vehicle had consumed alcohol — Exact quantity, which he had consumed, is not forthcoming — Fact that he smelt of alcohol, is indisputable, having regard to contents of FIR and also MLC — Vehicle was driven in rash and negligent manner, having regard to conviction entered under Section 279 of IPC — Person can be rash and negligent without having been under influence of alcohol — At same time, being under influence of alcohol can also lead to rash and negligent driving — They are not incompatible — Even NCDRC has proceeded on basis that driver had consumed some alcohol — Appellant has established that driver had consumed alcohol and was driving vehicle, when accident took place — Respondent has no case that accident occurred as result of sudden event which took place, which necessitated car being driven into footpath — There is material under Consumer Protection Act, in form of FIR — Police Officer, who has lodged information has specifically stated that car was being driven in very fast manner — Repudiation justified — Impugned order set aside.

[Paras 88, 89, 92, 97, 104, 106, 108]”

      

11. However, it is pertinent to mention here that the OP has taken this additional ground in its defence only, but, the same was never taken by the OP at the time of issuing the repudiation letter (Annexure C-9) as the same is silent about the said ground. 
12. Otherwise also, the ratio of law laid down in the aforesaid judgment is not applicable in the present case as the facts of the present case are quite different from the facts narrated in the aforesaid judgment. Moreover, it has been held by the Hon’ble Apex Court in the concluding part of the aforesaid judgment that such a claim i.e. in case of vehicle being driven by the driver under the influence of liquor must be considered on the basis of the nature of the accident, evidence as to drinking before or during the travel and more specifically the impact on the driver while driving the vehicle as well as the case set up by the parties. 
13. Even in the judgment in the case of Iffco Tokio General Insurance Co. Ltd. Vs. Pearl Beverages Ltd. (supra) the Hon’ble Apex Court has not held that in case of presence of smell of alcohol in the breath of the driver, the insurer shall escape from its liability, rather it has been held in the said judgment that such claim must be on the basis of the nature of the accident as well as the impact of such alcohol on the driver.  In the said case, in fact, the driver was convicted under Section 279 of the Indian Penal Code and he was penalized for rash and negligent driving and it was also held that the driver had not specifically denied that he had not consumed alcohol and the evidence on the part of the driver was lacking on that point and also that the insurer has no case that the accident occurred as a result of sudden event which took place and same necessitated the car being driven into the footpath or that the accident was caused by another vehicle being driven in any manner or any person or animal attempting to cross the road or otherwise deflecting the intention of the driver, as a result of which it was held that drinking of alcohol by the driver had impact on him, which resulted in causing the accident.  Whereas, the facts of the present case are contrary to the facts as discussed in the aforesaid judgment, especially when it has come on record that the accident had not taken place for the reason that the insured was under the influence of liquor while driving the subject car, rather the same had taken place due to the rash and negligent driving of the driver of the another vehicle, the driver of which immediately after hitting the subject car had sped away from the spot, as is also evident from copy of FIR (Annexure C-7), contents of which are unrebutted by the OP.  Hence, the ground taken by the OP is rejected.
14. In view of the foregoing, it is safe to hold that OP was unjustified in repudiating the claim of complainants and the said act amounts to deficiency in service on its part and the present consumer complaint deserves to succeed.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP is directed as under :-

1. to pay aforesaid ₹15,00,000/- to the complainants alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 15.7.2020 onwards.
2. to pay an amount of ₹30,000/- to the complainants as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainants as costs of litigation.

5. This order be complied with by the OP within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above. It is, however, made clear that the aforesaid awarded amounts shall be apportioned amongst the complainants in equal share.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 05/12/2023 hg		[Pawanjit Singh] President
		[Surjeet Kaur] Member