Punjab

Ludhiana

CC/20/218

Tajeshwar Singh - Complainant(s)

Versus

National Insurance Co. - Opp.Party(s)

M.S.Sethi

14 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:218 dated 05.10.2020.                                                         Date of decision: 14.09.2023.

 

Tajeshwar Singh S/o. Sh. Nazar Singh, 16, Lal Bagh, V. & P.O. Threekay,  Ludhiana.                                                                                                                                                                                         ..…Complainant

                                                Versus

1. National Insurance Company Limited, Patiala Division, Leela Bhavan, Market Complex, Patiala through its authorized signatory.
2. National Insurance Company Limited, Divisional Office-V, Maruti Business Hub, Bansal Complex, Dholewal Chowk, Ludhiana-141003 through its authorized signatory.
3. National Insurance Company Limited, 3, Middleton Street, Kolkata, 700071 through its authorized signatory.
4. Zora Singh Deol, Investigator, 194-C, Raj Guru Nagar, Ludhiana-141001.                                                                                                                                                                      …..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. M.S. Sethi, Advocate.

For OPs                          :         Sh. Rajeev Abhi, Advocate.

 

 

 

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant is posted as Assistant Registrar (PCS) at Raikot. He is the owner of Maruti Dezire car bearing No.PB-10-GY-5298 which was insured with opposite parties vide policy No.40140031191844394176 for the period from 12.11.2019 to 11.11.2020 against IDV of Rs.6,83,934/- at a premium of Rs.15,214/-. Name of State Bank of India is reflected being the financer of the vehicle. On 01.05.2020 at 11.15 PM, the vehicle of the complainant met with an accident near Jalandhar at village Fazalpur when he was going from Ludhiana to Kapurthala as one cow suddenly came in front of the car and the car hit the fence (iron grill) and at the joining tree.  At that time, the vehicle was being driven by the complainant himself and he was badly injured and became unconscious. He was taken to Civil Hospital, Kapurthala from where his family members were informed. The complainant was further taken to NHS Hospital, Kapurthala Road, Jalandhar on 02.05.2020 and was discharged from the hospital after his treatment. Intimation of accident was given to Police Division No.2, Commissionerate, Jalandhar. The vehicle was brought to Stan Auto then Gulzar Motors Limited, Ludhiana through Raja recovery van. The complainant lodged police report on 04.05.2020 with Police Station Kartarpur, District Jalandhar. Opposite parties were also informed through Gulzar Motors, Ludhiana who appointed Ms. R.P. Gupta and Company as surveyor. The said surveyor took statement of the complainant  and collected claim form, estimate, copy of RC, copy of insurance, copy of police report, hospital record and discharge certificate etc. The surveyor as per his report dated 27.05.2020 assessed the loss as a total loss against estimate loss of Rs.11,81,854/- because the estimate of repair exceeds the insured value of the vehicle. However, the complainant received repudiation letter dated 02.09.2020 from the opposite parties. On receiving the case file from the opposite parties through RTI application, the complainant acknowledged that despite of recommendation of surveyor to settle the claim being total loss, the opposite parties recommended for deputation of an investigator for the purpose of denying the claim on illegal objections. The opposite parties deputed Zora Singh Deol as investigator. According to the complainant, as per record received through RTI, it shows that as per investigation reports dated 10.07.2020 and 05.08.2020 on the basis of hospital record of NHS Hospital confirmed the accident but taken the objections that as per history given by patient’s wife, patient consumed alcohol at party while dining. However, opposite parties vide their letter dated 02.09.2020 repudiated the claim on the following objection:-

“This office has not heard anything from your side on the subject till date. You shall appreciate that it shall not be possible for us to keep the file open for an indefinite period, as such, the competent authority has repudiated your claim file and the company shall be absolved from all the liabilities, henceforth under the said claim.”

The complainant further stated that the opposite parties repudiated his claim vide letter dated 02.09.2020 on illegal and false grounds and the same is contrary to facts as well as reports of surveyor and investigator to avoid the liability for not paying the genuine claim. Earlier the Investigator submitted his report dated 10.07.2020 but on asking of opposite parties through email dated 14.07.2010, the investigator again submitted his new report on 05.08.2020 wiping out the contents of earlier report dated 10.07.2020. The opposite parties refused to pay the claim mainly on the ground that the complainant was under the influence of intoxicated liquor at the time of accident which is breach of condition of the policy that the company shall not be liable to make any payment in respect of any accidental loss or damage suffered whilst the insured or any person driving with the knowledge and consent of insured is under the influence of intoxicating liquor or drug. The opposite parties vide their letter dated 18.08.2020 asked the complainant that why the claim should not be repudiated under violation of policy terms and conditions i.e. condition No.2 section 1 of the policy terms and condition. The complainant visited office of opposite party No.2 on 28.08.2020 and submitted his written objections to L.M. Bansal, Sr. Divisional Manager. However, the opposite parties as well as investigator relied upon incomplete record of NHS Hospital on the basis of contents of wording dated 06.07.2020 and 20.07.2020 as well as discharge certificate dated 02.05.2020 that the complainant is a chronic alcoholic on the basis of said history reported verbally by wife of the complainant. In this manner, the opposite parties denied the genuine claim of the complainant on illegal/baseless and non-existing grounds and documentary proof which amounts to deficiency in service and unfair trade practice on the part of the opposite parties. In the end, the complainant prayed that the letter dated 02.09.2020 be held illegal, baseless, arbitrary and opposite parties be directed to settle and pay the claim as per IDV value of the vehicle of Rs.6,83,934/-. The opposite parties be further directed to pay compensation of Rs.5,00,000/- and litigation expenses of Rs.35,000/-.

2.                Upon notice, the opposite parties appeared and filed their joint written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint; non-joinder and mis-joinder of necessary parties; concealment of facts by the complainant; lack of jurisdiction; the complainant being estopped by his act and conduct etc. The opposite parties stated that immediately on the receipt of the claim, it was duly registered, entertained and processed. The complainant has obtained the insurance policy in respect of his car No.PB-10-GY-5298 from the respondent bearing policy No 40140031191844394176 valid from 12.11.2019 to 11.11.2020. Insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy. It is one of the condition in the policy i.e. para 2 (c) of section 1 that "the company shall not be liable to make any payment in respect of any accidental loss or damage suffered whilst the insured or any other person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxication, liquor and drugs." A claim was lodged regarding the damage to the car No.PB-10-GY-5298 under the aforesaid policy. M/s R.P. Gupta & Co., an IRDA approved Licensed Insurance Surveyor, Valuer and Chartered Engineer, 241-A, Aggar Nagar, Ludhiana was appointed as surveyor and loss assessor by the opposite party No. 1 and 2. The said surveyor had personally inspected the vehicle, took the photograph and other documents and thereafter prepared his motor survey report (preliminary) dated 27.5.2020 under his signatures and submitted the same with answering opposite party No.2 with observations that the claim be considered on NOS basis without RC i.e. with cancellation of RC at Rs.5,97,934/- and clearly stating that "the preliminary report is submitted to the insurers for their consideration to decide on the mode of settlement of the claim. Decision may be intimated to us for submission of final report.......

The report is issued without prejudice and is an opinion formed on the basis of documents and information made available and our own observations made during proceedings of survey. We reserve our right to rectify and amend any bonafide error or omission which might have crept either inadvertently or ignorantly or by way of any wrong interpretation."

 

The opposite parties further stated that Shri Zora Singh Deol, 194-C, Rajguru Nagar, Ludhiana was appointed as investigator to investigate the own damage claim of car No.PB-10-GY-5298. The said investigator has made thorough investigation, took documents, recorded statements and thereafter prepared his report dated 10.7.2020 under his signatures clearly stating that "as regards the treatment record of NHS Hospital, the doctor clarified as under:-

“As per history given by patient's wife, patient consumed alcohol at party while dining.”

The said investigator has further stated that “the report is issued without prejudice and subject to terms and conditions of the insurance policy.” After the receipt of investigation report of Shri Zora Singh dated 10.07.2020 and after scrutinizing the documents attached with the said report opposite party No.2 vide its email dated 14.07.2020 raised certain queries which is stated to have not been addressed in the report of Shri Zora Singh dated 10.07.2020. Shri Zora Singh again made necessary investigations in respect to the queries raised by opposite party vide its email dated 14.07.2020 and thereafter prepared his addendum report dated 05.08.2020 under his signatures and submitted the same with opposite party No.2 along with enclosures and annexures. The opposite parties further stated that after the receipt of report of M/s. R.P. Gupta & Co. dated 27.05.2020, report of Shri Zora Singh Deol, the investigator dated 10.07.2020 and addendum report of Shri Zora Singh dated 05.08.2020 and after scrutinizing the documents placed in the claim file and after due application of the mind by the officials of the opposite party No.2 the complainant was called upon vide letter dated 18.08.2020 to show cause as to why your claim be not repudiated on account of breach of the policy terms and conditions which clearly states that the company shall not be liable to make any claim in respect of accidental loss or damage suffered whilst by insured or any person driving under the influence of intoxicating liquor or drug as the answering respondents found that the documents placed in the claim file depicts the complainant was under the influence of intoxicating liquor. According to the opposite parties, the complainant failed to send reply and as such, his claim was repudiated as no claim vide letter dated 02.09.2020 on the grounds mentioned in letter dated 18.08.2020 on account of violation of the terms and conditions of the policy.  The claim of the complainant has been rightly repudiated as no claim and the grounds of repudiation are legal, valid, enforceable and are in accordance with terms and conditions of the policy and law of land.

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections and facts of the case. The opposite parties have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.   

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 to Ex. C26  and closed the evidence.

4.                On the other hand, counsel for the opposite parties tendered affidavit Ex. RA of Sh. Lalit Mohan Bansal, Divisional Manager, Ludhiana office of the opposite parties as well as affidavit Ex. RB of Sh. R.P. Gupta of M/s. R.P. Gupta and Company an IRDA licensed and approved Surveyor, Valuer and Chartered Engineer, Aggar Nagar, Ludhiana, affidavit Ex. RC  of Sh. Zora Singh Deol, Investigator, Rajguru Nagar, Ludhiana along with documents Ex. R1 to Ex. R77 and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavits and documents produced on record by the parties. We have also gone through the written arguments submitted by the complainant.

6.                 The complainant, the owner of Maruti Dezire car bearing No.PB-10-GY-5298, subscribed to the policy of the opposite parties for a period from 12.11.2019 to 11.11.2020 having an ID value of Rs.6,83,934/-. On 01.05.2020, at about 11.15 PM in the area of Village Fazalpur, Jalandhar when the complainant was returning from Kapurthala on the said vehicle, it met with an accident and the complainant sustained injuries and the vehicle was badly damaged. The complainant was got admitted in  Civil Hospital, Kapurthala at 12.15 AM on 02.05.2020 where he received first aid. The complainant was referred to higher centre for further management. The admission record Ex. R35 to Ex. R37 describes the general medical condition of the complainant but the doctors on duty did not observe any smell of alcohol at the time of medical examination. The relatives of the complainant shifted him to NHS Hospital where he remained admitted till 02.05.2020. The record pertains to NHS Hospital, Jalandhar is Ex. C19, Ex. C22 to Ex. C24 as well as record Ex. R12 to Ex. R15, Ex. R32 and Ex. R33, Ex. R74. Ex. C18 = Ex.R13, Ex. C19 = Ex.R12 are the certificates of the doctors who certified that as per history given by patient’s wife verbally, patient consumed alcohol at party while dining. It is also mentioned in the certificates that no test was done to confirm the alcohol consumption. Further as per the initial assessment of the doctors  Ex. C19A = Ex. R14, the words “alcohol consumed while dining” written in this very document. Further as per discharge summary Ex. R15/74 in the column of Diagnosis it has been diagnosed  that RTA with head injury 90xA, chronic alcoholic. Further as per column past medical history, the complainant is shown to be chronic alcoholic.

7.                The DDR No.17 dated 04.05.2020 Ex. R73 was recorded as per statement of the complainant whereby he narrated the manner of the accident. The police concluded that the accident has resulted while  the complainant was attempting the save a stray cattle and as such, no cognizable offence is made out. Thereafter, the complainant lodged the claim which was investigated and processed by the opposite parties. M/s. R.P. Gupta & Co., an IRDA approved Licensed Insurance Surveyor was appointed who examined the vehicle and took photographs and submitted Motor Survey Report dated 27.05.2020 Ex. C6=Ex. R55. He opined a case of constructive total loss and assessed the loss to be of Rs.5,97,934/- and he recommended the settlement of the claim.

8.                Upon receipt of the report, one Zora Singh Deol  was appointed as investigator who on 10.07.2020 gave his investigation report, the concluding part of which reads as under:-

“1. The Co. insured the said vehicle for the period 12/11/19 to 11/11/20.

2. The said vehicle met with an accident on 01/05/20 at about 11.15 PM, near vill. Fazalpur, on Kartarpur-Kapurthala Road, Distt. Jalandhar. The car was proceeding from Ludhiana to Kapurthala via Kartarpur. When it reached the spot, a stray cow suddenly appeared in front of the car. It was steered to one side, but it became out of control, turned to the right, went off the road, hit the iron grill and the tree and was overturned. The car was badly damaged in the accident.

3. Sh. Tajeshwar Singh, the insured, was driving the car at the time of the accident.

4. He was alone in the insured car and was injured on his head and also received other injuries.

5. The insured got the DDR registered on 04/05/20. It was verified by me as a genuine one.

6. Except the above, no other person was injured and no other vehicle was damaged.

7. As regards the treatment record of NHS Hospital, the doctor clarified as under:

"As per history given by patient's wife patient consumed alcohol at party while dining"

8. The insured is yet to supply information about his inter-distt. movement.

9.  Regn. no. of the veh. is PB10- GY-5298, but it has been printed on the policy as PB10-GY-5297. The other particulars mentioned in the R/C and the policy are the same.

10. My investigation confirms the accident and the details mentioned above.”

Feeing dissatisfied, the opposite parties sent an email on 14.07.2020 Ex. C12 and asked the investigator Zora Singh to submit the conclusive report. On 05.08.2020, the supplementary report of Zora Singh Deol Ex. R11 was submitted, the operative part of the same reads as under:-

“About concluding investigation remarks:-

The wife of the insured disclosed to NHS Hospital "He was driving car after come back from birthday celebration. Car hit on barrier near Kartharpur (Alcohol consumed while dining)". The circumstances informed by her to the hospital are more authentic and correct. So on the basis of her disclosures to the hospital and the statement of the insured, it is observed that the insured/owner-cum-driver reached his residence at about 9.00 p.m., then attended birthday celebration, consumed alcohol while dining, then proceeded to Kapurthala in the insured car and reached the spot of the accident at about 11.15 p.m., covering about 80 KMs of distance. He completed all the above within a short span of time of about two hours. By keeping in view, he being chronic alcoholic, it is construed that he was on the wheels when he was under the influence of alcohol and hence the car met with an accident under the above circumstances. I hope that all the queries raised by your office are addressed.”

After receipt of the report, a query letter dated 18.08.2020 Ex. R5 was sent to the complainant asking him to explain the observations of investigator. The complainant visited the office of the opposite parties and submitted written objections on 28.08.2020 Ex. R2 = Ex. C10. However, on 02.09.2020, the opposite parties repudiated the claim of the complainant vide letter dated 02.09.2020 Ex. R4 by invoking clause 2 (c) of section I of the policy, which reads as under:-

"The company shall not be liable to make any payment in respect of any accidental loss or damage suffered whilst the insured or any other person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxication, liquor and drugs."

9.                The counsel for the parties made their respective submissions before this Commission in support of their claim. While counsel for the opposite parties emphasized that the case of the complainant is squarely covered with the findings of citation Iffco Tokio General Insurance Co. Ltd., Vs Pearl Beverages Ltd. In III (2021) CPJ 44 (SC), the Hon’ble Supreme Court of India was pleased to observe as under:-

 “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 a 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.”

10.              The Hon’ble Supreme Court categorically observed that even in the absence of scientific tests qua intoxication of driver, an insurance company is not precluded from invoking the exclusion clause. But the insurance claim must be considered on the basis of nature of the accident, evidence as to be drinking before or during the travel, the impact on the driver and the very case set up by the parties.

11.              Now adverting to the merits of the case, the following facts and circumstances emerges out from the pleadings, affidavits and evidence led by both the parties:-

(1)     The complainant has set up his specific case during the process of the settlement of the claim that he has not consumed any liquor before or during travel. He submitted a detailed representation dated 28.08.2020 Ex. C10 = Ex. R2 in reply to the letter dated 18.08.2020 Ex. R5 whereby the opposite party No.1 solicited the response. But despite the receipt of representation, same was not considered and claim was unilaterally repudiated. The complainant has been condemned unheard.

(2)     Perusal of medical records of both hospitals clearly establish that no smell of alcohol was detected or discerned by the doctors. His vitals for found near to normal. Further there is no adverse observation with regard the condition of eye, pupils and speech of complainant at the time of admission in the hospital(s). 

(3)     That the repudiation of claim has been based upon the one liner history “Patient consumed alcohol at party while dining” given by the wife of the complainant to the doctor. The said statement was neither verified nor supported by proper evidence. Neither the doctor was produced as witness nor any affidavit was filed to prove the recording of history. Further no interrogatories were put either to the complainant or wife of the complainant by the surveyor, investigator or any other representative of the opposite parties. Therefore, mere oral statement of the wife of the complainant which was recorded in the history of one of the hospital is not suffice to conclude that the complainant had consumed liquor.

(4)     The findings of investigation Ex. R11 “construing” the complainant as “Chronic Alcoholic” are self contradictory and based upon conjectures and surmises. Further it is not one of the terms and conditions as stipulated in insurance policy which entitles the opposite parties to repudiate the claim on this basis.

 (5)    It is evident from the manner of the accident that the complainant was trying to save the cow which had suddenly appeared on the road and which has resulted in the deflection of attention of the complainant who lost the control of the vehicle and rammed onto iron grills. So the accident had occurred due to the happening of sudden event.

(6)     It is also pertinent to mention that police did not initiate any criminal action against the complainant for rash and negligent driving despite recording of DDR and the investigating agency came to the conclusion that it happened all of sudden when the complainant was attempting to obviate any such accident due to crossing of stay animal.

12.               From the above said facts and circumstances, it is crystal clear that the opposite parties have failed to bring their case within the four corners of exclusion clause. Reference can be made to National Insurance Company Limited vs. Ishar Das Madan Lal 2007 (4) SCC 105 be made in this regard, in which it has been held that: -

“8. However, there may be an express clause excluding the applicability of insurance cover. Wherever such exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview thereof. In a case of ambiguity, it is trite, the contract of insurance shall be construed in favour of the insured. “

16. The Constitution Bench in case of General Assurance Society Ltd. Vs. Chandumull Jain and Another, AIR 1966 SC 1644 had also observed as back as in 1966 that:-

“11.……there is no difference between a contract of insurance and any other contract except that in a contract of insurance there is a requirement of uberrima fides i.e. good faith on the part of the assured and the contract is likely to be construed contra proferentem that is against the company in case of ambiguity or doubt”.”

13.              The Hon’ble Supreme Court of India in National Insurance Company Ltd. Vs Vedic Resorts & Hotels Pvt. Ltd. In 2023(2) Apex Court Judgments 451 (SC) made the following observations:-

“(i)    Consumer Protection Act, 1986, S.23 – Insurance Claim – Surveyors report – Not the last and final one and not so sacrosanct as to incapable of being departed from – However, there has to be some cogent and satisfactory reasons or grounds made out by the insurer for not accepting the report.

(ii)     Consumer Protection Act, 1986, S.23 - Insurance claim- Repudiation – Insurance Company repudiated the claim on the ground that loss caused to respondent was an outcome of malicious act and fell within exclusion clause of policy – However, Insurance Company failed to discharge its burden of bringing case within exclusionary clause of Insurance policy –Surveyor in Final Survey Report had also opined that loss had occurred due to insured peril and claim was admissible – Insurance Company failed to make out any cogent reason for not accepting surveyor’s report – Order of National Commission allowing claim of respondent is proper.”

In the present case also, Sh. R.P. Gupta, Insurance Surveyor, Valuer and Chartered Account vide his report dated 27.05.2020 Ex. R55 has assessed the insurance company’s liability as Rs.5,97,934/-. The complainant has not controverted the facts mentioned in the written statement, so far as the surveyor report Ex. R55 is concerned as the complainant has neither filed any objections to controvert the averments made in the written statement. The opposite parties are also have not challenged the findings of the surveyor report. In the given facts and circumstances, it would be just and appropriate if opposite party No.1 to 3 are directed to settle and reimburse the claim of Rs.5,97,934/- to the complainant as per survey report Ex. R55 within 45 days from the date of receipt of copy of order failing which the complainant shall be held entitled for interest @8% per annum from the date of order till date of actual payment. Opposite party No.1 to 3 are also burdened with composite cost of Rs.10,000/-.

14.              As a sequel of above discussion, the complaint is partly allowed with an order that opposite party No.1 to 3 are directed to settle and reimburse the claim of Rs.5,97,934/- to the complainant as per survey report Ex. R55 within 45 days from the date of receipt of copy of order failing which the complainant shall be held entitled for interest @8% per annum from filing of complaint till date of actual payment. Opposite party No.1 to 3 are further directed to pay composite compensation of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of  copy of order. However, complaint against opposite party No.4 is hereby dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

15.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:14.09.2023.

Gobind Ram.