Karnataka

Bidar

CC/22/2016

Vasant S/o Multani Kattimani - Complainant(s)

Versus

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

P M Deshpande

28 Jan 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                                 C.C.No. 22/2016

 

                                                                                                  Date of filing : 28/04/2016

 

                                                                                             Date of disposal : 28/01/2017

 

 

P R E S E N T:-                    (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                              (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

 

                                   

 

                                               

COMPLAINANT/S:          Vasant, s/o Multani Kattimani,

                                          Age : Major, Occ: Private work,

                                             R/o H.No.7-3-57,Bheemnagar,

                                             Bidar-585401.

 

              

 

 

                                         (By Shri. P.M. Deshpande, Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-               The Branch Manager,

                                         National Insurance Co.Ltd.,

                                         2^nd Floor, Veerbhadresvara Chambers,

                                            Opp.Nehru Stadium,Bidar-585401.

                                     

  

 

 

                                        (By Shri. Prakash V.M.,Advocate)   

 

 

                                                

::   J U D G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

                    This is a complaint file by the above said complainant U/s.12 of the C.P.Act., 1986, against the O.P alleging  deficiency in service  on the part of O.P.   The gist of the case is as under:

 

2.            Complainant is registered owner of Maruti Swift Car, Regd.no. KA-38/M-1522.  The said Car insured with the O.P. Insurance Company vide policy no. 610403311461000005992 for a period of 04/12/2014 to 03/12/2015.    The complainant avers that on 29/08/2015 the said car met with accident, damages were caused  to the Car of the complainant and the incident was registered with the concerned Police Staion, and  FIR was registered.

 

3.                 Further complainant avers that the damaged car had undergone  repair by the mechanic whereupon  repairs charges to the extent of  Rs. 75,960/- was paid   and other miscellaneous charges for Rs. 15,000/- was spent by the complainant to  repair his Car.  Thereafter the   complainant had submitted claim form with documents but, the O.P. had repudiated the claim of the complainant on vague ground that the driver of the vehicle was found with smell of alcohol as contended in the FIR.  The repudiation made by the O.P. is challenged herewith,  as there is no single evidence that the said driver Ashok was medically examined to show that, he was found with intoxication on the date of incident, except the person lodging the complaint.  No medical  examination had ever taken place.    The insurance policy was in force on the day of incidence and the driver of vehicle was holding a valid driving licence.  There was no violation of Motor Vehicle rules by the driver of the vehicle on the day of accident, so the repudiation made by the O.P is  fit to be quashed, and the claim filed by this Complainant is true genuine and fit for consideration and the complaint filed by the complainant be allowed by directing the O.P. to pay a sum of Rs.90,960/- to the complainant. 

 

4.                  The O.P. Insurance Company on receipt of notice from the Court had put up appearance through counsel of it’s choice and had filed written version in which  it was claimed the complaint filed by the complainant is not maintainable either in law or on the facts of the case.  The averments made in para no.1 does not need any reply and the averments made in para no.3 and 6 except accepting policy copy, denies the remaining contents as false and baseless without any proper records, hence the complainant be put to strict proof of the same.  Further O.P  has avered that the averments made in para no.2,4 and 5 are that, the driver of complainant was drunk and had driven the vehicle of the complainant and concerned Police have registered the same has invoked  section 185 of M.V.Act. and the complainant’s vehicle though damaged at the time of accident, the complainant has taken false contentions in these paras.  The vehicle of the complainant  was more than 7 years old and the said vehicle was registered in the year 2008 and the complaiinant’s vehicle was not in good condition and his vehicle’s value is less than it’s repairable value. So, he had colluded with concerned persons and created false records and filed the complaint against this O.P. Company only with an ulterior motive to make a wrongful gain of compensation.  As per complaint and state investigation records  it is clearly disclosed that, the driver of complainant vehicle was driving under intoxication and concerned Police has registered Criminal case U/s 185 of M.V. Act, interalia.  The driver of the complainant has violated the policy conditions.

 

5.                 O.P. Further avered that, the complainant has colluded with “Raheem Car Body Denting Works”and has created false estimates bills  submitted before this Court.  The said estimat bills have not disclosed the K.S.T. and C.S.T. numbers and has not disclosed the complainant has paid the bill amount.  The said bills are false and baseless and created by the complainant, only to claim the exorbitant compensation from the O.P.  The O.P. has issued the proper endorsement to complainant on 08/03/2016, and rightly rejected the claim with proper reasons and the O.P. Company is not liable to pay any compensation on the basis of breach of policy conditions by driver of the Complainant  Hence, there is no question arose of deficiency in service on the part of the O.P.  Hence, the complaint may be dismissed.

 

 

6.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

1. Does the complainant prove that, there has been a deficiency of service in the part of the Opponents?

 

2. Does the O.P. prove that, there was a violation of policy conditions?

 

3. What order ?

 

 

 

7.           Our answers to the points stated above are as follows:-

 

               1.  In the affirmative.

               2.  In the negative.

               3. As per the final order, for the following:

 

 

                                                                                                       :: REASONS ::

 

  8.             The point no.1 and 2 being interwebbed are to be answered together.  The  fact of the accident is not denied by the O.P.  So also the damages sustained by the insured vehicle, the I.D.V. of which was Rs. 2,25,000/- accepted by the insurance Company at the time of issuing the policy at Ex.P.11.  Recoursing to such acceptance the O.P. at a later stage cannot urge a point challenging the value of the vehicle.  Coming to the justification of repudiations in Ex.P.9 and Ex.P.12 that, the driver Ashok was driving the car under intoxication and hence section 1 of stipulation in policy was violated.  We failed to find any such stipulation in the policy issued as Ex.P.11.  Of course, the complainant b efore the police vide Ex.P.8 has narrated about smell of alcohol emanating from the breath of the car driver Ashok for which, section 185 of the M.V. Act was invoked while registering the F.I.R., no test result of blood alcohol concentration ( B.A.C.) is forth coming in the versions or evidence of the O.P.  The Hon’ble National Commission while deciding the case in R.P.no.3983 & 3984 of 2013 ( M. Raja Ganga v/s L.I.C. and M. Sujatha v/s LIC) decided on 2^nd January, 2013, has come to a conclusion that, a finding of alcohol to the extent of 30 mg per 100 ml. Of blood in a human being or more would be appropriate to fix the matter of intoxication.  The ratio was further discussed by the Hon’ble National Commission in another case reported in (2015) N.C.J, 710 (N.C.)- M Sujatha v/s Bajaj Allianz General Insurance Co. LTd. in paras 9 to 12 of the Judgment as extracted below:

a)  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) and exceeded the legally stipulated limit.  The mere smell of alcohol or presence of ethyl alcohol in the tissue samples cannot lead to an inference that a person is incapable of taking care of himself.

 

         b)  We are unable to get convinced, that the deceased person was in intoxicated state of alcohol.  Earlier we have disposed of two revision petitions RP3983/2013 and 3984/2013 filed by the same petitioner.  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. Vs. Sheela and others,  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. Vs. Smt. Achala Rudraniwas Marde, also dovetails with our view.  The another judgment of this Commission in the case National Insurance Co.Ltd. Vs. Soma Devi and others, 2012 (2) CPR 467 (NC), observed that, ‘Mere consuming of alcohol is not a ground to repudiate insurance claim.’Both the post-mortem report and the investigator’s report merely state that the deceased had consumed alcohol without giving any details about the actual amount of alcohol if consumed.  Even if the post-mortem report stating 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.

 

            c) 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 appears to be unscientific one.

 

            d) On the basis of foregoing discussion, we set aside the order passed by the state commission and allow this revision petition.  The OP is directed to comply with order, rendered by the District Forum within 90 days ‘from the date of receipt of a copy of this order; otherwise, it will carry further interest@12% per annum, till its realization.  There will be no order as to costs. 

 

9.             In the instant case, the O.P. even though has taken a stand of intoxication in the part of the driver Ashok, has failed to produce any document substantiating intoxicating impairment.  The claim of repudiation on the ground of intoxication has remained unproved, baseless and on hearsay evidence.  The case laws quoted by opponent are of no help to him.  Hence we reject the repudiation in toto and answer point no.1 and 2 accordingly.

 

 

10.        Coming to assess the actionable claim of the complainant, we find the estimate and bills of repair at Ex.P.7 is belief inspiring non withstanding the objections of the O.P. regarding K.S.T. and C.S.T. nos. Of the workshop.  That matter has to be dealt by the indirect taxation authorities, should the O.P. invoke their jurisdiction if so advised.  The bill for repair as per Ex.P.7 stands at Rs.75,960/- and no further bills to have incurred an extra expenditure of Rs.15,000/- are forthcoming.  Significantly, the O.P. has not deputed any surveyor to assess the damages.  Hence, we are inclined to place reliance only on Ex.P.7, sans the extra claim of Rs.15,000/- and proceed to pass the following:

 

:: ORDER ::

 

   

1.  The complaint is allowed in part.
2.  The O.P. is directed to pay a sum of Rs.75,960/- together with an interest @ 12% p.a. calculated from the date of repudiation i.e. 08-02-2016 till the date of realisation.
3. The O.P. is further directed to pay a  compensation of Rs. 5000/- towards sufferings of deprival of just claim and mental agonies, coupled with an amount of Rs. 2,500/- towards litigation expenses.
4.  Four weeks time granted to comply this order.

 

 

 

 

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 28^th day of  January-2017 )

 

 

 

              Sd/-                                                                                   Sd/-

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                   President.

                                                                                     

 

 

Documents produced by the complainant

1. Ex.P.1to P.5- Photos of the damaged vehicle. 
2. Ex.P.6- Photocopy of D.L of the driver Ashok.
3. Ex.P.7- Quatation of Raheem Car body denting works- (3 sheets )
4. Ex.P.8- Complaint and F.I.R. in Cr.no. 0191/2015,dt 29-08-2015 of Bidar Traffic Police.
5. Ex.P.9- Notice of repudiation of O.P. dt. 08-02-2016.
6. Ex.P.10 Photocopy of R.C. book of the damaged vehicle.
7. Ex.P.11- Insurance certificate issued by the O.P.
8. Ex.P.12- Another repudiation letter of O.P., dt.08/03/2016.

 

 Document produced by the Opponent/s

 

Nil  

 

 

 

 

 

              Sd/-                                                                                   Sd/-

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                   

       Member.                                                                   President.

 

 

mv.