ORDER
(Passed this on-2nd January, 2017)
Shri Shekhar P. Muley, President.
01. This complaint u/s 12 of the Consumer Protection Act alleges deficiency in service against an Insurance company.
02. The complaint is filed by one Himmatsingh J. Ghotra as legal heir of deceased Jeetsingh Ghotra, who is shown as a complainant. The deceased owned a vehicle bearing no. CG-04-JB-0481 and it was insured with the OP for the period 11/6/2012 to 10/6/2013 for IDV Rs. 6,80,000/-. The policy was issued without terms and conditions. The complainant died on 25/5/2013. His driver had taken the vehicle to Champa (Raigarh) with goods. While returning back, the vehicle met with an accident on 30/5/2012.(it should be 2013) The incident was immediately reported to police and FIR came to be lodged. The incident was also reported immediately to the O.P., who conducted survey. Thereafter with permission of the surveyor and police the vehicle was towed to Nagpur for final assessment and repairs. Rs.7500/- was spent for towing the vehicle. At the garage estimate of Rs.4,06,470/- was given, which was submitted along with documents and claim form
to the O.P. The surveyor then inspected the vehicle before and after dismantling it and made assessment of loss to the tune of Rs. 1,50,000/-. The O.P. repudiated the claim on the ground that at the time of accident the driver was under the influence of alcohol. Hence this complaint to claim Rs.1,50,000/- with 14% interest and compensation and cost.
03. The O.P. in its reply admitted the vehicle was owned by the deceased complainant and it was insured with it. It is denied that along with policy no terms and conditions were supplied to him. Accident of the vehicle is also not denied, but it is stated that that time the driver was under intoxication. After submitting claim form, surveyor was appointed. It was then found that Legal Representatives of the deceased complainant were not brought on record on the policy. The claim form was signed by the deceased complainant when he was already dead. Hence, the claim was repudiated. It is thus submitted to dismiss the complaint.
04. Heard Ld. Counsels for both the sides. Perused documents and rejoinder. Upon consideration of the same we record our findings and reasons as under.
FINDINGS AND REASONS
05. The repudiation letter reveals that the claim was repudiated on one ground. It is stated damage to the vehicle was caused when the driver was driving the vehicle under the influence of alcohol with knowledge or consent of the insured. The repudiation on this ground is challenged contending that there was absolutely no evidence to substantiate the ground. We have perused the documents filed by the O.P. It appears the O.P. relied on police papers, like police statement, FIR, and medical report wherein it is mentioned the driver had consumed alcohol and was driving the vehicle when the accident occurred. The driver was sent for medical examination and as per the report the doctor opined he had consumed alcohol and was under the influence of alcohol. On examination of the driver his pulse was 78/min, and BP was 110/70. Those were normal findings form which it can hardly be said he was under the influence of alcohol.
06. Consumption of alcohol is deferent thing from being found under influence of alcohol. Whether a person is under influence of alcohol or not cannot be detected by mere clinical examination. It requires blood test and if percentage of alcohol in blood is more than prescribed limit then only it can be said that the person is under influence of alcohol. No blood test of the driver appears to have been taken as there is no report. The MLC report does not even indicate that blood sample was taken for chemical analysis. Unless there is positive evidence of actual amount of alcohol in blood, no conclusion can be drawn that the person was under the influence of alcohol. It has been held in various orders by Hon’ble National Commission. Police statement or FIR being not substantive piece of evidence, cannot be relied upon unless the person giving such FIR or statement is examined.
07. There is another aspect. As per the condition of the policy any loss or damage to the insured vehicle while the insured or any person driving with knowledge and consent of the insured is not covered under the policy. The O.P. has alleged that the driver had consumed alcohol with consent or knowledge of the complainant. We find it difficult to accept it. Because the complainant was not with the driver when accident occurred. How could he know the driver had consumed alcohol who was far away from Nagpur. The O.P. could not prove that the complainant was having knowledge or had given consent to the driver to consume alcohol. Therefore we have come to the conclusion that the repudiation of the claim on the ground of the ground that the driver was under influence of alcohol is not justified.
08. The counsel for the O.P. further pointed out that the insured owner of the vehicle was dead when the claim form was submitted. This is a fact as it is evident from the claim form which was also signed by the deceased complainant. So it clearly appears that the claim was made by a dead person. Admittedly at that time the insurance policy of the vehicle was not transferred to his son Himmat Singh, who is now claiming the insurance amount. If this being the case, the insurance claim could not have been allowed. However, the counsel for the complainant has different contention in this regard.
09. Dates of some events need to be considered. The insured owner died on 25/5/2013, accident occurred on 30/5/2013, claim form was submitted on 5/6/2013 and the policy expired on 9/7/2013. The counsel for the complainant referring to Condition No.10 of the Motor Tariff Regulations, submitted the policy was valid for 3 months after death of the insured and was transferred to his son Himmat Singh. Condition No.10 provides that in the event of death of sole insured, the policy will not immediately lapsed but will remain valid for 3 months from the death of the insured or until the expiry of the policy, whichever is earlier. We put emphasis on underlined words. During the said period, LR of the insured may apply to have the policy transferred to the name of the LR or obtain a new policy. Thus as per this condition, since the insured died on 25/5/2013 i.e. before expiry of the policy, it was valid for 3 months from date of death or until expiry of the policy on 9/7/2013, whichever is earlier. That means the policy was valid till 25/8/2013, being the earlier date, and not until 9/7/2013. So, the son of the deceased was required to apply for transfer of the policy in his name on or before 25/8/2013. We do not agree with submission of the counsel for the complainant that his son had time to get the policy transferred to his name till 9/7/2013 or 3 months thereafter. The complainant has not explained when Himmat Singh applied for transfer of policy in his name. Admittedly, till submission of the claim there was no application for transfer of policy. The policy was transferred to Himmat Singh with effect from 22/7/2013. Therefore on this count we do not think the complainant has a right to make a claim as there was no insurable interest in his favour when the claim form was submitted.
10. The counsel for the complainant then contended that the claim was not repudiated on this ground, and therefore now the claim cannot be refused on this new ground. He relied on three judgments in support of his contention. In Abhilash Jewellery v/s The New India Assurance Co. Ltd. decided on 15/3/2002, the claim was repudiated on the ground that the loss to the gold occasioned when it was in custody of an apprentice and he being not an employee, it was not covered under the policy. The forum dismissed the complaint holding that the apprentice could not be covered under definition of an employee and moreover, clause X of the policy was violated which required that insured shall use due diligence and shall do everything reasonably possible to avoid any loss under the policy. The State Commission while allowing the appeal, concurred with the view of the forum that clause X of the policy was violated. The NC holding the approach of the forum and St. Commission as incorrect, stated that the forum should not have allowed the insurance company to take up the plea of violation of clause X which was not a ground for repudiation. Same view was taken by SC in M/s Galada Power and Telecommunication Ltd. v/s United India Insurance Co. Ltd. (SC) decided on 25/9/2016. In yet another judgment NC, National Insurance Co. Ltd. v/s Shri Mohan Singh & othrs Rev. Pet. no. 2362/2012 (NC) decided on 1/2/2013 the facts were somewhat different. In that case the vehicle was owned by a Trust and was insured from 2/12/2004 to 3/12/2005. It was purchased by one person on 21/1/2005 . On 5/2/2005 the vehicle met with an accident and the purchaser died on 6/2/2005. His Legal Representatives made claim on 22/2/2005, which was repudiated on the ground of absence of privity of contract between the purchaser of vehicle or his Legal Representatives. The National Commission held that the deceased had 30 days to get registration of the vehicle transferred and thereafter he was supposed to get insurance policy within 14 days. Since the deceased died before the expiry of 30 days, the period of transferring the insurance had not started. It is thus held, in such cases where the petitioner dies, Legal Representatives can lodge the claim.
11. Considering the above referred judgments, we do rest our order on this ground which was not the cause for repudiation of the claim. Since the
repudiation of the claim on the ground taken by the OP is not found justifiable, the complaint deserves to be allowed. Hence, the order.
ORDER
- The complaint is partly allowed.
- The OP shall pay a sum of Rs.1,50,000/- ( In words Rs.One Lac Fifty Thousand only) to the complainant with 9% interest from the date of the claim for loss of the vehicle.
- The OP shall further pay compensation of Rs. 10,000/- (In words Rs.Ten Thousand only) for mental and physical agony and litigation cost Rs. 3000/- (Rs.Three Thousand only) to the complainant.
- The order shall be complied within 30 days from date of order.
- Copy of order shall be given to both the parties, free of cost.
