0BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

PANAJI-GOA

In the matter of First Appeal 79 of 2018 in Consumer Complaint 47 of 2017.

Before:  Adv. Mrs. Varsha R. Bale, Officiating President

             Adv. Ms. Rachna Anna Maria Gonsalves, Member

National Insurance Company Ltd.,

a Government of India undertaking,

having office at Landscape Excelsior’s,

Ground Floor, Shop no. 8,

Opp. Kala Academy,

Campal, Panaji, Goa-403001,

Through its Divisional Manager,

Mrs. Hilda Castelino.                                       …..Appellant

               V.

Neelam P. Shet,

w/o Mr. Pratapshet,

major of age, residing at H. No. 384,

Near Santoshi Mata Temple,

New Vaddem,

Adv. Shri. A.Kakodkar present for Appellant.

Adv. Shri. G. Panandikar present for Respondent.

Date:   10/07/2023

JUDGMENT

[per Adv. Ms. Rachna Anna Maria Gonsalves, Member]

1. This appeal arises out of Judgement and order passed by the District Commission, South, dated 13/03/2018 in CC No 47/2017. The Appellant herein were the Opposite Party and the Respondents herein were the Original Complainant before the District Commission, South.
2. The brief facts are here in as under:

1. The Complainant purchased one vehicle Hyundai Verna car bearing No: GA-06-D-9086 which was insured with Opponent party met with an accident on 30/07/2013, while proceeding from Margao to Vasco-Da-Gama. The Complainant had intimated the Opposite Party about the said accident on 8/8/2013 and by way of letter dated 26/09/2013, the Opposite Party had instructed the Complainant to comply with certain matter in order for the claim of insurance to be considered which was filed by her. The surveyor engaged by the Opposite Party, assessed the loss on salvage basis to the tune of Rs.6,29,552/-
2. By way of letter dated 23/12/2013 the Complainant/ Respondent complied with the requirement of the Appellant/Opposite Party in terms of their letter dated 26/9/2013 but to the shock of the Complainant/ Respondent, the Opposite Party/ Appellant vide their letter dated 8/7/2014  repudiated claim of the Respondent/Complainant on the ground of violation of policy terms and conditions and exceptions under section 1(2)c to which the Respondent/Complainant had clarified vide letter dated 12/07/2014 on the ground of alleged violation.
3. In furtherance to the aforesaid, a charge sheet was filed against Nephew of the Respondent/Complaint, Mr Aniket Shet, in the said Complaint. Shri Aniket Shet was acquitted by Judicial Magistrate                First Class at Vasco-Da-Gama by their judgment if order passed on 21/04/2015 as the Magistrate held that the prosecution was not able to prove that the accused Mr. Aniket Shet was rash and negligent in driving under the influence of alcohol at the tune of accident.

3. The Respondent/Complainant was further apprised that the car was in a road worthy condition as the same was totally damaged and the Respondent/ Complainant had to bear heavy losses, thus undergoing severe mental  distress as the Respondent/Complainant and her family were unable to use the said car for their personal use moreover paying the regular EMIs towards repayment of loans obtained for purchasing the said; it was further alleged by Respondent/Complainant that the Appellant/Opposite Party was in conducting the enquiry into the said accident  and due to this          the Complainant/Appellant had suffered a loss of about Rs.3,82,570.89  with interest toward the EMIs of the said car from the date of accident till 30/4/2016 and in furtherance the Complainant/ Appellant were also deprived, harassed and mentally tortured on account of the acts of the Appellant/ Opposite Party which according to Respondent/ Complainant the Appellant/Opposite Party was therefore liable to pay an amount of Rs.5,00,000/- toward damages and compensation and the Respondent/Complainant was also requested to pay toward rental to Hyundai showroom Verna for safe keeping the said damaged car.         
4. By way of legal notice addressed on dated 25/07/2016 through the dated the Complainant/ Respondent requested the Respondent/Opposite Party to finalise her claims towards accidental loss of the said vehicle to which the Appellant/Opposite Party through their lawyer refused to settle the claim.
5. The Respondent/Complainant submitted that she is entitled to recover the loss of Rs.16,54,122.89 from Appellant/Opposite Party and this include issued value of Rs.7,71,552/-, EMI with interest.
6. And the Complainant/Respondent is entitle to claim damages and compensation of Rs.5,00,000/- from the Opposite Party for deprivation harassment and mental agony brought on by deficiency in service that she has to undergo and also has to pay Hyundai Showroom, Verna towards the rental for safe keeping the damage car. Furthermore the Complainant stated that the Complainant has been on the receiving end due to the grossly negligent and deficient services of the Opposite Party which has caused injury (in monitory terms) and harassment and mental agony to the Complainant.
7. The Complainant further prayed that the Opposite Party to be;

1. Directed to pay the Complainant an amount of Rs.7,71,552/- (Rupees Seven Lakhs Seventy One Thousand Five Hundred Fifty Two Only) which is the cost of the vehicle as per the insured value of policy as the said vehicle is damaged beyond repairs.

2. Directed to pay the Complainant an amount of Rs.3,82,570.89/- (Rupees Three Lakhs Eighty Two Thousand Five Hundred Seventy and Eighty Nine Paisa Only) for losses suffered by the Complainant on account of EMIs along with the interest being paid from the date of accident till 30/04/2016 along with the future losses (EMIs) as the Complainant also has to pay to Hyundai Showroom Goa towards rentals for safe keeping the damage car.

3. Directed to pay Complainant an amount of Rs.5,00,000/- for mental agony and tension in addition to the losses suffered by her on account of irresponsible and unprofessional conduct of the Opposite Party.

4. Directed to pay the Complainant an amount of Rs.15,000/- towards the cost of legal expenses.

8.  The case of the Opposite Party is that the Hyundai Verna Car was insured with Opposite Party under insurance policy for a period of 12/02/2013, 15.55.00 to midnight of 11/02/2014 governed by its terms of conditions.
9. Further as stated by Opposite Party the alleged accident occurred on 30/07/2013 and Opposite Party was informed on 22/08/2013 i.e. 22 days from the date of occurrence of the said accident and not on 08/08/2013 and that the assessment of the surveyor of the loss on next salvage bases was Rs.6,29,552/- however the said report is subject to terms and condition of policy of insurance. It is pertinent to note that the Hon’ble JMFC Vasco on 21/04/2015 acquitted the driver of the vehicle on the ground that prosecution Witness has not identified accused i.e. Mr. Aniket Shet and also the percentage of liquor found was not sufficient to prosecute under IPC but the acquittal in the present Complaint will not affect the repudiation of the claim as the Complainant had admitted that Mr. Aniket Shet was the driver at the time of the accident and the case being of own damage claim and as per the terms and conditions of the policy the presence of liquor is sufficient to repudiate the own damage claim.
10. In furtherance to the aforesaid that the driver of Hyundai Verna went on the wrong side of the road and dashed against the motorcycle thereby causing grievous injuries to Shri. Allabaksha Shank, who had also filed claim petition No. 161/2014 before Motor Accidents Claim Tribunal at Margao Goa and the same was used at evidence stage. It is pertinent to note that the doctor had also certified that driver of the Hyundai Verna was under the influence of liquor at the time of the accident cut to that effect was issued by Hospicio Hospital, Margao on 30/07/2013.
11. In view of the clause 2(c) of the terms and conditions of private car package Policy issued in favor of the Complainant reads as under:

1. “the Company shall not be liable to make any payment in respect of:

© any accidental death, loss or damage suffered whilst the Insured or any person driving the vehicle with knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.” And hence the Opposite Party stated that in view of the above the Opposite Party is not liable to make any payment in respect of damage to the vehicle.

12. The issue that arose for determination and findings on them are as under:

13. It was noted that the Advocate for Opposite Party submitted under condition (1) of the policy, that there was a delay of about 22 days in intimating the Opposite Party about the accident and this according to Opposite Party was fatal to the claims made by the Complainant. The order also pointed out that the Hon’ble State Commission had already held that the delaying intimation is not fatal to the complaint the order addressed.

Issue II that highlighted.

1. The date of occurrence of accident 30/07/2013.
2. Mr. Aniket Shet was driving the vehicle at the time of the accident.
3. That he was medically examined.
4. He was charge sheeted for:
   1. Driving in rash and negligent manner.
   2. Driving under influence of alcohol.
5. Mr. Aniket Shet was acquitted by the Magistrate for both the offense.
6. The Complainant had lodged a claim for repair of the vehicle.
7. The claim was repudiated only for violation of policy terms, conditions and expectations u/s 1(2)(c).

14. The contention of the Adv. for Complainant was that the driver Shri. Aniket had already been acquitted of both the charges of rash and negligent driving and driving under the influence of alcohol and was held that the driver was not under the influence of alcohol and hence the repudiation of his claim was malafide.
15. Advocate for Opposite Party submitted that there was a report from the doctor for on Hospicio Hospital, Margao that the alcohol was present in the blood sample of said Mr. Aniket and therefore violation of condition of the policy as per the report and therefore Opposite Party had rightly repudiated the claim of the Complainant.

Section 1(2)c of the policy which refers to the terms, conditions and exceptions of the policy reads as under:

“Sec.1(2). The Company shall not be liable to make any payment in respect of:

(c) 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 drugs.” (emphasis supplied) 

16. The Order pointed out that the Opposite Party could have invoked this condition of the policy only if Mr. Aniket was found to be ‘under influence of liquor’ at the time he was driving the vehicle. Burden lay on the Opposite Party to prove that at the time of accident he was under the “influence of alcohol.” 
17. Adv. for Opposite Party relied on certificate issued by Hospicio Hospital after examining of blood sample of Mr. Aniket’s report issued by Ms. Seena Palav reads as under:

“10 mg percent of alcohol is present in given sample of blood”.

18. The order further pointed that the Opposite Party had not examined any witness to establish the fact. Whether presence of 10 mg percent of alcohol in blood sample can be said to put a person under its influence and a mere presence of alcohol in the blood need not necessarily mean the person is “under the influence of alcohol” and reliance placed on the decision of Hon’ble Supreme Court in the case of Bachubhai Hassanalli Karyani v/s State of Maharashtra (1971) 3 SCC 930 where it was found as under:

“The Doctor had also admitted that a person could smell of alcohol without being under the influence of drinking”.

Section 185 of Motor Vehicle Act 1988 reads as under:

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

1. has, in his blood, alcohol exceeding 30 mg. per 100ml of blood detected in a test by a breath analyser. Or

2. is, under this 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”.

19. The Order further pointed out that the Opposite Party had not examined any doctor to prove that Mr. Aniket was driving under influence of alcohol. The Order threw light on Section 1(2)c of the terms, exception and conditions of the policy, the phrase used is “under the influence of intoxicated liquor” and that Opposite Party could have invoked said conditions to repudiate the claim ONLY IF there was evidence to prove that Mr. Aniket was driving under the influence of alcohol to which Adv. for Complainant stated that rejection of the claim of the Complainant was bad in law since no material before the Opposite Party or even before the District Commission to establish that Mr. Aniket was driving under the influence of alcohol. Also that the Opposite Party whilst repudiating the claim observed in the latter dated 10/10/14 that there was violation Section 1(2)c of the policy in light of the charge sheet against Mr. Aniket Shet and that the inference will be that the charge sheet was without substance and hence repudiation of the claim of the Complainant was invalid.
20. The Order highlighted Issue III wherein the Opposite Party engaged Mr. M.N. Khandeparkar licensed surveyor to determine the cost, nature, and extent of loss/damage caused to the vehicle and report dated 28/08/2013 is produced by Shri P.S. Anvekar, Divisional Manager of Opposite Party. The vehicle according to the loss assessor of Opposite Party was beyond repairs and found that the net repair liability would be to the tune of Rs.9,29,006/- which exceed 75% of IDV which was Rs.7,71,552/- and further calculated 75% of IDV as Rs.5,78,664/- which had been recommended that loss to be treated as total loss.
21. Also the report placed on evidence showed that the vehicle is beyond repairs and that the Opposite Party was liable to pay an amount of IDV i.e. Rs.7,71,552/- to the Complainant/Respondent. On the issue of compensation the amount of Rs.3,82,570.89 was prayed for and pleaded further that she will suffer loses as she would be required to pay remaining EMI towards repayment of loan that was obtained by her.
22. It was further noted that the Complainant/ Respondent could have paid the entire loan amount if a claim was allowed immediately after logging the same instead of rejecting it on 08/07/2014 and the balance due as on that date 10/10/2014 was Rs.5,00,612.66 the Complainant further prayed an amount of Rs.5,00,000/- towards damages and compensation on the grounds of being deprived harassed and also the mental agony due the acts of the Opposite Party/Appellant.
23. The Order passed by the District Commission held that the Appellant/Opposite Party was liable to pay the Complainant Rs.7,81,552/- and interest @ 10.45% per annum on Rs.5,00,612.66 from 10/10/2014 till the date of actual payment of said sum of Rs.7,71,552/- and further directed the Opposite Party/Complainant to pay the said amount within one month from the date of receipt of this Order failing which it shall carry an interest @7% per annum.
24. On hearing the Arguments advanced by the Ld. Counsels of both parties we observed that:

1. The Complainant had not filed Affidavit of the Driver.
2. That in the FIR that the driver was drunk. Also the scooter driver was permanently disabled.
3. The Advocate for the Appellant placed reliance on IFFCO TOKIO General Insurance Vs. Pearl Beverages Ltd. (2021) 7 Supreme Court Cases 704 where the Supreme Court observed in para 51.5 “Cases can arise where there is a clause of the nature we are dealing with viz. excluding the liability of the insurer, when the driver is under the influence of alcohol, in vastly different circumstances. A 21-year-old, who is otherwise licensed to drive a vehicle, may experiment with drinking in the company of his friends. He may consume a small quantity of liquor. This may not satisfy the requirement of alcohol present in the blood (30 mg/100 ml=0.03%). However, it is unquestionable that the impact of the drink on the person, may be demonstrated to be that he is unable to drive in the manner in which he would have driven, had he not taken that small drink. In such a case, to insist that he cannot be under the influence of alcohol, unless, he has in his blood, the requisite percentage of alcohol under Section 185 of the MV Act, would be to make a new bargain for the parties and also to rewrite the contract. To be under the influence of alcohol, in other words, must be understood as, a question going to the facts and a matter to be decided with reference to the impact of consumption of alcohol on the particular driver. Yet another example will throw light on a seemingly vexed issue. A person, who drinks on an empty stomach, would necessarily have a faster rate of the alcohol making its presence in the blood, and consequently, in the brain. A person, on the other hand, who has had food along with the alcohol, may manifest the effect of alcohol later”. The Judgement further held that if the prosecution has not filed a case under section 185 that would not mean that a competent Forum in action alleging deficiency of service under the Consumer Protection Act is disabled from finding that the vehicle was being driven by the person under the influence of Alcohol. The presence of Alcohol in excess of 30 MG per 100 Ml of blood is not an indispensable requirement to enable an Insurer to successfully invoke the clause. What is required to be proved is driving by a person under the influence of Alcohol. Drunk and driving, a criminal offence, under section 185 along with it objective criteria of the Alcohol/blood level, is not the only way to prove that the person was under the influence of Alcohol. If the breath analyser or any other test is not performed for any other reason the insurer cannot be barred from proving his case otherwise. In paragraph 107 of the Judgement which addressed the issue of no scientific material, in the form of test results available, as in the case before us, it may not disable the insurer from establishing a case for exclusion. The totality of the circumstances obtaining in a case, must be considered. The scope of the enquiry, in a case under the Consumer Protection Act, which is a summary proceeding, cannot be lost sight of. A Consumer under the Act can succeed only on the basis of proved deficiency of service. The deficiency of service would arise only with reference to the terms of the contract and, no doubt, the law which surrounds it. If the deficiency is not established, having regard to the explicit terms of the contract, the Consumer must fail.
4. We find that the Ld. District Commission, South wrongly placed the burden of proff on the Appellant assuming without admitting that the phrase under the influence of intoxicating liquor requires a high degree of alcohol in the blood system such that the gait should be unsteady, the speech incoherent and the pupils dilated, it was for the Complainant to adduce cogent evidence to show that such was not the case. The record clearly shows that the driver of the vehicle had consumed liquor and had presence of alcohol in his blood. In such circumstances the Ld. Commission ought to have held that there was breach of policy condition Section I (2) C which clearly and in no unequivocal terms provides 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 the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.” The finding by the Ld. Commission that mere certain percentage of alcohol in blood would not mean that Mr. Aniket was driving under influence of alcohol is perverse, arbitrary, contrary to law and the contract between the parties.
5. Another observation made, was on the issue of failure to bring on record any evidence whatsoever to show that Mr. Aniket Shet was driving under the influence of alcohol at the time of the accident in order to substantiate the repudiation of the claim of the Respondent. It is the only evidence which is being relied upon.
6. We opine that for the aforesaid reasons and observations mentioned that this Appeal ought to be partly allowed because the Consumer Protection Act protect and safeguard Consumer and hence ought not to condone their conduct which is not in tandem with the very interest that this beneficial legislation safeguards.   

ORDER

1. The Appeal is partly allowed.
2. The Appellant is liable to pay 50% of Rs.7,81,552/- to the Respondent.
3. Within 30 days from the date of receipt of this said Judgement and Order.
4. Proceedings in the matter stand closed.
5. Ready on 01/08/2023.

[Adv. Mrs. Varsha R. Bale]

President (off.)

[Adv. Ms. Rachna Anna Maria Gonsalves]

 Member

VS