DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/67/2017
No. DF/ Central/
Sh. Dhruv Sharma
S/o Sh. Sanjay Sharma
R/o BQ-75, Shalimar Bagh,
Delhi-110088
Through his mother and natural guardian
Smt. Kavita Sharma
…..COMPLAINANT
VERSUS
1. New India Assurance Co. Ltd.
Regd. & Head Office, 87, Mahatma Gandhi Road,
Fort Mumbai-400001, (Maharashtra)
2. New India Assurance Co. Ltd.
Divisional Office, Scindia House
New Delhi-110001
3. New India Assurance Co. Ltd.
18/7, Arya Samaj Road, Karol Bagh, New Delhi-110005
4. Sh. Ashok Kumar Singh,
Surveyor & Assessor, Express Garden, Block-4,
Flat No. 301, Plot No. 6, Vaibhav Khand, Indirapuram,
Ghaziabad-201 014 (U.P.)
…..OPPOSITE PARTIES
Quorum : Ms. Rekha Rani, President
Mrs. Manju Bala Sharma, Member
ORDER
Rekha Rani, President
1. Dhruv Sharma met with an accident on 3rd/4th October, 2015 while driving his car bearing Registration No. DL-8C-AE 8678. FIR No. 585/2015 dated 04.10.2015 was registered with police station Swaroop Nagar. Dhruv Sharma succumbed to injuries and died on 17.11.2017. His parents namely Smt. Kavita Sharma and Sh. Sanjay Sharma were allowed to continue the complaint vide order dated 09.01.2018 of this forum.
The vehicle in question was insured with New India Assurance Company Limited (in short OP) for the period 20.03.2015 to 19.03.2016. Intimation of accident was given by the complainant to the OP. The vehicle was inspected by the surveyor. Vide their letter dated 06.05.2016, OP repudiated the claim on the ground that the person driving the vehicle at the time of accident was under the influence of alcohol which is violation of terms and conditions of the policy.
2. Notice of the instant complaint was issued to the OP who contested the same vide reply. Evidence was adduced by both sides to support their cases. We have heard Sh. S.M. Suri counsel for the complainant and Sh. Atul Pandey counsel for the OP.
3. Learned counsel for OP has drawn our attention to FIR No. 587/15 dated 04.10.2015 as well as MLC of the deceased complainant dated 04.10.2015 which read alcohol smell present. Learned counsel for OP further submits that since the deceased complainant was heavily drunk, there is violation of the policy conditions and as such claim was rightly repudiated.
4. Per contra, learned counsel for complainant argued that mere smell of alcohol cannot prove the fact that the person is incapable of taking care of himself. Learned counsel for complainant referred to Section 185 of Motor Vehicles Act and relied on various judgments in support of his case which are as under:
M. Sujatha V/s. Bajaj Allianz General Insurance Co. Ltd.- III (2015) CPJ 104 (NC), National Insurance Co. Ltd. V/s. Dhiraj Sharma- I (2016) CPJ 196 (NC), New India Assurance Co. Ltd. V/s. Rani Narang-II (2011) CPJ 241.
5. We have read the judgments. In National Insurance Co. Ltd. V/s. Dhiraj Sharma- I (2016) CPJ 196 (NC), the facts of the case were that complainant got his Maruti Maxi Cab insured from OP which met with an accident and was damaged. OP repudiated the claim on the ground that complainant who was driving the vehicle was under the influence of liquor/drugs at the time of accident. District forum allowed the complaint. Appeal was filed before the State Commission which was dismissed. A revision petition was filed before the National Commission which was dismissed.
The facts of the case before the National Commission in Dhiraj Sharma(Supra) were more serious and yet the claim was allowed. In Dhiraj Sharma(Supra) there was FSL report dated 25.09.2004 in which blood and urine samples showed alcohol contents 143.1 mg% in blood and 126.5 mg% in urine. National Commission observed that the preservative had not been added to the samples of blood and urine and if preservatives are not added there is a possibility of production of alcohol in the samples of blood and urine. It was observed:
“Admittedly, FSL is of 25.06.2004 whereas accident occurred on 23.06.2004. After 3 months samples were analyzed by FSL and when preservatives were not added this possibility cannot be ruled out that percentage of alcohol increased in the samples of blood and urine in 3 months and in such circumstances, it cannot be presumed that complainant was under influence of intoxicating liquor/drugs.”
In the instant case there was no blood or urine test to indicate the amount of alcohol content in the blood stream of the deceased complainant.
6. In M. Sujatha V/s. Bajaj Allianz General Insurance Co. Ltd.- III (2015) CPJ 104 (NC). Claim was repudiated on ground that policy holder was under influence of alcohol while driving vehicle. District Forum allowed complaint. State Commission allowed appeal. Revision was filed before National Commission. National Commission allowed revision petition rejecting the contention of the learned counsel for OP that deceased had violated the policy conditions and therefore OP rightly repudiated the claim on the basis of FIR, charge sheet, PM and FSL report National Commission observed:
“7. On careful perusal of FSL report, it is very surprising to note that the doctor who performed PM had not sent the blood sample from the dead body for analysis and to know Blood Alcohol Concentration (BAC). He took only samples as Item-2 piece of liver and kidney which were sent to the FSL. The FSL report given after analysis is reproduced as below:
“Items 1 and 2 are analyzed and Ethyl Alcohol is found in both of them. No other poisonous substance is found in them’’
8. In our view, it was not a conclusive report from the PSL, it leads us nowhere. There was no mention of any alcohol concentration, by which we can decide whether the person was intoxicated or not? We have perused several literature and medical texts in Medical Jurisprudence and Toxicology, which clearly define about the effect of different concentration of alcohol. It is pertinent to note that as per medical text, the alcohol concentration up to 50 mg per 100 ml of blood is tolerable, such person will not show any signs of intoxication.
9. Intoxication is perceived as a state of mind in which a person loses self-control and his ability to judge. As per Section 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) had exceeded the legally stipulated limit. The mere smell or presence of ethyl alcohol in the tissue samples cannot lead to an inference that a person is incapable of taking care of himself.
10. We are unable to get convinced, that the deceased person was in intoxicated state of alcohol. Earlier we have disposed of two revision petitions RPs 3983/2013 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 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, III (2014) CPJ 64 (NC); United India Insurance Co. Ltd. v. Sheela & Ors. The Special Leave Appeal (Civil) No. 26791-92 of 2014 preferred by United India Insurance Co. was dismissed by Hon’ble Supreme Court, on 08.10.2014. Another judgment passed in Revision Petition 3934/2013, decided on 01.12.2013 in Bajaj Allianz General Insurance Co. Ltd. v. Smt. Achala Rudraniwas Marde, I (2005) CPJ 146 (NC), also dovetails with our view. The another judgment of this Commission in the case National Insurance Co. Ltd. v. Soma Devi & Ors. II (2012) CPJ 50 (NC)=2012 (2) CPR 467 (NC), observed that, ‘Mere consuming of alcohol is not a ground repudiated 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 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.
11. It should be done 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 purposed. Therefore, the State Commission’s observations appear to be unscientific one.”
7. In view of the aforesaid, in absence of any evidence relating to the quantity of liquor consumed by the deceased complainant, the instant complaint is to be allowed and OP1 to 3 are directed to pay Rs. 5,96,606/- to the complainant with interest @ 8% per annum from the date of repudiation i.e. 06.07.2016, Rs.10,000/- towards compensation for deficiency in service and Rs. 5,000/- towards litigation cost. Copy of the same be retained on record. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced this Day of 2018.
