DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/39/2011
No. DF/ Central/
Mr. Sahil Kwatra
S/o Mr. Ashok Kwatra
R/o H – 53, LIG Flats,
Ashok Vihar, Delhi
…..COMPLAINANT
Versus
New India Assurance Co. Ltd.,
Jhandewalan Extension,
New Delhi – 110055 …..OPPOSITE PARTY
Quorum:
Ms. Rekha Rani, President
Mrs. Manju Bala Sharma, Member
Shri R.S. Nagar, Member
ORDER
Ms. Rekha Rani, President
1. Instant complaint has been filed by Mr. Sahil Kwatra (in short the complainant) U/s 12 of the Consumer Protection Act 1986 as amended up to date (in short the Act) inter alia pleading therein that he purchased Medi-claim Policy from New India Assurance Co. Ltd., (in short OP). He met with an accident and was admitted in Jaipur Golden Hospital on 22.02.2009 vide IP No. 210512 and discharged on 26.02.2009. An FIR bearing No. 91/09 was registered with Police Station Maurya Enclave, Delhi. He spent Rs. 90,000/- on his treatment and lodged his claim with the OP but the OP repudiated his claim on the ground that he had not provided MLC of Dr. Baba Saheb Ambedkar Hospital. Complainant obtained the same under RTI and provided it to the OP. On repudiation of his claim by OP complainant filed his claim before Insurance Ombudsman which was rejected vide award dated 30.08.2010. Hence the instant complaint seeking direction to OP to pay him a sum of Rs. 90,000/- with interest and Rs. 2,00,000/- as compensation for causing mental harassment along with litigation cost.
2. OP contested the claim vide its written statement pleading therein that claim is barred by res-Judicata having already been adjudicated by the Insurance Ombudsman (Delhi & Rajasthan) vide award dated 30.08.2010 in complaint no. GI/273/NIA/09 it is further stated that OP rejected the claim of the complainant in terms of clause 4.8 of the policy contract which states that claim would not be tenable on account of any accident due to intoxication. It is submitted that the complainant smelled of alcohol as per MLC No. 844/09 issued by Dr. Baba Saheb Ambedkar Hospital, Rohini, Delhi, - 110085 dated 21/02/2009 at 11.05 P.M. Further it is stated that complainant lodged FIR No. 91/09 dated 22.02.2009 under section 279/337 IPC. It is also stated that there is no mention of any offending vehicle which could have been involved. It is further stated that the complainant should have been filed his claim before Motor Accident Claim Tribunal and that this Forum has no jurisdiction. It is further stated that instant complaint cannot be adjudicated in a summary way as it needs elaborate trial by examination and cross-examination of various witnesses namely investigating officer, Doctors of Dr. Baba Sahib Ambedkar Hospital, Rohini, Delhi and Jaipur Golden Hospital.
3. Both parties filed their evidence by way of affidavits and also filed written arguments. We have perused the case file. We have heard both sides.
4. The insurance Ombudsman Delhi and Rajasthan vide his award dated 30.08.2010 observed that insurance was justified in repudiating the claim of medical expenses incurred by the complainant relating to treatment of his injury which arose out of alcohol use and in view of clause 4.8 of the policy complaint was dismissed. It is submitted on behalf of the OP that the instant complaint is barred by resjudicata the same having been dismissed by Insurance Ombudsman.
5. In Vivek Harsh International Vs Corporation Bank , III (2009) CPJ 299 (Raj.) it was held that order passed by Banking Ombudsman is recommendatory in nature having no legal section and therefore complaint is maintainable under Consumer Protection Act which provides additional remedy even though complainant approached Banking Ombudsman earlier.
6. In IDBI Bank V/s Pardeep Tayal , IV (2010) CPJ 315 (Chd) it was observed that Banking Ombudsman is not a statutory authority and therefore consumer after claiming relief in front of Banking Ombudsman can approach consumer fora under section 3 of the Consumer Protection Act 1986 which provides for an alternative remedy.
7. In Ashminder Pal Singh vs The New India Assurance Co. Ltd Complaint No.C-47/2002 vide order dated 27.03.2009 SCDRC Delhi observed that it has been stated in the order of the Hon’ble High Court dated 12.07.2005 that the award passed by the Insurance Ombudsman dated 03.12.2001 is not binding on the complainant. It was further observed as under :
“33. As regards the verdict of Ombudsman relied upon by the counsel for the OP it is neither binding though may be persuasive nor has any relevance as the remedy under section 3 of Consumer Protection Act 1986 is in addition to and not in derogation of any other law for the time being in force. While widening the scope of Section 3 of Consumer Protection Act, Supreme Court in large number of cases has taken a view that even if there is remedy available in any other legal forum or even if there is arbitration clause between the parties, still the aggrieved party can file complaint under Section 12 of the Consumer Protection Act 1986 seeking indemnification of the loss, compensation for mental agony, harassment, physical discomfort and other injustices suffered by him as no other statute provides such reliefs . 34. It is an additional remedy arising from the charge of deficiency in service, as defined by Section 2(1)(g) of Consumer Protection Act 1986 which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertake to be performed by a person in pursuance of a contract or otherwise in relation to any service and if the service provider is held guilty for deficiency in service it has to compensate the consumer as to the expected loss, actual loss, mental agony, physical discomfort, emotional suffering, and all other injustice suffered by him.”
In view of the aforesaid it is clear that the claim is not barred by resjudicata.
8. Next objection of the OP is that the claim is barred by limitation. Accident had taken place on 21/02/2009. The claim was dismissed by Insurance Ombudsman vide award dated 30/08/2010. He filed the instant complaint on 25/02/2011. So claim is not barred by limitation.
9. OP repudiated the claim on the ground that as per MLC of the complainant issued by Dr. Baba Saheb Ambedkar Hospital, Rohini complainant was smelling
of alcohol. We have seen the MLC No. 844 of 2009 of Baba Saheb Ambedkar Hospital wherein it is written mild alcoholic smell in patient’s breath. It is submitted on behalf of the OP that in view of term 4.8 of the Insurance Policy the claim is not tenable.
10. 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.
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.”
11. 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.”
12. In the instant case no blood or urine test was conducted to indicate the amount of alcohol content in the blood stream of the complainant. 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.
13. In view of the aforesaid the instant complaint is allowed. OP is directed to pay medical expenses of Rs. 90,000/- + Rs. 10,000/- as compensation, Rs. 10,000/- as litigation cost to the complainant within six weeks from today failing which it shall carry interest @ 9% per annum from the said date. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on this 26th Day of Nov. 2018.
