BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JIND.
Complaint Case No. : 113 of 2020
Date of Institution : 14.02.2020
Date of Decision : 21.07.2022
Rajpal Singh son of Gianai Ram R/o village Karela Tehsil and District Jind.
.….Complainant
Versus
1. National Insurance Co. Ltd. Branch office 20-21, Red Square Market, CUE-1, Hisar through its Branch Manager.
2. National Insurance Co. Ltd. Rani Talab, Jind through its Branch Manager.
……Opposite Parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
CORAM: SH. MUKESH BANSAL, PRESIDENT.
SMT. NEERU AGARWAL, MEMBER.
Present: Sh. B.S. Lather, learned counsel for complainant.
Sh. Abhishek Singla, learned counsel for Ops.
ORDER:
Facts giving rise to filing of this complaint are that complainant is owner of Swift Desire Car bearing regn. no. HR31L-5986 duly insured with OP insurance company vide policy no.420301/31/16/6100002583. This car was being driven by his brother Rampal on 06.09.2017 when it met with an accident due to rash and negligent manner of another driver who was driving vehicle bearing no.HR56A-4140. After this accident and despite fault of the driver of the offending vehicle FIR No.70 dated 06.09.2017 was lodged against the complainant’s brother alleging that he was under the influence of liquor being intoxicated. After investigation, a case was filed against him in the Court of learned CJM, Jind where after trial, accused was acquitted on 15.11.2019. This order of acquittal was assailed before higher Court. Information with regard to accident was given to the OP insurance company by complainant and thereafter, survey was carried out. Vide repudiation letter dated 02.04.2018, it was closed by the insurance company as no claim was admissible to the complainant since driver on the board of the vehicle at the time of accident was found intoxicated having consumed liquor. The complainant has averred that the ground of repudiation by the OP is wrong. Despite many representations, OP did not change its stand. Legal notice was also issued on 30.05.2018. The complainant having no option except to approach this Commission has now sought claim of Rs.70,000/- with interest at the rate of 18% per annum and further Rs.25,000/- as compensation.
2. On filing of complaint, notice was issued to the OP. After service Ops appeared before this Commission through their counsel and filed written statement and contested the complaint on various grounds; maintainability, cause of action, jurisdiction and locus standi etc. Ops denied the averments made in the complaint. OP have taken the plea that since the vehicle in question was being driven by the complainant’s brother in a state of intoxication, therefore, claim was rightly refused.
3. The complainant in order to buttress the complaint filed his affidavit Annexure CW1/A and documents Annexure C-1 to C-8.
On the other hand, OP filed affidavit Annexure OPW1/A of Sh. Mohit Pahal, Senior Branch Manager and besides also filed documents annexure OP-1 to OP-15.
4. Before we proceed further to discuss the pleadings and evidence on record, it is pertinent to mention here that the affidavit Annexure OPW1/A filed before this Commission is nothing but repetition of written statement in the form of affidavit. This is the affidavit which is not in the form as per requirement of Hon’ble High Court Rules and Orders. There is no mention of the parentage of the deponent or his age. His address is also not disclosed in this affidavit. This affidavit is a copy of written statement word to word.
5. Apart from this, we find that main ground of OP to repudiate the claim of the complainant is that the complainant’s brother at the time of accident was found to have consumed liquor or in other words the driver concerned was driving the vehicle in question under the influence of liquor. As per application and report Annexure OP-1, we find that the person who was allegedly driving the vehicle under the influence of liquor was taken to the Civil Hospital, Jind whereupon, he was produced before doctor concerned. Perusal of medical opinion of the doctor, we find that the alcoholic smell was there and his gait was also found abnormal. OP failed to file affidavit of the doctor concerned who had medically examined the driver on board of the vehicle in question at the time of accident. There is a mention in this medical opinion that the patient /driver concerned had refused to give his blood sample and further refused to append his signatures. We are not inclined to attach credence to this opinion since not proved on record in accordance with law. In our considered opinion, it was incumbent upon the OP to have examined the doctor or could have filed his affidavit who had given his medical opinion vide Annexure OP-1. Further as per relevant provisions of Motor Vehicle Act, it is not clear as to how much quantity of liquor had been consumed by the patient/driver. No urine test was conducted. OP also failed to examine police HC who had taken the patient/driver to the hospital for medical examination in order to prove the fact of refusal of the signatures and also refusal with regard to blood sample purposes. More so, the complainant’s brother Rampal was acquitted by the Criminal Court as per judgment Annexure C-8 under Section 279, 337 and 68 of Excise Act. There is nothing on record to show that the judgment of acquittal in favour of complainant’s brother Rampal was assailed by the OP. There is not even a single whisper in the affidavit Annexure OPW1/A filed by Senior Branch Manager, Sh. Mohit Pahal official of the OP that the judgment of acquittal was wrong and has been assailed in the higher Court. Since the complainant’s brother was acquitted by the Criminal Court, therefore, it can be well presumed that the complainant’s brother was not driving the vehicle in a state of intoxication as being alleged by the Op who chose to reject the claim of complainant vide repudiation letter Annexure OP5 dated 02.04.2018.
6. In the light of my discussion in the aforesaid background, we have no hesitation to hold that the ground taken by the OP in rejecting the claim of the complainant vide repudiation letter Annexure OP-5 was based on flimsy grounds. OP while checking the claim of complainant as per repudiation letter OP -5 in our opinion exceeded its power. We find that in repudiation letter OP-5 there is reference of FIR and also that he was under the influence of intoxication liquor drugs at the time of accident. It appear to us that OP insurance company did not bother to go through the entire facts of the case and also the doctor’s report and the contents of FIR, the complainant’s brother Rampal Singh was driving the vehicle in question. The word intoxication as per our observation has been imported by the insurance company on its own whereas there is not even a single whisper in the doctor’s report that complainant’s brother was intoxicated under the influence of liquor at the relevant point of time. Although in the doctor’s opinion complainant’s brother was emanating alcoholic smell and his gait was also even abnormal besides his speech shivering yet we are of considered opinion that no person was simply alcoholic that his gait was not found normal is not enough to conclude that he was under the influence of liquor as per degree of intoxication laid down under the provisions of Motor Vehicles Act. We are not inclined to believe that the complainant’s brother had refused to give his blood sample and to append his signatures for the reasons that doctor concerned failed to appear before this Commission. To give credence to doctor’s report Annexure OP1, it will tantamount to believe the evidence without formal and proper proof. Therefore, in the light of our discussion in the aforesaid background, the insurance company was callous and negligent in processing the case of the complainant and chose to repudiate the claim despite being genuine. The complainant had submitted that his vehicle met with an accident somewhere in the year September 2017 and after lapse of around 7 months his claim was repudiated. Thereafter, the complainant knocked at the doors of this Commission in the month of February 2020 to file this complaint. In this way, the complainant was made to run from pillar to post for more than three years.
7. We find that the opposite party through its surveyor assessed the loss at Rs.22201/- as per surveyor’ report Annexure OP-13. It is referred to in this report that estimated loss was found to be 37,345/- and after deduction etc., net loss has been found to the complainant’s vehicle at Rs.22,201/-. On the other hand, complainant has not placed on record any bill or estimated loss. Although learned counsel for complainant during the course of arguments submitted that the bills amounting Rs.17,000/- regarding the repair of the vehicle in question were sent to the OP. The complainant in his innocence being a villager did not bother to retain the copies and today he does not possess duplicate bills sent earlier to the OP. In the absence of any bills amounting to Rs.70,000/- as alleged by complainant with regard to repair of his vehicle, no option is left with us but to rely upon the survey report showing loss to the complainant’s vehicle at Rs.22,201/-. However, the vehicle of the complainant met with an accident as long back as in the year 2017 i.e. about nearly 5 years back. The benefit which the complainant could have derived on account of compensation was not paid to him. The OP chose to deny the compensation to the complainant on the plea that vehicle was being driven by the person not holding valid license.
8. In our considered opinion, ends of justice would be met if the complainant is awarded compensation of Rs.22,201/- as assessed by surveyor concerned in his report Annexure OP-13 and further compensation on account of harassment besides litigation charges. Accordingly, the complaint is allowed and OP-insurance company is directed to comply with the following directions within 45 days from receipt of certified copy of this order:-
(i) To pay a sum of Rs.22,201/- (Rs.Twenty two thousand two hundred one) to the complainant alongwith interest @ 9% per annum from the date of accident i.e. 06.09.2017 till the date of actual realization. In case of default, the amount shall carry interest @ 12% per annum till the date of actual realization.
(ii) To pay compensation of Rs.15,000/- (Rs. Fifteen thousand) on account of mental agony and harassment caused to complainant at the hands of Ops.
(iii) Also to pay a sum of Rs.11,000/- (Rs. Eleven thousand) as litigation expenses in favour of complainant.
Certified copies of the order be sent to parties concerned, free of costs, on usual terms. File be consigned to the record room, after due compliance.
Announced on:21.07.2022 (Mukesh Bansal) President
(Gopal Singh)
Stenographer
(Neeru Agarwal)
Member
CC No.113 of 2020
Present: Sh. B.S. Lather, learned counsel for complainant.
Sh. Abhishek Singla, learned counsel for Ops.
Vide our separate order of even date, the complaint has been allowed. File after due compliance be consigned to the records.
Dated: 21.07.2022. Member President
DCDRC, Jind.
