Haryana

StateCommission

A/331/2014

Bharti Axa GIC - Complainant(s)

Versus

Priyanka - Opp.Party(s)

R Malhotra

26 Oct 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.331 of 2014

Date of the Institution: 25.04.2014

Date of Decision: 26.10.2016

 

1.      Bharti Axa General Insurance Co. Ltd., SCO No.350-352, Ist Floor, Sector 34-A, Chandigarh through its Regional Manager.

2.      Manager, Bharti AXA General Insurance Company Limited, Rohtak Road, Jhajjar.

                                                                             .….Appellants

 

Versus

 

1. Smt. Priyanka W/o Late Sh.Sandeep Dalal S/o Kanwar Singh.
2. Kanwar Singh S/o late Sh.Puran Singh, both residents of H.No.1004, Sector-6, Bahadurgarh, Distt. Jhajjar.

                                                                             .….Respondents

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.P.M.Goyal, Advocate for the appellant.

Ms. Neelam Nehra proxy counsel for Mrs.Anita Balyan, Advocate counsel for the respondents.

 

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

          The brief facts of the complainant are that husband of complainant No.1 and son of complainant No.2 Mr.Sandeep Dalal (since deceased) was registered owner of vehicle bearing registration No.HR-13E-0707 and the same was got insured with the opposite parties (O.Ps.).  Insurance was valid from 13.05.2010 to 12.05.2011.  Unfortunately vehicle met with an accident on 24.08.2010 in which he expired.   At the time of accident, Mohit Tomar was driving the vehicle and deceased Sandeep Dalal was sitting on the left side of the seat of driver.  As per instructions of O.Ps., vehicle was sent with the help of crane to M/s Deep Hundai-72, New Delhi for repairs and Rs.3,21,447/- were spent. They paid Rs.One lac vide cheque dated 07.03.2011 and Rs.1,99,500/- vide cheque dated 04.07.2011 to M/s Deep Hundai.  They completed all the formalities for getting insurance claim, but, O.Ps. did not settle claim despite repeated requests. 

2.      Appellants/O.Ps. filed reply controverting her averments and alleged that  during investigation it was found that driver was  under the influence of alcohol. So claim was repudiated  due to breach of terms and conditions of policy. Thus there was no deficiency in service on their part.

3.      After hearing both the parties, the District Consumer Disputes Redressal Forum, Jhajjar  (In short “District Forum”) allowed the complaint  and directed O.Ps. to pay Rs.3,21,447/- alongwith interest @ 9% p.a., Rs.1500/- for crane charges and  Rs.2000/- as litigation expenses.

4.      Feeling Aggrieved, therefrom, O.P. Nos.1 and 3 have preferred this appeal.

5.      Arguments heard.  File perused.

6.      Learned counsel for the appellants vehemently argued that as per report Ex.R-5 it is clear that driver was under influence of liquor and in this way terms and conditions of insurance policy were violated. As per report of surveyor Ex.R-5 the total loss was Rs.1,21,036/- whereas District Forum has allowed Rs.3,21,447/- without any basis.  Even if request of the complainant is allowed compensation cannot be given more than the report of surveyor.

7.      Medical officer concerned did not take blood sample of driver Mohit Tomar for the test of the alcohol, but,  in MLC of Mohit Tomar , it was mentioned that  he was under the influence of alchohol at the time of accident. The mere fact that driver was under influence of liquor does not prove that he was “under the influence of alcohol”. Hence, the rejection of the claim by the OPs is wholly against the terms and conditions of insurance policy and amounts to deficiency in the service on their part. The law on the subject is settled by the Hon’ble National Commission in M.Raja Gangu Vs. LIC, reported as 2015 (1) C.P.J 676: 2015 (2) CLT 99:2015 (1) C.P.R. 749 as under:-

“9.  In our view, it was not a conclusive report from the FSL. It leads us nowhere. There was no mention of any alcohol concentration so that we can decide whether the person was intoxicated or not? We have perused several literature and medical texts in Medical Jurisprudence and Toxicology, which have clearly defined about 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.

10.  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 50 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 of alcohol or presence of ethyl alcohol in the tissue samples cannot lead to an inference that a person is incapable of taking care of himself”.

8.      In view of the aforesaid factual and legal position, the appeal filed by the OPs is wholly without any merit.  As far as loss of vehicle is concerned retail invoice of M/s Deep Hundai-72 is showing the cost of the parts and total amount to be paid by the owner of the vehicle. Learned counsel has failed to point out any part which was not covered by the insurance policy.  It is also not pointed out that which parts are added which were not damaged.  So it is to be presumed that parts mentioned therein were changed.  As per cheques mentioned above complainants have paid Rs.2,99,500/-.  Depreciation assessed by surveyor cannot be presumed to be true as it seems to be on higher side. He has also failed to show that how there was difference in the price of the parts. So in this way the complainants are granted Rs.2,99,500/-. With this modification, appeal stands disposed off.

9.      Statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules.

 

October 26th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.