Coram: Mohd. Anwar Alam, President

               Vikram Kumar Dabas, Member

               Manju Bala Sharma, Member

ORDER         Date:  21 November 2016

            Manju Bala Sharma, Member

The instant complainant has been filed on 15/09/2015 by the complainant stating therein that son of complainant Late Sh. Tarun Bhatia was having personal accident insurance claim of  Rs. 4,00,000/- (Rs. Four Lacs only) with the OP for the period from 07/06/2013 to 06/06/2014 and on 26/07/2013 at about 10 PM the Son of complainant along with his friends went to attend a party in vehicle no. DLICM1197, make Honda City.  On 27/07/2013 at about 12:15 A.M. as the driver lost his control over the vehicle and hit the same in divider due to which the rear left door of the car opened and son of the complainant fell on the road resulting in severe injury FIR No. 268 of 2013 was lodged in Police Station Moti Nagar Delhi         U/S 279/337/427 IPC and after the death of the son of the complainant on 21/08/2013 under Section 304 (A) IPC was also aided.  It is further stated that initially son of the complainant was admitted to Kalra Hospital where the complainant paid a sum of Rs. 1,00,839/- (One Lac Eight Hundred Thirty Nine only) and as the position of the son of the complainant was critical, he was shifted to BL Kapoor Hospital where he remained from 27/07/2013 to 21/08/2013 and the complainant paid total sum of Rs. 17,16,564/- (Seventeen Lacs Sixteen Thousand Five Hundred Sixty Four only).  Claim for the ensured amount was filed by the complainant on 04/09/2013 which was declined by OP vide letter dated 18/09/2013.  The complainant prayed that OP be directed to pay Rs. 4,00,000/- (Rs. Four Lac only) as accidental insurance claim, Rs. 1,00,000/- (Rs. One Lac only) for mental harassment and cost of litigation along with interest thereon.

 Notice was issued to OP and OP took preliminary objections that the complaint is not maintainable as the same has been filed beyond the period of limitation and that the son of complainant admittedly received injuries while travelling in vehicle under influence of liquor.  While admitting the fact that OP issued the policy to the son of the complainant, OP denied all the allegations contained in the complaint. 

In replication complainant reiterated the facts stated in the complaint and denied the allegations that the son of the complainant was under the influence of liquor and further stated that even if he was under the influence he was sitting at the back seat of the car and was not driving the same. 

Evidence has been filed by both the parties in support of their contentions complainant has filed statement of account of the son of the deceased showing the premium paid to the OP and copy of the letter vide which the claim of the complainant was rejected by OP.  OP has only filed copy of the terms and conditions of the personal accident Insurance Policy. 

We have heard learned counsel for the parties gone through the documents and written arguments. 

The Factum that Late Shri Tarun Bhatia son of the complainant has personal accident claim of Rs. 4,00,000/- (Rs. Four Lacs only) vide policy no. 1373000-0000-00 valid for the period from 07/06/2013 to 06/06/2014 with the OP is admitted.  The preliminary objections of the complaint is liable to be dismissed on the ground of limitation as the claim of the complainant was rejected on 18/09/2013 and complaint has been filed on 26/09/2015 i.e. after the expiry of the period of 2 years as prescribed in the Statute.  From the perusal of the record it shows that the complaint was presented in this Forum on 15/09/2013 i.e. within the period of 2 years from the date of the rejection of the claim.  Hence this contention of the OP is rejected.

          OP has further argued that the son of the complainant received injuries while travelling in the vehicle under influence of alcohol and the policy in question extends coverage in respect of accidental losses, however excludes loss or damages arisen out of use of drugs and alcohol and referred to part ‘C’ of  the general exclusions of the Insurance Policy, the relevant portion of which reads as under:- 

‘’Part C :  General Exclusions: 

The Company will not be liable under the Policy in respect of loss or damage due to-

4.       Being use/abuse of drugs, alcohol, or other intoxicants or hallucinogens unless properly prescribed by a physician and taken as prescribed; or

                   xxx             xxx                       xxx                       xxx

12.     For any loss to which a contributing cause was Your actual or attempted commission, or willful participation in, an illegal act or any violation or attempted violation of the law or resistance to arrest or insured person committing any breach of law with criminal intent.

xxx             xxx                       xxx                       xxx

          In view of the above clause it is explicitly clear that the claim of the complainant was found beyond the scope of the policy hence rejected.  Counsel for OP has placed no document on record to prove that this fact except copy of the terms and conditions of the policy of which relevant portion has been reproduced above,

To rebut this argument of the OP Counsel for complainant has argued that the case in hand is not case of drunken driving but a case in which a person got injured and died due to rash and negligent driving of some other person and that the son of the complainant was sitting at the back seat of the vehicle.  Even if for the sake of argument it is presumed that the son of the complainant was under intoxication then also he was not driving the vehicle and clause ‘4’ and ‘12’ part ‘C’ of the general exclusions is not applicable in the case hand.

          Counsel for OP has not placed anything on record to establish the fact of drunkenness of the son of the complainant.   It is mere assertion of OP not supported by any document or evidence.  As OP has not alleged anywhere in the reply or in affidavit of evidence that the son of the complainant was driving the vehicle under intoxication clause 4 and 12 to part ‘C’ of the general exclusions is not applicable to the case in hand. 

          From the above facts and circumstances of the case we are of the opinion that there is deficiency in service on the part of OP and OP is liable to pay Rs. 4,00,000/- (Four Lacs only) the insured amount, Rs. 50,000 /- (Fifty Thousand only
as compensation for mental harassment and  Rs. 5,000/- (Five Thousand only)  as cost of litigation.  

This order shall be complied with by the OP within a period of 30 days from the date of receipt of this order failing which interest @ 12% shall be payable on the entire above mentioned amount till realisation.  Copy of this order is sent to all the parties free of cost.   File be consigned to Record Room. 

Announced on this  21 November 2016.