Punjab

Ludhiana

CC/21/303

Rashpal Singh - Complainant(s)

Versus

SBI General Insurance Co.Ltd - Opp.Party(s)

Gurjeet Singh Gill Adv

27 Dec 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 303 dated 16.06.2021.       

                                                Date of decision: 27.12.2022. 

 

Rashpal Singh son of Ranjit Singh, Resident of D/153/R/City Enclave, G.T. Road, District Ludhiana-142026.                                                                                                                                                          ..…Complainant

                                                Versus

1. SBI General Insurance Company Limited, 2^nd Floor, Takkar Tower, B-XIX, 121/1, Mall Road, Adjoining Golden Plaza, Near Fountain Chowk, Civil Lines, Ludhiana-141001.
2. SBI General Insurance Co. Limited, Grievance Redressal Officer, 301, Natraj, Junction of Western Express Highway and Andheri Kurla Road, Andheri East, Mumbai-400069.                                                                                                                                          …..Opposite parties

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Gurjeet Singh Gill, Advocate.

For OPs                         :         Sh. Vyom Bansal, Advocate.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In nutshell, the facts of the case are that the complainant got insured his Toyota Innova vehicle bearing No.PB-10-CT-0022 vide policy No.0000000017106173 (Ex. C1). On 17.02.2021, the complainant met with an accident while returning to his home at village Talwara from Ludhiana. A General Diary No.24 dated 19.02.2021 (Ex. C2) was lodged at Police Station Punjab Agriculture University, Ludhiana. The police verified and inquired into the case and no fault was found on the part of the complainant. On 23.02.2021, the complainant lodged the claim No.MVO580937 with the opposite parties. He provided the true facts and the documents to the surveyor appointed by the opposite parties. Vide letter dated 15.03.2021 (Ex. C3), the complainant was informed that the opposite parties have repudiated the claim of the complainant for the reason that the complainant was under the influence of liquor at the time of accident. The said fact is totally false, concocted and not based upon any reliable material or proof. The surveyor has failed to collect the proper material with respect to the claim and loss and had based his report on the basis of surmises, conjectures and had incorrectly and falsely mentioned and informed the opposite parties that the complainant was under the influence of alcohol at the time of accident. The complainant had neither consumed alcohol nor was under influence of intoxicating liquor at the time of accident and was well within the conscious and able to make the rational decision at the time of the accident. The opposite parties have completely ignored the medical record of Shri Raghunath Hospital, Ludhiana dated 18.02.2021. There is nothing in the medical record which points out that the complainant was under influence of intoxicating liquor or was unconscious or having dilated pupils or unable to understand or reply or disoriented under the influence of liquor or any drug. No BAC (Blood Alcohol Concentration) or Breath Analyzer test was conducted by the doctor. Mere mentioning in discharge record of alcohol does not amount to be conclusive evidence to the effect that the complainant was intoxicated at the time of accident. It is just a stray entry made by mistake or oversight by the doctor. The complainant has been denied his rightful claim for the total loss of the vehicle and estimate made by IJM Motors Private Limited (Toyota), Ferozepur Road, Ludhiana amounting to Rs.8,03,346.25 dated 20.02.2021 (Ex. C4). The complainant sent a legal notice dated 15.04.2021 to the opposite parties through registered post through his counsel Sh. Gurjeet Singh Gill, Advocate calling upon them to reconsider and get the matter thoroughly and properly investigated by genuine surveyor and to pay the claim of Rs.8,03346.25 within 30 days from the date of receipt of legal notice. Opposite party No.2 furnished a false and evasive reply bearing reference MNo.2021-22/0408 dated 30.04.2021 (Ex. C5) through counsel denying the claim of the complainant. Finding no assurance or co-operation by the opposite parties, the complainant finally got his car repaired for which he had to spent Rs.46,018/- from his own pocket on spare parts vide invoice No.28202 dated 26.04.2021 (Ex. C9), Rs.39,211/- for spare parts vide invoice No.28209 dated 28.04.2021 (Ex.C10) from Harison Motors, purchase of additional car body parts from Friends Old Car Parts, Gill Road, Ludhiana amounting to Rs.47,200/- dated 28.04.2021 (Ex. C11), labour charges for denting, painting and fitting of the spare parts and car body parts as Rs.1,11,500/- vide bill No.55 dated 28.04.2021 (Ex. C12) and towing charges for the car Rs.6000/- (Ex. C13). Apart from this, the complainant has paid Rs.25,502/- for estimation charges for repairing of the car to Toyota IJM Motors Private Limited vide invoice No.INA20-01354 dated 03.03.2021 (Ex. C14). Thus, the complainant has spent Rs.2,75,431.16 for damages and repair of the car.  Due to negligent, arbitrary, unjust and unfair trade practice on the part of the opposite parties, the complainant has not only suffered monetary loss of Rs.2,75,431.16 but also suffered mental tension and agony for which the opposite parties are liable to compensate the complainant to the tune of Rs.50,000/- and an amount of Rs.30,000/- as litigation expenses. hence this complaint whereby it has been prayed that the opposite parties be directed to reconsider and get the matter thoroughly and properly investigated by genuine surveyor and claim of the complainant for total loss or Rs.2,75,431.16 be passed and also prayed for compensation of Rs.50,000/-  and litigation expenses of Rs.30,000/-.

2.                Upon notice, the opposite parties appeared and filed joint written statement. In the first part of the written statement under the head of FACTUAL SUBMISSION that the car bearing registration No.PB-10-CT-0022 make Toyota Innova owned by the complainant was insured by the opposite parties vide insurance policy No.17106173 for the period 08.03.2020 to 07.03.2021 for private car under Private Car Insurance Policy-Package (Annual) as per policy Schedule. All the conditions under the policy were fully understood by the complainant before taking the policy and he had thoroughly read the policy wordings. The benefits under the policy are governed by the terms and conditions of the policy and the liability of the opposite parties is limited to the insured perils occurring within the policy period subject to conditions and expectations as mentioned in the terms and conditions of the policy. It has been further submitted that the claim intimated was registered vide claim No.MV0580937 for damage to the insured vehicle on 23.02.2021 due to involvement in road accident on 17.02.2021 and the insurance company immediately appointed an independent and IRDA licensed surveyor Sh. Yogesh Kochhar to conduct the survey and assess the loss to the vehicle and liability of the insurance company in terms of the policy terms & conditions who inspected the vehicle and collected documents and submitted his report assessing the net claim amount which exceeded 75% of the IDV of the vehicle and categorized the claim as a case of Constructive Total Loss (CTL) in terms  of the policy terms and conditions. Thereafter, the opposite parties also appointed M/s. Probe Services on 26.02.2021 to investigate the authenticity of the claim and verify the facts as detailed by the complainant. The investigator carried out the investigation of the claim by visiting the complainant and the location of loss and hospital and after assessing the documents submitted his report dated 09.03.2021 to the opposite parties mentioning that as per medical records of Shree Raghunath Hospital where the complainant took first aid/checkup after accident, that the complainant was under the influence of alcohol and was intoxicated at the time of accident. Thereafter, the athorized officer of the opposite parties duly considered the claim and after due application of mind and in view of survey & investigation report and as per policy terms and conditions, the liability of insurance company to honor the claim was denied as the insured cum driver of the insured vehicle at the time of accident has been under the influence of alcohol at the material time of loss and the intimation of the same was sent to the complainant vide letter dated 15.03.2021. The liability of the insurance company was denied under Condition 2 (c) of Section 1 of the policy which is reproduced as under:-

“(c) Any accident loss or damage suffered to the vehicle whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.”

It has further been submitted by the opposite parties that the requirement under Section 185 of the Motor Vehicles Act is not to be conflated to what constitutes driving under the influence of alcohol under the policy of insurance is an Own Damage Claim. Such a claim must be considered on the basis of the nature of the accident and in the present case the nature of the accident is such that any conclusion which can be inferred is only that the complainant was under the influence of alcohol at the material time.

                   Under the head of PRELIMINARY OBJECTIONS, the opposite parties assailed the complaint with regard to its maintainability on the ground of lack of cause of action and territorial jurisdiction. The opposite parties have further stated the complaint to be false and just filed with dishonest intention for extorting illegal money under the beneficial legislation meant for innocent consumers.

                   On merits, the opposite parties reiterated the facts mentioned in the preliminary objections and submissions and once again denied for having indulged in unfair trade practice or there was deficiency in service and prayed for dismissal of the complaint also made.  

3.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments made in the complaint. The complainant also placed on record the documents Ex. C1 is the certificate of insurance, Ex. C2 is the General Diary Details No.24 of 2021, Ex. C3 letter dated 15.03.2021 regarding repudiation of the claim, Ex. C4 is the estimate, Ex. C5 is the legal notice dated 15.04.2021, Ex. C6 and Ex. C7 are the postal receipts, Ex. C8 is the reply to legal notice dated 30.04.2021, Ex. C9 to Ex. C13 are the copies of bill/estimate, Ex. C14 is the receipt, Ex. C15 is copy of Aadhar card of the complainant and closed the evidence.

4.                On the other hand, the counsel for the opposite parties submitted affidavit Ex. RA of Sh. Jitendra Dhabhai, Authorized Signatory of the opposite parties along with documents Ex. R1 are the policy documents, Ex. R2 is the claim form, Ex. R3 is the survey report, Ex. R4 is the investigation report, Ex. R5 is the repudiation letter dated 15.03.2021and closed the evidence.

5.                 We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.      

6.                From the perusal of the pleadings and affidavits, it can be easily deduced that the complainant was having a Private Car Insurance Policy-Package (Annual) Ex. R1 for his Toyota Innova vehicle No.PB10-CT-0022 which was valid from 03.03.2020 to 02.03.2021. The accident took place on 17.02.2021 and the claim was registered on 23.02.2021. Mr. Yogesh Kochhar, an independent and IRDA approved surveyor, on his appointment by the opposite parties, inspected the vehicle and collected the documents and submitted his report wherein assessed the net claim amount exceeding 75% of the IDV of the vehicle. He categorized the claim to be as a case of Constructive Total Loss as per the policy terms and conditions vide his report Ex. R3. On 26.02.2021, the opposite parties had further appointed M/s. Probe Services to investigate the authenticity of the claim. The investigator visited the hospital after assessing the documents and submitted his report on 09.03.2021 Ex. R4. The investigator made a reference to the medical record of Shree Raghunath Hospital (where the complainant went for his first aid/checkup after the accident) wherein it is recorded that the complainant was under the influence of alcohol and was intoxicated at the time of accident. The opposite parties after considering the reports of surveyor and investigator repudiated the claim vide letter dated 15.03.2021 Ex. R5 by invoking the condition No.2 (c) of Section 1 of the policy which is reproduced as under:-

“(c) Any accident loss or damage suffered to the vehicle whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.”

 

7.                 The point of consideration arises as to what condition must a driver of a motor vehicle to be “under the influence of intoxicating liquor or drugs”.

8.                Alcohol acts differently on different individuals and also on some individuals on different times. The action depends mostly on the environment and the temperature of the individual and upon the degree of dilution of Alcohol consumed. A habitual drunker usually shows fewer effects from the same dose of Alcohol. In different countries, the prescribed limit for permissible blood alcohol differs as in India it is 30mg%, in USA it is 100mg% and in Australia it is 40mg%.

9.                In LIC of India & another Vs Ranjit Kaur III (2011) CPJ 232 (NC) passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi it has been held that where the quantity of alcohol in the blood was found to be 86.2mg/100 ml of blood. The Hon’ble National Commission has further observed that it has also come in evidence that this by itself is not adequate proof that the deceased was intoxicated at the time of his death. As rightly observed by the learned Fora below, the specific clinical picture of alcohol intoxication also depends on the quantity and frequency of consumption and duration of drinking at that level and, therefore, mere presence of alcohol even above the usually prescribed limits is not a conclusive proof of intoxication. Apart from this, there is also no evidence that there was a nexus between the death caused by electric shock and consumption of liquor.  

10.              Perusal of the OPD slip No.E0006859 dated 18.02.2021 attached with the report Ex. R4 shows that the word k/c/o alcohol and drunkard has been written. The cryptic reference is only suggestive of the fact that he was drunkard at the time of his visit to the hospital. Admittedly, the accident took place on 17.02.2021 and the medical examination of the complainant was conducted on 18.02.2021. There is a considerable gap between the time of the accident and time of medical examination. No medical test to determine the percentage of alcohol in the blood was conducted by the doctor. Mere smelling of alcohol is not sufficient to hold that the complainant was incapable of taking care of himself. Perusal of G.D. No.24 Ex. C2 shows that it was recorded as per statement of Anita Rani wife of Arjun Sahni whose husband died in this accident. She has specified in the DDR that her husband Arjun Sahni died because of he was ran over by tipper due to fog who was trying to save Innova car No.PB-10-CT-0022. She further stated that the accident happened all of a sudden and no one was liable for this accident. Even the investigator M/s. Probe Services visited thrice in the hospital for checking medical record/BAC report, if any but same could not be collected by him. So in these circumstances, the opposite parties were not justified in repudiating the claim by invoking condition No.2 (c) of Section 1 of the policy.

11.              As per Ex. R3 Mr. Yogesh Kochhar, Surveyor recommended the claim on the following basis:

Net of salvage basis settlement

IDV                                                   528,201.00

CIDV                                                         528,201.00

Less Wreck Value                            151,000.00

Less Compulsory Deductible                        2,000.00

Add towing                                                           0.00

Liability on net salvage basis          375,201.00

12.              As a result of above discussion, the complaint is partly allowed with a direction to the opposite parties to consider and reimburse the claim of the complainant as per survey report Ex. R3 as well as policy terms and conditions within 30 days from the date of receipt of copy of order. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                    (Jaswinder Singh)         (Sanjeev Batra)

 Member                         Member                        President

 

Announced in Open Commission.

Dated:27.12.2022.

Gobind Ram.

 

 

Rashpal Singh Vs SBI General Insurance Co.                 CC/21/303

Present:       Sh. Gurjeet Singh Gill, Advocate for complainant.

                   Sh. Vyom Bansal, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with a direction to the opposite parties to consider and reimburse the claim of the complainant as per survey report Ex. R3 as well as policy terms and conditions within 30 days from the date of receipt of copy of order. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)                    (Jaswinder Singh)         (Sanjeev Batra)

 Member                         Member                        President

 

Announced in Open Commission.

Dated:27.12.2022.

Gobind Ram.