DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

Rakesh Kumar s/o Nand Kishor, r/o H.No.444/2, Village Kishangarh, Chandigarh.

…..Complainant

                                      V E R S U S

Star Health and Allied Insurance Company, SCO No.257, IInd Floor, Sector 44-C, Chandigarh (U.T)

                                                ……Opposite Party

CORAM:      SH.RAJINDER SINGH GILL            PRESIDING MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA       MEMBER 

Argued by:  Sh.Ashish Sareen, Counsel for complainant.

                   Sh.Kunal Dawar, Counsel for OP.

PER RAJINDER SINGH GILL,PRESIDING MEMBER

1.                Briefly stated, the facts of the case are that the complainant was insured with the OP vide policy i.e. Family Health Optima Insurance Plan bearing No.P/161113/01/2010/000856 dated 9.9.2009. On 27.10.2009 the complainant met with an accident and was hospitalized to Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi. FIR No.426 dated 28.10.2009 was lodged with Police Station Nangloi, Delhi. The complainant intimated the OP by lodging claim, who in turn, appointed representative for verifying the accident. The representative of OP visited the hospital and demanded some documents and after perusing all the documents, he returned the same to the complainant. It has been further stated that on 14.7.2010 the complainant served a legal notice to the OP and he also visited the office of OP on 11.4.2011 and 15.6.2011 and submitted all the bills in original along with x-ray prints. The complainant contacted the OP in July, 2011 and requested to pass the claim but the OP did not give a positive response.  The complainant visited the office of OP for clarifying the status of the claim but the representative of OP returned some hospital bills of the complainant but the OP did not return rest of the bills amounting to Rs.3,73,510/- and repudiated the claim of the complainant vide letter dated 12.1.2012 on the ground of “Smell of Alcohol”. Hence, this complaint.

2.                OP filed the reply, wherein, it has been pleaded that the MLC dated 27.10.2009 provided by the complainant himself shows that the complainant was under the influence of alcohol. The claim of the complainant was rightly repudiated vide letter dated 12.1.2012 as per Exclusion No.11 of the policy. It has been further pleaded that as per terms and conditions of the policy, the claim was to be filed within 15 days from the date of discharge from the hospital along with all the documents i.e. bills, receipts etc. but the said condition was not complied by him besides which the information with regard to accident and hospitalization was also not provided to the OP within 24 hours, as required under the condition of the policy. The complainant was asked to furnish all the original bills, receipts, details and other documents etc. but the OP only received few bills from the complainant and the same were returned to him but the other documents in original were not supplied by him.  Denying all the material allegations of the complainant and pleading that there has been no deficiency in service on their part and prayer for dismissal of the complaint with costs has been made.  

3.                Parties led evidence in support of their contentions.

4.                We have heard the learned Counsel for the parties and have also perused the record. 

5.                Admittedly, the complainant took the policy i.e. Family Health Optima Insurance Plan bearing No.P/161113/01/2010/000856 dated 9.9.2009. It is an admitted fact that the complainant met with an accident on 27.10.2009 and was hospitalized to Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi and  FIR No.426 dated 28.10.2009 was lodged with Police Station Nangloi, Delhi. It is also an admitted fact that the complainant intimated the OP regarding the accident, who in turn, appointed representative to verify the accident. The complainant submitted all the relevant documents to the OP, who repudiated it vide letter dated 12.1.2012 on the ground of “Smell of Alcohol”.

6.                The learned Counsel for the OP has contended that as per the record of MLC dated 27.10.2009, the complainant was under the influence of alcohol, due to which, his claim was rightly repudiated vide letter dated 12.1.2012 as per Exclusion No.11 of the policy, which are as under :-

Exclusion No.11.

“11.            Convalescence, general debility mental disorder, Run-down condition or rest cure, congenital external disease or defects or anomalies, sterili-venereal disease, intentional self injury and use of intoxicating drugs/alcohol.”

The learned Counsel for the OP has also placed on record the copy of Medico Legal Injury Register bearing No.14913 dated 27.10.2009 issued by Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi, qua which, it has been clearly mentioned and underlined the word “Smell of Alcohol”.  

7.                We do not find any force in the contention of the learned Counsel for the OP. In our opinion, merely because a person smelled of alcohol can in no case be a ground for a court to hold that he was intoxicated as well and thus unfit to drive. Question of a person intoxicated/not intoxicated would depend on the quantity of alcohol is found in his blood as well as in his urine. Admittedly, there is no evidence to that effect.  On the basis of initial finding given by doctor who conducted medical examination hurriedly for the purpose of treatment to the effect that there was some smell of alcohol, it cannot be held that any of the person was under the influence of intoxicating substance at the time of driving the vehicle, unless there was any clear-cut medical finding to that effect. The word like ‘Smell of Alcohol’ is not sufficient to convey meaning that the person was driving the vehicle under the influence of intoxicating substance. Not being intoxicated and mere smell of alcohol from the breath of such persons, it cannot be said that the persons would under the state of intoxication. Reliance placed on the judgment passed by the Hon’ble Supreme Court of India in Criminal Appeal No.183 of 1970 titled as Bachubhai Hassanalli Karyani Vs. State of Maharashtra qua which, it has been clearly held that:-

“Mere smelling of alcohol, unsteady gait, dilation of pupils and incoherence in speech are not sufficient for holding a person having drunk and under the influence of alcohol.”

Thus, it has been proved that the OP has wrongly repudiated the genuine claim of the complainant by taking wrong presumption that the complainant was in the influence of alcohol at the time of accident.

8.                In view of the above, the complaint is allowed and the OP is directed to make the total payment of Rs.4,78,904/- against the bill received by them from the complainant vide Annexure C-4 (Claim No.0050791 amounting to Rs.2,66,018/-, Claim No.0034209 amounting to Rs.1,07,492/- and the bill amounting to Rs.1,05,394/- received by the OP on 15.6.2011).  The OP is also directed to pay a sum of Rs.25,000/- to the complainant as compensation for causing mental agony & harassment and Rs.10,000/- as litigation costs. 

9.                This order be complied with by the OP  within one month from the date of receipt of its certified copy, failing which, OP shall be liable to refund the awarded amount to the complainant along with interest @ 12% p.a. from the date of repudiation of the claim, till its realization, besides Rs.10,000/- as costs of litigation.

10.              The certified copies of this order be sent to the parties free of charge. The file be consigned.