Delhi

StateCommission

FA/13/251

BAJAJ ALLIANZ LIC LTD. - Complainant(s)

Versus

SUDHIR KUMAR AGGARWAL - Opp.Party(s)

09 Aug 2016

ORDER

IN THE STATE COMMISSION: Delhi

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 09.08.2016

 

First Appeal No. 251/2013

(Arising out of the order dated 03.01.2013 passed by the Consumer Disputes Redressal Forum, Saini Enclave Delhi in complaint case No. 956/11)

 

 

        In the Matter of:

 

                Bajaj Allianz General Insurance Co. Ltd.

          1, DLF Industrial Plot, 2^nd Floor, Moti Nagar,

          New Delhi-110015

……Appellant     Versus   1. Sh. Sudhir Kumar Aggarwal R/o C-105, Bathla Apartments 43, Patparganj, Delhi   2. M/s Samara Hyundai 22, 23 Patparganj Industrial Area Delh-110092                                                                                …….Respondents

CORAM

  Justice Veena Birbal, President

  Salma Noor, Member

 

1.   Whether reporters of local newspaper be allowed to see the   judgment? 

2.   To be referred to the reporter or not?

 

Salma Noor, Member

1.             This is an appeal against the order dated 03.01.2013 passed by the Ld. District Forum (East) Saini Enclave, Delhi in complaint case No. 956/11 wherein the Ld. District Forum has allowed the complaint of the respondent/complainant and directed the appellant/OP for reimbursement of Rs. 4,69,238/- to the respondent/complainant within 45 days of the order failing which appellant will pay @ 9% interest from the order till realization.

2.             The facts of the case are that the respondent/complainant took a motor insurance policy bearing No. OG-11-1148-1802-00001711  valid from 02.12.2010 to 01.12.2011 in respect of i20 Hyundai Car DL-3C-BR-3502 for the total value of Rs. 4,69,238/-. The vehicle had met with an accident on 06.03.2011. A report was lodged with police station Pandav Nagar which was registered vide FIR No. 79/2011. A claim was lodged with the appellant/OP. Thereafter car was taken to M/s Samara Hyundai on 21.03.2011. Appellant asked for certain documents and the surveyor also inspected the vehicle on 24.03.2011 and an estimate of Rs. 6,47,810/- was prepared. The MLC of the driver was provided. Respondent/complainant provided all documents and met all the requirements as asked by the appellant/OP but the claim was rejected by the appellant on the ground that the person driving the vehicle at the time of accident was under influence of liquor and under such conditions the appellant/OP was not liable to make any payment as per Section 1, Para 2(c)  of the policy conditions.

        Section 1- LOSS OR DAMAGE TO THE VEHICLE INDURED.

Para 2- The company shall not be liable to make any payments in respect of:

                a. xxxx

                b. xxxx

                c. Any accidental loss or damage suffered while the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxication of liquor or drugs.

                xxxx”

3.             This compelled the respondent/complainant to approach the District Forum with total claim of Rs. 4,69,238/- together with Rs. 65,000/- as parking charges @ 350/- per day claimed by M/s Samara Hyundai, OP-2 from the respondent/complainant. The appellant/OP contested the claim alleging that driver of the vehicle was under influence of intoxication of liquor at the time of driving the vehicle and relied upon the MLC issued by Lal Bahadur Shastri Hospital in which there was special mention of quantity of liquor consumed 107 mg/dl which is against the legal limit of 30 mg/dl. It was alleged that the same amounts to breach of condition of the policy and as such there is no deficiency of service as according to clause 2(c) of the policy document the appellant/OP was not liable to pay any claims.

4.             Respondent-2/OP-2 had also filed reply wherein it was stated that the respondent-1/complainant was liable to pay the parking charges @350/- per day w.e.f. 23.03.2011 along with Rs. 5000/- as estimate charges totaling to Rs. 65,000/- in respect of accidental car which was lying in its workshop.

5.             After hearing the parties and considering the material on record the Ld. District Forum passed an order in favour of respondent-1/complainant and granted the following reliefs:

                        “In view of the discussion made above we allow this complaint. The respondent number-1 is directed to reimburse the insurance declared value of this vehicle Rs. 4,69,238/- within 45 days of this order failing which the complainant shall be entitled for interest @ 9% from the judgment till it is finally paid.

                We further direct the respondent number-2 shall have no claim against the complainant in respect of the parking charges or for preparing of estimate if they have any, they may take proper legal recourse as against the respondent number-1. Salvage of the vehicle shall belong to respondent No-1. The complainant shall provide all the assistance for subrogation of rights in favour of respondent No-1.

6.             Aggrieved by the aforesaid order of Ld. District Forum, the appellant/OP-1 has filed the present appeal.

7.             Ld. counsel for the appellant/OP-1 has contended that the Ld. District Forum vide impugned order erroneously allowed the complaint by holding that the driver of the car i.e. son of the insured/respondent-1 was found fully conscious and oriented and as such was not incapacitated even if he had consumed the liquor. It is contended that the Ld. District Forum has not considered the MLC of the driver/son of respondent-1/complainant properly. It is contended that the alcohol level was recorded as 107 mg/dl which was beyond the permissible limit of 30 mg/dl. It is contended that present is a clear violation of Section 1, para 2 (c) of the policy as such the appellant/OP was justified in repudiating the claim.

8.             The respondent-1/complainant has contended that Section 1, Para 2(C) of the policy document does not apply in this case. His contention is that the MLC of the driver i.e. Sh. Suveer Aggarwal who is son of the insured does not state that the driver was “under influence of liquor “but simply mentions smell of alcohol”, BP 124/74, PR 72 (both normal). It is further recorded that the driver was conscious and oriented as he was the person who had called the ambulance on the spot. To support his stand he has referred to the judgment dated 27.03.2009 passed in CC No. 47/2002 of this Commission in Ashvinder Pal Singh vs. The New India Assurance Co. Ltd.

9.             We have heard Sh. Siddharth Jaiswal, counsel for the appellant/OP-1 Sh. N.K. Sehgal, counsel for the respondent-1/complainant and Sh. Amresh Singh, counsel for the respondent-2/OP-2.

10.            It is admitted position that respondent-1/complainant had taken the insurance policy in respect of vehicle in question from appellant/OP. It is also admitted position that insured vehicle had met with an accident on 06.03.2011 and  FIR No. 79/2011 u/s 279/337 of IPC and u/s 185 of the MV Act, 1988 was registered with PS Pandav Nagar in Delhi.

11.            The appellant’s plea is that Section 1, Para 2(c) of the policy document is violated in this case and hence the impugned order is liable to be set aside. Para 2(c) of the policy has already been reproduced above.

12.            The MLC of the son of the respondent/complainant who was driving the vehicle at the time of accident though records that he was conscious and oriented but the quantity of liquor consumed recorded is 107 mg/dl.

13.            In Baby Apoorva Rai v. New India Assurance Co. Ltd. & Anr., CC No. 401 of 2014 decided by the National Commission on 03.09.2015, it is observed that if a person is found to have more than 103.14 mg. of alcohol in his blood, he would be treated under influence of intoxicating liquor.

15.            In Suraj Mal Ram Niwas Oil Mills (P) Ltd. vs. United India Insurance Co. Ltd. and Another 2011 CTJ 11 SC (CP) it is held that the policy has to be construed strictly.

16.            The judgment relied upon by counsel for respondent/complainant i.e. Ashvinder Pal Singh vs. The New India Assurance Co. Ltd. decided on 27.03.2009 in CC No. 47/2002 decided by this Commission is not applicable to the fact and circumstances of the present case.

17.            The Ld. District Forum did not consider the intoxication level of liquor as is recorded in the MLC of the driver i.e. son of the complainant while passing the impugned order. Even if driver was found conscious and oriented but at the time quality of liquor consumed was 107 mg/dl which is beyond the permissible limit of 30 mg/dl. There is a violation of terms and conditions of the policy i.e. Section 1, Para 2 (c).

18.            In view of the above discussion, we are of the confirm opinion that the Ld. District Forum has erred in holding that the driver was in normal conditions and Section 1, Para 2 (c) of the policy document is not applicable in this case. We do not find any deficiency in service on the part of the appellant/OP. The claim was rightly repudiated. Accordingly, appeal filed by the appellant is allowed. Consequently order passed by the District Forum dated 03.01.2013 in complaint case No. 956/11 is set aside and complaint case No. 956/11 stands dismissed with no order as to costs.

                FDR, if any, deposited by the appellant be released in its favour as per rules.       

                Copy of this order be sent to the parties as well as to District Forum for necessary information. Record of the District Forum be sent back forthwith.

                File be consigned to record room.       

(Justice Veena Birbal)

President

 

 

(Salma Noor)

Member

Rakeeba