STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Sh. Harpinder Pal Singh S/o Sh. Surinder Pal Singh               

….Complainant.

Versus

1. Tata AIG General Insurance Company Limited, Regd. Office at Peninsula Business Park, Tower-A, 15^th
2. Tata AIG General Insurance Company Limited, 2^nd

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:  

Argued by:

Ms. Jaimini Tiwari, Advocate for Sh. Rajneesh Malhotra, Advocate for the Opposite Parties.

PER DEV RAJ, MEMBER

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9.                steered the vehicle and applied the brakes. It was further submitted that he (complainant) was first taken to the Govt. Medical College and Hospital, Sector 32, Chandigarh and thereafter he was got admitted and took treatment in the Fortis Hospital, Mohali.         there was no other evidence to establish the fact of   . The Counsel also relied upon evidence produced by way of a duly sworn affidavit of Sh. Raj Kumar, his friend who was travelling alongwith the complainant affirming that he was already under treatment for his tonsillitis, and got operated for having quinsy and, as such, he was advised not to consume liquor and, on that day also, he was not under the influence of any intoxication or liquor as he did not consume any liquor on 10/11/5/2013. The fact that the complainant did not consume liquor was also testified by Sh. Jatinder Singh Virk, another friend of the complainant, in his duly sworn affidavit.

10.          Infact Section I, 2 (c)]  

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14.         ,,,        Firstly, the claim has not been repudiated on the grounds of delayed intimation, and, secondly, delay of 5 days, if calculated from the date of call i.e. 16.05.2013, as per Annexure R-2, which is Tata AIG Call Centre – Auto (Own Damage & Partial Theft) Claims Notification, cannot be termed to be substantial, particularly, when as per the medical records, the complainant sustained injuries, as also noticed by the Surveyor in Silversons Vs Oriental Insurance Company Ltd. & Anr. IV (2011) CPJ 9(SC), the Hon’ble Apex Court, held in Para 6, inter-alia, as under:-

“Although, the view taken by the National Commission that for availing benefit of the Policy, the insured should give intimation to the insurer within 24 hours or 48 hours or at best within 72 hours appears to be too narrow and we are inclined to agree with the learned Counsel for the appellant that it would be sufficient if intimation is given to the insurer within a reasonable period, but what should be the reasonable period within which the insured should inform the insurer about the loss of goods would depend upon the facts of each case and no strait-jacket formula can be laid down to determine as to what would constitute prompt notice within the contemplation of Clause 9 of the Institute Cargo Clauses. Insofar as this case is concerned, we are convinced that the long time gap of almost three months between the date when the appellant had been informed about discharge of the cargo by MV “Aken” at Colombo Port and the intimation given by the appellant to the insurer was unreasonable and, by no stretch of imagination, it could be construed as a prompt notice.”

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“Any accident loss or damage suffered 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”.

In the instant case, the Opposite Parties have contended that as per the MLC report of G.M.C.H, Sector 32, Chandigarh (Annexure 5 A), “Patient drowsy. 

“History and Presentation:

33 years old male patient was shifted to FHM after road side accident on 11/5/13 at 2 am near Sector 52-53 dividing road. He was initially taken to GMCH from where he was brought to FHM for further management.

Hospital Course:

He was admitted in MICU, his GCS was E3VtM6 and a laceration of 1x1cm was noted on left temporal and parietal region Ear bleed was noted from left ear. NCCT brain done at GMCH 32 was grossly normal. E-FAST was done and it was found to be negative for any free fluid collection. USG abdomen showed normal study. ENT opinion was sought for left ear bleed and diagnosis of left external auditory canal injury was made. Ortho opinion was taken for pain right shoulder and advice was given for applying clavicular brace for three weeks. Patient was started on oral diet and was planned to be shifted to room. His family however, wanted to take their patient against medical advice.”

In our opinion, in the circumstances aforesaid, observation of the Doctor of the GMCH, Sector 32, Chandigarh, being not supported by any evidence, in the shape of test of blood of the complainant or any forensic opinion, which would have been the best evidence, cannot be accepted as conclusive evidence to prove that the complainant was actually under the influence of liquor. 

17.        , the complainant/petitioner got insured his Maruti Car No.DL-3CL-1392 form the OP/respondent for a sum of Rs.77,500/- for a period of one year commencing from 30.9.2002 to 29.9.2003. On 16.2.2003, the car met with an accident and the FIR was lodged and intimation was also given to the Opposite Party. The complainant submitted claim and the Opposite Party also appointed Surveyor but claim was repudiated on the ground that driver of the vehicle was under the influence of liquor at the time of accident,

“6. Perusal of FIR reveals that six persons were travelling in the car at the time of accident whereas, capacity of car is only 3+1. Thus, there was clear violation of sitting capacity and more persons were travelling in the car than permitted. The car was fitted with the LP Gas Kit and in the Dickey Gas Cylinder Belts were found which depicts that at the time of accident, the car was driven by LPG without authorization. As far as influence of liquor is concerned, post-mortem report filed by the petitioner does not confirm that occupants of the car were under influence of liquor; hence, this violation cannot be accepted. As far as violation regarding hire and reward is concerned, presumption was drawn by Surveyor, as car was going in the marriage party and occupants were of two villages. This cannot be the ground for holding that car was plied on hire at the time of accident.

7.     in which at the time of accident vehicle was carrying more passengers than permitted and claim was settled at 75%.  He also placed reliance on II (2006) CPJ 83 (NC),in which vehicle met with an accident carrying 12 unauthorized persons and National Commission directed to settle claim on non-standard basis.  In the light of above citations, it becomes clear that even though petitioner’s car was carrying more passengers than permissible, petitioner is entitled to get his claim on non-standard basis.”

In the aforesaid case, the vehicle was insured for Rs.77,500/- and since, the vehicle met with an accident after 4 ½ months of Insurance Policy, the value of the vehicle was taken as Rs.70,000/-. Further since there was violation on two counts i.e. seating capacity and use of LP Gas Kit, at the time of accident, the National Commission deducted 50% of the amount on account of violation of terms of the Policy and further deducting Rs.15,000/- assessed as salavage value, finally ordered for payment of Rs.20,000/- to the complainant alongwith interest @9% per annum from 6.5.2003 till realization alongwith Rs.3,000/- as litigation expenses.

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            The Opposite Parties are jointly and severally, directed to pay the amount of Rs.33,70,500/- to the complainant, alongwith interest @9% per annum  from the date of filing the complaint i.e. 27.12.2013, within two months of the date of receipt of a certified copy of this order.

           The salvage of the vehicle, in question, shall be retained by the Opposite Parties, and the complainant shall execute all necessary documents within one and a half months, from the date of receipt of a copy of the order, in favour of the Opposite Parties to enable them to dispose of the salvage in the manner they wish

         The Housing Development Finance Corporation Limited (HDFC) shall have the first charge, on the amount to be paid, to the complainant, by the Opposite Parties, to the extent, the amount is due to it, against him (complainant) as the vehicle was under the hire purchase/hypothecation/lease with it (HDFC).

          The Opposite Parties are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.15,000/-, to the complainants.

            In case the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite parties shall be liable to pay the amount mentioned in Clause (i) with interest @12% per annum, instead of 9% P.A., from the date of default, till realization, besides payment of costs, to the tune of Rs.15,000/-.

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Pronounced.

11.03.2014.

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[DEV RAJ]

MEMBER

Sd/-

[PADMA PANDEY]

MEMBER

AD

STATE COMMISSION

(Consumer Complaint No.98 of 2013)

Argued by:

Ms. Jaimini Tiwari, Advocate for Sh. Rajneesh Malhotra, Advocate for the Opposite Parties.

Dated the 11^th

ORDER

Ad