Delhi

West Delhi

CC/12/311

BHARAT EXPORT - Complainant(s)

Versus

TATA AIG INSURANCE - Opp.Party(s)

27 Sep 2019

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (WEST).

150-151; COMMUNINTY CENTER ; C-BLOCK; JANAK PURI; NEW DELHI

 

                                  Date of institution: 16.11.2015

                                                                                                                                                                Date of order:  ­_27/9/19________ 

 

Complaint Case. No.311/2012

 

IN  MATTER OF

 

M/s Bharat  Exports Pvt.  Ltd.

Through its partner

Sh.  Javinder Singh

D-14m SMA Industrial Area,

G.T. Karnal Road,

Jahangir Puri,

Delhi-110019.                                                    ..…. Complainant

 

VERSUS

Tata  AIG  General Insurance Company Ltd.

Regd. Office Penisulla Corporate Park,

Nicolas Piramal Tower

9^th  Floor,

Ganpatro Kadam Marg

Lower Parel

Mumbai-40001.                                      

 

Also at

A-2 floor, SCO-6 SCO complex,

Near Payal  Cinema, Sector-14 ,

Gurgaon-122001.

 

Also at

A-2 , IInd Floor ,

Main Nazafgarh Road,

Kirti Nagar,

New Delhi-110015                                            …..Opposite  Parties 

 

 

 

 

 

O R D E R

 

K.S. MOHI, PRESIDENT

 

The complainant has filed the present complaint against the O.P under section 12 of Consumer Protection Act, 1986.  The complainant   obtained general Insurance policy from OP for his vehicle No. DL-4CNE-4505 Toyota Innova vide policy No. 0151100224100 for the period of  31.12.2010 to 30.12.2011  and paid a premium  of Rs. 24,517/-. It is further alleged that on 10.12.2011  the vehicle  met with an accident while it was  driven by  driver Jaspreet Singh for which  case FIR  No. 188/2011  dated 10.11.12 was  registered at police station Swroop Nagar, Delhi under section 279/337 IPC. The mechanical inspection of the vehicle was done by Galaxy Automobiles Pvt. Ltd.  Plot No. 5, Rajasthani Udyog Nagar, Kamla Road North West Delhi-88 and the vehicle was repaired for Rs. 1,17,482/- paid  by complainant.  The complainant then informed OP to release the aforesaid amount.  However, the claim of the complainant was rejected by OP on the ground that claim was not payable because the driver of the vehicle was under influence of liquor at the time of accident. The rejection of the claim being unjustified was challenged by way of present complaint.  The complainant sought award of  Rs. 1,17,482/- being the repair charges of the damaged vehicle  with compensation. 

2.     OP filed written statement  taking  preliminary objections  inter-alia that OP on receipt of information of accident of the vehicle on 13.12.2011 appointed  surveyor Mr. Rajat  Mahajan  who filed his  report on  24.12.2011.  It is further alleged that as per FIR  Mr. Jaspreet  Singh, driver of the vehicle was at the time of accident,  under  influence of alcohol.  The complainant was guilty of suppression of material fact by not providing MLC report of Driver Jaspreet Singh.  It is further stated that claim was not payable under condition No. 2( C) of Section ( i) of insurance contract which provided that company shall not be liable  to make  any payment  in respect of accidental  loss  or damage  while the insured was not, in person, driving  the vehicle with the knowledge and consent of the  insured, is under influence  of  intoxicating  liquor or drugs.   On merits OP admitted that the vehicle was insured with the OP and denied other  contents of the complaint.  

3.     Sh. Javinder Singh Partner M/s Bharat Exports Pvt. Ltd.  has filed his affidavit affirming the facts alleged in the complaint.  On the other hand Mohd. Azhar Wasi , Head of North Zone Claims Tata AIG has filed affidavit in evidence testifying all the facts as stated in the written statement. He also filed Copy of  policy alongwith  terms and conditions Exhibit RW 1/1, copy of final  survey report Exhibit RW 1/2, copy of  letter dated 03.01.2012 Exhibit RW 1/3.  Parties have also filed their respective written submissions.

4.     The controversy involved is as to whether the complainant is entitled to the  relief claimed or  not.  The only  ground  of repudiation  of claim of complainant is that driver  of the vehicle was found under the influence  of liquor as  indicated in the medical slip of the driver of the vehicle  who was  taken  the  hospital after  the accident.  The  counsel  for complainant  has vehemently  contended that  condition No. 2 ( c)  of Section (1) of Insurance  contract under which the claim   stood rejected.

 

5.     We have gone through the medical slip of Emorial Hospital Delhi-110033 wherein  it has been indicated that smell of alcohol  was found.  Now the question arises as to whether mere smell of alcohol from the mouth of insured/driver of the insured is enough to reject the claim.  The answer is in the negative.  In fact, a person can understood to have been under the influence of liquor if a specific amount of alcohol is found in his blood  at the time of  accident making him unfit to  be rational.  Admittedly there is no indication   in the medical slip as to how much quantity of liquor was found in the   blood of the insured.  Besides this there is no blood test of the driver was conducted to ascertain the quantum  of liquor found in the blood.     Therefore,  it is very difficult  to hold that  the  remarks “smell of alcohol”  would attract  the applicability of exclusion clause 2 (c) Section  (i)  of the  complaint.  Thus the  ground for rejection of claim is unjustified and unwarranted.  Apart from this the term relied upon by the insurance company does not  form  part of the insurance policy.  There is also no evidence  that the separate set of terms and conditions was ever supplied  to the insured either at the  time of  inception of the policy or  at any time thereafter.  It is now well settled law that the terms and conditions which were not supplied to the insured cannot, for any purpose, be relied upon by the insurance company.   Another aspect of this case is that surveyor also submitted its report indicating total amount of Rs. 67,196/-  being  insurer’s liability and Rs.  32,098.38 being liability  of insured, whereas  the complainant  has placed on record a bill of  Rs. 1,17,482/- regarding  repair of the  vehicle given to Galaxy Automobiles Pvt. Ltd.  The surveyor report  does not indicate reasons  and the basis upon which  deductions  were carried out , therefore,  the  surveyor report  is not  acted upon. Two authorities of National Commission  one Revision Petition No. 817  of 2006 titiled  D.N. Badoni Vs Oriental Insurance  Company  wherein   it was held that the Surveyor’s  report  have significant  evidentiary value unless it is proved otherwise   which petitioner has  failed to do so in the instant case.  The second in  Consumer Complaint No. 155 of 2013  titled M/s  Shital   Fibres Ltd. Vs   M/s Bharti  Axa General Insurance Company Ltd.  decided on 04.07.2013 .  It was again held that Hon’ble Supreme Court  of India  has already held that the surveyor’s report  as significant   evidentiary  value unless is proved otherwise.

6.     Keeping in view the discussion stated above we are of the considered view   that OP committed deficiency in service   by not allowing the justified claim of the complainant.  We, therefore,  pass an award in the sum of Rs. 1,17,482/-( One Lakh Seventeen  Thousand Four Hundred Eighty Two) to be paid by OP within 45 days from the date of receipt of this order failing which OP shall be liable to pay interest @ 6% p.a. from the date of filing of the complaint till actual realization. Further we award Rs.10,000/-as compensation for harassment, mental agony and litigation expenses.

Copy of this order be sent to the parties as per rules.

File be consigned to the record room. 

  Announced this____27th__ day of __ __september___ 2019.

 

 

( K.S. MOHI )                                                     (PUNEET LAMBA)                     

PRESIDENT                                                              MEMBER