Haryana

Karnal

CC/483/2020

Bijender Singh - Complainant(s)

Versus

The ICICI Lombard General Insurance Company Limited - Opp.Party(s)

Radhe Shyam Sharma

14 Jan 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                          Complaint No. 483 of 2020

                                                          Date of instt.04.11.2020

                                                          Date of Decision 14.01.2022

 

Bijender Singh son of Shri Dhyan Singh, resident of village Bhainswal Kalan, Tehsil Gonhana, District Sonepat, at present resident police line, Kaithal Road, Karnal.

                                                 …….Complainant.

                                              Versus

 

1.     The ICICI Lombard General Insurance Co. Ltd. SCO-3, 2^nd floor, HUDA Market, Sector-8, Karnal, Haryana 132001.

2.     The ICICI Lombard General Insurance Co. Ltd., Tower D, 12^th floor, Global Business park, Mehrauli, Gurgaon Road, Gurgaon, (Haryana) through its Director/Manager.

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

              Dr. Rekha Chaudhary….Member

 

Argued by: Shri Radhey Sham Sharma, counsel for complainant.

                   Shri Naveen Khetarpal, counsel for OPs.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is the registered owner of car Glanza Toyata bearing registration no.HR-5BB-1667. The complainant got insured the said vehicle from OPs, vide policy no.TIL/10631660, valid from 12.02.2020 to 11.02.2023 for a sum of Rs.7,58,200/- and the complainant had paid a premium of Rs.32,002/- to the OPs. On 04.07.2020 at about 10.00 p.m. the complainant was coming towards Nissing in his abovesaid car and the car was being driven by the complainant at moderate speed. When, complainant reached near Zarifabad Adda, a stray cow came in front of the car and in order to save the life of cow, the complainant made possible efforts, but complainant lost the balance of the car and got struck against the Pulia, as a result of which the car was badly damaged. The complainant also sustained multiple injuries in the abovesaid accident. The complainant was taken to Kalpana Chawla Government Medical College, Karnal, where the MLR was prepared by the doctor and the treatment was given. Keeping in view the serious injuries of the complainant, he was shifted to Virk Hospital, Karnal on the same day i.e.05.07.2020 where he was admitted from 05.07.2020 to 12.07.2020 and spent huge amount. Ruqa was sent to the concerned police station and in this regard DDR no.23 was registered by the police of Police Chowki, Jundla (Karnal). On 05.07.2020, the police officials of police chowk, Jundla went to Virk hospital, Karnal to record the statement of injured/complainant but complainant/injured was declared unfit to make his statement. On the next day i.e. on 06.07.2020, the police officials went Virk Hospital, Karnal and recorded the statement of the complainant/injured. The complainant informed the OPs soon after the accident and complainant was discharged on 12.07.2020 from Virk Hospital, Karnal.

2.             It is further averred that after the accident, the damaged vehicle was shifted to Globe Toyota, G.T. Road, Karnal, opposite PTC Madhuban, Karnal and survey was carried out by the surveyor of OPs. An estimate was prepared by the Globe Toyota of Rs.5,61,706/- and on 11.07.2020 Globe Toyota sought the approval from the OPs for the repair of the vehicle but OPs did not give any response or approval to Globe Toyota. On 24.08.2020 complainant went to the workshop of Globe Toyota and enquired about the approval, but the body shop Manager of the Globe Toyota disclosed that no approval has been received till today. On 29.08.2020, complainant again went to Globe Toyota and enquired about the approval of OPs. Shri Suresh Kumar, Body Shop Manager of Globe Toyota again sent an email to the OPs stating therein that the decision of the OPs is still pending from 49 days and that the customer is highly dissatisfied due to the delay and requested the OPs to provide their decision at the earliest. Complainant visited the office of OPs many times and handed over all the relevant documents and requested the OPs to settle the claim. Lastly on 01.09.2020 OPs gave their decision through mail and the claim of the complainant was repudiated on the ground that driver of the vehicle, was under the influence of alcohol at the time of accident. The repudiation of the claim of the complainant on this ground was totally illegal and malafide. The complainant never consumed any alcohol at the time of while driving the vehicle. The true facts are that after the accident, the complainant was not in proper senses and could not speak properly because of serious injuries. The doctor of civil hospital has given a wrong opinion in casual manner that “smell of alcohol in the mouth was present”, which is totally wrong. The doctor did not enquire about the smell from the complainant and he gave a wrong opinion without verifying the facts from the complainant. It is submitted that at the time of the accident, the complainant had already used the alcohol based sanitizer and did not consume any alcohol and thus the OPs cannot take the benefit of the wrong opinion of the doctor and cannot repudiate the claim of the complainant on these basis. The doctor did not take the blood sample of the complainant and only the blood test report can bring the truth to light.

3.             It is further averred that the vehicle of the complainant was badly damaged and all the documents were valid and there was no violation of conditions of the policy by the complainant. The vehicle in question was fully insured with the OPs and the OPs are liable to pay the compensation on account of damage of vehicle and OPs are also liable to pay the parking charges as per the demand of Globe Toyota. The official of the OPs knowingly, intentionally and deliberately repudiated the claim of the complainant on false and frivolous grounds. In this way there was a deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

4.             On notice, OPs appeared and filed their written version raising preliminary objections with regard to maintainability; jurisdiction and concealment of true and material facts. On merits, it is pleaded that after getting intimation regarding the damage of car, OPs had immediately appointed investigator to investigate the matter and collected documents. After receiving the investigation report and documents, it was found on record that at the time of accident, complainant was driving the car, under influence of alcohol. Any claim or claims under this policy arising from being under the influence or use/abuse of drugs, alcohol, or other intoxicants or hallucinogens unless properly prescribed by a physician and taken as prescribed is not covered under this policy, hence there was a gross violation of terms and conditions of the policy and hence claim not being maintainable Claim of the insured was repudiated by the company as per terms and conditions of the policy and the same has been intimated to the complainant, vide letter dated 09.09.2020. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Parties then led their respective evidence.

6.             Complainant has tendered into evidence his affidavit Ex.CW1/A, application dated 04.07.2020 Ex.C1, insurance policy Ex.C2, delivery note Ex.C3, email (6 page) Ex.C4, estimate report Ex.C5, copy of DDR dated 06.07.2020 Ex.C6, report of Virk Hospital Ex.C7, discharge summary Ex.C8, OPC slip dated 05.07.2020 Ex.C9, copy of MLR Ex.C10, claim status notification Ex.C11, copy of registration certificate Ex.C12 and closed the evidence on 18.08.2021 by suffering separate statement.

7.             On the other hand, OPs have tendered into evidence affidavit of Rohan Mishra, Legal Manager Ex.RW1/A, investigation report Ex.R1, treatment slip Ex.R2, copy of MLR Ex.R3, letter to insured Ex.R4, insurance policy Ex.R5 and closed the evident on 30.11.2021 by suffering separate statement.

8.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for complainant, while reiterating the contents of the complaint has vehemently argued that complainant got insured his vehicle from the OPs, vide policy no.TIL/10631660, valid from 12.02.2020 to 11.02.2023 for the sum insured of Rs.7,58,200/-.  The vehicle in question met with an accident on 04.07.2020 at about 10.00 p.m. in the area of Zarifabad Adda, District Karnal and in the said accident complainant sustained multiple injuries and the vehicle of the complainant was also badly damaged. A DDR no.23 was also registered by the police of Police Chowki Jundla, Karnal. He further argued that after the accident the damaged vehicle was shifted to Globe Toyota, G.T. Road Karnal and intimation regarding the said accident was also sent to the OPs and OPs appointed his surveyor for verification of the accident and assessment of loss. An estimate was prepared by the Globe Toyota of Rs.5,61,706/- and on 11.07.2020 Globe Toyota sought the approval from the OP for the repair of vehicle but the OP did not give any response. Thereafter, complainant requested the OP to release his genuine claim but OP did not pay the claim and lastly repudiated the same on the false ground that the driver was under the influence of alcohol at the time of accident. He further argued that merely on the basis of the smell of liquor in the breath of the driver cannot be held to be under the influence of liquor. Hence, prayed for allowing the complaint. Learned counsel for complainant relied upon the judgment of Hon’ble National Commission in case titled as New India Assurance Co. Ltd. Versus Ashminder Pal Singh II (2015) CPJ 758 (NC).

10.           Per contra, learned counsel for OPs while reiterating the contents of the written version, has vehemently argued that during investigation it was found that the driver/insured (Bijender Singh) of the vehicle, at the time of accident, was under the influence of Alcohol. As per terms and condition of the policy a loss is not payable if the driver is found to be under the influence of Alcohol. It is violation of the terms and condition of policy. So, the claim of the complainant was rightly repudiated and intimation in this regard was duly given to complainant through letter dated 09.09.2020. Hence, prayed for dismissal of the complaint.

11.            Admittedly, the vehicle in question met with an accident during the subsistence of the insurance policy and in this regard a DDR no.23 dated 05.07.2020 was registered in the Police Station Jundla, Karnal. The OP appointed a surveyor of Surveyors and Claim Investigators to investigate the matter. The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.C11/Ex.R4 on the ground that “driver of the vehicle at the time of accident was under the influence of alcohol”. As per As per MLR Ex.R3, the complainant had an alcoholic smell in his breath. To prove that the complainant was under the influence of liquor, the report of blood and urine is mandatory as per law. But the concerned Doctor did not take the sample of blood and urine of the complainant to ascertain that the complainant was under the influence of liquor. There are so many syrups which are having smell like liquor. So without the report of blood and urine it cannot be said that at the time of accident, the complainant was under the influence of liquor. Moreover, the concerned Doctor who has Leglo-medically the complainant, has not examined by the OPs to prove its version.

12.           In case Ashminder Pal Singh’s case (supra) in which Hon’ble National Commission has held that “the complainants were heavily intoxicated at the time of the accident-Not accepted-Driving vehicle by drunken person is punishable under section 183 of Motor Vehicle Act if it is proved that alcohol exceeds 30mg per 100 ml. of blood-In absence of any test it cannot be presumed only on basis of the smell of alcohol in the complainants’ breath that he was under the influence of intoxication-impugned order modified”.

13.           Keeping in view the ratio of the law laid down in the abovesaid judgment and the facts and circumstances of the present complaint, we are of the considered view that the act of the OPs  amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant, which otherwise proved genuine one.

14             As per estimate Ex.C5, given by M/s Globle Toyota Automobiles Pvt. Ltd. Madhuban, Karnal, the cost of repair of the abovesaid vehicle is Rs.5,61,706/-and complainant paid the same alongwith parking charges  to Globe Toyota and these facts have not been rebutted by the OPs. Hence, complainant is entitled for the said amount alongwith compensation and litigation expenses etc.

15.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.5,61,706/- (five lakhs sixty one thousand seven hundred six only) to the complainant alongwith interest @ 9% per annum from the date of repudiation of claim till its realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. OPs are further directed to pay the parking charges, if any, paid by complainant to M/s Globe Toyota. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 14.01.2022

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

                  (Vineet Kaushik)      (Dr. Rekha Chaudhary) 

                      Member                       Member