::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL FORUM, AT BIDAR::

                                                               C.C. No.63/2016.

                                                            Date of filing: 23.08.2016.

                                                                   Date of disposal: 14.08.2018.

P R E S E N T:-    

                              (1) Shri. Jagannath Prasad Udgata,                                                                                                                                                                                                       B.A., LL.B.,

                                                                                                President

                             (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

COMPLAINANT/S:    1.   Ishwarayya Sali S/o Siddramayya Sali,                                                            
                                            Age: Major,  Occ: Agriculture,

                                            R/o Kadwad Tq: Humnabad, Dist: Bidar.                                                                                        

                                       ( By Sri.D.M.Swamy.,Adv.)                                                   

                                                                 VERSUS

OPPONENT/S:        1)         The Manager Future General India Insurance
                                             Co. Ltd. 6^th Floor, Tower-3 India Bulls Finance
                                             Center Senapati Bapatmarg Elphinstone Road
                                              Mumbai(MS)-400013.
 

                                    2)        Branch Manager Future Geenral India Insurance
                                            Co.Ltd. Opposite RTO Office Pratap Nagar Bidar.
                                                                                                                                     

                                                (By. R1 Prakash.V.M.., Adv.

                                                      R2 Exparte.)

::   J UD G M E N T  ::

By Shri. Jagannath Prasad Udgata, President.

This is a complaint against the Insurers on account of not honouring the claim u/s 12 of the Consumer Protection Act 1986.

2.           The complainants’ son Late Shivashankarayya, was the owner of Eon sportz car bearing Regn.No.KA-02-MJ 1867 and it was insured with O.P.No.1, Insurance company vide policy bearing No.2016-Woo19511-FPV, issued on 12.01.2016 by collecting premium of Rs.6,829.  The validity was up to 12.01.2017 and the I.D.V. was Rs.3,08,816/-.  The Insured had died on 18.02.2016, but before the death while proceeding form Bengaluru to Mumbai on 04.02.2016 by the above said car, near Nippani Halasieeanath factory, an unknown vehicle coming from the opposite side dashed against the car, rendering it fully damaged in un repairable state.  The fact of accident was made known to the Insurer without any loss of time.

3.     The Insurance company in turn sent the claim form, discharge voucher and some other documents, which was duly signed by the complainant and sent back to the former.  Inspite of fulfilling the contractual requirements and several approaches, the Insurer has not settled the claim and hence this complaint claiming the I.D.V. and other ancillary reliefs.

 4.        Upon notice, only the O.P.No.1 has participated in the proceedings.  O.P.No.2 due to nonappearance has been placed exparte.

5.         In the versions, the O.P.No.1 admits the fact of issuance of policy.  He also admits about the death of the Insured on 18.02.2016, accident on 04.02.2016 but calls upon the complainant to prove the complete damage of the vehicle and also further challenges that, the accident was caused by unknown vehicle.  The fact of receipt of claim form and other correlated signed papers and failure of the O.P. in settling the claim has been denied.  So also the claim of the complainant regarding parking the damaged vehicle at Central Automobile garage, near Apsara Theatre, Kolhapur for repair purpose and further that, the assessment of the repair cost by the Mechanic beyond the value of the vehicle has also been disputed.  The O.P. feigns ignorance about the purported legal notice by the complaint.  It however acknowledges the receipt of accident information on 06.02.2016 specifying the causes leading to the accident by the Tractor coming from the opposite side and next by a Truck dashing to the rear portion of the car.  The O.P. further canvasses that, no police complaint was lodged and no written information was received by lim.  The O.P. next asserts that, receiving information on 06.02.2016,  letters were sent to the insured on 23.03.2016, 07.04.2016 and  28.04.2016 but were returned with postal endorsement “Addressee Left”.

6.         Elaborating his stand point the O.P. further clarifies that, the claim form was received on 21.04.2016 disclosing the fact of accident on 04.02.2016 at 7.30 p.m. near Nipani while being driven by Insured Shivashankarayya together with copy(s) of Driving License No.6710405 issued by the R.T.O. Bidar, R.C. book and bank details.  Since there was delay in submitting the claim form, correspondence were made between the parties on 01.06.2016, 21.07.2016 and 05.08.2016 calling for further clarifications and documents.  Since the request was not met with by the complainant,  the Insurer had deputed Group-9, Research wing, insurance investigator to collect documents such as copies of F.I.R., policy particulars, R.C. particulars, Driving License particulars and verify regarding,  the Driving License in the office of the R.T.O. Bidar.  Such investigator has submitted report on 30.09.2016, stating that, the insured having been injured in the accident was admitted in Prime Hospital.  Kolhapur with history of “heavy alcoholism on 04.02.2016“, was discharged against medical advice and later had committed suicide.  Therefore quoting Section1(c) of the Policy (Not visible in the policy issued) the O.P. stands firm that, he is not liable to adhere to the terms of policy.

7.         The insurer further claims that, as far as the driving license No.6710405 issued to the deceased by R.T.O. Bidar, no records were available with the R.T.O..  In the said driving License the date of birth was mentioned as 03.02.1985, whereas, in another driving License No.KA-52-20100001239 issued by R.T.O. Bengaluru, Nelamangla, authorizing to drive Motor Cycle with gear infavour of one Shankarayya the date of birth has been recorded as 01.06.1986.  The O.P. therefore casts a doubt on the existence of driving license No.6710405 of R.T.O. Bidar, the complainant having been failed to provide further clarification and also M.L.C. records.  As a whole, the company claims its’ liability limited to Rs.76,109/- only as per the damage assessed by its surveyor and nothing more.

8.         Both sides have filed their evidence affidavits and also have submitted documents as mentioned at the end of this order.

9.         Considering the rival contentions of the parties to the feud, and also analyzing the facts and circumstances of the case, the following points arise for our considerations.

1. Is the present complaint maintainable?
2. Does the opponent insurance company prove that, it is not liable to pay the complainant the cost of damages caused to the insured vehicle?
3. What orders?

10.       Our answers to the points raised are as following:-

1. In the affirmative.
2. In the negative.
3. As per final orders owing to the following:-

:: REASONS ::

11.       Point (1): In the instant case an unmarried Hindu has died intestate.  Ideally, the mother being a class I heir should have prosecuted the case.  Instead, we observe the father, a heir of class II has opted to file this complaint.  But it is further observed that, the mother has sworn to an affidavit, authorising her spouse to prosecute the case showing her incapability to appear on hearing dates.  The thing be so, there is no impediment for the complainant to file this complaint and we answer this point in the affirmative.

12.       Point No.2: The opponent Insurance company mainly has defended its’ stands to refuse payments on the following grounds.

a.         The insured admitted to Prime hospital was found to be drunk by the attending doctor.

b.         He had two Driving Licenses issued by R.T.O. Bidar and Bengaluru (Nelamangala) depicting two different dates of birth.

c.         At any case its’ liability can be confined to the cost assessed by its’ surveyor.

13.       The ground (a) raised by the opponent holds no water owing to the fact that, even though from the document produced as Annexure-R.9, history of heavy alcoholism is mentioned, there is no evidence of any B.A.C. (Blood Alcohol concentration) test done on the Insured.  A simple observation without a methodical approach to find the intoxication is not a factor to be reckoned.  On this aspect, the Hon’ble National Commission in R.P.No.2790/2013-M.Sujata v/s Bajaj Allianz General Insurance Company Ltd. reported in (2015) CJ 724 (NC) has been pleased to hold as follows:-

            i.          Intoxication is perceived as a state of mind in which a person loses self control and his ability to judge.  As per Sections 185 and 202 of the Motor Vehicles Act, it would be considered intoxicated only if the person is tested and found to have more than 30 mg of alcohol in his blood, per 100ml.  In the present case, except for a mere noting in the Final Opinion Report and the FSL report, no test has been done to ascertain whether Blood alcohol concentration (BAC) had exceeded the legally stipulated limit.  The mere smell of alcohol or presence of ethyl alcohol in the tissue samples cannot lead to an inference that a person is incapable of taking care of himself.

            ii.        We are unable to get convinced, that the deceased person was in intoxicated state of alcohol.  Earlier we have disposed of two revision petitions RP 3983/2013 and 3984/2013 filed by the same petitioner.  In this context, we place reliance upon the judgment of this Commission passed in the Revision Petition 2481-82 of 2013 titled United India Insurance Co. Ltd. v/s Sheela and others, the special Leave Appeal (Civil) No 26791-92 of 2014 preferred by United India Insurance Co. Was dismissed by Hon’ble Supreme Court, on 08.10.2014.  Another judgment passed in Revision Petition 3934/2013 decided on 01.12.2013 in Bajaj Allianz General Insurance Co. Ltd. v/s Smt. Achala Rudraniwas Marde, also dovetails with our view.  The another judgment of this commission in the case National Insurance Co. Ltd. v/s Soma Devi and others, 2012(2) CPR 467 (NC), observed that ‘ Mere consuming of alcohol is not a ground to repudiate insurance claim.’  Both the post-mortem report and the investigator’s report merely state that the deceased had consumed alcohol without giving any details about the actual amount of alcohol if consumed.  Even if the post-mortem report stating the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed.

            iii.       It should be borne in mind that, a person cannot be said to be intoxicated unless alcohol level exceeds the prescribed limit which can only be confirmed through Blood Alcohol Concentration (BAC) is most commonly used as a metric of alcohol intoxication for legal or medical purposes.  Therefore, the State Commission’s observations appear to be unscientific one.

            In view of the dicta of the higher fora as above, we negate the defence of the Insurance company.

14.       As far as the ground (b) is concerned, the Insurance company’s Surveyor has quoted in its’ report that, information’s regarding Driving License No.6710405 could not be elucidated from the office of the R.T.O. Bidar.  The company has submitted the copy of driving License  issued by R.T.O. Bengaluru (Nelamangala) countering about the Driving License issued by Bidar R.T.O.. Per contra, the complainant has submitted the copies of the manual Driving License issued by R.T.O. Bidar and also an extract issued by R.T.O. Bidar vide Annexure-K and L.  Of course the Driving License obtained by the deceased insured raises a question mark about its’ legality, but the licencee is dead and none is in a position to explain about the facts and circumstances leading to obtainment of dual driving License.  Hence, we propose not to delve into the matter basing on the principles of maxim “De mortis nil nisi bonum”.  Further the driving license issued by R.T.O. Bidar authorising the license to drive light motor vehicle warrants no further analysis.

15.       The ground (c) taken by the Insurer is also of no significance.  Annexure-R.1 filed by the opponent is not wholesome.  There are certain grey areas viz.  On the aspects of Engine and gearbox assemblies, suspension assemblies, steering assembly, wherefore the surveyor prematurely should not have rushed to assess the damages mentioned in Annexure-R.2.  Rather the assessment by M/s Central Automobiles vide Annexure-J (seven sheets) are mote methodical and belief inspiring.  From this document it is evident that, the cost of the damages assessed stands at Rs.1,62,645/-.  From Annexure-H it is clear that, the complainant has incurred expenditure of Rs.3,000/- by towing the damaged vehicle from Police Station, Nipani to the Automobile workshop.  Hence the total compensation package works out to Rs.1,65,745/- towards damages repair of the vehicle.  We rule as such taking a cue from the rulings of Hon’ble National Commission, reported in 2014(1) CLT 476 (Mallikarjuna Sakri v/s Branch Manager, Oriental Insurance Company Ltd.)

16.       Therefore, we proceed to pass the following:-

ORDER.

1. The complaint is allowed in part.
2. The O.P.s are hereby directed to reimburse a sum of Rs.1,65,745/- together with an interest @ 12% p.a. from the date of filing of the complaint till realisation;
3. The O.P.s are further directed to pay a compensation of Rs.10,000/- for mental agonies undergone together with a sum of Rs.5,000/- towards litigation expenses.
4. Four weeks time granted to comply this order.

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 14^th day of August 2018).

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                       

Documents produced by the complainant

1. Annexure.A- Copy of Insurance Certificate No.2016-W0019511-FPV.
2. Annexure.B–Copy of premium receipt.
3. Annexure. C– Copy of claim form.
4. Annexure.D—Copy of NEFT mandate.
5. Annexure. E– Copy of Signed Discharge voucher.
6. Annexure.F- Copy of Registration Certificate.
7. Annexure.G- Office copy of legal notice date: 11.07.2016.
8. Annexure.H- Original Towing receipt.
9. Annexure.J – Copy of repair quotation (seven sheets).
10. Annexure.K- Copy of Driving License No.6710405 of R.T.O Bidar.
11. Annexure.L-Copy of extract of Driving License No.KA-38-    
                           20040010067 (New number).

 Document produced by the Opponents.

1. Annexure.R.1- Copy of Motor Survey report.
2. Annexure.R.2- Copy of final survey report.
3. Annexure.R.3- Copy of damage assessment sheets.
4. Annexure.R.4- Copy of the complainant’s legal notice.
5. Annexure.R.5- Copy of O.P.s reply legal notice.
6. Annexure.R.6- Copy of legal opinion.
7. Annexure.R.7- Copy of Repudiation letter.
8. Annexure.R.8- Copy of representation of complaint.
9. Annexure.R.9- Copy of discharge summary of Prime Neuro and                    
                             spine Intensive Care unit Kollapur.
10. Annexure.R.10- Copy of Driving License.
11. Annexure.R.11- Copy of report of Group 9Research wings
                                    (Investigators).
12. Annexure.R.12- Copy of relevant page of station house diary of
                                  Basaveswar chowk Police Station.

Witness examined.

Complainant.

1. P.W.1- Sri Ishwarayya (complainant).

Opponent.

1. R.W.1- Sri Akbar S/o Mohammed Ismail Nadaf Asst. Manager of
                the opponent.

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                      President.