District Consumer Disputes Redressal Commission, Hooghly
PETITIONER
VS.
OPPOSITE PARTY
Complaint Case No.CC/26/2023
(Date of Filing:-20.02.2023)
- Pratap Narayan Roy of
44, S. K. Bose Sarani, Nabapally Sangha,
Nabapally, P.O. Seoraphuli, P.S. Serampore
Dist. Hooghly, Pin:- 712223.……..Complainant
- The Manager, Safex Packers and Movers having its registered office at 224, 2nd floor, Regent Plaza near Rami Park. Dindoli, Surat,
Gujarat-394210 and Head Office at B-209, Sukh Shanti Complex
Opp:- High Scan Sarkhej Bavla Road, Changodar, Ahmedabad
-
- Mr. Hitender Sharma of 308, 3rd floor, Global View Apartment
Dhelwara Gam, Dindali, Surat, Gujarat:-394210
- The Claim Manager,
ICICI Lombard, having its registered office at
ICICI Lombard House 414 Veer Savarkar Marg near
Siddhi Vinayak Temple, Pravadevi, Mumbai 400025
And city office at Apeejay House, 7th floor
15, Park Street, Kolkata-700016.
- The Director, Sparsh Automobiles Pvt. Ltd.
Pachpedi Naka, Dhamtari Road, Raipur, Chattishgarh-492001
…………….Opposite Parties
Before:-
Mr. Debasish Bandyopadhyay, President
Mr. Debasis Bhattacharya, Member
Mrs. Babita Choudhury, Member
PRESENT:
Dtd.22.08.2024
Final Order/Judgment
Debasis Bhattacharya:- PRESIDING MEMBER
The instant case filed under section 35 of the Consumer Protection Act 2019 arises primarily out of the grievances of the complainant with regard to repudiation of claim against a vehicle insurance policy maintained with the opposite party No. 3. Besides, the Complainant in his complaint petition has expressed grievances also in the matter of services and treatment extended to him by OP 1, a leading service provider in packing and moving industries, OP 2, a driver and OP 4 a car dealer, which in his opinion amounts to deficiency of service.
It will be worth mentioning at the very outset that vehicle insurance is an agreement between a car owner and the car insurance provider that offers protection for four wheelers in the case of financial losses due to unforeseen events like accidents and natural calamities. The policy financially protects the vehicle in case of damage or loss through an accident.
The brief facts of the case as depicted by the Complainant, after trimming the unnecessary details is that the complainant in course of his shifting from Silvasa to his rented accommodation in Kolkata entrusted OP 1 Packers and Movers to transport his household goods and a Maruti Suzuki India Ltd. made light motor vehicle bearing no. No. DN-09K/0643 to shift to Kolkata. The freight involved was to the tune of Rs.1,40,750/-
Accordingly the goods were handed over to OP 1 on 30.04.2022 and goods consignment note is dtd.30.04.2022.
Reportedly, OP1 deputed OP 2 driver to shift the aforementioned vehicle from Silvasa to Kolkata.
On 05.05.22 the Complainant came to know that the said vehicle while on transit met with an accident in Raipur, Chattisgarh on 05.05.2022 at 11 p.m., by hitting a two wheeler and thereby injuring the riders of the two wheelers. In the incident the four wheeler of the Complainant also was damaged. Accordingly an FIR was lodged against the OP 2 driver, with the concerned P.S. by one of the two wheeler riders.
Following the incident, in course of medical investigation of the driver of the four wheelers it was revealed that the driver consumed alcohol ‘but was not intoxicated’.
However the vehicle was released on 13.09.22 by a judicial order.
Subsequent to that, the vehicle was handed over by OP 1 to OP 4 Maruti Suzuki dealer for repair and the estimate dtd.19.09.2022, for repair, prepared by OP 4 showed an amount of Rs.5,41,111.14 for repair of the vehicle.
Thereafter, the estimate was forwarded to OP 3 Insurance Company for claim approval as the said vehicle was insured with the OP 3 Insurance Company under policy no. 3001/MI/10995020/00/000 effective for the period from 16.04.2022 to 15.04.2023 against total IDV of Rs.3,21,451/-.
On 07.10.2022 the Complainant communicated the entire incident to OP 3. However, on November 8th 2022, OP 3 intimated the Complainant that the claim was not admissible because of driving in a drunken state.
On 12.11.2022 OP 4 Maruti Suzuki dealer through an e-mail requested the Complainant to provide work approval as the claim was rejected by OP 3 failing which the Complainant was supposed to bear parking charges at the rate of Rs.300/- per day.
The Complainant here opines that the exclusion clause of the insurance policy was not applicable in the instant case as the driver did not consume alcohol. Simultaneously the Complainant states that further assuming that the driver consumed alcohol the case would not fall under the exclusion clause as the driver in any case was not ‘intoxicated’.
Here the Complainant claims that the concerned police authority of Chattisgarh after investigating the case found evidences to prosecute the driver for any of the offences but not under section185 of the MV Act.
The Complainant further points out that the OP 2 driver was guilty of rash and negligent driving whereby causing grievous hurt as to endanger human life but not guilty of drink and drive case as envisagedunder section 185 of the MV Act.
It is clarified by the complainant that ‘smell of alcohol’ means the driver consumed liquor but this does not imply or mean that the driver was too intoxicated to drive in a balanced manner. It is further claimed that section 185 of the MV Act was not intentionally invoked as the particular percentage of alcohol was not found in the blood of the OP 2 driver.
Thus the Complainant opines that OP 3 Insurance company wrongly repudiated the claim on the ground of drink and drive case without going into the merits of FIR and without considering final report prepared by the concerned wing of the Chattisgarh Police authority.
Considering such repudiation of the claim by the OP insurance Company, transporting the vehicle without any risk insurance and by an ‘unprofessional’ driver by the OP 1 packers and movers, preparing an exorbitant estimate by OP 4 Maruti Suzuki dealer as deficiency in service and unfair trade practice the complainant filed the complaint petition seeking direction upon the opposite parties1 & 3 to pay the amount of Rs.5,41,111.14, the repairing charges estimated by OP 4, and corresponding interest on that amount @18% for the period from 30.04.22 till payment of such amount, to return back the freight of Rs.1,40,750/-, to pay Rs.27,000/- against parking charges of the said vehicle and to pay interest @ 18% on the sum of Rs.27,000/- for the period from 12.11.2022 till payment of such amount.
The Complainant seeks further direction upon OP 1, 2 and 3 to pay an amount of Rs.4,00,000/- as compensation for causing mental agony, pain, anxiety and harassment, to pay interest on that amount @18% for the period from the date of filing the complaint petition till the date of payment.
The Complainant also makes a prayer for imposing direction upon OP 1, 2, 3, and 4 to pay a sum of Rs.50,000/- towards litigation cost.
The Complainant along with his complaint petition has annexed photo-copies of 1) Goods consignment note and bill issued by OP 1, 2) Driving license and adhar card of OP 2, 3) FIR lodged with the concerned P.S., 4) Medical report dtd.06.05.2022, 5) Release order of the vehicle dtd. 13.09.2022, 6) Estimate prepared by OP 4, 7) Insurance policy of OP 3, 8) Complaint letter sent to OP 3 dtd.07.10.2022, 9) E-mail received from OP 3 dtd. 08.11,22 and 10) E-mail received from OP 3 dtd.12.11.2022.
Evidence on affidavit filed by the complainant is almost a replica of the complainant petition.
The instant case ran ex parte against all the opposite parties in spite of proper service of notice and newspaper publication.
However, OP 3 Insurance Company, apart from filing the written version shunned the proceedings of the case.
In view of the above discussion and on examination of available records, it transpires that the complainant in this case is a consumer as far as the provisions laid down under Section 2(7) (ii) of the Consumer Protection Act 2019 are concerned.
The complainant appears to be a resident within the district of Hooghly.
The claim preferred by the complainant does not exceed the limit of Rs.50,00,000/-.
Thus this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.
Now, the issues whether there was any deficiency of service or any unfair trade practice on the OPs’ part and whether the Complainant is entitled to any relief will be taken together in the concluding part of this order as the issues are mutually inter-related.
Defense case
It has already been mentioned that the instant case ran ex parte against all the OPs.
However as the OP 3 Insurance Company at least filed the written version, the synopsis of the written version deserves mention in this order.
The OP Insurance Company in their written version has denied all the allegations leveled against them by the Complainant.
OP 3 referring to para-6 of the complaint petition points out that the Complainant admitted that during the medical investigation which was conducted on 06.05.2022 at 1-33 am it was found that the driver was under the influence of alcohol.
OP 3 thus claims that the insured violated the conditions of the policy as the driver was driving the car under the influence of alcohol and thus in an intoxicated condition.
OP 3 in the written version expresses their confusion over the statement of the Complainant that ‘smell of alcohol means that the driver consumed liquor but this does not mean that he was intoxicated’. The Complainant’s admission that the driver was driving the car in a drunken condition and his inference that it was not an offence is questioned by OP 3.
Decision with reason
Materials on records are perused.
The petitioner in the complaint petition has prayed for imposing directions upon all the OPs.
The case ran ex parte against all the OPs. However OP 3 Insurance Company appeared but just after filing written version disappeared from the scene for ever.
Though, in the complaint petition the petitioner expresses his grievances over repudiation of claim by the OP insurance Company, yet in the concluding part of the petition, instead of claiming the reconsideration of the claim by the OP insurance Company and reimbursement of the Insured Declared value, has claimed for reimbursement of estimated repairing cost jointly by OP 1 and OP 3.
This proposition is apparently impractical as imposing of any direction upon OP 3 Insurance Company to pay the estimated repairing cost of Rs.5,41,111.14 jointly with OP 1 Packers and Movers is supposed to be unfair, arbitrary and beyond all legal norms. Directions if any can be imposed upon the OP 3 Insurance Company keeping the terms and conditions of the policy only.
The Complainant himself admits in the fifteenth para of the complaint petition that the only question which arises for consideration in this case is as to whether the driver of the vehicle was under influence of intoxicating liquor or drugs at the time the vehicle met with an accident and got extensively damaged.
Now, first let us concentrate upon the issues whether the repudiation of claim by the OP Insurance Company on ‘Drink and Drive’ ground was justified and whether the driver at that particular point of time was in an intoxicated state.
The report in connection with alleged history of alcohol intake, arising out of the medical test conducted on the driver on 06.05.2022 at 1-33 a.m. by the concerned authority of Dr. B. R. Ambedkar Memorial Hospital of Raipur, Chattisgarh indicates that there was smell of alcohol from breath and eyes were congested but driver was conscious, oriented, having normal gait, having no tremors, pupils showing no significant risk level and having normal blood pressure.
The report categorically indicates that the driver ‘consumed alcohol but not intoxicated’.
Intoxication generally means that ‘elating or exciting to the degree of frenzy which means in simple meaning that the person has no control over his senses.’
In the instant case it is found that there is no evidence regarding the quantity of liquor in the blood of the driver. The onus lies upon the OP Insurance Company to establish that quantity of alcohol was at least 30mg and therefore exceeded the limit prescribed under section 185 of the MV Act.
However it is a fact that the car was driven by the driver after having consumed alcohol. In such a case, as to what was the nature of alcohol and what was the quantity of alcohol consumed and what was the particular time of consuming alcohol, whether in empty stomach or after taking food, it would certainly be facts within the special knowledge of the persons who had consumed the alcohol. However in the instant case these elaborate details are not available.
The insurer in this case was not in a position to cross-examine the driver.
Moreover in the case of Iffco Tokio General Insurance Company Ltd. vs. Pearl Beverages, Hon’ble Apex Court made the following observations.
‘The law does not prohibit driving after consuming liquor and all that is prohibited is, that the percentage of liquor should not exceed 30 mg. per 100 ml. of blood. Therefore the understanding appears to be that only in circumstances, where the act of driving after consuming liquor, attracts the wrath of section 185 and an offence is committed thereunder, that the opprobrium of the exclusion clause in the contract of insurance, for own damage is attracted’.
‘The presence of alcohol in excess of 30 mg per 100 ml. of blood is not an indispensable requirement to enable an insurer to successfully invoke the clause. What is required to be proved is driving by a person under the influence of the alcohol. Drunken driving, a criminal offence, under section 185 along with its objective criteria of the alcohol blood level is not the only way to prove that the person was under the influence of alcohol. If the breath analyser or any other test is not performed for any reason the insurer cannot be barred from proving his case otherwise.’
‘It is not difficult to contemplate that the accident may take place with the driver being under the influence of alcohol and neither the breath test nor the laboratory test is done. A driver after the accident may run away. A test may never be performed. However there may be evidence available which may indicate that the vehicle in question was being driven at the time of the accident by a person under the influence of alcohol’
Firstly, it is not clear that how the claim was presented before the OP Insurance Company. No copy of filled up stipulated claim form has been filed by the complainant. Secondly, the Complainant has not prayed for imposition of any direction upon the OP insurance Company exclusively in respect of reconsideration of the claim and consequent reimbursement of the claim.
A vehicle insurance claim cannot be lodged simply by sending a letter to the insurer. Besides, so far as the medical report is concerned, the issue which is established, that the driver was under the influence of alcohol while he was driving the car.
In this situation, the Commission cannot find any reason to make any further discussion on the issue related to the repudiation of the claim.
Now comes up the issue related to the role of OP 1 packers and Movers and OP 2 driver. OP 1 packers and movers charged Rs.1,40,750/- for shifting the household goods and the car. Household goods were shifted separately by a container while the car of the Complainant was being moved by a driver on road. Household goods appear to have been received by the Complainant and no grievance has been expressed in respect of the same. But as regards the bill of Rs.1,40,750/- raised by the OP 1, for the entire shifting, charges in respect of household goods and the car cannot be segregated. Thus it cannot be determined that to what extent shifting of vehicle was charged. Even if the Complainant is entitled to get back the charges for shifting the vehicle, it will be arbitrary, whimsical and far from being judicious to impose any direction on OP 1 depending upon mere conjecture.
But deficiency of service on the part of OP 1 packers and movers is apparent and they cannot shrug off the responsibility for the entire incident.
Considering the facts and circumstances of the case this District Commission is of the view that there was deficiency of service on the OP 1 Packers and Movers’ part.
Hence, it is
ORDERED
that the complaint case no.26/2023 be allowed and the same is allowed ex parte but in part.
OP 1 packers and movers is being directed to pay an amount of Rs.1,50,000/- to the Complainant as compensation for causing suffering, mental agony and harassment.
OP 1 is further directed to pay an amount of Rs.20,000/- to the Complainant towards litigation cost.
OP 1 is directed to comply with this order within 45 days of this order failing which OP 1 will be liable to pay Rs.25,000/- furthr in the Consumer Legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgements/sent by ordinary post for information and necessary action.
