Haryana

Ambala

CC/180/2021

Bhup Singh Rathore - Complainant(s)

Versus

The New India Assurance Co Ltd - Opp.Party(s)

Gopal Krishan Gupta

31 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         : 180 of 2021.

                                                          Date of Institution           : 03.06.2021.

                                                          Date of decision    : 31.08.2022.

         

Bhup Singh Rathore, S/o Sh. Gopal Singh Rathore, now Residing at SMQ no. 66/3, M.L. Square, Air Force Station, Ambala Cantt, Haryana-133001.

 

                                                                             ……. Complainant.

                                                Versus

The New India Assurance Company Ltd. Divisional Office, Rai Market, Ambala Cantt. through its Senior Divisional Manager.

                                                                              ….…. Opposite Party.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.  

                            

Present:       Shri Gopal Krishan Gupta, Advocate, counsel for the complainant.

                     Shri Mohinder Bindal, Advocate, counsel for the OP.

 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

(i)      To pay the repair charges of Rs.2,27,348/- (Including    Rs.1500/-    Towing expenses) as estimated by the repairer         alongwith interest @ 18% per annum from the date of    accident.

(ii)     To pay Rs.25,000/- towards mental and physical harassment suffered by the complainant.

(iii)    To pay Rs.15,000/- as litigation expenses.

(iv) Grant any other relief which this Hon’ble Commission may     deem fit.

 

2.             Brief facts of the case are that the complainant is the owner of Vehicle-Hyundai i 20 Model 2018 bearing Registration Certificate no. RJ-19-CH-6054, which is comprehensively insured with the OP vide Policy No. 31030031192000407478 (standard-motor own damages Policy for private car-enhanced cover) valid up-to 27.11.2020 w.e.f. 28.11.2019. Unfortunately, the said car met with an accident on 27.09.2020 near Military Hospital, Ambala Cantt and was totally damaged. F.I.R. bearing no. 389 dated 28.09.2020 u/s 279/337 was registered at Police Station, Ambala Cantt. The said car was taken into possession by the police and was mechanically examined by it on 06.10.2020. It was released by the Court on superdginama on 10.10.2020 and was taken to Hyundai Show-room on the same day by the complainant, which fact was immediately informed to the OP through email. Surveyor of the OP visited the workshop on 14.10.2020 to evaluate the loss suffered to the car in question. Thereafter, the complainant got estimate cost of repair of his accidental car from Hyundai Show-room, which gave estimate of Rs.2,75,000/-. Accordingly, the complainant lodged the claim with the OP. Surprisingly, vide letter dated 22.03.2021, the OP repudiated the claim on the ground:

1. You were under the Influence of alcohol at the time of accident in question on 27.09.2020 near Military Hospital, Ambala Cantt., while driving the Car in question and thus you have wilfully violated the terms and condition of the insurance policy.

Policy condition: The Company shall not be liable to make any payment in respect of any accidental 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.

2. On perusal of the papers, it has been observed that though the vehicle had met with an accident on 27.09.2020, the insurance company was intimated about the same on 13.10.2020 i.e. after an inordinate delay of 16 days in clear violation of the condition no.1 of the insurance policy which says:

Condition no.1: Notice shall be given in writing to the Company immediately upon the occurrence or any loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require...... In case of theft or criminal act which may be the subject of a claim under this policy, the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender.

However, while holding above, the OP failed to take into consideration the fact that although the issue of liquor has been mentioned in the statement rendered by Ravi Paul (informant of the F.I.R.) but the same was found false during investigation by the police. There is no medical report in this regard. The police filed the challan u/s 279/337 IPC only. The Influence of intoxicating liquor or drugs is not covered under both the sections of IPC. Therefore, repudiation of claim of the complainant on the grounds referred to above is totally unfair and prejudice. By not reimbursing the claim amount, the OP has committed deficiency in service. Hence, the present complaint.

3.           Upon notice, the OP appeared through its counsel and filed its written version wherein it raised preliminary objections to the effect that the complaint is not maintainable either in law or on facts and liable to be dismissed in limine, complaint is ex-facie misconceived, vexatious, untenable and devoid of any merit; the complainant has suppressed the material facts so as to get the claim amount without any cause of action. It is the complainant himself who is responsible for the non-payment of his claim. As a matter of fact, on receipt of claim no. 31030031200390007805 on 13.10.2020, it was duly entertained in due course without going into the aspect of its maintainability due to late intimation but after scrutinizing and elaborating the whole facts, records and the evidence, the competent authority was compelled to repudiate the claim legally within the ambit and purview of the terms and conditions of the policy and as per insurance byelaws. Surveyor Raman Auto Surveyors & Loss Assessors was deputed to assess the loss who submitted his detailed report dated 21.12.2020 whereby he assessed the loss to the tune of Rs.2,14,009/- subject to approval of the competent authority. However, the said Surveyor and Loss Assessor, pointed out that the driver-insured was under the influence of alcohol. It was thus found that  the insured himself was driving the car in question and was badly under the influence of liquor at the time of accident and also there was delay on his part in intimating the insurance company regarding the said accident. The complainant was duly informed about the fate of his claim vide letter dated 22.03.2021. Furthermore, the insured who was driving the said car in question at the time of accident fled away from the spot after causing the accident by leaving his car without caring about its safety. While lodging the FIR, the injured and occupants of the car no. HR-01Y-5296 specifically stated to the police that the driver of car no. RJ-19CH-6054 was under the influence of alcohol at the time of accident. Since no MLR or any medical test of the accused driver of the insured car was conducted as he fled away from the spot and could be arrested only on 01.10.2020 i.e. after 4 days of the occurrence, so he escaped from the medical test and thus there has been no other proof about the consumption of alcohol except the facts narrated in the FIR and his conduct at that particular time.. Even till date, the accused/insured has not contradicted or filed any protest petition against this specific allegation of under the influence of alcohol in the FIR. The impact of the said accident within the area of city limits and speed restrictions also proves the conduct and condition of the insured at that relevant time, when both the cars have been completely damaged. Rest of the averments of the complainant were denied by the OP and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of complainant, affidavit of Mool Singh s/o Shri Ishwar Singh, presently residing at SMQ No.83/4, R.R.Lines, Air Force Station, Ambala Cantt. Haryana-133001 and affidavit of Kishan Singh son of Shri Marudhar Singh, residing at SMQ No.214/5, Toofani Enclave, Air Force Station, Ambala Cantt, Haryana as Annexure CA to CC respectively alongwith documents as Annexure C-1 to C-17 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP tendered affidavit of Mona Bagga, Sr. Divisional Manager & authorized signatory, New India Assurance Co. Ltd., Divisional Office, Ambala Cantt., affidavit of Raman Chhatwal surveyor son of Shri A.K.Chhatwal, proprietor M/s Raman Auto Surveyors & Loss Assessors, having its office at # 135, Ajit Nagar, Ambala Cantt. and affidavit of Shri Rani Pal son of Shri Harbans Lal, R/o House No.514, New Model House, Jallandhar, Punjab as Annexure OP-A to OP-C respectively alongwith documents as Annexure OP-1 to OP-11 and closed the evidence on behalf of OP.
5.           We have heard the learned counsel for the parties carefully gone through the case file.
6.           Learned counsel for the complainant submitted that since the genuine claim of the complainant has been repudiated by the OP on flimsy grounds to the effect that he was under influence of alcohol at the relevant time of accident and that there was delay in intimation regarding the said accident, the said act amounts to deficiency in providing service, negligence and adoption of unfair trade practice on its part. 
7.           On the contrary, the learned counsel for the OP submitted that because it has been proved by way of contents of the FIR that the complainant was under the influence of alcohol at the time of accident and also there was delay of 16 days in intimation of the accident to the OP, therefore, the claim of the complainant was rightly repudiated by the insurance company, strictly as per terms and conditions of the insurance policy.
8.           The facts/dates as mentioned in the consumer complaint, with regard to obtaining insurance policy in question by the complainant in respect of the vehicle in question; payment of premium; occurrence of accident of the said vehicle and lodging of claim are not in dispute. The only dispute is qua rejection of the claim of the complainant by the OP vide letter date 22.03.2021, Annexure C-12.  Admittedly, the claim of the complainant in respect of the vehicle in question, was repudiated by the OP vide letter date 22.03.2021, Annexure C-12 only on two grounds, firstly, that  he was badly under the Influence of alcohol at the time of accident in question on 27.09.2020 and secondly that there was delay of 16 days in intimation to the OP regarding the said accident. Under these circumstances, the moot question which falls for consideration is, as to whether, the OP was justified in repudiating the claim of the complainant or not?
9.           First coming to the ground taken by the OP for repudiation to the effect that there was delay of 16 days in intimation to the OP regarding the said accident, it may be stated here that, the Hon’ble Supreme Court of India in Civil Appeal No. 15611 0f 2017 (Arising out of SLP (C) No.742 of 2015) Om Prakash Versus Reliance General Insurance And Anr. decided on October 4, 2017 has held that if the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of intimation in delay to the insurance company. Relevant part of this order is reproduced hereunder:-

“……If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act…….”

 

10.           In the present case also, the complainant has clarified in his complaint that delay in intimation to the OP occurred because on the day of accident i.e. on 27.09.2020, the insured vehicle had been taken into police custody immediately. The complainant recovered the vehicle from police custody on 10.10.2020 on superdginama. The vehicle was then taken to Hyundai Show-room on the same day and the complainant had immediately informed the OP by sending email. Surveyor of the OP visited the show room on 14.10.2020 to evaluate the damages and claim. In our considered opinion, the complainant has proved his case that there was no intentional or deliberate delay on his part in intimating the OP regarding the said accident, yet, since he was busy in getting released his vehicle, and the day he got his vehicle released from the police, thereafter, he immediately informed the OP.  Thus, the complainant has been able to satisfactorily explain the reason for delay in informing the OP regarding the said accident and the OP was not justified in rejecting the claim of the complainant on this ground.  
11.           Now coming to the second ground of repudiation of claim, taken by the OP to the effect that the complainant was badly under the Influence of alcohol at the time of accident in question on 27.09.2020, it may be stated here that this ground has been taken by the OP, on the basis of the contents of FIR, which were recorded on the basis of statement given by the injured namely Ravi Paul (informant of the F.I.R.), wherein  he has clearly stated that at the time of accident the complainant was under the influence of alcohol; he was staggering and that when he was rebuked by the public for causing the said accident, he fled away. This fact has been reiterated by the informant-Mr.Ravi Pal, in his affidavit Annexure OP-C. However, no reason whatsoever has been given by the complainant as to why he fled away from the spot, after accident. The learned counsel for the complainant contended with vehemence that since there is no medical report of the complainant that he was under the influence of alcohol at the time of accident, as such, the OP was not justified to repudiate his claim. It may be stated here that when the complainant did not make himself present for conducting the medical test, as he flew away at the time of accident, as such, the question of production of his medical report as to whether he was under the influence of alcohol or not, did not arise.  Even otherwise, the FIR is a crucial document and cannot be ignored easily, unless some contrary to it has been placed on record.  Thus, under these circumstances, an adverse inference can easily be drawn against the complainant that he flew away from the spot of accident, in order to escape himself from the medical test because had it been done, it would have gone against him. In our considered opinion, when the OP has established and proved its case, by placing on record the FIR, contents whereof are sufficient to say that the complainant was under the influence of alcohol at the relevant time of accident, which fact has gone unchallenged by the complainant, who failed to place on record any contrary evidence. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme  Court of India in Iffco Tokio General Insurance Co. Ltd. vs Pearl Beverages, decided on 12th April, 2021, wherein it was held that a breath analyzer test or blood test as contemplated under the Motor Vehicles Act is not necessary for an insurer to repudiate an accident policy claim on the ground of drunken driving, if insurance company is able to establish from the facts that the driver was under the influence of alcohol at the time of accident. Under these circumstances, it is held that repudiation of claim on one of the grounds that the complainant was heavily/badly influenced under alcohol, which resulted into accident, is legal and valid. 
12.           For the reasons recorded above, this complaint stands dismissed with no order as to costs. Certified copy of the order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 31.08.2022.

 

           (Ruby Sharma)                                           (Neena Sandhu)

                Member                                                 President