Chandigarh

DF-I

CC/201/2024

SHUBHAM KHATTER - Complainant(s)

Versus

THE NEW INDIA ASSURANCE CO. LTD. - Opp.Party(s)

EKTA SHARMA

07 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/201/2024
Date of Institution	:	15.02.2024
Date of Decision	:	07/10/2024

Shubham Khattar, aged 31 years, son of Ramesh Khatter, r/o Flat No. -1009, Gillco Height, Gillco Valley, Sector-127, Kharar, District Mohali, Punjab.

….Complainant.

Versus

1.       The New India Assurance Company Ltd. registered office Address 87. M.G. Road, Fort, Mumbai, 400001, through its Managing Director.

 

2.       The New India Assurance Company Ltd. Regional office (Claim Hub) SCO 36- 37, Sector-17, Chandigarh, Phone No. 01722542754; fax 2726754, email- ch35@newindia.co.in through its Manager.

...Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Ms.Ekta Sharma, Advocate for complainant
	:	Sh.Madan Lal Chaudhary, Advocate for the OPs.

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the OPs). The brief facts of the case are as under :-
   1. It transpires from the averments as projected in the consumer complaint that the complainant is the registered owner of a Honda Jazz car bearing registration No.KA 01-MS-4997 (hereinafter referred to as “subject car”) and the same was got insured from the OPs/insurer vide policy (Annexure C-1) valid w.e.f. 15.12.2022 to 14.12.2023 for IDV of ₹4.80 lakhs (hereinafter referred to as “subject policy”).   On the early morning of 04.02.2023 between 4/4:30 AM, when the complainant was driving the subject car, all of sudden street dogs came in front of the car and when he tried to save them, he lost control over the car and the same hit the road divider and then to Sector 33/34, 44/45 roundabout and finally stopped after hitting the pole, as a result of which he suffered head injuries and the subject car was also badly damaged. The subject car was towed from the spot to Police Station Sector 34, Chandigarh by the police. The complainant had to undergo head surgeries and the complainant was declared fit to give statement to the police on 09.02.2023 and prior to that DDR (Annexure C-2) was recorded with the Police Station Sector 34, Chandigarh.  Later on, the subject car was taken to Honda Authorized body shop in Industrial Area, Chandigarh.  The OPs were also intimated about the accident who deputed the surveyor. The complainant submitted all the documents as asked by the surveyor.  Again the surveyor asked the complainant to submit the medical bills along with the MLC/MLR etc. which were submitted by the complainant after obtaining the same from the PGIMER, Chandigarh.  Later on the complainant received a letter dated 11.09.2023 whereby the claim has been repudiated on the ground that in the MLR, there is reference “U/I of alcohol”. The complainant visited the PGIMER, Chandigarh and challenged the claim regarding the “U/I of alcohol”  written by the concerned doctor as no test regarding alcohol was conducted upon the complainant when he was brought to the PGIMER, Chandigarh. A copy of the clarification/reply given by the doctor of PGIMER, Chandigarh is Annexure C-8. It is further alleged that the complainant was not driving the subject car under the influence of liquor and the OPs have wrongly and illegally repudiated the claim. In this manner, the aforesaid act of the OPs amounts to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action and suppression of facts.  However, it is admitted that the complainant is the registered owner of the subject car and the same was insured with the OPs vide policy (Annexure R-1) at the relevant date and time. It is further alleged that the subject car met with the accident on the morning of 04.02.2023 at about 4.00 a.m. regarding which the information was received. However, it is alleged that as it was found during investigation/survey that the complainant was under the influence of the alcohol at the time of accident as per the OPD record/MLC (Annexure R-4), the claim was rightly repudiated vide letter (Annexure R-5). On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   3. Despite grant of numerous opportunities, no rejoinder was filed by the complainant to rebut the stand of the OPs.
2. In order to prove their respective claims the parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant is the registered owner of the subject car and the same was insured with the OPs vide subject policy, which was valid 15.12.2022 to 14.12.2023, as is also evident from the copy of policy (Annexure C-1/R-1) and the subject car met with accident on the relevant date, time and place and the same was badly damaged and the complainant suffered head injuries, the case is reduced to a narrow compass as it is to be determined if the OPs are unjustified in repudiating the genuine claim of the complainant on the ground that the complainant was driving the subject car under the influence of the liquor and the complainant is entitled to the claim as prayed for, as is the case of the complainant or if the OPs are justified in repudiating the claim and the complaint of the complainant, being false and frivolous, is not maintainable and is liable to be dismissed,  as is the defence of the OPs.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the terms and conditions of the subject policy (Annexure C-1/R-1), MLC (Annexure R-4) and the repudiation letter (Annexure R-5) and the same are required to be scanned carefully.
   3. The sole defence of the OPs in the present case is that the complainant was driving the subject car at the time of accident under the influence of liquor which is violation of the terms and conditions of the insurance policy and, therefore, the claim was rightly repudiated. As per the final survey report (Annexure R-2), it was unearthed during investigation/survey that the complainant was under the influence of liquor at the time of the accident and the claim was rightly repudiated vide letter dated 21.02.2024 (Annexure R-5). The OPs have relied upon one line in the out-patient record (Annexure R-4), where it has been mentioned that ‘A/H/O RSA influence of alc’. However as the Medical Officer has clarified in his report (Annexure C-6) that “I have also mentioned clearly that the history is not reliable as the informant was not present at the site of RSA”,  making further clear that on the basis of the said one line it cannot be concluded that the complainant was under the influence of liquor while driving the subject car.
   4. In this regard, reliance on behalf of the OPs have been placed on the judgment of the Hon’ble Apex Court in the case of Iffco Tokio General Insurance Co. Ltd. Vs. Pearl Beverages Ltd., III (2021) CPJ 44 (SC) in which it was held that the insurer is not required to establish that there was alcohol intoxication and equally it need not be shown that vehicle was driven by a person who was chronic alcoholic, rather what is required to be shown is at the time of driving the vehicle, resulting in accident, the driver was under the influence of alcohol. The gist of the said judgment is reproduced below for ready reference :-

        “(i) Consumer Protection Act, 1986 — Sections 2(1)(g), 23 — Motor Vehicles Act, 1988 — Sections 185, 203, 204, 205 — Indian Penal Code, 1860 — Sections 279, 427 — Insurance — Drunken driving — Accident of vehicle — Total loss — Influence of intoxicating liquor — Exclusion clause — Claim repudiated — Alleged Deficiency in service — Exclusion requires driving of vehicle by person under influence of intoxicating liquor — Mere presence of alcohol in any small degree would not be sufficient — Court cannot re-write contract and hold that mere presence of alcohol, in slightest degree, is sufficient to exclude liability of insurer — It requires something more, namely, that driver of vehicle was at time of accident acting under influence of intoxicating liquor — It must be shown that in facts and circumstances of each case that consumption of liquor had, if not caused accident, which undoubtedly would bring accident within mischief of clause but at least contributed in perceptible way to causing of accident — To be under influence of alcohol must be understood as question going to facts and matter to be decided with reference to impact of consumption of alcohol on particular driver — If in case without there being any blood test, circumstances, associated with effects of consumption of alcohol, are proved, it may certainly go to show that person who drove vehicle, had come under influence of alcohol — Manner in which vehicle was driven, may again, if it unerringly points to person having been under influence of alcohol, be reckoned — Evidence of unsteady gait, smell of alcohol, eyes being congested, apart from actual consumption of alcohol, either before commencement of driving or even during process of driving, along with manner in which accident took place, may point to driver being under influence of alcohol — It would be finding based on effect of pleadings and evidence — Repudiation justified.

[Paras 35, 36, 50, 51]

(ii)    Motor Vehicles Act, 1988 — Section 185 — Drunken driving— Section 185 deals with driving or attempting driving of motor vehicle by person with alcohol in excess of 30 mg per 100 ml in blood which is detected in test of breath analyser — Being criminal offence, it is indisputable that ingredients of offence must be established as contemplated by law which means that case must be proved beyond reasonable doubt and evidence must clearly indicate level of alcohol in excess of 30 mg in 100 ml blood and what is more such presence must be borne out by test by breath analyser. [Para 53]

(iii) Consumer Protection Act, 1986 — Sections 2(1)(g), 23 — Motor Vehicles Act, 1988 — Sections 185, 203, 204, 205 — Evidence Act, 1872 — Section 106 — Insurance — Drunken driving — Accident of vehicle — Total loss — Influence of intoxicating liquor — Exclusion clause — Claim repudiated — Criminal offence vis- a-vis deficiency of service — Burden of proof — Facts within special knowledge — If prosecution has not filed case under Section 185, that would not mean that competent Forum in action alleging deficiency of service, under Consumer Protection Act, is disabled from finding that vehicle was being driven by person under influence of alcohol — Presence of alcohol in excess of 30 mg per 100 ml. of blood is not indispensable requirement to enable Insurer to successfully invoke clause — Where there is no scientific material, in form of test results available, it may not disable insurer from establishing case for exclusion — Totality of circumstances must be considered — Scope of enquiry, in case under Consumer Protection Act, which is summary proceeding, cannot be lost sight of — What is required to be proved is driving by person under influence of alcohol — There is no case for respondent that terms of contract to exclude liability of appellant, are in any way illegal — It cannot then be said that merely because there is no test performed, Insurer would be deprived of its right to establish case which is well within its rights under contract — Burden of proof, insofar as appellant insured seeks to establish exclusion of liability is concerned, burden of proof is upon it — What was nature of alcohol and what was quantity of alcohol consumed, and where he had consumed, it would certainly be facts within special knowledge of person who has consumed alcohol — Driver has not indicated when he has consumed alcohol — It would be “disproportionately difficult” for insurer in facts to have been proved as to whether driver has consumed liquor on empty stomach or he had food and then consumed alcohol or what was quantity and quality of drink (alcohol content) which would have been circumstances relevant to consider as to whether he drove vehicle under influence of alcohol — Driver has merely stated that he was not under influence of intoxicating liquor and he was in his full senses — There are no interrogatories served on driver by appellant — Unlike in proceeding in Court, ordinarily insurers may not be in position to cross examine — Effects of drinking by way of signs discernible, after accident took place, in facts, cannot be said to be within knowledge of driver only — Insurer or his agent may not have been given notice at that stage — It would not be proper or legal to hold that in such circumstances, insurer would still be in position to prove through breath test or blood test that driver was under influence of alcohol — Repudiation justified.

[Paras 57, 58, 76, 77, 78, 79, 81, 82, 83, 103]

(iv) Res ipsa loquitur — Drunken driving — Influence of intoxicating liquor — Principal is used in cases of tort and where facts without anything more clearly and unerringly points to negligence — Principle of Res ipsa loquitur, as such, appears to be inapposite, when, what is in question, is whether driver was under influence of alcohol — Though principle as such is inapplicable, manner in which accident occurred may along with other circumstances point to driver being under influence of alcohol. [Para 85]

(v) Consumer Protection Act, 1986 — Sections 2(1)(g), 23 — Motor Vehicles Act, 1988 — Sections 185, 203, 204, 205 — Indian Penal Code, 1860 — Sections 279, 427 — Insurance — Drunken driving — Accident of vehicle — Total loss — Influence of intoxicating liquor — Exclusion clause — Claim repudiated — Alleged deficiency in service — What is in a summary proceeding noteworthy, is in the setting of the width of road (a road near India Gate, New Delhi) and the thinnest possible traffic, and without slightest excuse, hitting at the footpath with massive force, not being able to maintain control, hitting the electric pole, the wall of the children park—Impact is so much that it led to the overturning of car and what is more, catching fire of the vehicle — NCDRC was in error in conflating requirement under Section 185 of Act, with that under exclusion clause in contract of insurance in question — Requirement under Section 185 of Motor Vehicles Act is not to be conflated to what constitutes driving under influence of alcohol under policy of insurance in Own Damage Claim — Such claim must be considered on basis of nature of accident, evidence as to drinking before or during travel, impact on driver and very case set up by parties — FIR has been prepared on basis of Report of Police Officer — Use of FIR in criminal case is to be distinguished from its employment in consumer case — This is so, in particular, when FIR is relied upon by complainant himself — Case set up of respondent that person driving car had not consumed liquor, is clearly false — Person driving vehicle had consumed alcohol — Exact quantity, which he had consumed, is not forthcoming — Fact that he smelt of alcohol, is indisputable, having regard to contents of FIR and also MLC — Vehicle was driven in rash and negligent manner, having regard to conviction entered under Section 279 of IPC — Person can be rash and negligent without having been under influence of alcohol — At same time, being under influence of alcohol can also lead to rash and negligent driving — They are not incompatible — Even NCDRC has proceeded on basis that driver had consumed some alcohol — Appellant has established that driver had consumed alcohol and was driving vehicle, when accident took place — Respondent has no case that accident occurred as result of sudden event which took place, which necessitated car being driven into footpath — There is material under Consumer Protection Act, in form of FIR — Police Officer, who has lodged information has specifically stated that car was being driven in very fast manner — Repudiation justified — Impugned order set aside.

[Paras 88, 89, 92, 97, 104, 106, 108]”

5. Otherwise also, the ratio of law laid down in the aforesaid judgment is not applicable in the present case as the facts of the present case are quite different from the facts narrated in the aforesaid judgment. Moreover, it has been held by the Hon’ble Apex Court in the concluding part of the aforesaid judgment that such a claim i.e. in case of vehicle being driven by the driver under the influence of liquor must be considered on the basis of the nature of the accident, evidence as to drinking before or during the travel and more specifically the impact on the driver while driving the vehicle as well as the case set up by the parties. 
6. Even in the judgment in the case of Iffco Tokio General Insurance Co. Ltd. Vs. Pearl Beverages Ltd. (supra), the Hon’ble Apex Court has not held that in case of presence of smell of alcohol in the breath of the driver, the insurer shall escape from its liability, rather it has been held in the said judgment that such claim must be on the basis of the nature of the accident as well as the impact of such alcohol on the driver.  In the said case, in fact, the driver was convicted under Section 279 of the Indian Penal Code and he was penalized for rash and negligent driving and it was also held that the driver had not specifically denied that he had not consumed alcohol and the evidence on the part of the driver was lacking on that point and also that the insurer has no case that the accident occurred as a result of sudden event which took place and same necessitated the car being driven into the footpath or that the accident was caused by another vehicle being driven in any manner or any person or animal attempting to cross the road or otherwise deflecting the intention of the driver, as a result of which it was held that drinking of alcohol by the driver had impact on him, which resulted in causing the accident.  Whereas, the facts of the present case are contrary to the facts as discussed in the aforesaid judgment, especially when it has come on record that the accident had not taken place for the reason that the insured was under the influence of liquor while driving the subject car, rather the same had taken place  in order to save the street dogs who, all of sudden, came in front of the subject car, as is also evident from the copy of DDR (Annexure C-2), contents of which are unrebutted by the OPs.  Hence, the ground taken by the OPs is rejected.
7. In view of the foregoing, it is safe to hold that  the subject car was not being driven by the complainant under the influence of liquor and the OPs were unjustified in repudiating the claim and the said act amounts to deficiency in service on its part and the present consumer complaint deserves to succeed.
8. Now coming to the quantum of amount, as the final surveyor has already declared the insured car as total loss by assessing the net assessment on repair basis to the tune of ₹11.00 lakhs which is exceeding even the IDV of the subject car i.e. ₹4.80 lakhs and the final survey report also indicates that the surveyor after deducting ₹1000/- towards the excess clause from the IDV of the subject car has assessed the liability of the company to the extent of ₹4,79,000/, thus, it is safe to hold that the OPs are liable to pay the said amount to complainant alongwith interest and compensation etc.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and the OPs are directed as under :-

1. to pay aforesaid ₹4,79,000/- to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 21.02.2024 onwards. The wreck/salvage of the subject car shall, however, be retained and disposed of by the OPs/insurer at their own.
2. to pay an amount of ₹20,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

07/10/2024			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member
			Sd/-
			[Suresh Kumar Sardana] Member