OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C. 7/15
Present:-
1)Md. Sahadat Hussain, A.J.S. - President
2)Smti Archana Deka Lahkar - Member
3)Md. Jamatul Islam - Member
Sri Balbir Singh Bhoundi - Complainant
S/O- Sri Jaswant Singh Bhoundi
Khanapara, Guwahati-22
District: Kamrup (Metro) , Assam.
-vs-
1) The New India Assurance Company Ltd. - Opp. parties
Registered office at New India Assurance
Building. 87, M.G.Road, Ford,Mumbai-1
2) The Regional Manager,
The New India Assurance Company Ltd.
Opp. Rajiv Bhawan, Bhangagorh,
G.S.Road, Guwahati-781005,Assam
Appearance-
Learned advocate Ms. Salini Goel for the complainant and Learned advocate Mrs.Mamoni Choudhury for the opp.parties.
Date of argument- 21.8.18
Date of judgment- 17.9.18
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Sri Balbir Singh Bhoundi against New India Assurance Co.Ltd. was admitted on 2.2.15, and notice was served on the opp.parties and they also filed joint written statement. The complainant side filed his evidence on affidavit on 8.10.15 and he was cross-examined by the opp.party side, and thereafter opp.party side filed evidence of Dhrubajyoti Das and Sri Dulal Kr Poshilal and both of them were cross examined by the complainant side; and thereafter opp.party side examined one Mr.Michel R.Marak as Opp.Party No.3 (oral evidence) and he was also cross examined by the complainant side. Thereafter, date was fixed for filing written argument and Ld.Ms. Sajini Goel filed written argument for the complainant side and Ld.advocate Mrs.Mamoni Choudhury filed written argument for the Opp.Party No. 1 & 2, but after filing written argument complainant side is found absent without step on 6.8.18 and 21.8.18 and being compelled on 21.8.18 , we heard oral argument of Ld.advocate Mrs. Mamoni Choudhury for the Opp.Party No. 1 & 2 and today we deliver the judgment which is as below-
2) The complaint case in brief is that, the commercial vehicle of the complainant vide registration No. AS-01-AC2537, which was insured with the opp.parties vide insurance policy No. 53020931120100005036 (effective from 2.2.2013 to 1.2.2014) with IDV of Rs.7,00,000/-. on 23.5.13 at about 9-30 p.m. had met with an accident under Umiam Police Station Ri Bhoi district, Meghalaya and a case has been registered against the driver vide by the police of the Umiam P.S. of Ri Bhoi district , Meghalaya Umiam P.S. Case No. 36 (5)2013 U/S 279/427 I.P.C. and the M.V.I.of Ri Bhoi district , Meghalaya examined the vehicle on 28.5.13 and submitted report to the Officer-In-Charge, Umium P.S., and he informed Opp.Party No.2 about the accident and Opp.Party No.2 deputed a surveyor to assess the loss by damage of the vehicle and surveyed the vehicle on 25.5.13. After releasing of the vehicle, it was parked in a garage at N.H.37, Beltola, Guwahati for preparation of estimate for repairing charge and the said garage estimated the repairing charge which includes labour charge as well as a list of damaged parts based on visual inspection, subject to modification , after dismantling the vehicle. He filed properly filled the claim form with the opp.parties alongwith requisite documents like Estimate of repairing charge, Police Report, M.V.I. Report, Vehicular Documents Charges, Registration Certificate, Road Permit, Fitness Certificate, Driving Licence for assessment of loss . The investigator of the opp.parties also investigated the damage; and on receipt of verbal instruction of the said surveyor, the garage had started repairing of the said vehicle and the surveyor was also informed from time to time about the progress of dismantling of accidental vehicle, and he accordingly visited the garage and also took photographs of damage portion and damage parts of vehicle, and on completion of repairing works , he took the vehicle back from the said garage making payment to the garage. He submitted bills and money receipt to Opp.Party No.2 for re-imbursement , but the opp.parties failed to settle his claim for the reason best known to them, rather Opp.Party No. 2, vide letter No.NERO/CCH/EC/6073 dtd. 7.11.2013, informed the complainant that as per police report, the driver of the said vehicle had been under the influence of alcohol at the material time of accident and as per cl.(b) of commercial vehicle package policy , if accident happens while the driver is under the influence of intoxicating liquor or drugs, compensation is not payable, and hence they closed the file as “No claim”. After receiving the said letter he wrote a letter to Opp.Party No.2 on 19.11.2013. Opp.Party No.2 is not justified in repudiating his claim as the driver of the vehicle under the influence of alcohol is neither substantiated nor proved by the documents, and the said allegation is a false and mis-leading allegation. The police report dtd. 22.7.2013, the Officer-In-Charge states that his driver had consumed alcohol without giving any details about actual amount of alcohol consumed or type of intoxicants consumed. In absence of any evidence regarding quantity of alcohol consumed , Opp.Party No.2 cannot repudiate his claim merely on the ground of suspicion. MVI in his report states that break system of the said vehicle failed due to leakage of flexible pipe and that report clarifies that the driver could not control the vehicle due to failure of break system and unfortunately the vehicle dashed with a police jypsy vehicle. The opp.party side unnecessarily harassed him and put him mental agony by illegally repudiating his claim and therefore, he prays for direct the opp.parties to pay him the repairing charge which is Rs.3,00,000/- along with interest @12% per annum from the date of lodging of his claim till filing of this complaint which is Rs.48,000/-; as well as compensation of Rs.1,00,000/- for causing harassment and mental agony to him along with cost of the proceeding.
3) The pleading of the opp.parties is that the complaint has no locus standi to sue the Opp.Party No.2 ; the complaint is barred by the limitation; the complaint has no cause of action; the complaint is guilty of suppression of material facts at the time of accident the driver of the offending vehicle was under influence of alcohol and as such as per clause-2© of the Commercial Vehicle Package Policy “ if an accident happens while such person (driver) is under influence of intoxicating liquor or drugs the compensation is not payable; and as such no compensation can be paid to the complainant and so claim is rightly repudiated by them and thereby there is no deficiency of service on their part and complaint is not entitled to any compensation from them.
4) Perusing the pleading of the parties and their evidence, it is found both sides admit that commercial vehicle of the complainant vide registration No. AS-01-AC-2537 (Truck), on 23.5.2013 at about 9-30 p.m., had met with an accident under Umiam P.S.District Ri Bhoi, Meghalaya and got substantial damage and police of Umiam P.S. registered a case vide P.S. case No. 36(5) 2013 U.S 279/427 I.P.C and investigated the matter; and Opp.Party No.2, on being informed about the accident, got the vehicle surveyed through their surveyor about the damage suffered by it; and MVI of Ri Bhoi district , Meghalaya also examined the said vehicle and submitted the report to Re-Bhoi P.S. ; and the said vehicle was got repaired bythe complainant through a garage of Beltola.
5) It is found that the opp.parties refused to settle the claim of the complainant on the ground that at the time of accident, the driver of the vehicle had been under influence of liquor and the accident had taken place for driving the said vehicle by the driver under influence of liquor. Now , question is that whether driver was under influence of liquor at the time of accident. Sri Dulal Kumar Pushilal , Opp.Party No.2 states that he gave evidence on behalf of the opp.parties on being authorized by the opp.parties as he is the Asstt. Manager of the opp.parties company. The complainant sides Ld.counsel submits that Opp.Party No.2 was not authorized to give evidence in this forum on behalf of the opp.parties . It is found that Opp.Party No.2 is the Asstt.Manager of the opp.party company and thus he has the authority to give evidence in this forum on behalf of the opp.party company and hence his evidence is accepted.
In evidence of Opp.Party No.2 states that, as per report of their investigator Mr.Dhrrubajyoti Das as well as medical examination report of the driver, it is confirmed that, the driver had consumed alcohol at the time of accident and he could not control himself at that time. Opp.party No. 1, Mr.Dhrrubajyoti Das (investigator) states that in connection with the alleged accident he went to Umium Police Station, Ri-Bhoi district , Meghalaya and asked the officer-in-charge to give him Medical Examination Report of the driver in connection with P.S.Case No.36(5)/2013 and the latter asked him to collect the same from the court of Chief Judicial Magistrate, Ri-Bhoi district, and then he collected copy of the same by engaging one advocate; and he has came to know from that report that, the driver of the alleged vehicle Shri Binoy Ch.Paul was under influence of alcohol at the time of accident and he was not in a position to control himself properly. This evidence of O.P.W.-1 is accepted as he was properly authorized by the opp.parties by issuing authorization letter which is Ex. A. O.P.W,.1 states that Ex.H is the copy of the medical report collected from the court of Chief Judicial Magistrate, Ri-Bhoi district, Meghalaya. The complainant side has not disputed the genuineness of Ext.-H report. So, Ext.H is a genuine document. From Ext.H , it is seen that the Chief Judicial Magistrate Court, Nongphoh issued a photostate copy of report of Dr.D.Rante, Medical and Health Officer, Umium, CHC. From this report it is seen that just after the accident the said doctor, after examining the driver of the alleged vehicle found that the driver of the alleged vehicle, namely Shri Binoy Paul had consumed alcohol on the day of accident and he could not control himself properly. We have found no ground to reject this report of the medical officer, Dr.D.Rante . Opp.Party No.3, Michel R.Marrak , the then Officer Incharge of Umium Police Station states that in connection with the alleged accident, a case vide Umium P.S.Case No. 36(5)/2013 under Section 299/427 IPC was registered against one Shri Binoy Paul alias Vinoy Ch.Paul and they investigated the case and charge- sheeted the case against him and that on the day of accident, the said driver was examined by the doctor and Ext. H is his report and the doctor reported that said driver was under influence of alcohol and he cannot control himself properly. The complainant sides Ld.counsel submits that as no blood test report and breath test report were submitted by opp.parties in this forum, , the medical report (Ext.H) cannot be accepted . It is found that, Ext. H is given by a Govt.Medical Officer and hence genuineness of the said report cannot be doubted. Secondly, the act of examining the said driver by the said medical officer is proved by opp.party No.3 who is a responsible police officer. Hence, submission of Ld.counsel of the complainant is not sustainable, and the report (Ext.H) given by said medical officer is accepted. Moreover, the driver was chargesheeted by the police for rash and negligent driving. In such backdrop, we hold that the fact of taking alcohol by the driver on the day of alleged accident and for taking alcohol he could not control himself properly is well established; meaning there by that, it is also established that as he was driving the said vehicle on the day of accident consuming alcohol to the extent of inability to control himself and the said vehicle and in result dashed against a another vehicle and got the vehicle damaged . So , we hold that for taking liquor by the driver to the extent of inability to control the vehicle, the said vehicle had met with the said accident on that day.
5) Now , 2nd moot question is that whether causing accident to a vehicle by the driver of the said vehicle by driving it under influence of liquor to the extent of inability to control the vehicle is violation of terms and condition of the policy by the owner of the vehicle.The plea of the opp.party side is that as the driver of the alleged vehicle caused the accident to the said vehicle by driving under influence of liquor, it is violation of clause 2( c ) of Commercial Vehicle Package policy. We have perused the very insurance policy which is Ext.B and it is found that in Clause-2( c ) of terms and condition of Commercial Vehicle Package policy, it is clearly written that , if any vehicle suffered accidental loss or damage due to driving it by the driver of the insured under influence of intoxicating liquor or drugs , then the insurer is not liable to pay any compensation for such accidental loss and damage . It is found that at the time of taking policy the complainant agreed to that term. It is already established that the vehicle of the complainant met with an accident on the alleged day and sustained damage as a result of driving it by its driver under influence of alcohol. In such premise, we held that the present complainant is not entitled to get re-imbursement of repairing charges of the said vehicle, which he incurred in repairing the said vehicle after the said accident nor entitled to any compensation as prayed.
6) Summing up our discussion as above, we hold that the complaint has no merit and the complainant has no cause of action for filing the complaint. Hence , the complaint is dismissed on contest.
Given under our hands and seals on this day of 17th September ,2018.
(Smt Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain)
Member Member President
