Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 216.
Instituted on : 10.04.2017.
Decided on : 11.09.2019.
Bijender age 37 years, son of Bhim Singh resident of VPO Kharak Jatan, Tehsil Meham Distt. Rohtak.
………..Complainant.
Vs.
The New India Assurance General Insurance Company, through its Divisional Office, 313, Model Town, Delhi Road, Rohtak.
……….Opposite party.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. RENU CHAUDHARY, MEMBER.
Present: Sh.D.S.Attri, Advocate for the complainant.
Sh. D.S.Chauhan, Advocate for the opposite party.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that the complainant is a registered owner of a Car Maruti Ritz bearing registration No. HR-15B-4527 and the same was insured with the respondent for a period from 07.01.2016 to 06.01.2017. IDV of the vehicle as per policy is Rs.347236/-. The aforesaid vehicle of the complainant met with an accident on 30.08.2016 and suffered total damages i.e. total loss in the alleged accident. DDR was got registered in concerned police station and opposite party was also intimated immediately about the damage suffered to the said vehicle. Opposite party appointed the surveyor and he submitted his report to the respondent. That complainant lodged his claim with the opposite party alongwith required documents. That respondent issued letter dated 30.01.2017 to the complainant and treated the claim of the complainant as No claim in an illegal and arbitrary manner. That the complainant had requested the opposite party to pay the claim amount but to no effect. That the act of opposite party is illegal and there is deficiency in service on the part of opposite party. As such, it is prayed that opposite party may kindly be directed to pay the amount Rs.347236/- as damages of vehicle in question as total loss basis alongwith interest @ 18% per annum from its due date till its actual realization and Rs. 25,000/- as compensation Rs. 11,000/- as litigation expenses to the complainant as explained in relief clause.
2 After registration of complaint, notice was issued to the opposite party. Opposite party in its reply has submitted that on receiving the intimation after 17 days of the alleged accident, No copy of FIR was given, No spot survey was got conducted. The respondent appointed Sh. Daya Ram Gupta independent surveyor and loss assessor to assess the loss of damage of vehicle in question and he submitted his report dated 11.12.2016 in the office of the respondent. As per surveyor report, car in question met with an accident on 30.08.2016 at 12 p.m. with truck. The driver of the car Balbir Singh suffered injury in the accident and admitted in Govt. medical college Hospital, Chandigarh and got treatment there. As per the medical report of the hospital, it is clear that Balbir Singh driver was under the influence of liquor/consumed alcohol at the time of accident, which violates terms and conditions of the policy as well provision of M.V. Act, 1988. As such claim of the complainant was repudiated and same was intimated to the complainant by registered post vide letter dated 30.01.2017. There is no deficiency in service on the part of opposite party and dismissal of complaint has been sought..
3 Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1, documents Ex.C1 to Ex.C19 and has closed his evidence on dated 17.01.2018. Ld. counsel for the opposite party has tendered affidavit Ex.RW1/A and documents Ex.R1 to Ex.R9 and closed his evidence on 08.05.2019.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. In the present complaint, the claim of the complainant was repudiated by the insurance company vide letter dated 30.01.2017 on the ground that there was delay in intimation to the insurer i.e. delay of 17 days and at the time of accident, the driver Balbir was under the influence of alcohol, which is against the terms and conditions of the insurance policy. The respondent officials further submitted that the act of the complainant while driving the vehicle under the influence of alcohol is also an offence under M.V.Act as there is a risk of life in case of accident. So the claim of the complainant was repudiated on this ground. To prove its contention, the insurance company has placed on record copy of surveyor report conducted by Sh. Daya ram Gupta Ex.R5, copy of hospital record Ex.P6. As per copy of survey report Ex.R5, it is submitted that: “After going through MLC of driver, we noted that at the time of accident, driver had consumed/under influence of alcohol which violates terms and conditions of insurance”. After believing upon these documents the insurance company came to the conclusion that the complainant was under the influence of alcohol at the time of accident and as such the claim was repudiated.
6. Regarding the delayed intimation to the opposite party, we have placed reliance upon the ratio of law laid-down in 2014(2)CLT 390 titled Shriram General Insurance Company Ltd. Vs. Rajesh Kumar whereby Hon’ble Haryana State Commission, Panchkula has held that: “Delay of 12 days in intimation to insurance company-There may be a condition in the policy regarding delay in intimation but that does not mean that the insurer can take the shelter under that condition and repudiate the claim, which is otherwise proved to be genuine”. Regarding the consumption of alcohol by the driver, we have observed that in the present case, no sample of blood or urine was taken to assess the presence of percentage of alcohol in blood. In this regard ld. counsel for the complainant has placed reliance upon the ratio of law laid-down in FAO No.1424 of 2018(O & M) of Hon’ble Punjab & Haryana High Court in case titled as Reliance General Insurance Co. Ltd. Vs. Amod Singh and another whereby Hon’ble Court has held that: “As per the provisions of Section 185 of the Motor Vehicles Act, if the driver is found driving the vehicle and has an alcohol exceeding 30 mg per 100 ml of the blood, the driver is liable for drunken driving. But in the present case, no such report has been placed on record. In view of the aforesaid law, which is fully applicable on the facts and circumstances of the case, it is observed that merely on the basis of observation of doctor as mentioned in medical record, it cannot be concluded that the driver was unable to drive the vehicle under the influence of liquor. As such the repudiation of claim on this ground is illegal and amounts to deficiency in service and the complainant is entitled for the insurance claim as per survey report on total loss basis. On the other hand, law cited by ld. counsel for the opposite party 2019(2)CLT26 titled as Royal Sundaram Gen. Ins. Co. Vs. Davubhai Babubhai Ravaliya is not applicable on the facts and circumstances of the case. It is also observed that as per copy of RC Ex.C4 and Certificate of Insurance Ex.C8, the vehicle in question is hypothecated with State Bank of Patiala, Meham, Rohtak.
7. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party to pay the claim amount as assessed by the surveyor amounting to Rs.261537/-(Rupees two lac sixty one thousand five hundred thirty seven only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e.10.04.2017 till its realization and also to pay a sum of Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service as well as litigation expenses to the financer of vehicle i.e. State Bank of Patiala, Meham, Rohtak against the outstanding loan amount of the complainant within one month from the date of decision.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
11.09.2019.
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Nagender Singh Kadian, President
……………………………….
Renu Chaudhary, Member.
