Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 65.
Instituted on : 25.01.2011.
Decided on : 05.04.2016.
Tushar Malhotra s/o Neeraj Malhotra R/o H.No. 607/24, DLF Colony, Rohtak.
………..Complainant.
Vs.
The New India Assurance Company Ltd. 313, Delhi Road, Model Town, Rohtak.
……….Opposite party.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
VED PAL, MEMBER.
Present: Sh.Naveen Saini, Advocate for the complainant.
Sh.R.K.Bhardwaj, Advocate for the opposite party.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that father of the complainant had taken a Hospitalization benefit policy of himself and his family members bearing No.353803/34/09/00000017 on 01.02.2010 for an amount of Rs.200000/- for the period from 01.02.2010 to 31.01.2011. It is averred that Tushar Malhotra s/o Sh. Neeraj Malhotra met with an accident on 03.07.2010 due to a mechanical default in the car and the car struck to the wall of flyover. As a result Tushar got severe head injuries with right parietal fracture in the accident. It is averred that thereafter complainant asked for insurance claim from the opposite party for a sum of Rs.85853/-. It is averred that complainant submitted all the documents with the opposite party but the opposite party has rejected the claim of the complainant on the ground that the injured was driving under the effect of alcohol. It is averred that complainant also served a legal notice to the opposite party but in vain. As such it is averred that the act of opposite party is illegal and there is deficiency in service on the part of the opposite party and the complainant has sought the amount of Rs.85853/- alongwith interest, compensation and litigation expenses.
2. On notice opposite party appeared and filed its written reply submitting therein that the complainant was driving the car rashly and negligently under the influence of liquor. He alongwith his friends have taken wine and he was driving the car. Thus according to our policy he was not entitled for any compensation. All the other contents of the complaint were stated to be wrong and denied. It is averred that the present complaint may kindly be dismissed with costs.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.PW1/A to Ex.PW3/A, documents Ex.P1 to Ex.P30 and closed the evidence. On the other hand, ld. Counsel for the opposite party has tendered affidavit Ex.RW1/A, documents Ex.RW1 and the evidence of opposite party was closed by the Court order dated 14.09.2015.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that as per policy schedule Ex.P1, the complainant was insured with the opposite party and the sum insured is Rs.200000/-. It is also not disputed that the complainant met with an accident and he had spent an amount of Rs.85853/- on his treatment as is proved from the bills Ex.P8 to Ex.P29. Thereafter complainant filed the claim with the opposite party but the TPA vide its letter Ex.P3 has observed and opined that: “Patient admitted and diagnosed RTA with head injury with RT Parietal contusion with RT Parietal #with# 6th rib. Managed conservatively”. Since the patient was under the effect of alcohol while driving the car(clearly mentioned in F.I.R.). Hence claim is not payable as per clause 4.4.6 of the policy conditions”. Complainant sent a legal notice Ex.P6 to the opposite party and the opposite party replied the same through letter Ex.P7 and has repudiated the claim on the basis of letter of TPA Ex.P3.
7. After going through the file and hearing the parties it is observed that the claim of the complainant has only been repudiated by the opposite party vide its letter Ex.P3 on the ground that at the time of accident the complainant was under influence of alcohol(clearly mentioned in F.I.R) But no such copy of FIR has been placed on record. Moreover except the affidavit and copy of letter Ex.RW1 no document has been placed on file by the opposite party to prove that the complainant was under the influence of liquor. In this regard reliance has been placed upon the law cited in 2012(3)CLT340 titled as National Insurance Co. Ltd. Vs. Soma devi & Ors. whereby Hon’ble National Commission, New Delhi has held that: “No credible or substantive evidence has been filed by the petitioner to indicate that the deceased was in an inebriated condition/intoxicated which resulted in his accidental fall and death-Repudiation of claim citing the exclusion clause in the insurance document held not sustainable-Order of the State Commission upheld” and Hon’ble National Commission in 2014(2)CPC 335 titled United India Insurance Co. Ltd. Vs. Sheela & Ors., has held that: “Mere taking of alcohol without proving limit of diet can be a proof of intoxication-No nexus between intoxication and cause of death proved in the present case even from post mortem report”. In view of the aforesaid law, which are fully applicable on the facts and circumstances of the case it is observed that the repudiation of claim by the opposite party is illegal and unjustified and the complainant is entitled for the claim amount as per bills. On the other hand law cited by ld. Counsel for the opposite party 1(2013) CPJ 150(NC) titled as Dharam Pal Vs. United India Insurance Co. Ltd. is not applicable on the facts and circumstances of the case as in the present case it is not proved on file that the driver was under the influence of liquor as no documentary evidence has been placed on record by the opposite party.
8. In view of the facts and circumstances of the case, it is directed that the opposite party shall pay the amount of Rs.85853/-(Rupees eighty five thousand eight hundred fifty three only) along with interest @9% p.a. from the date of filing the present complaint i.e. 25.01.2011 till its actual realization and shall also pay a sum of Rs.2500/-(Rupees two thousand five hundred only) as litigation expenses to the complainant within one month from the date of decision failing which the opposite party shall be liable to pay further interest @ 12% p.a. on the awarded amount from the date of decision. Complaint is allowed accordingly.
9. 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:
05.04.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
