Chandigarh

DF-II

CC/713/2019

Rajan Deep Singh - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

Kapil Gupta Adv. & Devinder Kumar Adv.

02 Jul 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	713/2019
Date of Institution	:	02.08.2019
Date of Decision	:	02.07.2021

 

                                       

                       

 

Rajan Deep Singh s/o Sh.Atma Singh r/o H.No.3253, Sector 45-D, Chandigarh

                                ...  Complainant.

Versus

1. The Oriental Insurance Co. Ltd., SCO No.45, Sector 20-C, Chandigarh through its Branch Manager.
2. The Oriental Insurance Co. Ltd., SCO No.109-111, Sector 17-D, Chandigarh through its Regional Manager.
3. M/s Ultimate Automobiles Pvt. Ltd., Plot No.154-155, Industrial Area, Phase-I, Chandigarh through its Authorized Representative.

…. Opposite Parties

 

BEFORE:
		SHRI RAJAN DEWAN,	PRESIDENT
		SMT.PRITI MALHOTRA,	MEMBER
		SHRI B.M.SHARMA	MEMBER
Argued by:-
	Sh.Devinder Kumar, Adv. for the complainant
	Sh.Sahil Abhi, Adv. for OPs No.1 and 2 None for OP No.3.

 

      

PER RAJAN DEWAN, PRESIDENT

1.         Briefly stated, the facts of case as alleged by the complainant are that  the Hyundai Verna Car bearing registration No.CH-01-BH-7342 insured with the OPs No.1 and 2 vide cover note dated 24.05.2018 (Annexure C-1) for the period from 31.05.2018 to 30.05.2019 for an IDV of Rs.8 lakhs met with an accident on the intervening night of 01/02.02.2019 with another car due to fog at light point of Sector 34/35, Chandigarh while driven by the complainant. The complainant was taken to the Govt. Hospital, Sector 16, Chandigarh for treatment where he remained admitted till 03.02.2019. He gave due intimation regarding the accident to the insurance company who deputed surveyor to assess the loss to the vehicle.  The complainant was taken to OP No.3 for its repairs.  OP No.3 informed the complainant that since the insurance was cashless and the surveyor had submitted his final survey report with OP No.2 and the OP had approved the claim, so he could take away his car after depositing Rs.8000/-.  Thereafter, he took the delivery of the vehicle by paying Rs.10000/- to OP No.3. On 14.03.2019, he again received a call from OP No.3 regarding depositing the balance amount of Rs.1,61,178/- as OP No.2 denied the cashless facility.  On 15.03.2019, he enquired from OP No.2 about the status of the cashless claim and OP No.2 with mala fide intention advised him to pay the repair charges to the workshop directly as his claim is under process. Subsequently, he paid Rs.1,61,178/- in cash to OP No.3 after borrowing money from friends/relatives.  It has further been averred that he replied all the queries of the insurance company as and when raised by it. However, the Insurance Company illegally repudiated the claim vide letter dated 22.05.2019 on the ground that the insured is under the influence of intoxicating liquor or drugs. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint.   
2.         In their written statement, OPs No.1 and 2 while admitting the factual matrix of the case regarding the existence of insurance of the vehicle at the time of accident of the vehicle has pleaded that the as per condition No.2c of Section 1 of the terms and conditions of the insurance policy, 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 with the knowledge and consent of insured is under the influence of intoxicating liquor or drugs.  It has further been pleaded that the surveyor has assessed the loss at Rs.1,63,281/- vide his report dated 04.03.2019. It has further been pleaded that after  receipt of the survey report and the investigator report and after due application of mind and keeping in view the terms and conditions of the insurance policy, the claim was rightly repudiated as No Claim  vide letter dated 22.05.2019 on the ground that the complainant was driving the vehicle under the influence of intoxicating liquor and the said fact is confirmed from the discharge summary and MLR report of Govt. Hospital, Sector 16, Chandigarh.   It has further been pleaded that the complainant has refused to give the blood and urine sample as per the MLC report of the hospital. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on their part, a prayer for dismissal of the complaint has been made.
3.         The complainant filed rejoinder to the written reply of OPs No.1 and 2 controverting their stand and reiterating the averments as made in the complaint.
4.         OP No.3 filed reply by way of affidavit stating that after the accident the vehicle was bought to their workshop and on 05.02.2019, the same was inspected and job car was prepared on 07.02.2019. It has further been pleaded that the surveyor appointed the Company gave its approval to carry out the repair work and according the same was repaired as per estimate given by the surveyor.  It has further been pleaded that the complainant deposited his share of Rs.8000/- on 27.02.2019 and as the insurance company denied the cashless facility, the complainant was requested to deposit the balance amount of Rs.1,61,178/- which he deposited on 18.03.2019. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.
5.         We have heard the Counsel for the contesting parties  and have gone through the documents on record along with the written arguments of the complainant and OPs No.1 and 2.
6.         After going through the pleadings of the parties and the evidence on record, we are of the considered view that the onus to prove that the complainant was under influence of the liquor at the time of the accident or that he was not in a fit condition to drive the vehicle in question due to the influence of any intoxicant was entirely upon the Insurance Company.  The Insurance Company has not been able to bring on record any concrete and reliable evidence in the shape of medical test report of the complainant to prove that he was under influence of the liquor at the time of the accident and was incapable of taking care himself/drive the vehicle. 
7.         The Insurance Company cannot take the shelter of the treatment record issued by the hospital and the investigator report dated 13.03.2019 (Annexure R-3) to contend that the complainant was under the influence of the liquor. Mere observations of the treating doctor on the basis of some foul smell coming from the complainant, without conducting any blood test to confirm the presence of the alcohol concentration, cannot be believed. There was no mention of any alcohol concentration, by which it can be established that the complainant was drunk or that he was not in a fit condition to drive the vehicle in question due to the influence of intoxicant. Besides this, the complainant was diagnosed to be head injury and on examination he was suffered pain right frontal region of scalp with history of vomiting,  advised NCCT head, Surgical consultation due to which he was disoriented. .
8.         As per Sections 185 and 202, of the Motor Vehicles Act, it would be considered intoxicated only if the person is tested and found to have more than 30 mg of alcohol in his blood, per 100 ml.
9.         In the present case, no test was conducted to ascertain whether Blood Alcohol Concentration (BAC) had exceeded the legally stipulated limit. Mere smell of alcohol cannot lead to an inference that a person is incapable of taking care of himself or to drive a vehicle.  Thus, the Insurance Company has committed deficiency in service by repudiating the claim of the complainant vide letter dated 22.05.2019. Here our view is bolstered from the judgment of the Hon'ble National Commission in the case reported in II (2015) CPJ 758 (NC) titled as  New India Assurance Co. Ltd Vs. Ashminder Pal Singh in which it was held as under:

Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(a)(ii) — Motor Vehicles Act, 1988 — Section 185 — Insurance — Accident of vehicle — Total loss — Surveyor appointed — Loss assessed — Claim repudiated — Exclusion clause — Deficiency in service — State Commission allowed complaint — Hence appeal — Contention, complainants were heavily intoxicated at time of accident — Not accepted — Driving vehicle by drunken person is punishable under Section 185 of M.V. Act if it is proved that alcohol exceeds 30 mg. per 100 ml. of blood — In absence of any test it cannot be presumed only on basis of smell of alcohol in complainant’s breath that he was under influence of intoxication — Impugned order

10.         In National Insurance Co. Ltd. v. Soma Devi & Ors., II (2012) CPJ 50 (NC), it was observed by the Hon'ble National Commission as under

“Both the post-mortem report and the investigators report merely state that the deceased had consumed alcohol without giving any details about the actual amount of alcohol consumed or the type of intoxicants consumed. Even if the post-mortem report stating that the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed”.

11.        Keeping in view the above facts and circumstances of the  present case and the principle of law settled in the aforesaid judgments, we are of the considered view that OPs No.1 and 2 are proved to be deficient in rendering services to the complainant by repudiating the legitimate claim vide its letter dated 22.05.2019.
12.         In the present case, Sh.Rajesh Khanna, Surveyor and Loss Assessor appointed by the OP had assessed the loss to the vehicle to the tune of Rs.1,63,281/- vide its survey report dated 04.03.2019 (Annexure R-2).
13.         In view of the above discussion, the present complaint deserves to be allowed qua OPs No.1 and 2 and the same is accordingly allowed. OPs No.1 and 2 are directed as under:-

1. To pay Rs.1,63,281/- as assessed by the surveyor vide its report dated 04.03.2019 to the complainant along with interest from the date of its repudiation till its realization.
2. To pay Rs.11,000/- as compensation for mental agony and physical harassment to the complainant.
3. To pay Rs.10,000/- as litigation expenses.

This order be complied with by OPs No.1 and 2, within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.No. (ii) shall also carry interest @9% per annum from the date of the order till its actual payment besides compliance of other directions.

14.         The complaint qua OP No.3 stands dismissed.
15.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced 02/07/2021	sd/-
	(RAJAN DEWAN) PRESIDENT
	Sd/-
	(PRITI MALHOTRA) MEMBER
	Sd/-
	(B.M.SHARMA) MEMBER