D.O.F:14/05/2019

                                                                                                  D.O.O:09/04/2021

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

CC.No.88/2019

Dated this, the 09^th day of April 2021

PRESENT:

SRI.KRISHNAN.K                         :PRESIDENT

SRI.RADHAKRISHNAN NAIR.M : MEMBER

SMT.BEENA.K.G                            : MEMBER

Simi.T,

W/o Chandrakaladharan                                       : Complainant

“Parvanam”, Kovval

Kanhangad SouthP.O,

Pin- 671531

(Adv: Ramachandran.K.V)

                                                            And

1. The Reliance General Insurance Company Ltd,

  Reliance Centre, 4^th Floor,

  South wing, Near Prabhat Colony,

  Off W.E.Highway, Santacruz (East),

  Mumbai – 400 055.

                                                                    : Opposite parties

2. The Branch Manager,

      Reliance General Insurance Company Ltd,

      Vishunu Building, 2^nd Floor, K.P,

      Vallon Road, Kadavanthra,

      Cochin – 682 020.

3. The Grievance Redressal Officer,

     Reliance Centre, 4^th Floor,

     South wing, Near Prabhat Colony,

     Off W.E.Highway, Santacruz (East),

     Mumbai – 400 055,

     (Adv: Santhosh Thomas OP 1,2&3)

ORDER

SRI.KRISHNAN.K  :PRESIDENT

The case of the complainant is as follows:-

1. That the complainant is the owner of the car KL-60M 4422. It was insured with opposite party as per policy No.9911972311009565 dated 29/04/2017, the said car met with a road traffic accident on 23/03/2018 on the National Highway. Accident is caused by colliding with a lorry coming from the opposite direction. Car is completely damaged, driver suffered serious injuries, hospitalized till 02/04/2018. Driver of the lorry is charge sheeted in CC-656/18 on the file of JFCM ll Hosdurg, and was convicted. Car was removed for repairs. Insurance claim disallowed saying that driver of car was under influence of alcohol and insurance company is not liable to reimburse cost. The reason stated is not as per law. The denial of claim on false ground is deficiency in service. The complainant seeks the relief of a direction to opposite party to repair the car free of cost or pay sum of Rs.3,50,000/- full estimated cost of repair and to pay compensation of Rs.50,000/- and cost of litigation.
2. Opposite party No.1 to 3 filed their written version, opposite party admitted insurance and accident thereby damage by accident. But justified denial of claim on the ground that company conducted investigation and found with evidence that driver was under influence of alcohol revealed from the discharge summary, rejection is intimated accordingly. And denied any deficiency in their service and prayed for dismissal of the complaint.
3. Complainant filed IA to direct opposite party to produce survey assessment report.
4. Complainant filed proof affidavit and was cross examined as PW1 Ext A1 to A16 documents marked from his side. Ext A1 is policy certificate, Ext A2 letter issued by 2^nd opposite party to complainant, Ext A3 copy of FIR in crime No.178/2018 of Nileshwar P.S. Ext A4 charge sheet, Ext A5 accident register cum wound certificate, Ext A6 inspector report, Ext A7 judgement in CC-656/2018, Ext A8 petition filed by complainant to 3^rd opposite party, Ext A9 postal receipt, Ext A10 postal acknowledgement, Ext A11 lawyer notice, Ext A12 postal receipt, Ext A13 postal acknowledgement, Ext A14 loss assessment register, Ext A15 photograph of damaged vehicle, Ext  A16 CD.

Opposite party has not adduced any evidence.

5. As per rival contentions raised by parties concerned the following points arise in the case for consideration.

1. Whether repudiation of insurance liability by opposite party is justifiable?
2. Whether insurance company is liable for the reliefs claimed in the complaint.
3.   Whether there is any deficiency in service from opposite party? Whether complainant is entitled for compensation? If so far what reliefs?

For convience all the points were considered together:

6. The point for consideration is whether the insurance company is liable to pay insurance benefits and the compensation. It is true that no documentary evidence has been brought on record to show that the driver of the car Chandrakaladaran while driving the vehicle on the relevant date and time was under influence of alcohol. As per the written version opposite party contended that they found satisfactory evidence that driver was under the influence of alcohol which was revealed from the discharge summary. They received the information from discharge summary is not mentioned in the repudiation letter marked as Ext A2. Discharge summary is not produced. Doctor who made the entry is not examined in the case. Entry in the discharge summary “there is smell of alcohol” is admitted by PW1 while in the box in cross examination. Person driving the vehicle is under the influence of intoxication liquor or drug is one thing, the smell of alcohol if any entered in the discharge summary are entirely different thing.
7. It was not in evidence when he was medically examined by the doctor to find that he had consumed alcohol or there is smell of alcohol. In any event there is no documentary or even oral evidence or contention by opposite party to the effect that driver while driving the vehicle was under the influence of alcohol or any toxic thing liquor or drug as contemplated by exclusion clause in 2(c) of the policy.
8. The decision reported in 1965 KHC 267, 2009 KHC 979, 2014 KHC 3 586 and 2018 KHC 3 858 is very relevant, that in the absence of report of public analyst, it would not be safe to rely on the smell of alcohol alone is to find the liquid involved is within the meaning prohibition act. No blood is collected for sample, not subjected to lab fests to find out any alcohol content.
9. Furthermore there is no evidence that driver had consumed the alcohol prior to driving of the vehicle or during the course of the driving or after finishing the driving. However, accident is caused by collision of two vehicles. Police charge sheeted the driver of the offending vehicle lorry driver and there is no charge against driver of the car. In such circumstances, it is not possible to accept that there was breach of the terms and conditions of the insurance. It is not established by insurance company by examining concerned witness to show that driver was intoxicated and was inebriated stage at the time of accident. Ext A7 judgement shows that driver of lorry Subhas is sentenced to pay fine, undergo simple imprisonment till raising of court and to pay Rs.5000/- as compensation to Chandrakaladharan who is CW1 in the case. Insurance company also made a suggestion in cross examination that it was liable to pay only the amount shown in A16 survey report in the event of liability.
10. Therefore it is not possible to accept that there was breach of terms and conditions of the insurance company. In view of it, respondents are jointly and severally to pay compensation interest and cost to the complainant.
11. Complainant approached opposite party with a request to repairs the vehicle free of cost refused by the opposite party rejecting insurance claim, by which complainant has suffered mental tension and agony and we find that there is severe deficiency in service of opposite parties.
12. Thus complaint is allowed in part with a direction to the opposite parties jointly and severally to pay a sum of Rs.3,00,000/- to the complainant considering the same as total loss and also taking note of both survey report produced by both parties and also considering the amount claimed by the complainant. And also directed to pay Rs.10,000/- (Rupees Ten thousand only) towards compensation for deficiency in service and Rs.3000/- (Rupees Three thousand only) as cost of litigation within 30 days to the receipt of the order.

•       Sd/-                                                     Sd/-                                                        Sd/-

  MEMBER                                          MEMBER                                          PRESIDENT

   

A1 – Policy Certificate

A2 – Letter Issued by 2^nd OP

A3 – FIR

A4 – Final Report

A5 – Accident register

A6 – Inspector report

A7 – Judgement in CC-656/2018

A8 – Petition filed by complainant to 3^rd OP

A9 – Postal receipt

A10 – Postal acknowledgement

A11 – Lawyer notice

A12 – Postal receipt

A13 - Postal acknowledgement

A14 – Loss assessment register

A15 – Photograph of damage vehicle

A15 (a) – CD

A16 – Assessment summary

Witness Examined

PW1 – Simi.T

​      Sd/-                                                     Sd/-                                                        Sd/-

MEMBER                                          MEMBER                                          PRESIDENT

Forwarded by Order

                                                                                    Senior Superintendent

Ps/