Haryana

Ambala

CC/148/2022

Baljinder Singh - Complainant(s)

Versus

United India Insurance Co Ltd - Opp.Party(s)

Pawan Mundan

14 Nov 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	148 of 2022
Date of Institution	:	17.05.2022
Date of decision	:	14.11.2023

 

Baljinder Singh age about 32 years son of Sh. Pawan Kumar resident of Village Post Office Samlehri Tehsil Barara Distt. Ambala.

          ……. Complainant

                                                Versus

United India Insurance Company Limited, S.C.O No.72, Phase 9, Mohali, Punjab through its Branch Manager.

                                                                                                  ….…. Opposite Party

Before:         Smt. Neena Sandhu, President.

                              Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

 

Present:        Shri Pawan Mundan, Advocate, counsel for the complainant.                                       Shri Mohinder Bindal, Advocate, counsel for the OP.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To pay IDV of Rs.2,80,000/- along with interest @ 18% p.a. from 23-11-2020 till is actual realization.
2. To pay Rs.1500 as tow-way charges and Rs.5000/- as parking charges.
3. To pay a sum of Rs.1,00,000/- on account of mental agony, torture and physical harassment and inconvenience suffered by the complainant.
4. To pay Rs.50,000/- on account of the deficiency in service.
5. To pay Rs.25,000/- as litigation expenses.
6. Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that the complainant is registered owner of car make Maruti Suzuki & Swift LXI bearing registration no. HR54B-5031 (and the same was purchased for his personal use. The said car got insured with the OP vide policy no. 20200003120P108576659 valid from 31-1-2020 to midnight of 30-1-2021 midnight with IDV Value of Rs. 2,80,000/- for which he paid premium of Rs.6799/- to  OP No.2. On 23-11-2020, the relative of the complainant - namely Sachin Kumar s/o Sh. Surinder Singh resident of H. No. 409, Aasa Singh Gardan, Baldev Nagar, Ambala City had borrowed the above said car and he had gone to Village Lalroo from Panjokhra Sahib via Village Jarout and when he reached near Jarout chowk a stray cow (neelgay) suddenly came in front of the car and in order to escape the cow the car lost its control and turned turtle and fell down in a pit. In the said accident, the car went totally damaged and Sachin Kumar also received injuries in the said accident. He was taken to Healing Touch Hospital from the spot where he was admitted; got treated and was discharged on 24-11-2020.  The police was informed regarding the accident on the same day. The police officials reached at the spot and took the injured to Hospital with the help of passerby. Sachin Kumar after coming out of trauma of the accident went to police Post Baldev Nagar and lodged a DDR no. 21 dated 26-11-2020. The car of the complainant was totally damaged in the accident, as such, he immediately informed the OP regarding the above said accident, but the OP demanded DDR or FIR which was furnished by him alongwith other documents. On asking of the OP, the complainant towed the car to Modern Automobile, Ambala City, from the spot on 1-12-2020 and paid Rs.1500/- as towing charges. Thereafter, the OP appointed Sh. R.L. Gupta, surveyor for assessing the loss of car in the accident, who got signed  various papers from complainant and told the complainant that his claim would be passed soon. However, his genuine claim was  repudiated by the OP vide letter dated 8-2-2021 on the ground that "driver was under the influence of alcohol". Resultantly, the complainant lodged complaint with the office of the insurance Ombudsman but the Ombudsman dismissed the complaint of the complainant vide its order dated 27-1-2022, Annexure C-10, on the ground that the driver of the car was under the effect of alcohol. No percentage of alcohol in driver's blood was examined. Section 185 of Motor Vehicle Act provides fine as well as punishment for driving of vehicle by drunken person if in his blood alcohol exceeding 30mg. per 100 ml. of blood detected in a test by a breath analyser. In the absence of any test by breath analyser, it cannot be presumed only on the basis of smell of alcohol in driver's breath that he was under the influence of intoxications of liquor. There is no medical report to show that the driver was under the influence of alcohol or had consumed alcohol more than permissible limit as there are several other medical parameters to find out as to whether the person is under influence of liquor or not which none of the report shows as to what was quantity and the conduct and how he was behaving etc. By not reimbursing the claim amount, the OP has committed deficiency in service. Hence, the present complaint.
3.           Upon notice, the OP appeared and filed written version wherein it raised preliminary objections to the effect that the present complaint is not maintainable; the present complaint is ex-facie misconceived, vexatious, untenable and devoid of any merit; the complainant has approached this Commission with malafide intentions; the complainant has suppressed the material facts;  the present complaint is not maintainable since the complainant has already exhausted the legal remedy available to him before the Insurance Ombudsman, Chandigarh where he had filed a false and frivolous complaint against the OP which was dismissed on merits vide a detailed order dated 27.01.2022; the  complainant has tried to manipulate the facts for imposing this false and frivolous complaint etc. On merits, it has been stated that as a matter of fact the reported claim no. 2020003120C05192001 of the complainant on receipt of the intimation was duly entertained in due course without going into the aspect of its maintainability due to late intimation but after scrutinizing and elaborating the whole facts, records and the evidence, the competent authority was compelled to repudiate the claim legally within the ambit and purview of the terms and conditions of the policy and as per insurance byelaws. Inspite of the fact that the present claim was out rightly liable to be discarded due to late intimation of claim by the insured against law and in violation of the specific condition of the Insurance policy but even than the said claim was entertained and surveyor Er. R.L. Gupta Surveyor & Loss Assessor was deputed to assess the loss who submitted his detailed report dated 01.02.2021 whereby he assessed the loss under all the modes of assessment with more reliable under net of salvage basis with the assessment of loss to the tune of Rs.2,24,000/- without RC subject to approval of the competent authority. However, from the treatment record of the person on wheel Mr. Sachin Rana, who was driving the said car in question at the time of alleged loss it was find out that he was under the effect of alcohol. After going through the papers and after scrutinizing and elaborating the whole facts, records and the evidence, it came to notice the person on wheel was badly under the influence of liquor at the time of alleged accident and loss in question and thus in the light of all these facts and violations and also without going into any further investigation, the competent authority, held the said reported claim of the complainant not admissible under the insurance policy in question and the liability in respect of the same was repudiated as per the provisions whereby all the benefits under the policy were liable to be forfeited in case the driver is found under intoxication while driving and due to late intimation of claim being against the terms and conditions of the insurance policy. The complainant was duly informed about the fate of his claim vide letter dated 19.02.2021. Although there is no mention of the amount of alcohol found in his blood but the extent of alcohol and this allegation is corroborated from the conduct of the accused driver who could not control his car while driving very negligently at such an uncontrollable speed and caused the loss to such an extent. Even till date, the insured has not contradicted or filed any protest petition against this specific allegation of under the influence of alcohol in his discharge summary. Rest of the averments of the complainant were denied by the OP and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure C/A alongwith documents as Annexure C-1 to C-10 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP tendered affidavit of Shriya Jain, & Authorized Signatory, United India Assurance Co. Ltd., Divisional Office, Ambala Cantt and affidavit of R.L.Gupta, Surveyor and loss assessor having its office at # 123, Ajit Nagar, Jagadhari Road, Ambala Cantt., District Ambala as Annexure OP-A and OP-B respectively alongwith documents Annexure OP-1 to OP-6 and closed the evidence on behalf of OP.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that since the vehicle in question was insured with the OP, as such, it was legally bound to pay the claim amount, yet, on the other hand, repudiating the claim on the ground that the driver, driving the vehicle in question was under the influence of alcohol, OP has indulged into unfair trade practice and the said act also amounts to deficiency in providing service, and negligence on its part. Learned counsel for the complainant has placed reliance on the judgment dated 25.03.2015, passed by the Hon’ble National Commission, New Delhi, in the case of M/s New Delhi India Assurance Company Limited Vs. Ashminder Pal Singh.
7.           On the contrary, the learned counsel for the OP submitted that since the driver, who was driving the vehicle in question was under the influence of drugs/liquor which fact is proved from the discharge summary of the said driver issued by the Hospital in which he took treatment after accident, as such, under those circumstances, the OP cannot be held liable for deficiency in service or guilty of adoption of unfair trade practice and was right in repudiating the claim, as per terms and conditions of the policy in question.
8.           Perusal of record reveals that the claim of the complainant was repudiated by the OP vide letter dated 19.02.2021, Annexure OP-1 on the ground that the driver driving the vehicle at the relevant time of accident was under the influence of alcohol, as such, it amounts to violation of condition no.2 (c) of the policy. Relevant part of the said repudiation letter is reproduced hereunder:- 

“……Others (DRINK AND DRIVE CASE) violation of policy condition u/s 2(e)

"if any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of insured is under the influence of intoxication of liquor or Drugs, the company shall not be liable to make any payment"

 

We absolve ourselves from any further liabilities, arising out of this claim; which please note.…..”

 

9.           Under above circumstances, the moot question which arises for consideration before this Commission is, as to whether, the claim of the complainant has been rightly repudiated by the OP or not. It may be stated here that from the discharge summary dated 24.11.2020, Annexure C-3 of Sh.Sachin Rana, who was admittedly driving the vehicle in question at the time of accident, having been issued by the Healing Touch Hospital, it has been clearly written under the Course in the Hospital that (PATIENT IS UNDER THE EFFECT OF ALCOHOL). Thus, from this discharge summary it has been proved that the driver was under the effect/influence of alcohol on 24.11.2020. It may be stated here that in the case of M/s New Delhi India Assurance Company Limited Vs. Ashminder Pal Singh (supra) relied upon by the complainant, it has been held by the Hon’ble National Consumer Commission, New Delhi that Section 185 of M.V Act, provides fine as well as punishment for driving vehicle by a drunken person if in his blood, alcohol exceeding 30 mg per 100 ml. of blood detected in a test by a breath analyser. In the absence of any test by a breath analyser, it cannot be presumed only on the basis of smell of alcohol in complainant’s breath that he was under the influence of intoxication of liquor.  It is significant to mention here that the Hon’ble Supreme Court in the case of IFFCO Tokio General Insurance Company Ltd v Pearl Beverages Ltd[Civil Appeal No. of 2021 arising out of S.L.P. (Civil) No. 12489/2020]  upheld the repudiation of claim by the insurance company while holding that even if the breath analyser or any other test is not performed, even then the driver can be held liable for drunken driving. Relevant part of the said order is reproduced hereunder:-
   •  

 

The other aspect, which is pressed is, as regards the manner in which the accident itself occurred. In this regard, it is clear that in any such case, this is an important circumstance, which may establish that the driver was under the influence of alcohol. Driving, while under the influence of alcohol, is to be understood as driving when, on account of consumption of alcohol, either before commencement of driving or during the driving and before the accident, when consumption of alcohol by the driver would affect (influence) his faculties and his driving skills. We would expatiate and hold that it means that the alcohol consumed earlier was the cause or it contributed to the occurrence of the accident.

 

10.           In para no.57 of IFFCO Tokio General Insurance Company Ltd. (supra), it was also held by the Hon’ble Supreme Court that if the Breath Analyser or any other test is not performed for any reason, the Insurer cannot be barred from proving his case otherwise.
11.           It may be stated here that the law laid down by the Hon’ble Supreme Court in the case of IFFCO Tokio General Insurance Company Ltd. (supra), will holds the field.  In the present case also, because the OP has proved its case that the driver at the relevant time of accident was under the effect/influence of alcohol, as such it was right in repudiating the claim filed by the complainant arising out of the said accident, in view of ratio of law laid down by the Honb’le Supreme Court in IFFCO Tokio General Insurance Company Ltd. (supra).
12.           For the reasons recorded above this complaint stands dismissed with no order as to cost. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

 

Announced:- 14.11.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President