Chandigarh

DF-I

CC/890/2021

Vivek Kumar - Complainant(s)

Versus

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

Kapil Gupta

05 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/890/2021
Date of Institution	:	13/12/2021
Date of Decision	:	05/02/2024

Vivek Kumar s/o Sh.Mohinder Pal r/o H.No.221, Street No.8-C, Shanti Nagar, Manimajra, U.T., Chandigarh presently residing at House No.619, Dashmesh Nagar, Zirakpur, District Mohali.

… Complainant

V E R S U S

1. United India Insurance Company Limited through its Divisional Manager, SCO No.177-178, Sector 8-C, Chandigarh.
2. United India Insurance Company Limited through its Regional Manager, SCO No.123-124, Sector 17-B, Chandigarh.
3. Bank of Maharashtra through its Branch Manager, SCO 115, Sector 47-C, Chandigarh.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

       

ARGUED BY	:	Sh.Kapil Gupta, Advocate for complainant
	:	Sh.Sukaam Gupta, Advocate for OPs 1 & 2 (through VC)
	:	OP-3 ex-parte

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Vivek Kumar, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that the complainant is the registered owner of a Hyundai Alcazar car bearing registration No.CH-01-CE-7761 (hereinafter referred to as “subject car”), which was got insured by him from OPs 1 & 2/insurers vide policy (Annexure C-1) w.e.f. 2.8.2021 to 1.8.2022 (hereinafter referred to as “subject policy”) on payment of premium of ₹43,724/- having sum insured of ₹18,85,168/-. The subject car was hypothecated with OP-3.  However, the terms and conditions of the subject policy were not supplied to the complainant either at the time of insurance or later on.  On the intervening night of 27/28.8.2021, when the subject car driven by the complainant, reached near small chowk of Sector 32/33, Chandigarh, all of a sudden, a stray dog came in front of subject car and in order to avoid the accident, complainant applied brakes, as a result of which, the subject car became imbalanced and struck against the said chowk and was badly damaged. Complainant also received injuries on his chest in the said accident and he was taken to GMCH-32, Chandigarh for treatment and copy of the treatment record is Annexure C-2. The police recorded GDD dated 29.8.2021 (Annexure C-3) in Police Station. Sector 34, Chandigarh. Intimation about the accident was also given to OPs 1 & 2/insurers and accordingly OP-2 deputed surveyor to assess the loss and on the instructions of OP-2 and surveyor, the subject car was taken to the authorised Hyundai workshop i.e. M/s Joshi Automobiles Private Limited for its repair. The complainant supplied all the relevant documents which were asked by OPs 1 & 2 and surveyor, from time to time.  Since the subject car was badly damaged in the accident, the surveyor declared the car as total loss and OP-2 and surveyor uploaded the subject car for auction vide email (Annexure C-4). The complainant continuously visited OP-2 to know about the status of his claim and requested it to release the claim. However, OP-2 instead of releasing the genuine claim of the complainant, with malafide intentions withheld the claim amount to harass the complainant and finally repudiated the claim vide letter dated 21.10.2021 (Annexure C-5) by alleging that as per health record of GMCH-32, Chandigarh dated 28.8.2021, complainant was under the influence of liquor. As OPs 1 & 2 could not bring any material on record to show that, at the time of accident, complainant was having smell of alcohol in his breath and was under the influence of liquor, they have wrongly repudiated the claim of the complainant.  Moreover, there is no observation by the doctor that the complainant was under the influence of liquor at the time when he was brought to the hospital.  The complainant also obtained claim file (Annexure C-6) from OP-2 under RTI Act.  In this manner, the aforesaid act of the OPs amounts to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs 1 & 2/insurers resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action and concealment of facts.  However, it is admitted that the subject car was insured with the answering OPs at the relevant time, but, denied that the claim of the complainant was wrongly repudiated by alleging that, in fact, as the complainant was found with smell of alcohol immediately after the accident by the hospital and even he refused to give his consent for his medical examination, which itself shows that he was under the influence of liquor at the time of accident, hence on finding fundamental breach of the terms and conditions of the subject policy, the claim of the complainant was rightly repudiated in the light of the law laid down by the Hon’ble Apex Court. On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. OP-3 did not turn up before this Commission, despite proper service, hence it was proceeded against ex-parte vide order dated 1.4.2022.
4. Despite grant of sufficient opportunity, rejoinder was not filed by the complainant to rebut the stand of the OP.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the contesting parties and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant is the registered owner of the subject car and he got the same insured with OPs 1 & 2 vide subject policy (Annexure C-1) w.e.f. 2.8.2021 to 1.8.2022 for own damage having IDV of ₹17,11,235/- and the subject car, having been driven by the complainant, met with an accident on the relevant date, time and place, which resulted in causing damage to the subject car, as is also evident from the copy of GDD dated 29.8.2021 (Annexure C-3) and immediately after the accident complainant was taken to the hospital for his treatment, as he was also injured in the accident, and the claim of the complainant has been repudiated by the OPs on finding that the smell of alcohol was there in his breath, as is also evident from the copy of repudiation letter and the investigation report (Annexure R-3), the case is reduced to a narrow compass as it is to be determined if OPs 1 & 2 are unjustified in repudiating the genuine claim of the complainant and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant or if contesting OPs have rightly repudiated the claim of the complainant on finding fundamental breach of the terms and conditions of the subject policy and the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the contesting OPs.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the documentary evidence led by both the parties and the same is required to be scanned carefully in order to determine the real controversy between the parties.  
   3. Perusal of subject policy (Annexure C-1) clearly indicates that the same was valid w.e.f. 2.8.2021 to 1.8.2022 and was having IDV of ₹17,11,235/-.  Annexure C-2 is the copy of health record sheet issued by GMCH-32, Chandigarh which indicates that the complainant was brought to the said hospital for his treatment by the police and smell of alcohol in breath was there. Annexure C-3 is copy of GDD which indicates that the subject car, being driven by complainant, met with an accident and was badly damaged. Annexure C-4 is copy of email indicating that the subject car was uploaded for auction. Annexure C-5 is copy of letter dated 21.10.2021, which indicates that the claim of the complainant was repudiated by OPs 1 & 2 on account of smell of alcohol found in the breath of complainant by the attending doctor and relevant portion of same is reproduced below for ready reference :-

“As per the Health Record receipt of Govt. Medical College & Hospital Chandigarh dated 28.08.2021, smell of Alcohol in your breath was found by the attending doctor.

It has also come on the medical record that you blatantly refused to give any consent for your medical examination to the hospital authority. It is needful to mention here with the refusal on your part for your medical examination clearly established that you were under the influence of alcohol.

A bare perusal of the medical records coupled with your non-cooperation with the hospital authorities for your medical examination clearly established that you were under the influence of liquor at the time of alleged loss as such the claim is repudiated as per terms & conditions of the insurance policy. Copy of policy is enclosed herewith.”

 

4. Annexure R-2 is the copy of final survey report which indicates that the loss of the subject car was assessed at ₹17,11,235/- on net of salvage basis.  Annexure R-3 is the copy of investigation report which indicates that the accident was found to be genuine by the investigator with further finding that as per MLC report, smell of alcohol was found in the breath of the complainant.
5. The learned counsel for the complainant contended with vehemence that as the contesting OPs have failed to prove on record that the smell of alcohol was there in the breath of the complainant or that he was driving the subject car under the influence of liquor, OPs 1 & 2 are unjustified in repudiating the genuine claim of the complainant and the consumer complaint of the complainant be allowed as prayed for.
6. On the other hand, learned counsel for the contesting OPs contended with vehemence that as it stands proved on record that the complainant was under the influence of liquor at the time of accident as he was found having smell of alcohol by the medical officer who had examined him immediately after the accident and he had not given his consent for his medical examined in order to prove that he was under the influence of liquor, which is a fundamental breach of the terms and conditions of the subject policy, OPs have rightly repudiated the claim of the complainant and the consumer complaint be dismissed.
7. There is no force in the contention of learned counsel for the contesting OPs as even the alleged observation made by the medical officer of the hospital in Annexure C-2 about the smell of alcohol in the breath of the patient has not been proved on record, in accordance with law, by examining the said medical officer.  Moreover, there is no material on record in order to prove that the complainant ever refused to get himself medically examined by the doctor in order to ascertain if he was under the influence of liquor or not.
8. Learned counsel for the contesting OPs has relied upon the judgment of the Hon’ble Apex Court in the case of Iffco Tokio General Insurance Co. Ltd. Vs. Pearl Beverages Ltd., III (2021) CPJ 44 (SC) in which it was held that the insurer is not required to establish that there was alcohol intoxication and equally it need not be shown that vehicle was driven by a person who was chronic alcoholic, rather what is required to be shown is at the time of driving the vehicle, resulting in accident, the driver was under the influence of alcohol. The gist of the said judgment is reproduced below for ready reference :-

        “(i) Consumer Protection Act, 1986 — Sections 2(1)(g), 23 — Motor Vehicles Act, 1988 — Sections 185, 203, 204, 205 — Indian Penal Code, 1860 — Sections 279, 427 — Insurance — Drunken driving — Accident of vehicle — Total loss — Influence of intoxicating liquor — Exclusion clause — Claim repudiated — Alleged Deficiency in service — Exclusion requires driving of vehicle by person under influence of intoxicating liquor — Mere presence of alcohol in any small degree would not be sufficient — Court cannot re-write contract and hold that mere presence of alcohol, in slightest degree, is sufficient to exclude liability of insurer — It requires something more, namely, that driver of vehicle was at time of accident acting under influence of intoxicating liquor — It must be shown that in facts and circumstances of each case that consumption of liquor had, if not caused accident, which undoubtedly would bring accident within mischief of clause but at least contributed in perceptible way to causing of accident — To be under influence of alcohol must be understood as question going to facts and matter to be decided with reference to impact of consumption of alcohol on particular driver — If in case without there being any blood test, circumstances, associated with effects of consumption of alcohol, are proved, it may certainly go to show that person who drove vehicle, had come under influence of alcohol — Manner in which vehicle was driven, may again, if it unerringly points to person having been under influence of alcohol, be reckoned — Evidence of unsteady gait, smell of alcohol, eyes being congested, apart from actual consumption of alcohol, either before commencement of driving or even during process of driving, along with manner in which accident took place, may point to driver being under influence of alcohol — It would be finding based on effect of pleadings and evidence — Repudiation justified.

[Paras 35, 36, 50, 51]

(ii)    Motor Vehicles Act, 1988 — Section 185 — Drunken driving— Section 185 deals with driving or attempting driving of motor vehicle by person with alcohol in excess of 30 mg per 100 ml in blood which is detected in test of breath analyser — Being criminal offence, it is indisputable that ingredients of offence must be established as contemplated by law which means that case must be proved beyond reasonable doubt and evidence must clearly indicate level of alcohol in excess of 30 mg in 100 ml blood and what is more such presence must be borne out by test by breath analyser. [Para 53]

(iii) Consumer Protection Act, 1986 — Sections 2(1)(g), 23 — Motor Vehicles Act, 1988 — Sections 185, 203, 204, 205 — Evidence Act, 1872 — Section 106 — Insurance — Drunken driving — Accident of vehicle — Total loss — Influence of intoxicating liquor — Exclusion clause — Claim repudiated — Criminal offence vis- a-vis deficiency of service — Burden of proof — Facts within special knowledge — If prosecution has not filed case under Section 185, that would not mean that competent Forum in action alleging deficiency of service, under Consumer Protection Act, is disabled from finding that vehicle was being driven by person under influence of alcohol — Presence of alcohol in excess of 30 mg per 100 ml. of blood is not indispensable requirement to enable Insurer to successfully invoke clause — Where there is no scientific material, in form of test results available, it may not disable insurer from establishing case for exclusion — Totality of circumstances must be considered — Scope of enquiry, in case under Consumer Protection Act, which is summary proceeding, cannot be lost sight of — What is required to be proved is driving by person under influence of alcohol — There is no case for respondent that terms of contract to exclude liability of appellant, are in any way illegal — It cannot then be said that merely because there is no test performed, Insurer would be deprived of its right to establish case which is well within its rights under contract — Burden of proof, insofar as appellant insured seeks to establish exclusion of liability is concerned, burden of proof is upon it — What was nature of alcohol and what was quantity of alcohol consumed, and where he had consumed, it would certainly be facts within special knowledge of person who has consumed alcohol — Driver has not indicated when he has consumed alcohol — It would be “disproportionately difficult” for insurer in facts to have been proved as to whether driver has consumed liquor on empty stomach or he had food and then consumed alcohol or what was quantity and quality of drink (alcohol content) which would have been circumstances relevant to consider as to whether he drove vehicle under influence of alcohol — Driver has merely stated that he was not under influence of intoxicating liquor and he was in his full senses — There are no interrogatories served on driver by appellant — Unlike in proceeding in Court, ordinarily insurers may not be in position to cross examine — Effects of drinking by way of signs discernible, after accident took place, in facts, cannot be said to be within knowledge of driver only — Insurer or his agent may not have been given notice at that stage — It would not be proper or legal to hold that in such circumstances, insurer would still be in position to prove through breath test or blood test that driver was under influence of alcohol — Repudiation justified.

[Paras 57, 58, 76, 77, 78, 79, 81, 82, 83, 103]

(iv) Res ipsa loquitur — Drunken driving — Influence of intoxicating liquor — Principal is used in cases of tort and where facts without anything more clearly and unerringly points to negligence — Principle of Res ipsa loquitur, as such, appears to be inapposite, when, what is in question, is whether driver was under influence of alcohol — Though principle as such is inapplicable, manner in which accident occurred may along with other circumstances point to driver being under influence of alcohol. [Para 85]

(v) Consumer Protection Act, 1986 — Sections 2(1)(g), 23 — Motor Vehicles Act, 1988 — Sections 185, 203, 204, 205 — Indian Penal Code, 1860 — Sections 279, 427 — Insurance — Drunken driving — Accident of vehicle — Total loss — Influence of intoxicating liquor — Exclusion clause — Claim repudiated — Alleged deficiency in service — What is in a summary proceeding noteworthy, is in the setting of the width of road (a road near India Gate, New Delhi) and the thinnest possible traffic, and without slightest excuse, hitting at the footpath with massive force, not being able to maintain control, hitting the electric pole, the wall of the children park—Impact is so much that it led to the overturning of car and what is more, catching fire of the vehicle — NCDRC was in error in conflating requirement under Section 185 of Act, with that under exclusion clause in contract of insurance in question — Requirement under Section 185 of Motor Vehicles Act is not to be conflated to what constitutes driving under influence of alcohol under policy of insurance in Own Damage Claim — Such claim must be considered on basis of nature of accident, evidence as to drinking before or during travel, impact on driver and very case set up by parties — FIR has been prepared on basis of Report of Police Officer — Use of FIR in criminal case is to be distinguished from its employment in consumer case — This is so, in particular, when FIR is relied upon by complainant himself — Case set up of respondent that person driving car had not consumed liquor, is clearly false — Person driving vehicle had consumed alcohol — Exact quantity, which he had consumed, is not forthcoming — Fact that he smelt of alcohol, is indisputable, having regard to contents of FIR and also MLC — Vehicle was driven in rash and negligent manner, having regard to conviction entered under Section 279 of IPC — Person can be rash and negligent without having been under influence of alcohol — At same time, being under influence of alcohol can also lead to rash and negligent driving — They are not incompatible — Even NCDRC has proceeded on basis that driver had consumed some alcohol — Appellant has established that driver had consumed alcohol and was driving vehicle, when accident took place — Respondent has no case that accident occurred as result of sudden event which took place, which necessitated car being driven into footpath — There is material under Consumer Protection Act, in form of FIR — Police Officer, who has lodged information has specifically stated that car was being driven in very fast manner — Repudiation justified — Impugned order set aside.

[Paras 88, 89, 92, 97, 104, 106, 108]”

      

9. However, the ratio of law laid down in the aforesaid judgment is not applicable in the present case as the facts of the present case are quite different from the facts narrated in the aforesaid judgment. Moreover, it has been held by the Hon’ble Apex Court in the concluding part of the aforesaid judgment that such a claim i.e. in case of vehicle being driven by the driver under the influence of liquor must be considered on the basis of the nature of the accident, evidence as to drinking before or during the travel and more specifically the impact on the driver while driving the vehicle as well as the case set up by the parties. 
10. Even in the judgment in the case of Iffco Tokio General Insurance Co. Ltd. Vs. Pearl Beverages Ltd. (supra) the Hon’ble Apex Court has not held that in case of presence of smell of alcohol in the breath of the driver, the insurer shall escape from its liability, rather it has been held in the said judgment that such claim must be on the basis of the nature of the accident as well as the impact of such alcohol on the driver.  In the said case, in fact, the driver was convicted under Section 279 of the Indian Penal Code and he was penalized for rash and negligent driving and it was also held that the driver had not specifically denied that he had not consumed alcohol and the evidence on the part of the driver was lacking on that point and also that the insurer has no case that the accident occurred as a result of sudden event which took place and same necessitated the car being driven into the footpath or that the accident was caused by another vehicle being driven in any manner or any person or animal attempting to cross the road or otherwise deflecting the intention of the driver, as a result of which it was held that drinking of alcohol by the driver had impact on him, which resulted in causing the accident.  Whereas, the facts of the present case are contrary to the facts as discussed in the aforesaid judgment, especially when it has come on record that the accident had not taken place for the reason that the insured was under the influence of liquor while driving the subject car, rather the same had taken place while saving a dog the subject car got imbalanced as a result of which it struck against a chowk making further clear that the said accident had not taken place on account of the fact that the complainant was under the influence of liquor, as is the defence of the contesting OPs.  Hence, there is no merit in the ground taken by the contesting OPs while repudiating the claim of the complainant.
11. In view of the foregoing, it is safe to hold that contesting OPs were unjustified in repudiating the claim of complainant and the said act amounts to deficiency in service on their part and the present consumer complaint deserves to succeed.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs 1 & 2 are directed as under :-

1. to pay IDV of ₹17,11,235/- (less compulsory deductible/excess clause, if any) to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 21.10.2021 onwards.
2. to pay ₹20,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by OPs 1 & 2 within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. It is, however, made clear that the bank/financier (OP-3) shall have first charge over the aforesaid awarded amount, to the extent the same is due to be paid by the complainant towards the discharge of loan liability, if any.
7. Since no deficiency in service or unfair trade practice has been proved against OP-3, the consumer complaint against it stands dismissed with no order as to costs.
8. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
9. Certified copies of this order be sent to the parties free of charge. The file be consigned.

05/02/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Suresh Kumar Sardana] Member