Jammu and Kashmir

Jammu

CC/138/2017

TARA CHAND SHARMA - Complainant(s)

Versus

United India Insurance - Opp.Party(s)

KAPIL SHARMA

10 Mar 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

         (Constituted under J&K Consumer Protection Act,1987)

 

                                                          .

 Case File  No                 315/DFJ           

 Date of  Institution     25-10-2013

 Date of Decision         22-02-2018

 

1.Tara Chand Sharma,

S/O Late Sh.Kanthu Ram,

R/O House No.262,Adarsh Enclave,

Ext.Sec.1,Trikuta Nagar,Jammu.

2.Sudershan Sharma,

  W/O Tara Chand Sharma,

R/O House No.262,Adarsh Enclave,

Ext.Sec.1,Trikuta Nagar,Jammu.

                                                                                                                                                Complainant

             V/S

1.United India Insurance Company,

  Through its Managing Director,

 24-Whites Road,Chennai.

2.United India Insurance Company,

  Through its Branch Manager,

21-C/B Block,Opp.Convent School,

Gandhi Nagar,Jammu.

                                                                                                                                                Opposite parties

CORAM:-

                  Khalil Choudhary           (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chauhan                                       Member

 

In the matter of  Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

     

  Mr.Kapil Sharma,Advocate for complainants, present.

Mr.Ajay K. Gandotra,Advocate for OPs,present.

 

 

                                                            ORDER.

                            Facts necessary for the disposal of complaint on hand are that ,complainants are the parents of deceased Rohit Sharma,who had purchased a vehicle Safari EX 42 bearing registration No.JK02BL-0095,got the same insured with OP vide Insurance Policy No.1106003115P103957814 w.e.f.06-07-2015 to midnight of 05-07-2016 and complainants being dependants of deceased Rohit Sharma have filed the present complaint. According to complainants, said vehicle met with an accident on,04-02-2016 near Village Gagal,Tehsil Nadaum Distt.Hamirpur(H.P) and the FIR with respect to same has also been lodged In the Police Station Nadaum Distt.Hamirpur vide FIR No.14/16 dated 05-02-2016 and in the said accident son of complainants succumbed to the injuries, copy of  RC,Insurance Policy and FIR annexed with the complaint,(Annexures A,B&C).Complainant further submitted that intimation of said accident was given to Ops within few days from the date of occurrence and complainant No.1 himself had approached OP for invoking the clause  regarding personal accident cover of owner cum driver, for which premium had also been paid by the policy holder, but the Ops instead of redressing the grievance of complainants, sought time for settling the claim against personal accident cover of owner cum driver. It is pertinent to mention that complainants have also provided requisite documents for settling the claim, but after the exchange of numerous communications between complainants and Ops,the Ops refused to settle the claim and aggrieved of the refusal on the part of OPs  to settle the claim, complainants had moved before this Forum on,04-07-2016 and the Honble Forum pronounced the judgment on,27-10-2016,whereunder Forum had directed the Ops to settle the claim of complainants within a period of one month after taking into consideration Section 185 of M.V.Act,but the Ops vide their letter dated 01-12-2016 have repudiated the claim of complainants on the ground that the insured person had violated proviso B Section III of Insurance Policy/contract and the insured was drunken at the time of accident, copy of letter and copy of order are annexed as Annexures D&E.Allegtion of complainants is that as per Ops.no claim be payable to any person when he is/was under the influence of intoxication. It is pertinent to mention here that in the PA cover nowhere  any permissible limit of intoxicant has been prescribed and as such they are absolved of their liability  arising there from the accident, when the driver is/was under the influence of intoxicant as the same is the violation of policy terms and conditions, meaning thereby the Ops have not subjected themselves to the provisions of M.V.Act,when it comes to find out the prescribed limit of liquor or intoxicating drugs in blood alcohol concentration (BAC)and when the same has been provided in Section 185 M.V.Act.Complainant further submitted that as per Section 185 of M.V.Act the prescribed limit of alcohol in BAC is 30mg per 100ml of blood and at the time when the insured person i.e. son of complainants met with an accident, the concentration of alcohol in blood was 23.29mg per 100ml of blood, which cannot cause the intoxication and impair of senses and the same is tolerable. Complainants further submitted that the Ops are guilty of deficiency in service and un-fair trade practice having rejected the most genuine claim of complainants on frivolous and flimsy grounds, hence the present complaint. In the final analysis, complainant prays for payment of Rs.2,00,000/- and in addition also prays for compensation of Rs.70,000/-including litigation charges.

          On the other hand,Ops filed written version and resisted the complaint on the ground that the complaint in the  present form is not maintainable as other legal heirs of the deceased as per legal heir certificate enclosed herewith have not been arrayed as complainants .The Ops further submitted that vehicle bearing registration No.JK02BL-0095 registered in the name of Rohit Sharma was insured under Policy No. 1106003115P103957814 w.e.f.06-07-2015 to midnight of 05-07-2016 subject to conditions and exceptions as contained in the policy of insurance which inter alia provided that the insurance company shall not be liable to make any payment in case of any accidental loss or damage to the vehicle insured, suffered whilst the insured or any person driving the vehicle with the knowledge and consent of insured is under the influence of intoxicating liquor or drugs as per Section 1(2) of the policy conditions and further as per Section III (B) of the policy conditions dealing with Personal Accident Cover for Owner-driver. It has been specifically provided that no compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to an accident happening whilst such person is under the influence of intoxicating liquor or drugs. The Ops have admitted the fact of  registration of FIR with Police Station Nadaum,District Hamirpur(HP)U/S 279,337,304A of IPC,however from the perusal of final police report and the post mortem report of deceased Mr.Rohit Sharma appended with the complaint and even from the other material collected by the investigating officer deputed for investigating the commission of offence, as well as, by the surveyor/loss assessor and investigator appointed by the company after receipt of claim regarding damage of vehicle and personal accident vide letters dated 07-03-2016 and 15-03-2016 it has been proved that the insured owner and driver namely,Rohit Sharma at  the time of accident was under the influence of alcohol and caused accident while driving the insured vehicle while being intoxicating rashly and negligently and resultantly succumbed to injuries, therefore, claim of complainants as per terms and conditions of policy is neither maintainable nor is sustainable.

              Complainants adduced evidence by way of duly sworn evidence affidavits and affidavits of Darshan Lal and Rakesh Kumar,respectively.Complainants have placed on record copy of certificate of registration, copy of policy ,copy of cover note, copy of First Information Report, copy of letter dated 02-12-2016 issued by Ops to complainant NO.2 and copy of order passed by this Forum.

                         We have perused case file and heard L/Cs for the parties at length.

                    Briefly stated grievance of complainants is that their son,namely,Rohit Sharma was the owner of vehicle bearing registration No.JK02BL-0095,insured with Ops,w.e.f.06-07-2015 to 05-07-2016,however,during currency of insurance policy, insured vehicle met with accident on,04-02-2016 and FIR bearing No.14/2016 dated,05-02-2016 said to have been lodged regarding accident. Allegation of complainants is that as a ill luck would have it  insured died in the accident, who was covered under Compulsory Personal Accident cover for owner-driver to the tune of Rs.2.00 lacs,but Ops failed to reimburse the same to the complainants.

            On the other hand,defence of L/C for Ops is that the insured owner and driver namely,Rohit Sharma at  the time of accident was under the influence of alcohol and caused accident while driving the insured vehicle while being intoxicating rashly and negligently and resultantly succumbed to injuries, therefore, claim of complainants as per terms and conditions of policy is neither maintainable nor is sustainable.

                       Argument of L/C for Ops is that Insurance is a contract & breach of contractual obligation render the complainant not entitled to claim so because violation of Motor Vehicle Act shall warrant penalty.L/C for OP placed reliance on case law settled in case reported as 2015 ACJ  627 Bajaj Allianz General Insurance Co.Ltd.Vs Manju Devi & Ors.Further argument of L/C for Ops is that  as per Section 1(2) of the policy conditions, 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 the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.

                     Before touching the nub of dispute, it would be important to note that both the parties have lead evidence in the shape of evidence affidavits, which are more or less reproduction of respective pleadings, therefore, same need no reiteration.

                       Short point which requires consideration is; as to whether or not, there is deficiency in service on the part of OP in not settling the PA claim of complainants.

             As per exclusion clause of policy,OP was not liable to pay compensation only if deceased was under the influence of intoxicating liquor or drugs. Section 185 of Motor Vehicle 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 is detected in a test by breath analyzer. In the absence of any test by a breath analyzer, it cannot be presumed only on the basis of smell of alcohol in complainant’s breath that he was under the influence of liquor. There is a vast difference between taking liquor and being under its influence. Whenever a person is under the influence of intoxicant or liquor or drug his reasoning and reflexes and other skills should be undermined to an extent that the accident or damage should be the direct result of the influence. Had there been so such distinction nothing prevented the insurance companies from mentioning in the policy that if the driver had taken liquor, the policy holder would be disentitled for the claim.But,it is not so because there is difference between taking or smelling alcohol may be within permissible limit that doesnt affect reasoning or reflexes of the person than being under the under the influence of intoxication.

                       Keeping in view nature of dispute raised in the complaint, in our opinion, same can be adjudicated on the basis of report of Regional Forensic Science Laboratory Central Range,Mandi(H.P), which went unchallenged. As per report of Regional Forensic Science Laboratory, the net result is thatthe contents of above said parcels were subjected to physical and chemical analysis.Ethyl alcoholwas detected in the contents of parcels P/1,P/2 and P/4,but the same could not be detected in the contents of parcel P/3.The quantity of same in the parcel P/4(blood)IS 23.29MG.No other poison/narcotic drug and psychotropic substances could be detected in the contents of parcels P/1,P/2,P/3 and P/4..However, as per report of Forensic Science Laboratory it is clear that the quantity of intoxicant is below the prescribed limit of alcohol in blood.

                  In view of opinion given by Forensic Science Laboratory we hold that,OPs have repudiated the claim of complainants in violation of its contractual liability to indemnify the loss, which amounts to deficiency in service.

                           To lend support in the case reliance can be placed on the judgment of Honble National Consumer Disputes Redressal Commission, New Delhi in case titled Smt.M.Raja Gangu & Anr.V/S The Branch Manager & Anr.reported as 2015 1 CPR(NC)749,wherein paras 9, 10 & 12 it has been held as

              9.In our view, it was not a conclusive report from the FSL.It leads us nowhere. There was no mention of any alcohol concentration so that we can decide whether the person was intoxicated or not? We have perused several literature and medical texts. In Medical Jurisprudence and Toxicology, which have clearly defined about the effects of different concentration of alcohol. It is pertinent to note that as per medical text, the alcohol concentration upto 50 mg per 100 ml of blood is tolerable, such person will not show any signs of intoxication.

           10.Intoxication is perceived as a state of mind in which a person loses self-control and his ability to judge. 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.In the present case, except for a mere noting in the Final Opinion Report and the FSL report, no test had been done to ascertain whether Blood alcohol concentration (BAC) had exceeded the legally stipulated limit. The mere smell of alcohol or presence of ethyle alcohol in the tissue samples cannot lead to an inference that a person is incapable of taking care of himself.

      12. It should be borne in mind that a person cannot be said to be intoxicated unless alcohol exceeds the prescribed limit which can only be confirmed through Blood Alcohol Concentration (BAC) is most commonly used as a metric of alcohol intoxication for legal or medical purposes.Therefore,the State Commission’s observations appear to be unscientific one

                Otherwise also legally speaking it is settled law that the parties are always bound and governed by the terms and conditions of contract and whenever contract is entered into there is proposal made by one party in its unequivocal and unambiguous terms conveyed to the otherside and acted by otherside with the same response and in its understanding and knowledge leaving no scope of any future suspicion and incredibility in mind to come in the way of the said contract afterwards.

                       Further also to make it more clear, as for as the terms of the policy are concerned reliance can be had to judgment in case titled Indraprastha Gas Ltd.V/S New India Assurance Co.Ltd.& Ors. reported in 1(2015)CPJ 279(NC)wherein the relevant para it is laid down

        The court has to give material meaning to the document. It is not open to the court to make any addition to or subtraction from the terms and conditions contained in Insurance Policy.

 

              In view of settled position of law, we do not find any merit in the plea raised by the OPs insurer United India  Insurance Co.Ltd.

                        Therefore, in view of the foregoing reasons the complaint filed by the complainants for redressal of their grievance is allowed and OPs directed to pay to the complainants an amount of Rs.two lacs alongwith interest  6% per annum w.e.f.02-02-2017(i.e.two months after repudiation of claim)till its payment. The complainants are entitled to compensation of Rs.10,000/-for causing mental agony and harassment. The complainants are also entitled to litigation charges of Rs.5000/-.The opposite party shall comply the order within two months from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. On deposit of the amount in this Forum, the same shall be paid to the complainants through payees account cheque.The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                   Khalil Choudhary

                                                                (Distt.& Sessions Judge)

Announced                                                   President

22 -02-2018                                          District Consumer Forum

Agreed by                                                     Jammu.                                                                                                                                  

                                                                      

Ms.Vijay Angral          

Member                                                                                                                                 

 

Mr.Ghulam Sarwar Chauhan

Member