DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NORTH-WEST
GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.
CC No: 411/2017
D.No.________________ Dated: ___________________
IN THE MATTER OF:
Ms. KAMLESH DAGAR,
D/o SH. CHANDGI RAM,
R/o H. No.-181, VILLAGE REWALI,
SONIPAT, HARYANA-131402.
ALSO AT: R/o H. No.-950,
SECTOR-15, SONIPAT. … COMPLAINANT
Versus
VIDEOCON LIBERTY GENE. INS. Co. LTD.,
10th FLOOR, AGGARWAL CYBER PLAZA-I,
NETAJI SUBHASH PLACE, NORTH-WEST DELHI,
PITAM PURA, DELHI-110034.
ALSO AT: LIBERTY GENE. INS. Co. LTD.,
(THROUGH SH. ASHISH SINGH TOMAR-
LEGAL MANAGER),
2nd FLOOR, BLOCK K-4, OCEAN HEIGHTS,
SEC.-18, NOIDA, UTTAR PRADESH-201301. … OPPOSITE PARTY
CORAM:SH. M.K. GUPTA, PRESIDENT
SH. BARIQ AHMED, MEMBER
MS. USHA KHANNA, MEMBER
Date of Institution: 19.05.2017 Date of decision:26.07.2019
SH. M.K. GUPTA, PRESIDENT
ORDER
1. The complainant has filed the present complaint against the OP under section 12 of the Consumer Protection Act, 1986 thereby
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alleging that the complainant is the owner of the vehicle i.e. Toyota Fortuner bearing registration no. HR-24-U-0003 and the complainant took/renewed the insurance policy i.e. Private Car Package policy from OP on 06.10.2015 and the said policy was issued from the office of OP vide policy no. 2011-200102-15-1005012-00-000 for the period from 23.09.2015 to 22.09.2016 and the IDV of the vehicle of Rs.19,20,000/-. The complainant further alleged that the certificate of insurance was provided to the complainant and the insured was told that the certificate of insurance was the only document containing all the terms & conditions of the policy and no other document containing additional terms & conditions was disclosed to the complainant. On 23.07.2016, the insured vehicle met with an accident at Kotputli, Rajasthan wherein the insured vehicle got severally damaged when the same was being driven by Mr. Nitin Kuhad who is a relative of the insured and Mr. Nitin Kuhad holds a valid driving license to drive the insured vehicle and there is no dispute regarding the same and under the insurance policy it is the liability of OP to indemnify the complainant for the loss caused to the vehicle in the accident. Therefore, OP was informed about the accident and damages caused to the insured vehicle and the insured vehicle was seized by the police after the accident and released on superdari. The complainant further alleged that the insured vehicle was towed to
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‘Galaxy Toyota’ at Kundli for repair and on 30.09.2016 an estimate of Rs.9,41,695/- was issued in the name of OP and OP asked the complainant to first make the payment and assured that the claim would be passed and repair cost will be transferred to the account of the complainant later on. On 23.11.2016, OP sent a letter for repudiating the claim on frivolous ground and the complainant was shocked to receive letter as the same was contrary to the promise made and repudiated the claim on frivolous ground to avoid its liability and the letter dated 23.11.2016, mentions the ground of repudiation as that at the time of accident driver of insured vehicle was under influence of alcohol which is contrary to Section I and Condition no.8 of the policy. The complainant further alleged that the complainant has never been provided with any document containing Section I and Condition no.8 and the same are not binding on him and the repudiation of the claim is illegal and against the terms of insurance policy for the reasons a) FIR no.563 of 2016 written at the instance of eye witness does not mention of driver being under influence of alcohol/intoxication and the driver of insured vehicle is not charged with Section 185 of the Motor Vehicle Act, b) the medical report of the driver of the insured vehicle does not show that he was under influence of intoxication at the time of accident, c) OP has not relied on any report of breath analyzer test, blood test or urine test for the
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purpose of reaching the conclusion that the driver of insured vehicle was under the influence of intoxicating liquor and d) the content of alcohol in blood of driver was within the limits permissible under the law. The complainant further alleged that OP has not provided the documents mentioned in the repudiation letter and relied upon by it in the said letter and the complainant filed a complaint with the office of Insurance Ombudsman wherein the Ombudsman came to conclusion that ‘the MLC does not indicate the quantum of liquor consumed by the driver as Breath Analyzer was not conducted’ and the condition mentioned in the repudiation letter is not applicable in the present case and as there is nothing to prove that the driver of insured vehicle was under the influence of intoxicating liquor and due to the said act of the OP the complainant has suffered mental agony and harassment and there is deficiency in service and unfair trade practice on the part of OP.
2. On these allegations the complainant has filed the complaint praying for direction to OP to refund the amount of Rs.9,41,695/- to the complainant as well as compensation of Rs.2,00,000/- for causing mental harassment, agony and financial loss and has also sought Rs.50,000/- towards litigation cost.
3. OP has been contesting the case and filed written statement and submitted that the case of the complainant is not maintainable and is liable to be dismissed. OP further submitted that vehicle bearing
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no. HR-24-U-0003 was insured with OP in the name of Kamlesh Dagar is subject to terms & conditions and limitations and exception. OP further submitted that immediately after receiving the information of accident, deputed an independent IRDA licensed surveyor to ascertain the cause of loss and extent of damages and as per surveyor report, the damages have been assessed to the tune of Rs.9,33,854/-. OP further submitted that it received an information that the occupants of the car including the driver of the car were under the influence of alcohol and this fact was confirmed by the Public Information Officer of BDM Hospital vide letter dated 13.10.2016. OP further submitted that as per police report, the accident was so severe and fatal which took the life of 2 persons and 1 person was injured in the said accident and the complainant was guilty of breach of material terms & conditions of the policy and OP repudiated the claim vide letter dated 23.11.2016.
4. The complainant filed rejoinder and denied the contentions of OP.
5. In order to prove her case, the complainant filed her affidavit in evidence and also filed written arguments. The complainant also placed on record copy of Certificate of Insurance cum policy schedule issued by OP, copy of driving license of Sh. Nitin Kuhad, copy of Registration of Motor Form no. 23 Rule as vehicle, copy of FIR no. 563/2016 dated 23.07.2016, copy of tax invoice no./sales
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invoice no. TAX16-04328 (Credit) issued by Galaxy Toyota and copy of admission report in the name of Nitin issued by BDM Hospital having remarks “consumed alcohol but not under its influence”.
6. On the other hand on behalf of OP Sh. Dinesh Jhalani, Legal Manager of OP filed his affidavit in evidence which is on the basis of the written statement of OP. OP has also filed copy of Certificate of Insurance cum policy schedule issued by OP, copy of Motor Insurance Cover note issued by OP, copy of Motor Repair Assessment cum Processing Sheet issued by OP, copy of Motor Survey Report, copy of RTI application to BDM Hospital and the reply from the hospital, copy of repudiation letter, copy of claim form, copy of newspaper cutting showing news of fatal accident involving the vehicle of the complainant and copy of order of Insurance Ombudsmen vide order dated 09.03.2017. OP has also filed written arguments.
7. OP has also filed affidavits of Sh. Mukesh Setia, Surveyor & Loss Assessor and Sh. Ravi Gupta, Investigator.
8. During the course of arguments, Ld. Counsel for the complainant relied on following authorities/case laws:
i) AIR 1988 SC 1274 in Criminal Appeal No.36 of 1987 in case entitled Laxmi Raj Shetty & ANR. Vs. State of Tamil Nadu decided by Hon’ble Supreme Court of India on 26.04.1988.
ii) First Appeal No.230 of 2009 in case entitled New India Assurance Co. Ltd. Vs. Vs. Ashminder Pal Singhdecided by Hon’ble National Commission on 25.03.2015.
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iii) F.A. No. 277 of 2007 in case entitled New India Assurance Co. Ltd. Vs. Anees Ahmeddecided by Hon’ble State Commission, Uttrakhandon 15.09.2008.
9. Ld. Counsel for OP relied on following authority/case law:
i) Revision Petition No.1296 of 2018 in case entitled Royal Sundaram Gene. Ins. Co. Ltd. & ANR. Vs. Davubhai Babubhai Ravaliyapassed by Hon’ble National Commission decided on 04.09.2018.
10. This forum has considered the case of the parties in the light of evidence of both the parties and documents placed on record by the complainant and OP as well as case laws relied on by Counsel for both the parties.
11. It has been held by Hon’ble Supreme Court in case entitled Laxmi Raj Shetty &Anr. Vs. State of Tamil Nadu that
“A newspaper report without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. It has been further held that a report in a newspaper is only hearsay evidence and a newspaper is not one of the documents referred to in Sec. 78 (2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached u/s 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported there in.”
12. As regards the other defence raised by OP is concerned though OP has placed on record copy of reply dated 13.10.2016 of Chief Medical Officer, Govt. BDM Hospital, Kotputli, Jaipur which is to the effect that Sh. Nitin Kuhad who was driving the vehiclehas
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consumed liquor and it has been further replied therein that Breath Analyzer Test of Nitin Kuhad was not done. This document even does not contain the percentage of alcohol found in the blood of the driver of the vehicle.
13. Hon’ble National Commission in the case law entitled New India Assurance Co. Ltd. Vs. Ashminder Pal Singh has held that “there is a vast difference between taking liqour and being under its influence. Whenever a person is under the influence of intoxicant or liqour 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 no such distinction nothing prevented the insurance companies from mentioning in the policy that if the driver had taken liqour, the policy holder would be disentitled for the claim. But it is not show because there is difference between taking or smelling alcohol may be within permissible limits that does not affect reasoning or reflexes of the person than being under the influence of intoxication. It has been further held that consumption of liqour is not a test for application of exclusionary clause of the policy, what is contemplated in the exclusionary clause of the policy is something more than merely consumption of liqour.In this regards, Reliance can be given to Provisions of Sections 185/202 of the Motor Vehicles Act, 1988and this provision contemplate that a person driving a vehicle shall be
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held to be in a drunken state, if he has, in his blood, alcohol exceeding 30 mg per 100 ml of blood detected in a test by a Breath Analyzer.
14. Referring to the facts of the present case, we are of opinion that OP has failed to prove the defence taken. OP has not placed on record any document to show as to what was the content of alcohol in the blood sample of the driver of the vehicle. No document, if any,collected by the investigating officer of the police has been placed on record by OP. Accordingly, in the light of above, we are of opinion that newspaper cutting containing the news item that the driver of the vehicle under the influence of liqour caused a fatal accident is of no value and it is also not proved that the driver of the insured vehicle was under the influence of liqour and thus OP has failed to prove its defence that claim is barred under exclusion clause of the policy andthus there is no merits in the defence of OP. Accordingly in the circumstances of the case OP ought not to have repudiated the claim of the complainant and ought to have passed the claim at least on the basis of surveyor report. Accordingly, we hold OP guilty of deficiency in service.
15. Accordingly, OP is directed as under:
i) To pay to the complainant an amount of Rs.9,33,854/- being the amount of loss/damaged to the vehicle as assessed by the surveyor.
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ii) To pay to the complainant an amount of Rs.50,000/- as compensation towards mental agony and harassment caused to the complainant.
iii) To pay to the complainant an amount of Rs.10,000/- to the complainant as litigation cost.
16. The above amount shall be paid by OP to the complainant within 30 days from the date of receiving of this order failing which OP shall be liable to pay interest on the entire awarded amount @ 10% per annum from the date of receiving of this order till the date of payment. If OP fails to comply with the order within 30 days from the date of receiving of this order, the complainant may approach this Forum u/s 25 of the Consumer Protection Act, 1986.
17. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.
Announced on this 26th day of July, 2019.
BARIQ AHMED USHA KHANNA M.K. GUPTA
(MEMBER) (MEMBER) (PRESIDENT)
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