Haryana

StateCommission

A/198/2022

ICICI LOMBARD GENERAL INSURANCE COMPANY LTD. - Complainant(s)

Versus

BIJENDER SINGH - Opp.Party(s)

SAHIL ABHI

17 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                       First Appeal No.198 of 2022

                                                 Date of Institution: 18.05.2022

                                                               Date of Decision: 17.04.2023

 

1.      The ICICI Lombard General Insurance Company Limited, SCO 3, 2^nd Floor, HUDA Market, Sector-8, Karnal, Haryana 132001.

2.      The ICICI Lombard General Insurance Company Limited, Tower D, 12^th Floor, Global Business Park, Mehrauli, Gurgaon Road, Gurgaon, (Haryana) through its Director/Manager.

…..Appellants

Versus

Bijender Singh S/o shri Dhyan Singh, R/o Village Bhainswal Kalan, Tehsil Honhana, Distt.Sonepat, at present resident of police Line, Kaithal Road Karnal. Abu Ram aged about 49 years, S/o Sh.Krishan Ra, R/o VPO Mehmudpur, Sub Tehsil Sadhaura, Tehsil Bilaspur, District Yamuna Nagar.

…..Respondent

CORAM:    Naresh Katyal, Judicial Member

 

Present:-    Mr. Sahil Abhi, Advocate for the appellant.

                   Mr.P.S. Bedi, Advocate for the respondent.

 

                                                 ORDER

NARESH KATYAL, JUDICIAL MEMBER:

          Delay of 02 days in filing the appeal is condoned for the reasons stated in the application for condonation of delay.

2.      The present appeal No.198 of 2022 has been filed against the order dated 14.01.2022 of the District Consumer Disputes Redressal Forum, Karnal (In short “District Commission”) in complaint case No.483 of 2020, which was allowed.

3.      Brief facts of the case are that complainant was registered owner of CAR Glanza Toyata bearing Regd. HR-5BB-1667.  It was insured with the Opposite party (OP) FOR A SUM OF Rs.7,58,200/- and complainant paid premium of Rs.32,002/- to the OP. Insurance was valid from 12.02.2020 to 11.02.2023. Unfortunately, on 04.07.2020, vehicle met with an accident when a stray cow came in its front and its was totally/badly damaged.  He suffered multiple injuries in the accident. He was taken to Kalpana Chawla Government Medical College, Karnal where his MLR was prepared by the doctor and treatment was also given. Due to serious injuries, he was shifted to Virk Hospital, Karnal on 05.07.2020. Complainant remained admitted in the Virk Hospital from 05.07.2020 to 12.07.2020 and spent huge amount.  DDR No.23 was registered at police chowki Jundla (Karnal).  During treatment, police official recorded his statement on 06.07.2020. He informed about the incident to insurance company. He was discharged on 12.07.2020 from Virk Hospital, Karnal.  Damaged vehicle was shifted to Globe
Toyota, G.T.Road Karnal. Survey was carried out by surveyor of OP. An estimate was prepared by the Globe Toyota of Rs.5,61,706.70 and on 11.07.2020 Globe Toyota sought the approval from the OP for the repair of the vehicle. The body shop Manager of globe Toyota disclosed that no approval has been received. Complainant requested the OP to settle the claim, but, to no avail. After accident, complainant was not in proper senses and could not speak properly due to serious injuries.   OP has wrongly repudiated the claim of the complainant vide letter dated 01.09.2020.  Further alleged that the complainant never consumed any alcohol at the time of driving the vehicle. At the time of accident, the complainant had already used the “alcohol based sanitizer” and did not consume any alcohol and doctor has given wrong opinion, without verifying the facts from him, and thus OP could not take benefit of wrong opinion of doctor and could not repudiate claim on this basis.  There was no violation of conditions of the policy.  Doctor did not take the blood sample of the complainant and only blood sample report could bring the truth. All documents of damaged vehicle were valid and there was no violation of conditions of policy by complainant. Thus, there being deficiency in service on the part of the OP, hence the complaint.

4.      Notice being issued. Opposite parties appeared and filed their written version.  Objections about maintainability of complaint, concealment of true facts, for want of jurisdiction, estoppel etc. were also raised and requested to dismiss the complaint.

          On merits, it was submitted that after getting intimation regarding the damage of car, answering OP immediately appointed investigator, who investigated the matter and found that at the time of accident complainant was driving the car under influence of alcohol.  Complainant has violated the terms and conditions of policy in question. Complainant is not entitled for compensation as prayed for. OPs have rightly repudiated the claim of complainant vide letter dated 09.09.2020.  Thus there was no deficiency in service on the part of OPs and it prayed for dismissal of the complaint.

5.      Parties to lis led their respective evidence. On subjectively and critically analyzing the evidence and after hearing both the parties, the learned District Commission, Karnal has allowed the complaint vide order dated 14.01.2022, which is as under:-

“Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the Ops to pay Rs.5,61,706/- (Five lakhs sixty one thousand seven hundred six only ) to the complainant alongwith interest @ 9% per annum from the date of repudiation of claim till its realization.  We further direct the Ops to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. Ops are further directed to pay the parking charges, if any, paid by complainant to M/s Globe Toyota.”

6.      Feeling aggrieved therefrom, OPs-appellants have preferred this appeal.

7.      Arguments have been advanced by Sh.Sahil Abhi, learned counsel for the appellants, as well as, by Sh. P.S. Bedi, learned counsel for the respondent. With their kind assistance the entire records has also been properly perused and examined.

8.      Learned counsel for the appellant has vehemently argued that the complainant was not entitled for the claim amount of Rs.5,61,706/- because at the time of accident, he being driver of ill-fated car was under influence of “alcohol” as per MLR conducted by treating doctors of Kalpana Chawla Government Medical college and Hospital.  It is urged that concerned doctor has expressly recorded his opinion to that effect in MLR of complaint. It is urged that complainant has violated terms and conditions of the insurance policy and OPs have rightly repudiated the claim of complainant vide letter dated 09.09.2020.  Learned District Commission has wrongly allowed the claim of complainant.  Learned counsel has relied upon judgment of Hon’ble Apex Court in case titled ‘IFFCO Tokio General Insurance Company Ltd. Versus Pearl Beverages Ltd.’ AIR 2021 (SC) 2277 and requested to set aside the impugned order while allowing the appeal and complaint be dismissed.

9.      Learned counsel for the respondent has argued that at the time of accident, complainant had not consume alcohol, however he had used ‘alcohol based hand sanitizer’. No evidence has been led by appellants to establish that complainant was under influence of liquor when mishap took place. Hence it is urged that no interference in reasoned judgment/order dated 14.01.2022 of District Commission is warranted.

10.    Poser before this Commission is: whether appellants had rightly repudiated the claim of the complainant through its communication dated 09.09.2020 (EX.R-4) or not? In order to unveil this poser it has borne in mind that complainant has set up a specific case before District Commission is that he was not under influence of liquor, instead he had used ‘alcohol based hand sanitizer’ on 04.07.2020 while he was on wheels of Glanza Toyota Car No. HR-5BB-1667.

11.    It is admitted that car of complainant/respondent was insured with appellants w.e.f. 12.02.2020 to 11.02.2023 for sum of Rs.7,58,200/-. It is also admitted that on 04.07.2020, complainant was driving his car and at about 10:00 pm it met with an accident in which he sustained injuries. DDR No. 23 dated 05.07.2020 was registered at Police Station, Jundla, Karnal. It is not disputed that he landed at Kalpana Chawla Government Medical College and Hospital, Karnal in the intervening night of 4/5.07.2020 at 1:15 am, where he was medicolegally examined and Ex.C-10/Ex.R-3 is his MLR. In the column meant for ‘general condition’ following is the observation recorded by treating doctor:-

“No H/O LOC BP-130/80 PR-70/MIN SMELL OF ALCOHOL FROM MOUTH PRESENT NON COOPERATIVE, SLURRED SPEECH.”

12.    It cannot be lost sight of fact that complainant had sustained injuries. The agony of injury suffered by him and resultant pain might had made him non-cooperative with development of slurred speech. This cannot be termed as an unusual circumstance.

13.    Onus to prove that complainant was under the influence of liquor lay upon opposite parties/appellants because it was a specific defence taken by appellants before learned District Commission in their written version. However, without there being any proof/report of blood and urine “the observations recorded by the treating doctor that complainant was under influence of liquor and emitting smell of liquor appears to be whimsical in nature without any cogent base to arrive at that opinion. Blood and urine test were elementary in nature, to be performed of complainant in order to fortify the medical opinion that complainant was emitting smell of liquor from mouth, so much so, even treating doctor has not been examined by OPs/appellants. Learned counsel for the appellants has failed to point out through cited judgment that opinion of treating doctor as recorded in MLR is per-se admissible in evidence without there being any proof in shape of oral/documentary evidence. This being so, this commission does not find any error or illegality in impugned order dated 14.01.2022 passed by District Commission, Karnal. Learned District Commission has rightly allowed complaint of complainant. This appeal being devoid of merits stands dismissed.

14.       The statutory amount of Rs.3,34,864/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

15.       Applications pending, if any stand disposed of in terms of the aforesaid judgment.

16.       A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

17.      File be consigned to record room.

 

Date of decision: 17^th April, 2023

 

                                                                                                Naresh Katyal                                                                                                                     Judicial Member