Delhi

New Delhi

CC/243/2014

Smt. Sushma Sharma - Complainant(s)

Versus

M/S. Bharti Axa General Insurance - Opp.Party(s)

18 Jul 2022

ORDER

 

 

                                 CONSUMER DISPUTES REDRESSAL COMMISSION-VI(DISTT. NEW DELHI),

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC. 243/2014                                                                    

 

In the matter of:

Smt. Sushma Sharma

W/o Sh. Hem Chand Sharma

R/o 1670, Dariba Kalan,

Chandni Chowk,

 Delhi-110006                                                                                ....COMPLAINANT

 

VERSUS

 

Bharti Axa General Insurance Company Ltd.

7^th Floor, Mercantile House,

15, Kasturba Gandhi Marg,

New Delhi-110001

Through its Manager.

                                                                                                          .....OPPOSITE PARTY

 

 

Quorum:

Ms. Poonam Chaudhry, President

Sh. Bariq Ahmad, Member

Ms. Adarsh Nain, Member

Dated of Institution : 01.04.2014

                                                                                    Date of Order            : 18.07.2022

 

ADARSH NAIN, MEMBER

ORDER

1. The present complaint has been filed by the Complainant Smt. Sushma Sharma under section 12 of Consumer Protection Act, 1986 against Bharti Axa General Insurance Co. Ltd, the opposite party (hereinafter referred to as OP). 
2. Brief facts of the case are that the Complainant got her vehicle/Car bearing no. DL 2CAE 8125 insured with Bharti Axa General Insurance Co. Ltd (OP) vide Policy no. FPV/S0019964/11/02/D1114E, valid w.e.f 17.02.2012 till 16.02.2013.
3. It is further averred that on 19.10.2012 at about 2.15 a.m., the son of the complainant namely Vikas Sharma, while driving the said vehicle, got hit by another car and due to the accident, damage was caused to the vehicle. An FIR no.156/12  was also registered in this regard. It was further stated that the said damage was comfirmed by the FSL, Govt of NCT.
4. It is further stated that the complainant got the Car serviced by City Car Care Service center and the bill amount was to the tune of Rs.2,95,650/-. Therefarter the complainant sent several letters to the office of OP for the payment of the charges incurred on account of repairing the damages. The complainat has also sent a legal notice through his counsel to the OP. It is further stated that the challan was filed in respect of the said accident by the police concerned before the concerned Ld. MM and the case was pending at the time of filing the complaint. It is also stated that as per the challan there is no report was filed by the FSL. The complainant also stated that her son Vikas Sharma who was driving vehicle at the time of the accident was not under intoxication of alcohol but he was under the treatment of Ayurvedic medicne as advised by the Vaid/ Hakim for certain complications. It is alleged that the OP has not paid the claimed amount inspite of repeated letters and the legal notice.
5. On being aggreived,the complainant approached this commission and filed the present complainant alleging deficiency of services on the part of OP and praying for the payment of the claimed amount of Rs. 2,95,650/- along with interest, compensation for mental agony as well as the litigation cost.
6. OP has been contesting the case and filed its Written statement. In the reply, it is submitted inter alia that the complainant is not entitled to the claim as the complainant has committed a breach of policy condition no.1 which requires the insured to give all the requisite information related to claim and assistance to the Insurance company. The  the insured/ complainant has not fulfilled the requirement of providing of Alcohol Sample Report by FSL, hence, the complaint is not admissible and liable to be dismissed.
7. The complainant filed rejoinder denying the version of the OP and reiterated the averments of the complaint. Both the parties have filed their respective evidence by way of affidavit.
8. The Complainant reiterated the contents of his complaint in his affidavit. The Complainant rebutted the allegation of breach of policy condition and  submitted that she has not committed any breach of contract and given required assistance to the OP and the OP has wrongly put the claim under exclusion clause and denied her legitimate claim.
9. The OP, on the other hand, relied upon the policy, Survey Report, MLCs of the occupants of the vehicle at the time of accident in support of their contentions that the complainant has committed breach of policy condition by not providing the requisite document- Alcohol Sample Report of the driver inspite of several reminders.
10.  Both the parties have made their written as well as oral submissions respectively.
11. We have carefully gone through the material placed before us and the arguments of the Ld. Counsel for parties.
12.  It is evident from the material placed on record that it is an undisputed fact that the complainant’s vehicle was duly insured with the OP with an IDV of Rs. 4,32,000/-. and said vehicle got damaged in an accident occurred on 19.10.2012.
13.   The complainant has contended that the OP has wrongly denied her claim of Rs. 2,95,650/- which the complainant has incurred towards repairs of the damages. The complainant has categorically stated that her son who was driving the vehicle at the the of accident was not under the influence of alchohol as alleged by the OP. The complainant further contended that in the preliminary medical examination conducted after the accident, there was not found any smell of alchohol as per MLC report.
14.  The claim of the complainant was disputed by Insurance Company, on the ground, that the complainant has violated the terms and conditions of the policy as the complainant has failed to supply documents required for settling of claim. It is pleaded that the driver of the vehicle in question was under the influence of liquor and as such the insurer is not liable to indemnify the complainant.
15.  The OP has also relied on the MLC of Vikas sharma, the driver and contended that sample relating to all the three travelling in the said vehicle at the time of accident including the Driver Vikas Sharma were collected  by the hospital and sent for further examination and the complainant has failed to provide the Alcohol Sample Report to the OP and has falsely represented that person was not driving under the influence of alcohol. By omitting to provide relevant information regarding the claim, the complainant has committed breach of policy condition no.1 which is as follows;-

“ 1.Notice shall be given in writing to the Company immediately upon occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require.”

16.  The fact whether the driver was or was not under the influence of alchohol at the time of accident has not been proved by the either of the parties. The MLC relied upon both the parties reveals that during the preliminary examination of Vikas Sharma by the doctor, there is no remark/note regarding the presence of smell of Liquor in his MLC, however, the blood sample was collected and sent for examination by FSL. The OP’s stand that the driver was under the influence of alchohol has not been corroborated by any documentary evidence. Therfore, the OP has failed to establish his case that the driver was under the influence of intoxication at the time of accident.
17.  On perusal of the material on record including the pleadings of the parties, we are of the view that since the OP company has alleged that the driver was under the influence of alcohol at the time of accident, the onus lies on the OP company to prove the said allegation. The OP, having failed to discharge the onus, is liable to indemnify the complainant.
18.  As regards the quantum of damges, the complainant has filed a bill for repairs of sum Rs.295,650/- on account of actual repairs carried out and the payment was made on that account. On the other hand, the case record shows that the OP Company had apponited a duly authorised surveyor to assess the loss and filed the surveyor’s report.  The surveyor report reveals that the surveyor had  assessed the loss to the tune of Rs.1,55,876/- as Net Loss under the term conditions of the policy after deducting the salvage value and compulsory excess  and other deductions and recommended the same to be payable subject to terms and conditions of the policy.
19.  In view of above, we are of the considered view that OP has failed to prove that the complainant/claimant has committed breach of terms and conditions of the aforesaid policy and rendered deficient services by not paying complainant’s valid claim under the effective Policy in force at the time of accident.

 Thus, we hold that OP insurance company is guilty of deficiency of services, and direct  as under:-.

1. The OP shall pay to the complainant Rs.1,55,876/- (One Lakh fifty five thousand eight hundred and seventy six rupees only) as per the assessment made by the Surveyor with the interest @ 9% from the date of filing of the claim till realization. OP is liable to pay the same within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks OP will be liable to pay interest @12% p.a. for the delayed period. A sum of Rs. 10,000/- (Ten thousand rupees only) is awarded as litigation expenses.
2. A copy of this order be provided to all parties free of cost. The order be uploaded on the website of this Commission.

 

File be consigned to record room along with a copy of the order.

 

 

 

(POONAM CHAUDHRY)

President

 

        (BARIQ AHMAD)                                                                                (ADARSH NAIN)    

            Member                                                                                                Member