This is an application u/s.12 of the C.P. Act, 1986.
The instant case dwells over insurance claim relating to an application u/s-12 of the C. P. Act, 1986.
The case of the complainant in short is that the complainant is a company engaged in manufacturing and selling gold ornaments. The O.P. parties is an insurance company having its Kolkata Divisional Office at 4, Mangoe Lane, Kolkata-700001. On 21/06/2013 the petitioner purchased a car namely Maruti Ertiga having Registration No. WB-02 / AD-2747 at a price of Rs.9,40,326/-. On 28/04/2014 the said car met with an accident in front of Jadavpur Post Office at around 3-AM and got damaged severely. On 28/04/2014 the driver Kripan Chhetri was admitted in M.R. Bangur Hospital. One FIR was also lodged before Jadavpur P.S. and a case being Jadavpur P.S. Case No. 198/14 dated 28/04/2014 was registered. The petitioner took the vehicle to Topsia, Kolkata. The Workshop clearly stated the car cannot be repaired as the entire body and engine has been totally damaged from that accident. The petitioner as the insured of the said vehicle with New India Assurance Co. Ltd. with coverage from 3-28 PM 21/06/2013 to mid-night of 20/06/2014, lodged claim before the insurance company. The insurance company on 16/02/2015 repudiated the claim on the ground that the driver of the vehicle was intoxicated while driving the vehicle as per medical report. The insurance company also stated that no impact mark, scratch on left side of the vehicle was not also found as alleged by the driver. The complainant has prayed for the price of the Car as claimed along with damages, compensation etc.
O.P. New India Assurance Co. Ltd. contested the case by filing W.V. stating inter alia that the Car of the complainant met with a severe accident on 28/04/2014 at 3-30 AM and at that point of time the said car was driven by the Driver Kripan Chhetri under influence liquor. It is stated in the W.V. of the O.P. that as per Investigation report submitted by one Mr. Sumitra Mukherjee dated 21/10/2014 that the injury was over the forehead, chin and above the eye-brow after RTA of the Driver and the said driver was brought unconscious and he was alcoholic. It is also submitted in the W.V. that as per FIR an unknown vehicle dashed the vehicle in question and entire frame of the vehicle was damaged and moulded the left portion of the body of the said car. But as per investigation report O.P. did not find any scratch in the left side. If another vehicle dashed there must be some scratches before hitting heavily and as such the statement of the complainant and / or the driver is not corroborative. It has been stated in the W.V. that in terms of the Clause (C) u/s-I of the policy insurance company is not liable pay any amount towards insurance claim for such accident of the vehicle when it was driven by the driver in intoxication and as such there is no deficiency in service on the part of the O.P. as alleged by the complainant and the petition of complaint is liable to be dismissed.
Points for decision-
- Whether the complainant is entitled to get the insurance claim as prayed for?
Decision with Reasons
There is no denying of the fact that the vehicle in question met with an accident on the fateful night i.e. on 28/04/2014 at around 3-AM. The question is whether the driver of the vehicle was under the influence of liquor or not? To put it otherwise, whether an alcoholic driver meeting with an accident is entitled to insurance claim? We have on record the bed-head ticket of M.R. Bangur Hospital. The history of injury is stated unconsciousness, alcoholic intoxication and vomiting- NIL. Subsequently in a report addressed to the Forum Dr. Joydeep Roy, Medical Officer of M. R. Bangur Hospital has stated that blood alcohol content testing was not done in respect of the concerned driver and there is no facility to prove intoxication at M.R. Bangur Hospital. So we find that alcohol intoxication was found by the attending Doctor after admission by evidence of smell of alcohol only. The percentage of alcohol intake by the concerned driver was not determined. We have no document forthcoming from the side of the O.P. or hospital authority to assess or determine the alcohol percentage in the blood of the concerned driver.
It is a truism of Law that the claim cannot be repudiated on the ground simplicitor that the driver concerned was alcoholic or he was driving the vehicle under the influence of liquor. The intake of liquor is much more important. It has to be established beyond all reasonable doubt that the driver was so much drunk that he was unable to drive the vehicle and he caused the accident under influence of intoxicating liquor or drugs.
We have a copy of FIR on record wherefrom we gather that a truck dashed the insured vehicle on the fateful night and as a result the vehicle in question was damaged. The fact of accident as we find was reported to Jadavpur P.S. on 28/04/2014 itself. We have also seen the photographs of the vehicle in question. We find that there is impact mark scratches on the left side of the vehicle also and it is badly damaged on all sides. The O.P. company as we find has repudiated the claim outright without even appointing a surveyor. No survey report is also forthcoming to us in respect of damage or cost of repair or whether it is beyond repair or not.
Under the present circumstances, we think that the insurance company has repudiated the claim arbitrarily. We find that the concerned vehicle sustained damage of substantial proportions and it was under a valid insurance coverage. There is no evidence in respect of alcohol percentage in the blood of the concerned driver at the time of the accident. We also find that the vehicle was dashed by a truck resulting in the consequences and the driver concerned was also admitted in M.R. Bangur Hospital being seriously injured.
The insurance company failed to prove the concerned driver was incapable of excising proper control over the vehicle under the influence of liquor and he did have more than 30 mg. of alcohol in his blood per 100 ml. and no test of alcohol percentage was done at the hospital. We find that the concerned driver was breathing alcoholic smell and there had not been any test done to determine that there was more than 30 mg. alcohol in 100 ml. of blood of the concerned Driver or he was under the influence of alcohol and he was incapable of taking care of himself. Mere smelling alcohol itself is not sufficient to hold that the driver concerned was incapable of taking of himself. We think that O.P. on the basis of unscientific method has repudiated the claim which cannot be sustained.
We think that the complainant is entitled to get the insurance claim. We find that the insured declared value of the said car is Rs.8,07,826/-. As such the liability of the O.P. insurer cannot be beyond the insured declared value and the liability of the O.P. is limited to the said amount. We have no document that the O.P. deputed any IRDA approved Surveyor for assessment of damage or for loss assess.
Considering all aspects we will pass the order as follows-
Hence,
Ordered
That the instant case be and the same is allowed on contest against O.P.
O.P. is directed to pay an amount of Rs.807826/- with deduction of 15 percent as non-standard basis as against depreciation, for fiver glass component etc. along with litigation of cost of Rs.10,000/- and Rs.50,000/- for mental and compensation, 50 percent of which to be deposited to the Consumer Welfare Fund within 30 days from the date of passing of this order I/D complainant will be at liberty to put the order into execution ad in that event O.P. will be liable to pay penal interest at the rate of 9 percent p.a. over the total amount till full sand satisfaction of the decree.
