| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION PATIALA. Consumer Complaint No. 229 of 13.6.2017 Decided on: 5.11.2020 Madan Gopal s/o Sh.Tarsem Chand through his LRs Parveen Gupta w/o Late Madan Gopal,Shivani Gupta d/o Late Madan Gopal & Vishal Garg S/o Late Madan Gopal, all residents of House No.115-B,Azad Nagar, Sirhind Road, Patiala. …………...Complainant Versus National Insurance Company Ltd., Divisional Office, Leela Bhawan Market Complex, Patiala, through Manager. …………Opposite Party Complaint under Section 12 of the Consumer Protection Act, 1986. QUORUM Sh. Jasjit Singh Bhinder, President Sh.Vinod Kumar Gulati, Member ARGUED BY Sh.Ranjan Gupta, counsel for complainant. Sh.Amit Gupta, counsel for OP. ORDER JASJIT SINGH BHINDER,PRESIDENT - This is the complaint filed by Madan Gopal (hereinafter referred to as the complainant) against National Insurance Company Ltd. (hereinafter referred to as the OP/s).
- The brief facts of the case are that the complainant got his vehicle bearing registration No.PB-23L-0202 insured with the OP vide policy No.35101031156137480479 valid from 4.11.2015 to 3.11.2016. It is averred that while driving, in order to save a motor cyclist, the vehicle met with an accident and damaged on 16.10.2026.Claim was lodged with the OP.
- It is further averred that the vehicle got repaired from M/s Hira Auto Mobiles Ltd., Patiala who charged Rs.47,731/- as repair charges from the complainant.
- It is further averred that a letter dated 19.1.2016 was received, intimating the complainant that as per investigation report dated 23.11.2016 of Sh.Puneet Kumar Gupta, Investigator, Vishal son of the complainant was driving the car at the time of accident and the police officials had arranged medical examination of said Vishal from Govt. Rajindra Hospital, Patiala and as per medical report, Vishal was under the influence of liquor. As such he had violated the provisions of Motor Vehicle Act as well as the terms and conditions of the insurance policy. It is further averred that on 22.12.2016, reply was sent intimating that Vishal has not taken any liquor on the said date but even then he was astonished on receiving the letter dated 6.1.2017 that the OP had repudiated the claim on the ground that Vishal, who was driving the vehicle at the time of accident, was under the influence of liquor.
- It is further averred that no medical test or breath test of Vishal was ever conducted either by the doctors or by the police. On 16.10.2016, an application was moved by the police to Senior Medical Officer, Rajindra Hospital, Patiala so as to get the examination done of Vishal as to opine as to whether Vishal had taken any liquor or not. It is averred that doctor has wrongly mentioned that Vishal refused to give blood/urine sample. There is no evidence that Vishal was ever charged under Section 185 of the Motor Vehicle Act. Police also did not challan him at all. The reasoning given by the doctors that Vishal had consumed alcohol is only imaginary without the support of any medical test. Smell of alcohol does not mean that a person is under the influence of liquor as Homeopathic medicines also give smell of alcohol. The repudiation of the claim by the OP amounts to deficiency in service on its part.
- On this background of the facts, the complainant has filed the complaint with the prayer to accept the same by giving directions to the OPs to pay Rs.47,731/- as the expenses incurred on the repair of the vehicle alongwith interest @18% per annum from12.11.2016 till realization; to pay Rs.40,000/- for causing mental agony and harassment to the complainant and also to pay Rs.10,000/- as costs of the complaint.
- Notice of the complaint was given to the OP who appeared through counsel and contested the complaint by filing written reply having raised preliminary objections to the effect that the complainant purchased one insurance policy covering the period 4.11.2015 to 3.11.2016 of the vehicle bearing No.PB-23L-0202, subject to the terms and conditions of the policy. It is further submitted that on 25.10.2016, the complainant intimated the OP with regard to the loss/damage to the vehicle. Sh.Mandeep Kataria, surveyor and loss assessor was deputed to survey the insured vehicle. As per the interim report of the surveyor, there is difference in cause of accident as claimed by the complainant and as per the police report and thus he has recommended this case for investigation. As such competent authority deputed Sh.Puneet Kumar Gupta, Investigator to investigate the claim and as per the report of Dr.Nikhil Mehta of Rajindra Hospital, Patiala, the driver of the car i.e. Vishal was found to be under the influence of liquor. The report of doctor is as follows:
………he is conscious talkative. BP 140/100mm HG, pulse 100 per minute, smell of alcohol present from breath........he refused to give blood/urine sample. In my opinion he has consumed alcohol and is under the influence of alcohol. and as such the competent authority of the OP issued letter dated 1.12.2016 to the complainant to give his comments with regard to the same but the complainant has not submitted any such comments. Even reminder dated 19.12.2016 was also issued in this regard. Ultimately the case of the complainant was repudiated vide letter dated 6.1.2017. - On merits, the OP reiterated the facts as raised in the preliminary objection and have been narrated above. After denying all other averments of the complainant, the OP prayed for the dismissal of the complaint.
- In evidence, the ld. counsel for the complainant has tendered affidavit Ex.CA of the complainant alongwith documents Exs.C1 to C9 and closed the evidence.
- On the other hand, the ld. counsel for the OP tendered affidavit Ex.OPA of Joginder Singh, AO, Ex.OPB affidavit of Mandeep Kataria, Ex.OPC affidavit of Puneet K.Gupta alonwith documents, Exs.OP1 to OP10 and closed the evidence.
- We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
- The ld. counsel for the complainant has argued that the OP has refused to give the amount spent on the repair of the vehicle vide its letter dated 6.1.2017.The ld. counsel further argued that the complainant got his vehicle insured with OP for the period from 4.11.2015 to 3.11.2016.The ld. counsel further agued on 16.10.2016, the vehicle met with accident with a motor cycle and the claim was lodged. The ld. counsel further argued that vehicle was got repaired from M/s Hira Auto Mobiles Ltd. who charged Rs.47,731/-, which was paid vide receipt dated 12.11.2016.it is further argued that on 19.12.2016 a letter was received intimating the complainant that as per the report dated 23.11.2016 of Puneet Kumar Gupta, Investigator, Vishal, son of the complainant was driving the car at the time of accident, had consumed alcohol .The ld. counsel further argued that reply was sent on 22.12.2016 intimating the OP that Vishal has not consumed any liquor. It is further argued that no medical test or breath test of Vishal was ever conducted by the doctors or by the police. It is further argued that Vishal was not ever charged under Section 185 of the Motor Vehicle Act. It is further argued that the petition filed under Motor Vehicle Act case has been allowed to the injured person by MACT, Patiala.The ld. counsel also relied upon the judgments Manish Krishnarao Bargal Vs. Sanjay Kamal Chand Jain & Another 2011 AAC 1501,passed by the Hon’ble Madhya Pradesh High Court, on the point ….....No breath analyser test of claimant was conducted- Deduction of compensation of 50% towards contributory negligence by Tribunal on the basis of medical legal injury report mentioning “breath smell of alcohol”-Not proper, Bajaj Allianz Insurance Co. Ltd. Vs. Usha Gupta and others 2016(1) Rajdhani LR 321 passed by Hon’ble Delhi High Court, on the point that Allegation of the car driver having consumed alcohol before the accident has not been proved by any evidence, New India Assurance Co. Ltd. Vs. Ravi Narang 2011(2)CPJ 241, passed by Delhi State Consumer Disputes Redressal Commission ,New Delhi on the point that …......No affidavit has been filed of their author (Doctor) in evidence to establish these reports in evidence- Thus these documents do not help in any manner to substantiate contention of appellant that complainant was driving vehicle at the time of accident in a drunken state...........It is argued that in view of the law laid in the cited cases, the complaint be accepted.
- On the other hand, the ld. counsel for the OP has argued that there is medical evidence on the file that Vishal was under the influence of liquor when the accident was occurred .It is further argued that the case was investigated by Mandeep Kataria, and it was found that Vishal was under influence of liquor as per the report of Dr.Nikhil Mehta of Rajindra Hospital, Patiala.The ld. counsel further argued that as Vishal had consumed liquor at the time of accident, so the complainant is not entitled to any claim . He has relied upon the Judgments K.Shanmu versus V.Krishnamurthy and another (2019)6 CTC 211, passed by the Hon’ble High Court of Madras and Om Parkash Vs. Inspector General/N.S. and Ors. W.P.(C) 2884/2005 passed by the Hon’ble High Court of Delhi.
- In support of the case Vishal Garg, tendered his affidavit, Ex.CA and deposed as per pleadings taken in the complaint, Ex.C1 is the copy of policy schedule,Ex.C2 copy of cheque for the amount of Rs.47,731/-, which was paid to M/s Hira Auto Mobiles Ltd.Ex.C3 receipt of M/s Hira Automobiles Ltd.,Ex.C5 copy of letter written by the OP to the complainant, in which it is stated that as per investigation report, it has been come to notice that Vishal was driving the captioned car at the time of accident and as per the report of Govt. Rajindra Hospital, Patiala he has consumed alcohol and was under the influence of liquor.Ex.C6 is the another letter written to the National Insurance company by the owner of the car that his son was slipped in the bathroom some days before the accident and he was using Arnica 30 homeopathy medicine.Ex.C9 is the judgment passed by the Ld. MACT, Patiala, in which Sukhveer Singh, injured has filed the complaint and National Insurance Company was represented by Inderpal Singh, Advocate and the claim was allowed.
- So it is clear that the defence of the complainant that Vishal was under the influence of liquor was disbelieved by the Ld. Motor Accident Claims Tribunal. In the judgment passed by the Tribunal, it is clearly written that the car in question was insured with the National Insurance Co.
- On the other hand, the OP has tendered the affidavit of Joginder Singh, Admin. Officer who has deposed as per the written statement, Sh.Mandeep Kataria has tendered his affidavit, Ex.OPB, Sh.Puneet Kumar Gupta, tendered his affidavit, Ex.OPC.Ex.OP1 is the insurance policy, Ex.OP2 is the intimation letter of Mandeep Kataria. In this letter it is mentioned that as per report of Mandeep Kataria, surveyor, he recommended to re-investigate the case.Ex.OP3 is the insurance claim form,Ex.OP4 is the final survey report, in which it has been written that the driver was under the influence of hard drink and the complainant has also suffered the loss of Rs.47044.The surveyor has also taken the photographs of the car. The investigation report is Ex.OP5 of the Investigator Puneet Kumar Gupta. In this investigation report, he has mentioned that Vishal was under the influence of liquor. He attached copy of statement of Sukhveer Singh, alongwith his report, discharged slip, which is not readable.FIR is also accompanied, letter written by Angrej Singh to Medical Officer of Rajindra Hospital, Patiala that Vishal Garg son of Madan Gopal was driving the car struck with motor cycle. It seems that he was under the influence of liquor. There is a report of the doctor that his blood pressure was normal. He refused to give blood/urine sample. In his opinion he has consumed alcohol.
- Although there is summary procedure but the doctor who has given the report has not been examined. The ld. counsel for the complainant has cited the judgment of Hon’ble National Commission, New India Assurance Co. Vs. Ravi Narang (supra) in which it has been held that no affidavit has been filed of their author (Doctor) in evidence to prove the reports in evidence. For this reason, it can safely be said the documents do not help in any manner to substantiate the contention of the appellant that the complainant was driving the vehicle at the time of accident in a drunken state and his case therefore, falls under the Exception Clause of the Insurance Agreement. The ld. counsel for the complainant has also cited the case of Manish Krishnarao Bargal Vs. Sanjay Kamal Chand Jain and another(supra) that no breath analyser test was done and there is no evidence of detection of quantity of alcohol exceeding the permissible limit. It was held by the Hon’ble Delhi High Court in the case of Bajaj Allianz General insurance Co. Ltd. . Vs. Usha Gupta and Ors. (supra) that allegations of the car driver having consumed alcohol before the accident has not been proved by any evidence. Mere reference to the MLC cannot suffice. It has been held by the Hon’ble High Court that no evidence has been adduced . The observation in the MLC about the alcohol intake was based on some report which required to be proved strictly. No such evidence having been adduced, inference cannot be drawn merely from the noting in MLC, which also do not bear any authentication.
- Though there is a summary procedure, but it was incumbent upon the insurance company to file the affidavit of the doctor who had given the report that driver of the car Mr.Vishal was under the influence of liquor at the time of accident. So all the three judgments cited by the ld. counsel for the complainant are fully applicable to the facts of the present case. Moreover the judgment cited by the ld. counsel for the OP are not applicable to the facts of the case in hand.
- So due to our aforesaid discussion, the claim of Rs.47,731/- was wrongly rejected by the OPs as they have failed to examine the doctor or any other person who could prove that Mr.Vishal, who was driving the car at the time of accident was under the influence of liquor. Accordingly we allow the complaint and direct the OP to pay the amount of Rs.47,731/- to the complainants in equal share alongwith interest @6% per annum from the date of repudiation i.e. 19.12.2016 till final payment but this order is passed with no order as to costs . Compliance of the order be made by the OP within a period of 45 days from the date of the receipt of the certified copy of this order.
- The complaint could not be decided within the prescribed period due to heavy pendency of cases.
ANNOUNCED DATED:5.11.2020 Vinod Kumar Gulati Jasjit Singh Bhinder Member President | |
