Complaint filed on: 30-03-2021

                                                      Disposed on: 21-10-2022

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU

          DATED THIS THE 21^st DAY OF OCTOBER 2022

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER

CC.No.34/2021

1.       Smt. S.A. Manjula, A/a 42 years,

          W/o Late R.S.Umashankar.

2.       Master, Minchan, A/a 14 years,

          S/o Late R.S.Umashankar,

          Since he is a minor rep. by

          His Mother natural Guardian

          Smt. S.A.Manjula

          Both are R/at No.12, Siddarameshwara Nilaya,

          Both are R/at SIT Layout, I Main Road,

          SIT Extension, Krishnanagar,

          Tumkur – 572 102.

 ……….Complainant

 (By Sri. S.G.Chakrapani, Advocate)

V/s

1.       The Manager,

          Liberty General Insurance Co., Ltd.,

          10^th Floor, Tower –A,

          Peninsula Business Park,

          Ganpatrao Kadam Marg,

          Lower Parel, Mumbai-400 013.

2.       The Branch Manager,

          Sri. Siddalingeshwara Swamy Arcade,

          1^st Floor, Vivekananda Road,

          Opp. M.G.Road, Above Karur Vysya Bank,

          Tumakuru. 

……….Opposite Part/ies

 (OP-1 By Sri. N.V.Naveen Kumar, Adv.,)

(OP2 – Exparte)

:ORDER:

SMT.G.T.VIJAYALAKSHMI, PRESIDENT

This complaint is filed against the OP U/s 12 of the Consumer Protection Act 1986 with a prayer to direct the OPs to pay/release the insurance policy amount of Rs.15,00,000/- to the complainant No.1 on behalf of the 2^nd complainant and Rs.2,00,000/- towards damages for mental agony with interest @ 18% per annum and to grant such other relief/s as the Hon’ble Forum deems fit to grant.

2.       The brief facts of the complaint as under:-

The husband of complainant No.1 and Father of complainant No.2 Umashankar R.S. obtained insurance policy in respect of his car bearing registration No.KA:06:M:8636 vide its Engine No.D13A1298163, Chassis  No. MA3EKED2S002007718 Vide policy No.201150020719700046100000 valid from 07.09.2019 to 07.09.2020. It is further contended that R.S.Umashankar due to RTA occurred on 13.02.2020  near Muddalinganhalli Railway Gate from Doddaballapura to Tumkur at about 11.50 a.m. dashed to the footpath tree and at the time of shifted to the hospital from 108 Ambulance, died on the same day on the way and thereafter post mortem was conducted by the Doctor at Tumkur Government Hospital and the Jurisdictional Thyamagondlu Police have registered FIR in their crime No.12/2020 on 14.02.2020.  

2(a).  The complainants further submitted that at the time of accident the concerned insurance authority has assured to pay the insurance amount of Rs.15,00,000/- as per the Insurance Cover note reference, as the said vehicle was covered as P.A. cover for owner, driver under Section III. SCI and during the life time of R.S.Umashankar, he had made the complainant No.1 as his nominee and after the demise, the complainant No.1 issued a legal notice on 09.01.2021 by disclosing all the true and material facts be before the Insurance Authority had given reply on 04.03.2021 and as per the said reply notice in Para 4 that “on investigating and available records, and conducting the matter clearly demonstrated that Mr.Umashankar had driven its insured car with influence of Alcohol, which resulted in death of the insured”.  The complainant further submitted that the OP/insurance Company is making bald allegations that the deceased had consumed alcohol at the time of accident without any proof.  It is further submitted that in the Post mortem report, FIR and also in the complaint and any other documents there is no mentioned about the alcohol used by the deceased at the time of accident.  Hence, the OP/Insurance Company with an intention to cheat and harass the complainants making false and reckless allegations against the husband of the 1^st complainant only to escape from their liability.  Hence, there is a deficiency of service on the part of OPs and prays to allow the complaint as prayed.       

3.       After service of notice, the OP No.1 appeared and filed the version, wherein the OP No.1 admitted that complainant No.1 husband Umashankar .R was the owner of Maruthi Swift Dzire Car bearing registered No.KA:06:M:8636 and above vehicle was insured with the OP vide policy No.2011500719700046100000 valid from 09.09.2019 to 08.09.2020.  The policy covers the risk of own damage, third party and PA cover for owner-driver and risk of the policy was subject to terms and conditions of the policy.  The complainant further contended that the alleged accident was took place on 13.02.2020 at about 11.50 PM but the complaint was lodged on 14.02.2020 at about 11.00 AM and there was a delay of 1 day in lodging the complaint and the delay was not properly explained.   It is clear violation of the policy terms and conditions as the insured has to intimate the OP immediately upon the loss/damage in respect of the insured vehicle.  The complainant has knowingly and willfully committed the breach of policy terms and conditions.  On this ground alone, the complaint is liable to be dismissed.    

3(a).  The OP No.1 further contended that after receipt of the claim from the complainant, a claim was registered as claim No.OD-500207201120310009801 and appointed one M.Muniraju, A claim investigator to investigate and collect the documents in respect of the claim made by the complainant on 09.01.2021 and submitted that the investigation report on 08.02.2021.  It is further contended that as per the investigation conducted by the Investigator and the Investigator in his report on 08.02.2021 has clearly given a finding that it is a clear case of breach of policy terms and conditions by the insured Umashankar, as he drive the insured vehicle under the influence of alcohol, as a result of intoxication, the alleged accident took place and the insured was succumbed due to severe injuries.  The said fact was came to the notice of the OP by the Investigator as he collected the MLC extract from the District Government Hospital, Tumakuru wherein it is clearly mentioned that “alleged H/o RTA near Muddenahalli Road on 13.02.2020 at 11.30 PM as a car crashed a tree, breath smell of alcohol.  Basing on the investigation report, available documents, this OP has rightly repudiated the claim of the complaint. 

3(b)   The OP No.1 further contended that the OP has sent a repudiation letter on 04.03.2021 by repudiating the claim of the complainant as it is a clear case of breach of policy terms and conditions as under:-

General exception Clause 2(c)

The company shall not be liable to make any payment in respect of …..

(c) any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs”

3(c)    It is further contended that the Hon’ble Supreme court of India in Ravneet Singh Bagga Vs. KLM royal Dutch Airlines (2000) 1 SCC 66 and Revision Petition No.1046/2015 by National Consumer Forum.  On these among other grounds, it is prayed to dismiss the complaint. 

4.       The complainant has filed her affidavit evidence and marked the documents at Ex.P1 to P16. One Shraddha Kinare, AVP and Corporate Legal Manager filed affidavit evidence on behalf of OP No.1 and marked the documents at Ex.R1 to R5.

5. We have heard the arguments from both parties.

1)                    Whether there is any deficiency in service on the part of OPs?

2)                     Whether complainant is entitled for reliefs sought for?

6.       Our findings to the aforesaid points are as under:

Point No.1: In the Affirmative  

Point No.2: As per the final order

:REASONS:

7.       On perusal of the averments of the complaint, version of the OPs, affidavit evidence, exhibits of both parties, it is an admitted fact that the husband of complainant No.1 and Father of complainant No.2 Umashankar R.S. obtained insurance policy in respect of his car bearing registration No.KA:06:M:8636, vide Policy No.201150020719700046100000 valid from 09.09.2019 to 08.09.2020.  The policy covers the risk of own damage, 3^rd party and PA cover for owner-driver.  The deceased Uamashankar had made the complainant No.1 as his nominee.  After the demise of 1^st complainant’s husband, the complainant No.1 had issued legal notice on 09.01.2021 by disclosing all the true and material facts before the Insurance authority.  The OPs had given reply on 04.03.2021. and as per the said reply notice in Para-4 that “on investigating and available records, and conducting the matter clearly demonstrated that Mr.Umashankar had driven its insured car with influence of Alcohol, which resulted in death of the insured”.  Therefore, the complainants are not liable to obtain the insurance policy amount.  To substantiate the above facts, the complainants have produced Ex.P1 to P16.  

8.       It is also an admitted fact that R.S.Umashankar died due to road traffic accident (RTA) occurred on 13.02.2020 near Muddalinganahalli Railway Gate from Doddaballapura to Tumkur at about 11.50 PM dashed to the footpath tree and shifted to the Hospital in 108 Ambulance and died on the same day.  Thereafter autopsy was conducted by the Doctor at Tumkur Government Hospital and the Jurisdictional Police have registered the FIR on 14.02.2020.

9.       Per-contra, the OPs contended that the alleged accident was took place on 13.02.2020 at about 11.50 PM, but a complaint was lodged on 14/02/2020 at about 11.00 AM and there was a delay of 1 day in lodging the complaint and the delay was not properly explained.  The OPs further contended that after receipt of the claim from the complainant, a claim was registered and appointed one M.Muniraju, Investigator to investigate and collect the documents in respect of the claim made by the complainant on 09.01.2021 and investigator submitted the report on 08.02.2021  on the basis of MLC extract i.e. Ex.R3, the investigator given a finding that the insured Umashankar when he was driving the insured vehicle under the influence of alcohol, as a result of intoxication, the alleged accident took place and the insured was succumbed due to severe injuries.  Based on the investigation report, available documents, the OPs have repudiated the claim of the complainant on 04.03.2021 as it is a clear case of breach of policy terms and conditions.  Hence, there is no deficiency of service on the part of OPs.

10.     On perusal of Ex.R3 i.e., MLC extract from the District Government Hospital, Tumakuru, it is mentioned that “Alleged H/o RTA near Muddulinganahalli Road on 13.02.2020 at about 11.30 p.m. as car dashed a tree,

H/o Loc bleeding from nose

‘breath smell of alcohol’.

Relying on the words “breath smell of alcohol, the OPs have repudiated the claim of the complainant.  But there is no evidence to prove the quantity of alcohol, which he had consumed before driving the vehicle. 

11.     As per Section 185 & 202 of M.V. Act provides that a driver would be considered intoxicated only if he is tested and found to have more than 30 mg of alcohol in his blood per 100 ml and level of alcohol is required to be verified by way of test done by use of a breath synthesizer.  Admittedly, no such test was conducted.  Therefore, no evidence was available to the insurer to prove that insured Umashankar had consumed alcohol exceeding 30 mg per 100 ml of the blood at the time of vehicle met with accident.  In the instant case, except noting i.e. ‘breath smell of alcohol’ in the MLC register of Tumakur Government Hospital, there is no Iota of evidence produced by the OPs to prove that insured Umashankar was under influence of intoxication at the time of accident.

12.  The MLC extract and the investigator’s report merely state that “breath smell of alcohol” without giving any details about the actual quantity of alcohol consumed.  Even if the MLC extract pertaining to insured Umashankar mentioned that “breath smell of alcohol” is accepted, this is not adequate proof that he was intoxicated in the absence of any supportive evidence regarding quantity of alcohol consumed.  Therefore, the insurer is failed to prove that the insured had committed a breach of the terms of the policy and insured Umashankar under influence of alcohol at the time of accident.  Hence, the OPs repudiation of complainants’ claim amounts to deficiency of service and OPs are liable to pay Rs.15,00,000/- to the complainant as per policy.  Accordingly, we pass the following:- 

:O R D E R:

          The complaint filed by the complainant is partly allowed.        

          The OPs are directed to pay Rs.15,00,000/- (Rs.Fifteen Lakhs only) to the complainants with interest @ 9% PA from the date of filing of the complaint i.e. 30.03.2021 to till realization. 

          The OPs are further directed to pay litigation expenses of Rs.10,000/- to the complainants. 

Further, the OPs are directed to comply the above order within 45 days from the date of receipt/knowledge of this order. 

Furnish the copy of order to the complainants and opposite parties at free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and then pronounced in the Open Commission on this the 21^st day of  October, 2022).

LADY MEMBER                     MEMBER                     PRESIDENT