State Consumer Disputes Redressal Commission
Pearl Beverages Ltd. vs Iffco-Tokio Gic Ltd. on 19 July, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 19.07.2013 Case No. C-48/09 PEARL BEVERAGES LTD - COMPLAINANT 802, Ansal Bhawan, 8th Floor, 16, KG Marg, Connaught Place, New Delhi -110001. Versus IFFCO-TOKIO GIC LTD. - OPPOSITE PARTY IFFCO House, 3rd Floor, 34, Nehru Place, New Delhi 110019. CORAM : S.A. SIDDIQUI - Presiding Member S.C. JAIN - Member 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? S.A. SIDDIQUI (ORAL) JUDGEMENT
1. Complainant, Pearl Beverages Ltd has filed this complaint against IFFCO-Tokio General Insurance Co. Ltd for the following reliefs:
(1). OP be directed to make payment of insured sum of Rs. 33,75,269/- along with interest @ 18% p.a. (2). OP be directed to pay compensation of Rs. 2 Lacs (3) Cost of litigation of the present complaint.
2. Complainant is a Ltd. Company and Sh. Vishal Goyal, Company Secretary was authorized to file the complaint. The complainant is the registered owner of car Porsche (Boxster) bearing registration No. DL-1CJ-3577, which was insured with the OP Insurance Company through Policy No. 37669622 valid for the period 31.10.2007 to 30.10.2008 for a total sum of Rs. 33,75,269/-Premium of Rs. 49,169/- was paid. Unfortunately, this car met with an accident on 22.12.2007 and as a result thereof, it caught fire and was extensively damaged (Total loss) . The complainant lodged an insurance claim with the respondent/OP and filed all necessary information and documents. The OP deputed Surveyor to assess the loss.
The complainant was assured by the Surveyor that the claim shall be settled soon. After a long delay, the complainant received a letter dated 02.04.2008 from the respondent/OP rejecting the claim. The reason for rejection/dis-honouring the liability was that Mr. Aman Bangia, who was driving the vehicle at the time of accident, was under the influence of intoxicating liquor, attracting exclusion clause 2C of the Insurance Policy. After receiving the aforesaid letter, complainant got in touch with the respondent/OP to explain their case and to impress upon the OP that the exclusion clause referred in the letter is not applicable in the facts and circumstances of the present case. It was made clear that driver had not consumed alcohol at the time of accident.
For the sake of arguments even if it is assumed that driver had consumed alcohol, the case would not fall under the exclusion clause as he was not in any way intoxicated. The complainant was assured by the OP that the matter will be examined. However, despite repeated reminders, OP did not respond.
3. The complainant was compelled to issue Legal notice dated 1.7.2008, which was served upon the respondent/OP. It was specifically mentioned that although the Police had lodged FIR under Section 279/427 IPC and under Section 185 Motor Vehicle Act (MVA) 1988, no charge-sheet has been filed against the driver meaning thereby that the Police could not collect sufficient evidence to prosecute the driver for any alleged offences. It was also specifically stated that MLC only says smell of alcohol, which does not imply that driver was under the influence of intoxicating liquor.
It was clearly denied that the driver had not consumed liquor. For an offence under Section 185 MV Act 1988, certain percentage of alcohol has to be found in the blood before a person can be prosecuted for the offence of drunken driving.
The law does not prohibits driving after consuming liquor, all its prohibit is that the percentage of liquor should not be exceeding 30 mg per 100 ml of blood. No such test was performed in the present case and therefore, it cannot be said that driver was under the influence of intoxicating liquor as provided under Section 185 of MV Act 1988 or exclusion clause 2C of the policy. As such the repudiation of the claim was illegal, arbitrary and without application of mind, which amounts to deficiency of service. The respondent/OP had totally misinterpreted the phrase under the influence of intoxicating liquor or drugs appearing in exclusion 2C of the insurance Policy.
Merely, smelling of alcohol, which was stated in the MLC, does not prove or establish that the person driving the vehicle was intoxicated. Intoxication means elate or excite to the degree of frenzy which means that the person has no control over his senses.
4. In view of the illegal repudiation and non-settlement of the claim, the complainant could not use the vehicle for its day to day working and had to hire taxi for transportation. The complainant also suffered mental agony, pain and harassment and deserves to be sufficiently compensated.
5. The complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act 1986 (herein after called the Act) and is entitled to file this complaint and this Commission has jurisdiction to entertain and try the complaint.
6. The OP/respondent filed reply.
It was admitted that the Car No. DL-1CJ-3577 was insured with the OP for the total sum of Rs. 35,75,269/- for the period 31.10.2007 to 30.10.2008. The rest of the allegations were denied. It was denied that the Surveyor has assured the complainant regarding settlement of the claim at the earliest on total loss basis. It was further stated that there was official record of the person driving having been found to have consumed alcohol and driving the vehicle under the influence of liquor.
It was also denied that the case did not fall under the exclusion clause of the policy. It was also denied that any assurance for re-examining the matter was given. There was nothing to be re-examined on the face of abundant evidence indicating driving of vehicle after consumption of alcohol. The FIR, the Arrest Memo and the Convection Slip abundantly show the official action against the erring driver. It was also stated that after receiving the information, the case was investigated through M/s Bhola & Associates, the experienced investigators and they collected relevant information and records submitted their findings that while driving the vehicle, the driver, Mr. Aman Bangia was under the influence of liquor. Copy of the report dated 27.1.2008 has been enclosed as Annexure R-5. Copy of their addendum report dated 06.02.2008 was also enclosed as Annexure R-6. The fact that the accident was very serious in nature by itself show that the driver was driving vehicle recklessly, rashly and negligently under the influence of alcohol. Therefore, the complainant was not entitled for any claim.
The company was not liable to make any payment in respect of any accidental loss or damage caused whilst the insured or any person driving with the knowledge and consent of the insured was under the influence of intoxicating liquor or drugs. Also the insured was duty bound to take all reasonable steps to safeguard the motor vehicle from loss or damage.. in the event of any accident. The complainant has committed breach of policy condition and therefore, the insurance claim was rightly repudiated.
7. There was no deficiency of service on the part of the OP/respondent and the complaint is not admissible in terms of the Act.
8. A number of documents were filed along with the complaint as well as with written statement.
9. Complainant filed rejoinder wherein it was reiterated that the driver of the vehicle had not consumed alcohol or any other intoxicating drug as would appear from the documents onrecord. Any exclusion clause of the insurance policy was not attracted. It was further submitted that the FIR, Arrest Memo and Conviction Slip do not even prima facie prove any offence or show that the driver of the vehicle was under influence of the liquor. The OP/respondent also failed to reply the legal notice dated 01.07.2008 thereby admitting its contents. It was also maintained that there was no evidence against the driver Mr. Aman Bangia to prove that he was driving under the influence of alcohol. Report dated 27.01.2008 and addendum dated 06.02.2008 of the investigator are baseless, wrong and malafide.
10. Complainant also filed evidence by way of affidavit of Mr. Vishal Goyal, Company Secretary (PW1), Mr. Aman Bangia (PW2) and Mr. Rushirans Jaipuria, Traveller along with driver in the vehicle (PW3). Along with the affidavits, documents were also filed enclosing order dated 02.04.2008, FIR dated 22.12.2007 under Section 279/427 IPC and Section 185 of MV Act 1988, Medico Legal Case Sheet of Dr. Ram Manohar Lohia Hospital, New Delhi, legal notice dated 01.07.2008 etc.
11. OP/respondent also filed evidence by way of affidavit of Sh. P.J. Pradhan, Vice President of the respondent.
12. Complainant also filed Annexure-I, Conviction and Sentence Order dated 27.08.2011 in FIR No. 453/2007 under Section 279/427 IPC. Complainant also served interrogatories which was duly replied by the respondent/OP.
13. Both the parties also filed written arguments after exchanging copies of the same. Complainant relied upon the following judgments:
(i) (ii) III (1996) CPJ 206 United India Insurance Co. Ltd. Vs. Deepak Sharma and Anr., Appeal No. 23 of 1995, decided on 2.9.1`996 by Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla.
(iii) I (1999) ACC 218 Rajavalse M Vs. State, Crl P. No. 1555 of 1998, decided on 23.7.1998 by Karnataka High Court
(iv) I (2007) CPJ 388 New India Assurance Co. Ltd.
Vs., Karam Chand, Appeal No. 197 of 2004, decided on 23.5.2006 by Himachal Pradesh State Commission, Shimla.
(v) Vijay Kumar Vs. Union of India, Central Administrative Tribunal
(vi) Uttar Pradesh Road Transport Corporation Vs. Baldev, 2011 passed by Delhi High Court.
14. Complainant also relief upon the rulings of:
(a) The Oriental Insurance Co. Ltd. Vs. Sh. M. Suresh Revision Petition No. 881/2012 passed by Honble NCDRC, New Delhi.
(b) Sh. Ashminder Pal Singh Vs. New India Assurance Co. Ltd. in Complaint No. C-47/2002.
15. We have gone through the record and rulings relied upon by the parties. WE have also heard Sh. Rajiv Aggarwal, Counsel for the complainant and Sh. L.R. Goel, Counsel for the OP at length. 16. It was argued by Ld. Counsel for the complainant that repudiation of the claim of the complainant was illegal, arbitrary and without application of mind which amounts to deficiency in service. OP/respondent totally misinterpreted the phrase under the influence of intoxicating liquor or drugs appearing in exclusion 2C of their policy. The Exclusion clause 2C reads as under:
The company shall not be liable to make any payment in respect of any accidental loss or damage suffered whilst the insured or any person driving with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs
16. Ld. Counsel for the complainant emphasized that this exclusion clause was not applicable in the facts and circumstances of the case as a person driving the vehicle had not consumed alcohol. Even if for the sake of arguments, it is assumed that driver had consumed alcohol, the case would not fall under the exclusion clause as he was in any case not intoxicated. As per reply of the interrogatories, investigator has based his opinion only on MLC and FIR and not contacted the concerned person. No any test was conducted on the driver either of blood or urine. There was no report on the file to show the level of alcohol. Under Section 185 of the MV Act 1988, certain percentage of alcohol has to be found in the blood before a person can be prosecuted for the offence of drunken driving. The law does not prohibit driving after consuming liquor, all its prohibit is that the percentage of liquor should not be exceeding 30 mg pr 100 ml of blood.
No such test was performed in the present case and therefore there was no evidence on record to conclude that person driving the vehicle was under the influence of intoxicating liquor/drug as provided under Section 185 of MV Act 1988 or exclusion 2C of the policy. Also report dated 27.1.2008 and addendum dated 06.02.2008 of the investigators are baseless and malafide aimed at repudiating the just claim of the complainant.
17. It was also argued that FIR, Arrest Memo and Conviction Slip does not even prima facie prove any offence or show that the driver of the vehicle was under the influence of liquor. The FIR No. 453/2007 lodged against Mr. Aman Bangia (Driver) under Section 279/427 IPC read with Section 185 of the MV Act 1988 has been finally decided by Criminal Court MM (ND), vide its order dated
27./8.2011. A copy of which has been filed on record. It is clear from the said order that even the court did not issue/frame notice of the offence under section 185 of MV Act. Notice was only framed u/s 279 of IPC thereby relieving/discharging the accused u/s 185 MV Act and 427 IPC.
18. It was further argued that law on smell of alcohol was codified in Bachubhai Hassanalli Karyani Vs. State of Maharashtra, (1971) 3 SCC 930. Honble Supreme Court held that on the evidence it cannot be definitely held that the appellant was drunk at the time the accident occurred.
In this case it was shown on record that the Doctor who had examined the appellant had based his conclusion merely on the facts that the appellants breath was smelling alcohol, his gait was unsteady, his speech was incoherent and that his pupils were dilated. The doctor had admitted that a person could smell of alcohol without being under the influence of drinking. No urine test of the appellant was carried out and although the blood of the appellant was sent for chemical analysis, no report of the analysis was produced by the prosecution in the afore said case. In Rajavalse M. Vs State (I (1999) ACC 218). Honble Karnataka High Court has observed that mere taking of alcohol is not sufficient. The consumption of alcohol must be exceeding 30 mg per 100 ml of blood. There is nothing to indicate that alcohol exceeding 30 mg per 100 ml blood was detected in the blood and the breath analyzer test was conducted. The Doctor also clearly stated that he had consumed alcohol but he was not intoxicated. The quantity of alcohol in the blood was relevant and determinative factor. Mere presence of smell of alcohol in the breath of a person does not mean that the person was under the influence of liquor.
19. On the other hand, Ld. Counsel for the OP/respondent argued that there was an official record of the driver of the vehicle to prove that at the time of accident, driver had consumed alcohol and was driving in that drunken condition. The FIR, Arrest Memo and Conviction Slip which have all been placed on record, abundantly go to show the official action against the erring driver.
These documents are sufficient to show that the insurance claim falls within the exclusion clause of the policy.
The policy exclusion clause states:
The company shall not be liable to make any payment in respect of any accidental loss or damage suffered whilst the insured or any person driving with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.
20. It was also argued that OP/respondent got the matter investigated through M/s Bhola and Associates. They collected information and records and submitted their finding that while driving the vehicle, the driver was under the influence of alcohol.
The investigators report dated 27.1.2008, their addendum report dated 06.02.2008 and also the investigators affidavit have been placed on record. The accident was so serious which by itself shows that the driver was recklessly and rashly driving the vehicle under the influence of alcohol.
21. It was further argued that there was also breach of condition No. 4 of the policy and the claim is inadmissible for this reason alone. The insured was the duty bound to take all reasonable steps to safeguard the motor vehicle from loss or damage.. in the event of any accident. The operative clause of the insurance policy makes it clear that the indemnity to the insured is subject to the terms, conditions and exception contained in the policy.
22. In view of the above facts, circumstances and the legal position, the claim was rightly repudiated through letter dated 2.4.2008.
23. The OP, IFFCO-Tokio General Insurance Co. Ltd., through its registered letter dated 02.04.2008 (Annexure 5) repudiated the claim of the complainant, Pearl Beverages Ltd., on the following grounds:
With reference to the above loss reported to us on 23.12.2007, the vehicle was surveyed by M/s J.L. Enterprises, Surveyor and Loss Assessor and further investigations conducted by M/s Bhola & Associates.
On perusal of the report of Surveyor, Investigator and other documents on record, we have observed that the vehicle was being driven by Mr. Aman Bangia when it met with the accident. From the FIR lodged and the Medico Legal Report made by RML Hospital, it has been noticed and Breath Analysis of Mr. Aman Bangia indicated Alcohol (+). The FIR has also recorded booking the driver U/S 185 of MV Act, which relates to driving by a drunken person or a person under influence of drugs. In term of policy exclusion 2C:
The company shall not be liable to make any payment in respect of any accidental loss or damage suffered whilst the insured or any person driving with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs In view of the above, the claim is not admissible as per terms and condition of the policy and are closing the same as No Claim.
24. The main thrust of the arguments advanced by the Ld. Counsel for the complainant was that mere presence of smell of alcohol in the breath of a person does not make him under the influence of liquor. Mere smell or consumption of alcohol is not relevant but the quantity of alcohol in the blood is relevant and determinative factor. Therefore, Ld. Counsel for the complainant argued that the repudiation of the claim by the OP was unwarranted and illegal. Whereas Counsel for the OP emphasized that there was sufficient evidence on record to show that the claim of the complainant falls within the Exclusion clause of the Insurance Policy. The Policy does not require any specific quantity of alcohol to be consumed to attract the Exclusion clause. Mere consumption of alcohol is sufficient to relieve the insurer to any liability in respect of the claim. The FIR, Arrest Memo and the Conviction slip, all of which have been placed on record, abundantly show the official action against the driver of the vehicle.
The FIR was lodged by Constable Anand Kumar No. 1226/ND/PS Tilak Marg, New Delhi. It was clearly mentioned in the FIR that Car No. DL-ICJ-3577 was being driven by its driver rashly, negligently and at a very high speed. Driving so, the vehicle collided with an electric poll and the wall of the Children Park, as a result of which the car turned upside down/overturned and also caught fire.
The Constable Anand Kumar with a Home Guard came to the rescue of the driver and another person sitting besides the driver. Somehow both of them were taken out of the car, which was burning and their lives were saved. Both the driver and the person travelling with the driver disclosed their names and addresses. They were taken to RML Hospital by the PCR Van where they were examined by a doctor.
Both of them were found to have consumed alcohol and on medical examination both smelled breath alcohol (+).
It was a case of total loss of the vehicle. The case under Section 279/427 IPC read with Section 185 of the MV Act 1988 was registered against the driver Mr. Aman Bangia. The date and time of occurrence was 22.12.2007 at 2.25 am. Place of occurrence was C-Hexagan Dr. Zakir Hussain Marg near Children Park, India Gate, New Delhi.
25. Thus, official record of the driver goes to show that the driver was driving the vehicle, at the time of accident, after consuming alcohol. Whether he was completely or partially under the influence of alcohol was a different matter. There was no slightest doubt that the driver Sh. Aman Bangia drove the vehicle after consuming alcohol. The manner and the intensity with which the accident occurred and its overall impact go to prove these facts beyond any shadow of doubt.
26. Ld. Counsel for the complainant relied upon many Case Law on the point particularly in Bachubai Hassanalli Karyani Vs. State of Maharashtra, decided on 18.12.1970 by Supreme Court of India, which in our opinion is not much helpful to the complainant. The degree of proof required in a criminal case for conviction is much much higher than the evidence required in a Civil proceeding. Civil cases are decided on the principle of preponderance of documentary evidence on record whereas in a criminal case, prosecution is required to prove the case to the hilt. In our opinion, evidence available on record in the present matter is sufficient and enough to attract the Exclusion clause 2C of the policy. Moreover, the driver was charged for offence under Section 279/427 IPC and Section 185 of the MV Act 1988. Later on, the driver confessed his guilt under Section 279 IPC before a Magistrate/Criminal Court for having driven the car rashly and negligently resulting in serious accident. He was convicted and sentenced to pay a fine of Rs. 1000/- or in the alternative to undergo imprisonment for two months. For the purpose of confession, the case under Section 279 IPC was separated from the rest two offences, the result of which is not yet known. We do not agree with the contention of Ld. Counsel for the complainant that the driver was discharged or acquitted in other offences. For a discharge or an acquittal in a criminal offence, a clear cut finding by a Competent Court is necessary. There cannot be any presumption of discharge or acquittal.
27. The investigator report dated 27.1.2008 and addendum report dated 06.02.2008 supported by his affidavit was also a piece of reliable evidence against the driver.
28. The facts and circumstances of this case are such that principle of Res ipsa loquitor (the things speaks for itself) fully applies. This maxim applies in actions for negligence where the circumstances of an accident are such that it is so improbable though it would have occurred without the negligence of the defendant, that it can be presumed that it was so caused.
29. In the leading case of T.G. Abraham Vs M.D. Kerala SRTC 2004 (III) CPJ 6. Honble Apex Court held: Consumer courts are not expected to go in technicalities of civil or criminal Jurisprudence. Evidence Act or CPC are not applicable to proceedings before the Consumer Courts. Disputes are to be decided at the yardstick of reasonableness and probability.
Principles of natural justice do apply in full force.
30. Undoubtedly, the proceedings before us are summary in nature and therefore, we are not required to go into the technicalities of the criminal or civil jurisprudence. The yardstick remains probability and reasonableness. The vehicle was being driven rashly and negligently at a very high speed. The impact of accident was such that the vehicle turned upside down and caught fire and the vehicle of Fire Brigade had to be pressed into service for extinguishing the fire. The vehicle turned into a total wreck. These facts, circumstances and the official record against the driver cannot be ignored.
31. There is another aspect of the matter too. Both the insurer and the insured were duty bound for observance of the policy conditions. There appears to be a breach of the condition 4 of the Policy, which states as under:
The insured shall take all reasonable steps to safeguard the loss or damage..
32. At the time of accident, the vehicle was being driven rashly and negligently and the driver had consumed liquor, which by itself was in violation of the policy conditions.
33. In view of all these facts, circumstances and legal position, we come to the conclusion that the OP Insurance Company did not commit any illegality in repudiating the insurance claim. There was no deficiency of service on the part of the OP Insurance Company and therefore, the claim of the complainant is found without force and is liable to be rejected.
ORDER The complaint is accordingly rejected. In view of the peculiar facts and circumstances of the case, the parties shall bear their own costs.
34. A copy of this judgement and order as per the statutory requirement be provided to the parties free of cost and thereafter the file be consigned to Record Room.
( S.A. SIDDIQUI) PRESIDING MEMBER (S.C. JAIN) MEMBER rn