State Consumer Disputes Redressal Commission
Mohammad Arif Pawar vs United India Insurance Co.Ltd on 6 December, 2019
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2019/632
Instituted on : 03.09.2019
Mohammad Arif Pawar,
S/o Mohd. Gaffar Pawar,
R/o : Subhash Ward,
Jagdalpur, District Bastar (C.G.) ... Appellant/Complainant
Vs.
United India Insurance Company Limited,
Through : Branch Manager,
In front of Anupama Talkies,
Jagdalpur, District Bastar (C.G.) .... Respondent/Opposite Party
PRESENT :
HON'BLE SHRI JUSTICE C.B. BAJPAI, PRESIDENT
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES:
Shri R.K. Bhawnani, Advocate for the appellant.
Shri P.K. Paul, Advocate for the respondent.
ORDER
DATED : 06/12/2019 PER :- HON'BLE SHRI JUSTICE C.B. BAJPAI, PRESIDENT.
By this order, we are disposing off the Appeal No.FA/2019/632 filed by the appellant/complainant.
2. The appellant/complainant had filed this appeal being aggrieved by the order dated 07.08.2019, passed by the District Consumer Disputes Redressal Forum, Bastar at Jagdalapur (C.G.) (in brevity "District Forum") in Complaint Case No.C.C./52/2017 whereby and whereunder the complaint filed by the appellant/complainant, has been dismissed by the concerned District Forum.
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3. Learned counsel for the appellant/complainant would submit that the concerned District Forum has committed a mistake and as per provisions of Section 185 (a) of The Motor Vehicles Act, 1988, which is read as under :-
"185. Driving by a drunken person or by a person under the influence of drugs. - Whoever, while driving, or attempting to drive, a motor vehicle, -
(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser."
Learned counsel for the appellant would submit that in the present matter, there is no any quantity of alcohol found in the Post Mortem Report of the deceased, except in First Information Report it is nowhere mentioned that the deceased was in intoxicating state. The First Information Report too was lodged by the person concerned, who reached to the spot lately and the Investigator of the respondent/O.P./Insurance Company never attempted to collect the material regarding intoxicating stage of the deceased as in the report dated 11.01.2017 filed by the respondent/O.P. Learned counsel for the appellant/complainant would further submit that interalia, the matter covers under the non-standard claim Sl. No.3 and the appellant/complainant may be given upto 75% of the admissible claim and in the present matter the principles reiterated by the Hon'ble Apex Court in Amalendu Sahoo Vs. Oriental Insurance Company Ltd. II (2010) CPJ 9 (SC), are applicable. As this is the case of nature of use of the vehicle, the claim ought to be settled on non-standard basis and upto 75% of the claim may be given, as firstly it is not proved that the deceased had consumed alcohol, it at all he had consumed alcohol, for sake of arguments, the quantity of the alcohol was not upto prohibited category as provided in // 3 // Section 185(a) of The Motor Vehicles Act, 1988 and if at all he had consumed alcohol, even then on the basis of non-standard formula, the appellant/complainant may be given 75% of the admissible claim, hence learned counsel for the appellant/complainant would submit that the appeal filed by the present appellant/complainant may be allowed and the impugned order passed by the concerned District Forum may be quashed and the reliefs as prayed in the complaint may be granted.
4. Learned counsel for the appellant/complainant had placed reliance in an order dated 29.09.2009, passed by the Hon'ble National Commission in Kesarben Vs. United India Insurance Company Limited, in which Hon'ble National Commission on the basis of decision of Hon'ble Supreme Court in the case of B. V. Nagaraju Vs. M/s Oriental Insurance Company Limited (1996) 2 CPJ 18 (SC) held that any other breach of warranty / condition of policy including limitation to use, upto 75% of the admissible claim may be given. Learned counsel for the appellant/complainant also placed reliance in Revision Petition No.3983 of 2013 - M. Raja Gangu Vs. Branch Manager, LIC of India, Branch Armoor, District Niazamabad (A.P.) decided by Hon'ble National Commission on 21.01.2015, in which Hon'ble National Commission held that "Blood Alcohol Concentration Test is required to assess the alcohol intoxication in the given matter". Learned counsel for the appellant/complainant also placed reliance in Revision Petition No.2481 of 2013 - United India Insurance Company Limited Vs. Sheela & 3 Other and other connected matters decided by Hon'ble National Commission on 21.05.2014 in which Hon'ble National Commission held that "one need to be absolutely convinced about the reliability of the // 4 // chemical examiner's analysis" and the Hon'ble National Commission had dismissed the Revision Petition filed by the Insurance Company against the order passed by the State Consumer Disputes Redressal Commission, Kerala. Reliance also place on Revision Petition No.3934 of 2014 - Bajaj Allianz General Insurance Company Ltd. Vs. Achala Rudranwas Marde, decided by Hon'ble National Commission on 01.12.2014 in which the Hon'ble National Commission held that "Blood Alcohol Concentration Test is necessary and the percentage of the alcohol in blood must be assessed". Further reliance is placed in Revision Petition No.2790 of 2013 - Sujata Vs. Bajaj Alianz General Insurance Company Limited decided by Hon'ble National Commission on 09.03.2015, in which the Hon'ble National Commission held that "a person cannot be said to be intoxicated unless alcohol level exceeds the prescribed limit, which can only be confirmed through Blood Alcohol Concentration Test." Learned counsel had also placed reliance in Appeal No.FA/2018/620 - United India Insurance Company Limited Vs. Smt. Adhaniya Bai & Others decided by this Commission on 11.09.2018, Appeal No.FA/2015/159 - Raipur Power and Steel Limited Vs. The New India Assurance Company Limited, decided by this Commission on 13.10.2015; and Complaint Case No.CC/2016/16 - Harishankar Commercial Private Limited Vs. The Oriental Insurance Company Limited decided by this Commission on 29.10.2016, wherein on the same line in which Hon'ble National Commission held that Blood Alcohol Concentration Test has to be conducted and quantity of alcohol in the blood must be ascertained as to ascertain quanity as given in the Section 185(a) of The Motor Vehicles Act, 1986 and hence prayed that the on the basis of aforementioned cites case law, the appealmay be allowed.
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5. Per contra, learned counsel for the respondent / O.P. would submit that on the copy of First Information Report filed by the appellant/complainant is very clear and in the First Information Report, it is mentioned that thedeceased driver Narayan was driving the Lorry in question bearing load of Turmeric. Buddu Viswas, who was the Cleaner of the vehicle and the deceased driver stopped his lorry at Nellipaka center for lunch and also consumed liquor at that place and after that he proceeded to Jagdalpur and he drove his vehicle in rash and negligent manner with high speed in drunken stage and dashed the electrical pole at Edugurallapalli Village outskirts, and then he dashed to road bridge at Sarivela Village outskirts, as a result the lorry fell into the road side stream and the accused driver of the vehicle stuck in the lorry cabin and died on the spot. The Cleaner of the vehicle received few injuries goes to show that this is not the matter comes under Section 185(a) of The Motor Vehicles Act, 1988 and this is case comes under Section 185 (b) of The Motor Vehicles Act, 1988, which reads as under :-
"185. Driving by a drunken person or by a person under the influence of drugs. - Whoever, while driving, or attempting to drive, a motor vehicle, -
(b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle."
Hence, learned counsel for the respondent/O.P. would submit that all case laws cited by the appellant/complainant were on Section 185(a) of The Motor Vehicles Act, 1986 whereas as in the present matter provision of Section 185(b) of The Motor Vehicles Act, 1988 is applicable as the driver the vehicle in question had no control over the vehicle after consuming liquor // 6 // and as he violated the provisions of Section 185(b) of The Motor Vehicles Act, 1986, the respondent/O.P./Insurnace Company is not responsible for payment of any compensation to the appellant/complainant. The First Information Report filed by the appellant/complainant has to be accepted. Learned counsel for the respondent/O.P. would further supplement that in Amalendu Sahoo Vs. Oriental Insurance Company Ltd. (Supra), the said non- standard formula is applicable as to the nature of use of the vehicle and that matter was on the basis of the facts that the vehicle in question was used as commercial vehicle but it was registered as private vehicle, hence learned counsel for the respondent/O.P. would submit that the non- standard basis is not applicable in the matter and as this is a clear cut case of violation of Section I - Loss of or damage to the vehicle insured Serial No.2(c), which reads as under :-
"Section I - Loss of or damage to the vehicle insured :-
1...................
2. The Company shall not be liable to make any payment in respect of :-
(a) ....................
(b) ...................
(c) Any accidental loss or damage suffered whilst the insured or
any person driving the vehicle with the knowledge and consent of the insured under the influence of intoxicating liquor or drugs."
Learned counsel for the respondent/O.P. further submits that this is fundamental breach and non standard basis formula is not applicable in the matter, hence the learned counsel had prayed that the impugned order passed by the concerned District Forum is under law and facts, hence the // 7 // appeal filed by the appellant/complainant may be dismissed. The impugned order passed by the concerned District Forum, may be affirmed.
6. Learned counsel for the respondent/O.P. placed reliance in 2007 ACJ 1928 - Oriental Insurance Company Limited Vs. Premlata Shukla and Others, decided by Hon'ble Apex Court, in which Hon'ble Apex Court held that "as the F.I.R. had been relied upon by the parties on both sides and the claimants had made a reference to it in their claim application, the F.I.R. was marked as an exhibit as both the parties intended to rely upon it. The Tribunal was justified in relying upon the F.I.R. and the contents of the documents have been proved. Learned counsel also placed reliance in 2009 ACJ 1426 - Bhuwan Singh Vs. Oriental Insurance Company Limited and Another, decided by Hon'ble Apex Court, in which Hon'ble Apex Court held that "On the basis of contents in F.I.R., Tribunal rightly justified in holding that owner was driving the vehicle at the time of accident." Learned counsel for the respondent/O.P. also placed reliance in 2013 (4) CPR 373 (SC) - Export Credit Guarantee Corporation of India Ltd. Vs. M/s Garg Sons International, decided by Hon'ble Supreme Court of India, in which Hon'ble Supreme Court of India held that "While construing terms of a contract of insurance, words used therein must be given paramount importance and it is not open for Court to add, delete or substite any words." Learned counsel for the respondent/O.P. also placed reliance in 2005 (1) CPR 64 (SC) - United India Insurance Company Limited Vs. M/s. Harchand Rai Chandan Lal, decided by Hon'ble Apex Court, in which Hon'ble Apex Court held that "the terms of the policy have to be construed as it is and no one can add or subtract something." He also placed reliance // 8 // in 2013 NCJ 418 (NC) - Dr. Tarunjit Dutta Roy Vs. The Branch Manager, The New India Assurance Company Limited, decided by Hon'ble National Commission, in which Hon'bl;e National Commission held that "It is the duty of the Court to interpret the words in which the contract is expressed by the parties." Learned counsel further placed reliance in 2015 NCJ 533 (NC) - Bajaj Allianz General Insuance Company Limited Vs. Sh. Ashish Saxena, decided by Hon'ble National Commission, in which Hon'le National Commission held that "An insurance claim can only be allowed within the terms and conditions of insurance policy." Learned counsel also placed reliance in IV (2018) CPJ 375 (NC) - Royal Sundaram General Insurance Company Limited and Another Vs. Davubhai Babubhai Ravaliya, decided by Hon'ble National Commission, in which hon'ble National Commission held that "in case of intoxication of driver violation of policy condition, the insurer is not liable to reimburse complainant for loss suffered by him on account of damage to vehicle." Learned counsel for the respondent /O.P. would submit that on the basis of aforementioned cited case laws, the appeal filed by the appellant/complainant may be dismissed.
7. We have perused the impugned order dated 07.08.2019, passed by the concerned District Forum in Complaint Case No.CC/52/2017 and record of the concerned District Forum.
8. Two questions arose before us, what provision of law would be applicable in the present matter. Looking to the First Information Report, which is an admissible document, Report of the Surveyor appointed by the respondent/O.P./Insurance Company, who had taken material from the Police people regarding intoxicating state of the deceased and also driving // 9 // the vehicle in rash and negligent manner, goes to show that this not the case of Section 185(a) of The Motor Vehicles Act, 1988, rather it is clear cut case of Section 185(b) of The Motor Vehicles Act, in which driver was under
the influence of drug to such extent as to be incapable to exercise proper control over the vehicle. It is well demonstrated in the First Information Report. The appellant/complainant had not deliberately filed Statement of Buddu Viswas, Cleaner of the vehicle in question, recorded under Section 161 of The Code of Criminal Procedure, 1973, who was in the vehicle, because as per information and evidence. The deceased driver and cleaner both were in the vehicle. The driver stopped the vehicle for lunch, also consumed liquor and thereafter drove his vehicle in rash and negligent manner with high speed in drunken state and dashed the electrical pole. His lorry fell into the road side stream. In the present matter, Oriental Insurance Company Limited Vs. Premlata Shukla and Others (Supra);
Bhuwan Singh Vs. Oriental Insurance Company Limited and Another (Supra), are applicable in the matter as the First Information Report is an admissible documents and no other documents has been filed by the appellant/complainant to rebut the facts mentioned in the First Information Report. All the cited case laws in which reliance has been placed by the appellant/complainant, are not applicable in the matter as they all relates to Section 185(a) of The Motor Vehicles Act,1988 but the matter is altogether comes under the ambit of Section 185(b) of The Motor Vehicles Act, 1988. Also when we analyse Amalendu Sahoo Vs. Oriental Insurance Company Ltd. (Supra), the case of non-standard formula was for as to nature of use of the vehicle. The claim ought to be settled on non-standard basis. In the present matter, learned counsel for the appellant/complainant has failed to // 10 // cite any case law in which the non-standard formula was applicable for the consumption of alcohol and intoxication. As the case laws were regarding non-prove for the Blood Alchohol Concentration Test. In the present matter that test was not required as the matter falls within Section 185(b) of The Motor Vehicles Act, 1988. Also there is no any settled law shown before us that in case of violation of Section 1 Sl. No.2(c) of the terms and conditions of the insurance policy influence of intoxicating liquor, the said violation of the terms and conditions of the policy is also covered under non-standard basis. Amalendu Sahoo Vs. Oriental Insurance Company Limited (Supra), is a matter in which the vehicle was registered as a private car used for the commercial purpose and it was not having any permit, but the facts of the present matter is different in which driver of the vehicle in question consumed liquor, drove his vehicle in rash and negligent manner with high speed in drunken state and he could not capable to exercise proper control of the vehicle and dashed with an electrical pole and cause accident. The concerned District Forum after appreciating the entire material surfaced before them, dismissed the complaint. On perusal of the entire material, we are of the view that non-standard formula, is not applicable in the present matter, since Section 185(b) of The Motor Vehicles Act 1988 is applicable in the present matter, hence no any Blood Alcohol Concentration test was necessary in the present matter and on the basis of the First Information Report alone, it is proved that the respondent/O.P./Insurance Company has rightly repudiated the claim of the appellant/complainant, as it was fundamental breach of the terms and conditions of the insurance policy and Amalendu Sahoo Vs. Oriental Insurance Company Limited (Supra), is not a matter identical to present one. Hence, we do not see any reason either on // 11 // the legal side or on the factual side to interfere with the impugned order passed by the concerned District Forum.
9. Consequently, we hereby dispose off this appeal as follows :-
(1) The appeal filed by the appellant/complainant, is hereby dismissed.
(2) The impugned order dated 07.08.2019, passed by the concerned District Forum, in Complaint Case No.CC/52/2017, is hereby affirmed.
(3) Parties to this appeal shall bear their expenses of this appeal themselves.
(4) Thus, the appeal is accordingly dismissed.
(Justice C.B. Bajpai) (Smt. Ruchi Goel)
President Member
/12/2019 /12/2019