State Consumer Disputes Redressal Commission
Harpinder Pal Singh vs Tata Aig General Insurance Co. Ltd. on 11 March, 2014
STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Consumer
Complaint No.
:
98 of 2013
Date of Institution
:
27.12.2013
Date of Decision
:
11.03.2014
Sh. Harpinder Pal
Singh S/o Sh. Surinder Pal Singh
R/o # A-139, Yamuna Enclave, Panipat, Haryana.
.Complainant.
Versus
Tata AIG General Insurance Company
Limited, Regd. Office at Peninsula Business Park, Tower-A, 15th
Floor, Ganpatrao Kadam Marg, Off Senapati Bapat Marg, Lower Parel, Mumbai
400013, through its Managing Director.
Tata AIG General Insurance Company
Limited, 2nd Floor, SCO 232-234, Sector 34A, Chandigarh 160022,
through its Branch Manager/Head.
.Opposite Parties.
Complaint
under Section 17 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh.
Namit Kumar, Advocate alongwith Sh. Ravinder Pal Singh, Advocate for the complainant.
Ms. Jaimini Tiwari, Advocate for Sh. Rajneesh Malhotra, Advocate for the Opposite Parties.
PER DEV RAJ, MEMBER The facts, in brief, are that the complainant had purchased a BMW Model No.D520 for Rs.37,60,000/- bearing Registration No.CH-01-AP-7871 on 25.05.2012. It was stated that on the night intervening 10.05.2013, and 11.05.2013 at about 12.30 A.M., the complainant, after having dinner in a hotel in Sector 10, Chandigarh, was going towards Sector 70, Mohali to drop his friend, at his relatives residence, and when he reached near the Water Works, Sector 52, Chandigarh, suddenly a street dog came in front of the vehicle. It was further stated that in order to save the dog, the complainant applied the brake and simultaneously steered the vehicle and when he lost control over the same, as a result whereof, it slipped, hit against the dividing pavement and grill and got overturned. It was further stated that all the airbags opened and the vehicle was completely damaged. It was further stated that, in the said accident, the complainant and his friend had a narrow escape of any major injury except some minor body scratches etc. It was further stated that the complainant took treatment from the Fortis Hospital and after 2-3 days, he informed the Opposite Parties about the accident.
2. It was further stated that the Opposite Parties appointed a Surveyor, who conducted survey of the vehicle. It was further stated that the complainant also obtained an estimate for repair of the vehicle from M/s Krishna Automobiles, to the tune of Rs.52,67,751/-, which was beyond the original price of the vehicle of Rs.37,60,000/- and, as such, it was declared as a total loss. It was further stated that the vehicle was insured for an amount of Rs.33,72,500/-. It was further stated that, surprisingly, Opposite Party No.2 repudiated the claim of the complainant, vide letter dated 30.09.2013, on the ground, that the complainant was under the influence of intoxication/liquor, while driving the vehicle, at the time of accident, on the basis of the medico-legal report report of GMCH, Sector 32, Chandigarh wherein it was recorded that there was odour of alcohol, in his breath. In the said MLR, there was no mention of quantity/percentage of liquor intake. It was further stated that it could not be ascertained merely from the odour of alcohol that the person driving the vehicle was under that much of influence of liquor, and he was unable to drive the same. It was further stated that the Opposite Parties wrongly repudiated the claim of the complainant, just to avoid their liability arising from the accident.
3. It was further stated that since at the time the vehicle met with an accident, his friend, who was sitting just besides the complainant, was consuming liquor in the car and when it overturned, the said alcohol spread all over the complainants clothes, due to which, the said smell could have been there and not from his breath. It was further stated that the complainant was already under treatment for his tonsillitis and got operated for having Qunisy, therefore, he was advised not to consume liquor/alcohol and, as such, there was no question of consuming liquor by him. It was further stated that there was no record/test report of the hospital showing the presence of alcohol, in his blood. It was further stated that the Opposite Parties completely ignored the MLR of the Fortis Hospital, recorded just one hour after the MLR at GMCH, Sector 32, Chandigarh was prepared. It was further stated that when the police personnel came to the Fortis to record the statements, nothing was recorded by them that the complainant was under the influence of intoxation/liquor. It was further stated that the repudiation of claim, by the Opposite Parties, amounted to deficiency, in rendering service, and also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay Rs.33,72,000/- alongwith interest @18% per annum from the date of repudiation i.e. 30.8.2013 till payment; Rs.2,00,000/- as compensation for mental agony and physical harassment besides cost of litigation.
4. The Opposite Parties, in their written version, took up a preliminary objection, that the complainant was not a consumer as defined under the provision of the Act. On merits, it was stated that the complainant took an Insurance Policy No.0151938436 for his vehicle make, BMW 520D bearing Registration No.CH-01-AP-7871, valid from 25.05.2012 to 24.05.2013 for an IDV of Rs.33,72,500/- subject to the terms and conditions thereof (Insurance Policy-Annexure R-1). It was further stated that the claim, if any, was payable subject to the terms and conditions of the said Insurance Policy. The Opposite Parties denied the mode of accident and it was stated that based on the medical treatment record of GMCH, Sector 32, Chandigarh, it was observed that the driver, at the time of accident, was drunk, which was in violation of Section 1(2)(d) of the Policy terms and conditions. It was further stated that the Opposite Parties received intimation from the workshop where the car was taken after the accident on 16.5.2013 (Annexure R-2), whereupon, the complainant was asked to submit the necessary documents. It was further stated Sh. Manoj K. Kukreja was appointed as Investigator, who approached the complainant for providing an authority letter for getting the medical record checked from the hospital (Annexure R-3). It was further stated that after obtaining the documents and on going through the same, it was observed from the MLC, clinical notes, emergency card, and outpatient card (Annexure R-4 Colly) that O/E Pt. Drowsy alcoholic odour noted in breath meaning thereby that the complainant was under the influence of liquor, when the accident took place. It was further stated that the Opposite Parties also appointed Sh. Parvinder Kumar as Surveyor and Loss Assessor, who gave his report dated 24.6.2013 (Annexure R-5). It was further stated that since there was violation of Section 1, 2(d) of the terms and conditions of the Policy, the claim was repudiated vide letter dated 30.9.2013 (Annexure R-6). It was further stated that the complainant was trying to mislead the Commission by wrongly stating the contents of the MLR, which clearly stated alcoholic odour noted in breath. It was further stated that the MLC of Sh. Raj Kumar Grover also clearly indicated that the complainant was drunk and alcoholic odour was noted in his breath. It was specifically denied that the Investigator forged the signatures of the complainant, as alleged. It was further stated that Annexures C-7 and C-8 were false and liable to be rejected. It was further stated that the the doctors of GMCH-32, who prepared the MLR, clearly recorded in the MLC, that the alcoholic smell was present and, thus, the complainant could not be allowed to take benefits of his wrongs. It was further stated that the claim was rightly repudiated keeping in view the terms and conditions of the Insurance Policy. It was further stated that Commission did not possess the territorial as well as pecuniary jurisdiction to entertain and try the complaint. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong.
5. The complainant, in support of his case, submitted his own affidavit, and affidavit of Sh. Jatinder Singh Virk, by way of evidence, alongwith which, a number of documents were attached.
6. The Opposite Parties, in support of their case, submitted the affidavit of Mohd. Azhar Wasi, Head North Zone, Claims, by way of evidence, alongwith which, a number of documents were attached.
7. The complainant filed replication, wherein he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
8. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
9. The Counsel for the complainant submitted that the accident of BMW Car, being driven by the complainant took place on the night of 10th/11th May,2013 when in order to save a street dog, he steered the vehicle and applied the brakes. It was further submitted that he (complainant) was first taken to the Govt. Medical College and Hospital, Sector 32, Chandigarh and thereafter he was got admitted and took treatment in the Fortis Hospital, Mohali. It was further submitted that DDR (Annexure C-1) was lodged with the Police, on the same day viz.11.5.2013 and due intimation to the Opposite Parties was given after 4-5 days. It was submitted that the vehicle was insured for an amount of Rs.33,72,500/-. It was submitted that the vehicle was a total loss, and the Opposite Parties appointed a Surveyor. It was submitted that the Opposite Parties repudiated the claim vide letter dated 30.09.2013 (Annexure C-4) on the ground that the complainant was under the influence of liquor. It was further submitted that except MLC report (Annexure 5A), Alcoholic odour noted in Breath, there was no other evidence to establish the fact of influence of liquor. It was submitted that neither blood test was taken, nor any forensic opinion was brought in evidence, to determine and establish this aspect. The Counsel placed reliance on case titled Jagdish Rana Vs. National Insurance Co. Ltd., II (2013) CPJ 48 (NC). The Counsel also relied upon evidence produced by way of a duly sworn affidavit of Sh. Raj Kumar, his friend who was travelling alongwith the complainant affirming that he was already under treatment for his tonsillitis, and got operated for having quinsy and, as such, he was advised not to consume liquor and, on that day also, he was not under the influence of any intoxication or liquor as he did not consume any liquor on 10/11/5/2013. The fact that the complainant did not consume liquor was also testified by Sh. Jatinder Singh Virk, another friend of the complainant, in his duly sworn affidavit.
10. The Counsel for the Opposite Parties, submitted that there was delay in giving intimation to the OPs. It was further submitted that as per the MLC report (Annexure 5A), the complainant was under
the influence of liquor which amounted to violation of Section I, 2(d)[Infact Section I, 2 (c)] of the terms and conditions of the Policy. It was further submitted that the fact that the complainant was advised to avoid alcohol, did not mean that he did not consume alcohol. It was further submitted that the claim was rightly repudiated.
11. The factum of issuance of insurance Policy of BMW Car, bearing registration No.CH-01-AP-7871 on payment of premium of Rs.42,031-00 with IDV of Rs.33,72,500/- (with hire purchase/Hypothecation/Lease with HDFC Bank Ltd.) in the name of the complainant, as a partner of Paul Spinners, and the occurrence of accident during the subsistence of Insurance Policy (Annexure C-3B), lodging of DDR on 11.05.2013 is admitted.
12. The first question, which falls for consideration, is, as to whether this Commission has the territorial jurisdiction to try and decide the complaint. To deal with this issue, no doubt, the cover note (Annexure C-3B) was issued from Delhi, but it is clearly evident that the claim was repudiated by the Opposite Parties, from their Chandigarh Office. Therefore, the complaint falls within the territorial jurisdiction of this Commission. This objection of the Opposite Parties, thus, being devoid of merit, does not sustain, and, the same stand rejected.
13. The next question, which falls for consideration, is, as to whether this Commission has the pecuniary jurisdiction, to entertain and decide the complaint. Since the claim is beyond Rs.20 Lacs and below Rs.One crore, the complaint is well within the pecuniary jurisdiction of this Commission. This objection of the Opposite Parties, is also rejected, being devoid of merit.
14. The next question, which falls for consideration, is, as to whether, the claim was not tenable on account of delay of 5 days in giving intimation to the Opposite Parties, by the complainant.
Firstly, the claim has not been repudiated on the grounds of delayed intimation, and, secondly, delay of 5 days, if calculated from the date of call i.e. 16.05.2013, as per Annexure R-2, which is Tata AIG Call Centre Auto (Own Damage & Partial Theft) Claims Notification, cannot be termed to be substantial, particularly, when as per the medical records, the complainant sustained injuries, as also noticed by the Surveyor in his report dated 12.09.2013 (Annexure R-4 Colly). In Silversons Vs Oriental Insurance Company Ltd. & Anr. IV (2011) CPJ 9(SC), the Honble Apex Court, held in Para 6, inter-alia, as under:-
Although, the view taken by the National Commission that for availing benefit of the Policy, the insured should give intimation to the insurer within 24 hours or 48 hours or at best within 72 hours appears to be too narrow and we are inclined to agree with the learned Counsel for the appellant that it would be sufficient if intimation is given to the insurer within a reasonable period, but what should be the reasonable period within which the insured should inform the insurer about the loss of goods would depend upon the facts of each case and no strait-jacket formula can be laid down to determine as to what would constitute prompt notice within the contemplation of Clause 9 of the Institute Cargo Clauses. Insofar as this case is concerned, we are convinced that the long time gap of almost three months between the date when the appellant had been informed about discharge of the cargo by MV Aken at Colombo Port and the intimation given by the appellant to the insurer was unreasonable and, by no stretch of imagination, it could be construed as a prompt notice.
15. In the instant case, the delay of mere 5 days in intimating the Opposite Parties, in view of the peculiar facts and circumstances viz. the complainant sustaining injuries in the accident, cannot be said to be huge. In a case like the present one, in which the complainant sustained injuries, the first priority for him was to undertake the treatment and apparently, one is under a state of shock and delay of 5 days in intimation, thus, cannot be a valid and justified ground to deny the claim. As such, this plea of the Opposite Parties, being devoid of merit fails and the same stands rejected.
16. The next question, which falls for consideration, is, as to whether, the Opposite Parties were right in repudiating the claim under Section I, 2(c) of the Policy, according to which Insurer is not liable for:
Any accident 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.
In the instant case, the Opposite Parties have contended that as per the MLC report of G.M.C.H, Sector 32, Chandigarh (Annexure 5 A), Patient drowsy. Alcoholic odour noted in Breath, the complainant was under the influence of liquor. The complainant has specifically denied that he was not under the influence of liquor and his friend, Shri Raj Kumar, who was also in the vehicle at the time of accident, has submitted his duly sworn affidavit, categorically asserting that the complainant did not consume liquor. The complainant has also averred that odour of liquor could be on account of the reason that his friend was taking liquor which during the occurrence of accident spread over the complainant. In the DDR, lodged with the Police, on the date of accident itself viz. 11.05.2013, there is no mention that the complainant was under the influence of liquor. Not only this, the Fortis Hospital vide its letter dated 11.5.2013 (Time 4:45 a.m.) addressed to the S.H.O, Police Station, Phase-VIII, Mohali submitted the Medico Legal Case intimation about a case of Alleged H/o RTA near Chowk of Sec 52-53 Admitted in EMERGENCY ward.. History and Presentation and Hospital Course as mentioned in the medical treatment record of Fortis Hospital relating to the complainant, at Page 142 of the file, is extracted hereunder:-
History and Presentation:
33 years old male patient was shifted to FHM after road side accident on 11/5/13 at 2 am near Sector 52-53 dividing road. He was initially taken to GMCH from where he was brought to FHM for further management.
Hospital Course:
He was admitted in MICU, his GCS was E3VtM6 and a laceration of 1x1cm was noted on left temporal and parietal region Ear bleed was noted from left ear. NCCT brain done at GMCH 32 was grossly normal. E-FAST was done and it was found to be negative for any free fluid collection. USG abdomen showed normal study. ENT opinion was sought for left ear bleed and diagnosis of left external auditory canal injury was made. Ortho opinion was taken for pain right shoulder and advice was given for applying clavicular brace for three weeks. Patient was started on oral diet and was planned to be shifted to room. His family however, wanted to take their patient against medical advice.
In our opinion, in the circumstances aforesaid, observation of the Doctor of the GMCH, Sector 32, Chandigarh, being not supported by any evidence, in the shape of test of blood of the complainant or any forensic opinion, which would have been the best evidence, cannot be accepted as conclusive evidence to prove that the complainant was actually under the influence of liquor.
17. In Jagdish Rana Vs. National Insurance Co. Ltd.s case (Supra), the complainant/petitioner got insured his Maruti Car No.DL-3CL-1392 form the OP/respondent for a sum of Rs.77,500/- for a period of one year commencing from 30.9.2002 to 29.9.2003. On 16.2.2003, the car met with an accident and the FIR was lodged and intimation was also given to the Opposite Party. The complainant submitted claim and the Opposite Party also appointed Surveyor but claim was repudiated on the ground that driver of the vehicle was under the influence of liquor at the time of accident, six persons were travelling in the car against the capacity of four persons and the car was fitted with OPG cylinder whereas, the car was to be driven by petrol. The complainant alleging deficiency on the part of Opposite Party, filed complaint before the District Forum and the Opposite Party resisted the claim on the aforesaid grounds. The District Forum allowed the complaint and directed the Opposite Party to pay Rs.62,000/- alongwith interest @9% per annum and Rs.3,000/- as litigation expenses. The Opposite Party filed Appeal No.656/2006 before the Haryana State Consumer Disputes Commission, Panchkula, which was allowed vide the order dated 20.9.2010 and the order of the District Forum was set aside and the complaint was dismissed. In Revision Petition, the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, held, in Paras 6 and 7 as under:-
6. Perusal of FIR reveals that six persons were travelling in the car at the time of accident whereas, capacity of car is only 3+1. Thus, there was clear violation of sitting capacity and more persons were travelling in the car than permitted.
The car was fitted with the LP Gas Kit and in the Dickey Gas Cylinder Belts were found which depicts that at the time of accident, the car was driven by LPG without authorization. As far as influence of liquor is concerned, post-mortem report filed by the petitioner does not confirm that occupants of the car were under influence of liquor; hence, this violation cannot be accepted. As far as violation regarding hire and reward is concerned, presumption was drawn by Surveyor, as car was going in the marriage party and occupants were of two villages. This cannot be the ground for holding that car was plied on hire at the time of accident.
7. Thus, it becomes clear that there were two violations one regarding sitting capacity and the other regarding use of LP Gas Kit at the time of accident. Learned Counsel for the petitioner has placed reliance on II (2010) CPJ 9 (SC) = II (2010) SLT 672, Amalendu Sahoo v. Oriental Insurance Co. Ltd., in which at the time of accident the vehicle was used on hire basis whereas, insured for personal use, insured for personal use, it was held that repudiation of claim totally was not justified and Honble Apex Court directed to settle the claim on non-standard basis. He also placed reliance on II (2006) CPJ 144 (NC), New India Assurance Co. Ltd. v. Narayan Prasad Appaprasad Pathak in which at the time of accident vehicle was carrying more passengers than permitted and claim was settled at 75%. He also placed reliance on II (2006) CPJ 83 (NC), United India Insurance Co. Ltd. v. Gian Singh, in which vehicle met with an accident carrying 12 unauthorized persons and National Commission directed to settle claim on non-standard basis. In the light of above citations, it becomes clear that even though petitioners car was carrying more passengers than permissible, petitioner is entitled to get his claim on non-standard basis.
In the aforesaid case, the vehicle was insured for Rs.77,500/- and since, the vehicle met with an accident after 4 months of Insurance Policy, the value of the vehicle was taken as Rs.70,000/-. Further since there was violation on two counts i.e. seating capacity and use of LP Gas Kit, at the time of accident, the National Commission deducted 50% of the amount on account of violation of terms of the Policy and further deducting Rs.15,000/- assessed as salavage value, finally ordered for payment of Rs.20,000/- to the complainant alongwith interest @9% per annum from 6.5.2003 till realization alongwith Rs.3,000/- as litigation expenses.
18. However, in the instant case, there was no such violations and the complainant was not proved to be under the influence of liquor, in the absence of any supportive/conclusive evidence in the shape of test of blood of the complainant or any forensic opinion. Since, the vehicle was a total loss, as per the estimate of repair given by M/s Krishna Automobiles, authorized dealer, the Opposite Parties were liable to pay the IDV of the vehicle to the complainant after deducting Rs.2,000/- under the excess clause, and the salvage shall be the property of the Opposite Parties. As such, the complainant is entitled to an amount of Rs.33,70,500/- (i.e. Rs.33,72,500.00 minus Rs.2,000.00 as excess clause).
19. The complainant shall execute all necessary documents in favour of the Opposite Parties, to enable them, to dispose of the salvage, in the manner they wish.
20. Since the vehicle belonged to a partnership firm, which is a juristic person, the complainant is not entitled to any compensation for mental agony and physical harassment.
21. As per the Policy, the vehicle was under the hire purchase/hypothecation/lease with HDFC Bank Ltd., therefore, the HDFC Bank shall have first charge on the amount to the extent the same is due to it, against the complainant/firm.
22. For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:-
(i). The Opposite Parties are jointly and severally, directed to pay the amount of Rs.33,70,500/- to the complainant, alongwith interest @9% per annum from the date of filing the complaint i.e. 27.12.2013, within two months of the date of receipt of a certified copy of this order.
(ii).
The salvage of the vehicle, in question, shall be retained by the Opposite Parties, and the complainant shall execute all necessary documents within one and a half months, from the date of receipt of a copy of the order, in favour of the Opposite Parties to enable them to dispose of the salvage in the manner they wish
(iii).
The Housing Development Finance Corporation Limited (HDFC) shall have the first charge, on the amount to be paid, to the complainant, by the Opposite Parties, to the extent, the amount is due to it, against him (complainant) as the vehicle was under the hire purchase/hypothecation/lease with it (HDFC).
(iv).
The Opposite Parties are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.15,000/-, to the complainants.
(v). In case the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite parties shall be liable to pay the amount mentioned in Clause (i) with interest @12% per annum, instead of 9% P.A., from the date of default, till realization, besides payment of costs, to the tune of Rs.15,000/-.
23. Certified Copies of this order be sent to the parties, free of charge.
24. The file be consigned to Record Room, after due completion.
Pronounced.
11.03.2014.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad STATE COMMISSION (Consumer Complaint No.98 of 2013) Argued by: Sh.
Namit Kumar, Advocate alongwith Sh. Ravinder Pal Singh, Advocate for the complainant.
Ms. Jaimini Tiwari, Advocate for Sh. Rajneesh Malhotra, Advocate for the Opposite Parties.
Dated the 11th day of March 2014.
ORDER Vide our detailed order of the even date, recorded separately, this complaint has been partly accepted with costs.
Sd/-
(DEV RAJ) MEMBER Sd/-
(JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Ad