State Consumer Disputes Redressal Commission
Ashminder Pal Singh vs The New India Assurance Co. Ltd on 27 March, 2009
IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of Decision:27.03.2009 Complaint No.C-47/2002 Shri Ashminder Pal Singh . Complainant S/o Sh. Inderjeet, Presently at: L-65, Lajpat Nagar II, New Delhi. Versus The New India Assurance Co. Ltd. . Opposite Party C.D.U. 310600, Bajaj House, 97, Nehru Place, New Delhi-110019. CORAM: Mr. Justice J.D. Kapoor President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. The complainant purchased Mitsubishi Lancer Car of 2000 make bearing Registration No.DL-3C-Q-9127 on 28.10.2000 and got insured under a Comprehensive Insurance Policy bearing policy No.310600/00/07204 with the OP for the full value of the car i.e. Rs.8,26,000/- for the period 28th October, 2000 till 27th October, 2001 and paid the applicable premium on the said insurance policy to the OP. The car of the complainant met with an accident in the early hours of 23.12.2000 being driven by the complainant. The complainant immediately gave the intimation of the accident to the Insurance Company on or around 26th December, 2000 and a claim was lodged with the Insurance Company for total loss of the car.
2. That the OP company appointed a Spot Surveyor by the name of Shri Sunil Kumar to carry out spot survey of the accidental vehicle and subsequently appointed another Surveyor by the name of Shri Ghanshyam Nayyar who assessed the loss suffered by the complainant at Rs.7,00,000/- whereas the actual loss of the complainant was Rs.8,26,000/- which was the full value of the car and also the insured value of the vehicle. However, the complainant was willing to accept the said amount. The OP company however did not make the payment of the assessed loss and instead appointed one Shri I.R. Chopra of Delhi Investigation Consultant Bureau to investigate the case further and the said Mr. Chopra has given a report dated 22.1.2001 to the OP company, was never made available to the complainant.
3. The complainant received letter dated 8.5.2001 from the OP whereby the genuine claim of the complainant was repudiated allegedly for the reason that Shri I.R. Chopra in his report informed that as per the MLC recorded at the All India Institute of Medical Sciences immediately after the accident on 23.12.2000, the complainants breath smelt of alcohol, and on this basis, the OP came to a unilateral conclusion that the complainant was heavily intoxicated and his claim was barred as per Section 1 of the Policy which states that the company would 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.
4. That being aggrieved by the arbitrary repudiation of the claim, the complainant was advised to approach the Insurance Ombudsman for redressal of his grievance.
The complainant, ordinarily a resident of the United States of America and who had come for a holiday to Delhi was not aware of the legal procedures or the remedies available to him and as such he appointed his grand father Shri Balwant Singh as a Special Attorney on his behalf to pursue the matter. The said Special Attorney of the complainant under a bonafide belief made a complaint before the office of the Insurance Ombudsman sometimes on 21st May, 2001. On filing the complaint the Special Attorney was made to sign a letter of agreement between himself and the Insurance Company in respect of the illegal rejection of the claim by the Insurance Company. Thereafter, the insurance Ombudsman, who assumed the jurisdiction of an Arbitrator under the Arbitration and Concilation Act, 1996, heard the matter on three occasions and also recorded statements of the parties, without following the due process of Evidence Law and decided to agree with the false finding put up by the OP company regarding the state of the complainant at the time of the accident and thereby rejected the claim on 3.12.2001. The complainant was advised to challenge the same in a Court of law and accordingly he has filed an application challenging the alleged award of the Insurance Ombudsman.
5. That when the complainants car met with an accident in the early hours of 23.12.2000, he was accompanied by a friend by the name of Rahul. Since his friend suffered serious injuries, the complainant took him to the Casuality Department of All India Institute of Medical Sciences with the help of certain other persons. The doctor on duty examined the friend of the complainant who had suffered serious injuries and he was immediately given treatment. Since the complainant himself felt pain in his ear, he requested the doctor on duty to examine him as well. The doctor on duty examined the complainant and made a noting in his records that the complainat was conscious and oriented.
There was tenderness over his left ear, his blood pressure was 120/80 and his pulse was normal at 80 pulse per minute. The doctor also noted that there was no ENT bleeding or vomiting. However one line was noted by the doctor breath smells of alcohol. The complainant was not aware of the necessary procedures with respect to these matters nor the police, who also made a daily dairy entry, took any action for alleged drunken driving as sought to be made out by the OP. No tests were carried out to establish that the complainant was under the influence of alcohol/intoxicating drugs. It was for the first time when the OP repudiated the claim vide letter dated 8.5.2001 that the complainant learnt that the Insurance Co. on its own has formed an opinion that since the complainants breath was stated to be smelling of alcohol as per the MLC record, therefore, the case of the complainant fell outside the insurance policy. The Insurance Co. gave undue weightage to the words breath smelt of alcohol appearing in the MLC, they failed to take into account further circumstances that the complainant himself went to the doctor in question and got himself examined. No noting of the fact was taken that the mandatory tests to determine the level of alcohol contents, if any, in the body or blood were taken which would have definitely established whether the complainant was under the influence of alcohol as alleged by the OP. Furthermore, the investigator who was appointed by the Insurance Co. had been told by the complainant that at the time of the accident, the complainant had taken homeopathy medicine namely Aconite 200 and Kali Mur 200 for cough and sneezing which also has a smell similar to alcohol. The complainant was not under the influence of alcohol as alleged by the OP and as understood in law.
6. That during proceedings before the Insurance Ombudsman record of the MLC produced by the Insurance Co. the words alcohol present and verified had been added whereas in the certificate copy of the MLC record as obtained by the complainant on 10.10.2001 it did not have such remarks on the record. The claim of the complainant has been wrongly and arbitrarily repudiated by the Insurance Co. without application of mind. The OP is liable to compensate the complainant by making him the payment of the assessed loss of Rs.7 lacs alongwith interest for delayed payment @18% per annum. Since the OPs delayed settling the claim of the complainant, and to avoid further loss, the complainant was forced to sell the scrap of the car on 14.5.2001 for Rs.1,51,000/-. It is prayed that the present complaint be allowed holding that the repudiation of the claim by the OP was unjust, arbitrary, illegal and compensation of Rs.7 lacs along with interest @18% per annum from the date of the claim till payment be awarded with Rs.1 lac as damages on account of unnecessary harassment and deficiency in service on the part of the OP with costs of the complaint.
7. As against this the version and averments of the OP are that there is no denying the fact, that the OP had appointed Mr. Sunil Kumar for conducting the Spot Survey followed by the appointment of Sh. Ghanshyam Nayyar who assessed the loss of the accidented vehicle amounting to Rs.7,00,000/- on total loss basis subject however, to the outcome of the investigation to be carried out by the company regarding the maintainability of the claim, since the MLCs of the complainant and his friend Rahul Arora showed that they were heavily intoxicated at the time of accident. However, the surveyor-cum-loss assessor Shri Ghanshyam Nayyar also obtained consent letter dated 21.02.01 from the complainant on total loss basis for Rs.7,00,000/-.
8. That it was also admitted that one Mr. I.R. Chopra of Delhi Investigation Consultant Bureau was appointed by the OP for the specific purpose of collecting the particulars and detailed information of the O.P.D cards and MLCs recorded at the AIIMS where the injured complainant alongwith his friend Rahul arora were given treatment on the night of 23.12.00 soon after the occurrence of the accident and thereafter in Khetarpal Hospital, N. Delhi. It is a fact that the said Mr. I.R. Chopra, submitted his detailed report with the MLCs to the OP on 22.01.01.
9. That the rejection of the claim was bona fide, well reasoned, with proper application of mind and based on the breach/violation of the terms and conditions of the contract of insurance as evidenced by the policy particularly Sec.1 thereof where under his claim was barred. However, it is not disputed that the aforesaid 3 reports of Spot Inspection, assessment of the damages/loss caused to the insured vehicle and the collection of medical and MLCs record from AIIMS because the same were meant only for the OP for its admission or non-admission of the liability and certainly not for the complainant-disputant.
10. That there is absolutely no deficiency in service whatsoever as alleged by the complainant. Therefore, the complaint is liable to be dismissed with heavy costs and exemplary damages for having dragged the OP unnecessarily to litigation.
11. That the most vital and material point are the observations and diagnosis of the attending doctor of AIIMS about the complainant whose breath on examination was emitting smell of alcohol and it was on this basis that the company formed the opinion after consulting and confiding its own empanelled doctor and medical advisor Dr. Pran Nath, M.D that the case of the complainant fell outside the scope of the Insurance Policy.
12. Further that the plea of the complainant having taken Homeopathy medicine namely Aconite & Kali Mur 200 for cough and sneezing which also has a smell similar to alcohol is all an after-thought as adduced by the complainant only after his claim was rejected on ground of his being under the influence of liquor while driving the vehicle and the same specious and logic chopping plea is otherwise also devoid of any merit and substance and force. From the medical viewpoint it is also not necessary that the drunk person must lose his consciousness, or must vomit and/or his BP must be abnormal. The factum of the complainant being intoxicated and under the influence of liquor is proved by the nature of the accident as it speaks volumes about the level of the complainant being heavily intoxicated at the material time of accident.
13. That the case of the complainant being under the influence of liquor stands proved by overwhelming and clinching medical evidence based on the MLC because the same remains virtually uncontroverted and untrammeled. No credence can be given to the complainants self-contradictory statements because those are not the least reliable and do not inspire any confidence.
14. That there was nothing wrong in appointing the spot surveyor for making a spot study of the occurrence of accident etc. followed by the deployment of the Surveyor and Loss Assessor to investigate and assess the loss/damages in financial terms and direct the third investigator to collect the relevant medical record/reports comprising MLC etc. of the complainant as also that of his associate accompanying him at the material time of accident and record their statements as to the causes of their having met the accident and the collection of vital and material circumstantial evidence of compelling character leading to the occurrence of such a horrible road traffic accident.
15. That all the above-said surveyors were duly licensed and quite independent in their profession for conducting the various types of investigation assigned to them by the O.P and they have submitted their findings with their detailed reports subject to the admissibility of the claim strictly in accordance with the terms, conditions, stipulations, exclusions and exceptions incorporated in the bilateral contract as evidenced by the policy. The OP has found the claim in admissible and held itself not liable to pay the claim and repudiated the same as not being payable. It was further pleaded that the present complaint is beyond limitation having been brought before this Honble Commission on 07.09.05 when the cause of action had arisen in favour of the complainant soon after the repudiation of his claim communicated to him by the O.P vide its letter dated 08.05.01 and hence not maintainable as per the provisions of Sec.24A of the CPA, 1986.
16. The OP deserves to be exonerated and absolved from any liability whatsoever in the matter. On the contrary, the OP should be awarded costs U/s 35A of CPC for having been inconvenienced all the times from one court to another.
17. That the complaint is liable to be dismissed in terms of the provisions of 26 of CPA, 1986 with heavy costs and punitive damages in order to curb with heavy hand the modus operandi of motivated approach by professional litigants.
18. While reiterating his averments, the complainant has in rejoinder averred that the preliminary inquiries and proceedings have not been carried out in a proper way, rather only one issue has been raised i.e. Breath Smells of Alcohol and which is totally unsubstantiated and devoid of merit.
There was no F.I.R registered against the complainant, nor was there any case registered by the police for the alleged drunken driving. There is no question of the complainant having violated the M.V.A., 1988, as he was not all drunk.
19. That it has been stated in the order of the Honble High Court dated 12.7.2005 that the award passed by the Insurance Ombudsman dated 3.12.2001 is not binding on the complainant. Only on the basis of breath smells of Alcohol it cannot be said that a person is under the influence of Liquor or Intoxicated or drunk.
20. That the MLCs report only says that breath smells of alcohol and it does not say that the complainant and his friend were heavily intoxicated at the time of accident. The smell which was there was of the homeopathy medicines which the complainant had taken for cough and cold namely Aconitc 200 and Kali Mur 200.
21. That the OP by raising the so called issue of breath allegedly smelling of alcohol are only trying to escape is just making its own stories and is just trying to escape from paying the insured amount to the complainant.
22. That the present complaint is within limitation in as much as the repudiation of the claim was communicated to the complainant only on 8.5.2001 i.e. when the cause of action for filing the present complaint also finally arose in favour of the complainant. The complainant under a mistaken bonafide impression filed a claim before the Insurance Ombudsman which he subsequently learnt was not the proper forum in the facts of the present case.
23. We have heard the counsel for the parties at length. The aforesaid conspectus of facts clearly shows that it was damage to the vehicle by way of accident and the loss was assessed by the surveyor appointed by the OP to the tune of Rs.7 lacs. However sole ground for rejection of the claim was that the driver was under the influence of alcohol causing accident and therefore the OP was not liable to indemnify the loss by way of exclusion clause. Sub section (c) of Section 1 of Clause reads as under:
The company will indemnify the insured against loss or damage to the Motor Car and/or its accessories whilst thereon:-
(c) 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 drug.
24. As many as two surveyors and investigators were appointed by the OP. The first surveyor was spot surveyors and second surveyor assessed the loss to the tune of Rs.7 lacs and the investigated the matter after making enquiry from AIIMS and Khetarpal Hospital where the Column Smell of breath was shown as alcohol.
25. There is vast difference between taking liquor and being under its influence. Whenever a person is under the influence of intoxicant or liquor or drug his reasoning and reflexes and other skills should be undermined to an extent that the accident or damage should be the direct result of the influence. Had there been no such distinction nothing prevented the insurance companies from mentioning in the policy that if the driver had taken liquor, the policy holder would be disentitled for the claim. But it is not so because there is difference between taking or smelling alcohol may be within permissible limits that does not affect reasoning or reflexes of the person than being under the influence of intoxication.
26. Any person who may take a drink or two will smell alcohol but that person cannot be termed as being under the influence of alcohol. MLC of AIIMS only mentions breath smells of alcohol. There is no medical report to show that the driver was under the influence of alcohol or had consumed alcohol more than the permissible limit as there are several other medical parameters to find out as to whether the person is under the influence of liquor or not which none of the report shows as to what was quantity and the the conduct and how he was behaving etc. Unless reasoning power of a person is undermined to such an extent that he does not know what he is doing he cannot be held under the influence of liquor.
27. The dictionary meaning of the word influence is the effect a person or thing has on another The medical examiner can easily give report that whether the person is under the influence or not and if the medical examiner find only breath smelling alcohol, the possibility of person being under the influence of liquor has to be ruled out.
28. We have perused the medical report and all other general condition of the driver like blood pressure etc. All were found to be normal. Had there been influence of liquor to such an extent that it undermined reasoning power of the driver that he did not know what he was doing, general condition would have undergone perceptible change.
29. We have come across hundreds of such case where insurance companies have rejected the claim of the insured merely on the premise that the driver was smelling alcohol without getting medical confirmation from other general conditions of the driver, whether he had drunk so much that he was under its influence and his reasoning power and reflexes had undermined to such an extent that he did not know what he was doing. Suspicion can never take the place of proof. If such standards are applied by the insurance companies we are sure that each and every claim whether mediclaim showing breath smelling alcohol due to heavy doses of homeopathic medicines that contain alcohol has to be rejected.
30. The application of exclusion clause should have been in a manner that should have served its purpose and promote the object of the contract and protect the interest of the consumer. If there was no material with the company as to the driver being heavily drunk or under the influence of liquor. The interpretation should have been given not a literal or narrow but liberal and full interpretation.
31. It is universal rule of interpretation that wherever more than two or three interpretations are possible of any contract or term of the beneficial contract or the statute or of the report say of the surveyor, the interpretation which goes in favour of and protects the interest of the consumer is the only interpretation which has to be acted and relied upon and no other interpretation as every beneficial contract or beneficial statute has to be provided beneficial interpretation. Otherwise the very object of the statute enacted for the benefit and welfare of consumers at large or similar contract like insurance contract, would be defeated and frustrated.
32. We have also deprecated the practice of these insurance companies to reject the claim of the insured on flimsy and trivial grounds by taking such a view as in the process they bleed themselves as at the end of the day it is they who pay ten times more by way of interest and compensation for mental agony and harassment as the consumer who are pitted against such mighty organisation, big business houses and companies wait for years together say for 10 to 15 years to get their grievances redressed finally because of the arbitrary conduct of officers.
33. As regards the verdict of Ombudsman relied upon by the counsel for the OP it is neither binding though may be persuasive nor has any relevance as the remedy under section 3 of Consumer Protection Act 1986 is in addition to and not in derogation of any other law for the time being in force. While widening the scope of Section 3 of Consumer Protection Act, Supreme Court in large number of cases has taken a view that even if there is remedy available in any other legal forum or even if there is arbitration clause between the parties, still the aggrieved party can file complaint under Section 12 of the Consumer Protection Act 1986 seeking indemnification of the loss, compensation for mental agony, harassment, physical discomfort and other injustices suffered by him as no other statute provides such reliefs .
34. It is an additional remedy arising from the charge of deficiency in service, as defined by Section 2(1)(g) of Consumer Protection Act 1986 which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertake to be performed by a person in pursuance of a contract or otherwise in relation to any service and if the service provider is held guilty for deficiency in service it has to compensate the consumer as to the expected loss, actual loss, mental agony, physical discomfort, emotional suffering, and all other injustice suffered by him.
35. According to the Supreme Court, the word compensation appearing in Section 14 of Consumer Protection Act, 1986 includes each and every element of suffering by the consumer at the hands of service provider, which includes mental agony, harassment, physical discomfort, emotional sufferings, actual loss, expected loss, and other injustice suffered, by the consumer. In this regard the observations of the Honble Supreme Court made in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 are quote worthy and are as under:
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
34. We have further extended the concept of compensation to the extent that those service providers who force a consumer to seek remedy before Consumer Forum or before any other legal forum to have their rightful claim are liable to pay in addition to what a consumer is otherwise entitled to as nowadays the legal remedy is becoming costlier day by day and it is not only time consuming but at times tortuous also. Rich and powerful business houses and other service providers drag the poor consumer to the last forum i.e. Supreme Court by filing one appeal after other as Consumer Protection Act provides for appeal upto the Supreme Court and it is after so many years that one poor consumer gets a final decision.
36. In view of the foregoing reasons we find that the rejection of the claim was wholly untenable , illegal and arbitrary and therefore allow the complaint in the following terms:
(i) The OP shall pay Rs.7,00,000/- as assessed by the surveyor.
(ii) The OP shall pay Rs.50,000/- as lump sum compensation to the complainant for mental agony and harassment caused to the complainant, which shall include the cost of litigation also.
37. The order shall be complied with within one month from the date of receipt of this order.
38. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 27th day of March 2009.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri