State Consumer Disputes Redressal Commission
R. Pasumpon Alagarsamy vs The Oriental Insurance Company Ltd., on 30 October, 2009
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I F.A.NO.136/2006 (Against order in O.P.No.92/2004 on the file of the DCDRF, Srivilliputhur) DATED THIS THE 30th DAY OF OCTOBER 2009 R. Pasumpon Alagarsamy S/o. Ramasamy No.6-12-4, N.G.O. Colony Kariapatti- 626 106 Appellant / Complainant Vs. The Oriental Insurance Company Ltd., Branch Office 127/B, Madurai Road Virudhunagar - 626 001 Respondent/ Opposite party The Respondent as Opposite party filed a complaint before the District Forum against the Appellant /Complainant praying for the direction to the opposite party to restore the vehicle in its original condition, and someother relief alongwith compensation, and cost. The District Forum dismissed the complaint. Against the said impugned order, this appeal is preferred praying to set aside the order of the District Forum dt.30.01.2006 in CC No.92/2004. This petition coming before us for hearing finally on 15.10.2009. Upon hearing the arguments of the counsels on eitherside, this commission made the following order: Counsel for the Appellant/ Complainant: M/s.P.S.Sivasubramaniam, Advocates Counsel for the Respondent/ Opposite party: Mr.K.S.Narasimhan, Advocates Honble M. THANIKACHALAM J, PRESIDENT. 1.
The appeal is targeted against the order of the District Forum, Srivilliputhur, in O.P.No.9/2004 dt.30.01.2006, since the complainant failed in his attempt, to get favourable order.
2. The complainant/ appellant, is the owner of the vehicle, bearing Regn. No.TN 07 K 3020, and the same was insured with the opposite party under package policy No.65/2004, from 15.4.2003 to 14.4.2004. The vehicle when proceeding on the Aruppukkottai Main Road on 22.10.2003, it had lost its control, due to unavoidable circumstances, dashed against the tree, thereby causing severe damage to the vehicle, which was informed to the opposite party, who appointed the surveyor, for assessing the damage and to submit a report. Thereafter, the vehicle was sent to authorised service station, and the estimate of repair was prepared, quantifying at Rs.3,12,736/-. After repair, the complainant/ policy holder, lodged a claim, which was repudiated, on false grounds or untenable grounds.
Therefore, seeking remedy, a notice also issued, for which there was only rejection, thereby compelling the complainant to come to the Forum, seeking relief as enumerated in the prayer column of the complaint.
3. The opposite party/ respondent/ insurance company in their written version, contended that the vehicle which is insured with them, met with an accident, because of the reason that the driver had consumed alcohol, resulting intoxication and when the same came to surface upon investigation, after the claim made by the insured, as per the terms and conditions of the policy, the same was repudiated for which there cannot be any grievance, thereby prayed for the dismissal of the complaint.
4. The District Forum, analysed the case, based upon the documents produced before it, which brought to surface, that the complainant had violated the terms and conditions of the policy, since he had allowed the vehicle to be driven by a person, who had consumed alcohol, and this would amount to violation of the policy condition. Thus concluding, it accepted the repudiation as correct, since the vehicle was driven by a drunken driver, thereby causing grievance, resultantly preferring appeal.
5. Heard the learned counsel for either side, perused the written submissions made by either parties, as well as the documents relied on by them.
6. There is no loggerhead between the parties, regarding the policy of insurance, period coverage, the vehicle met with an accident during the coverage of the policy period, sustained damages also to the extent, as claimed in the complaint. Based upon the policy, when the complainant attempted to get reimbursement of the amount, on the basis of package policy, it was repudiated only on the ground, that the vehicle was driven by a driver, who was under the influence of alcohol, which was accepted by the District Forum.
7. It is the submission of the learned counsel for the appellant, that the doctor has not stated, that the patient had consumed alcohol at the time of admission, and therefore only on the ground, as if driver had consumed alcohol, repudiation cannot be justified. It is the further submission of the learned counsel that the liquor smell in breath, may be due to various reasons, not only consuming alcohol, and this fact was not at all considered by the District Forum. Opposing the above submissions, an appeal is made by the respondents, that under the terms and conditions of the policy, which cannot be disputed, if a driver drives the vehicle, consuming alcohol, that would amount to violation, which is well proved in this case, and therefore the repudiation is well justifiable, as accepted by the District Forum.
8. Having given our anxious thought, perusing the documents, written submissions made by either counsels, and the doctor certificate, especially in this case, we are of the considered opinion, that there is much force in the submission made by the learned counsel for the opposite party, whereas, we find no acceptable submission, on behalf of the appellant. The only point, which we have to decide in this case is, whether the appellant's driver, drove the vehicle, under the influence of intoxicating liquor or drugs, since Sec.12 C of the policy, says so.
9. After the lodgement of the claim, as seen from the records, an investigation was conducted by the insurance company, and the investigator submitted a report, which would suggest, that the driver should have consumed alcohol, at the time of driving the vehicle, since when he admitted in the hospital, immediately the doctor had noticed about the smell of alcohol in his breath. The accident took place at Aruppukkottai Main Road on 22.10.2003. The petition is elegantly silent, about the time of the accident, as well as who drove the vehicle also, and what had happened to the driver etc., which are necessary to find out the genuineness of the claim.
As seen from the FIR copy, the accident took place on 22.10.2003, at about 1.30 a.m, probably during mid-night,, for which a complaint was given on the same day at about 9.30 a.m. In this FIR, the driver name is mentioned as Murugesan, who sustained injury also. For the reason best known to the complainant, they have not produced, either the accident register copy, or the discharge summary. As said above, the investigator obtained the discharge summary alone, and he has stated in his report that Accident Register copy was suppressed for the reason known to the parties. In the discharge summary, while describing the history of the cases, it is said "On 22.10.2003 at 1.15 a.m", then it is said "patients breath smell of alcohol", which is not challenged before us, thereby making out a prima-facie case of driver consuming alcohol at the time of accident. It is not the case of the complainant as submitted in the written submission, and in the complaint, that the driver was not under the influence of alcohol, therefore the condition, will not apply. Generally, prima-facie, it should be presumed that a person, who consumed alcohol, that too, whose breath had the smell of alcohol after some time, should have been under the influence of alcohol. In this case, because of Ex.B2, we are constrained to hold that the driver, who drove the vehicle in question, should have driven the vehicle under intoxication or under the influence of alcohol, thereby violating the conditions of the policy. As rightly differentiated by the District Forum, when we deal with third party claim, it is something different, than with the owner's claim. This case relates to own vehicle damage, which sustained injuries not because, unfortunately or unexpectedly, but because of the reason the driver had consumed alcohol, and driving vehicle under intoxication. Thus the District Forum, analysing the case, has come to a just and proper conclusion, in which we are unable to interfere that too in the absence of anyother contra evidence, that too further considering the concealment of certain facts, by the complainant in the complaint. For the reasons stated above, the appeal is devoid of merits and the same is liable to be dismissed.
10. In the result, the appeal fails, and the same is dismissed, confirming the order of the District Forum, Srivilliputhur, in COP.No.92/2004 dt.30.1.2006. However, considering the facts and circumstances of the case, we order as to no cost throughout.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT ` INDEX : YES / NO Rsh/d/mtj/Insurance