State Consumer Disputes Redressal Commission
M/S Tata Aig General Insurance Co. Ltd. vs Bharat Exports Pvt Ltd on 11 March, 2024
FA/99/2020 D.O.D.: 11.03.2024
TATA AIG GENERAL INSURANCE CO. LTD. VS. BHARAT EXPORTS PVT. LTD.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 17.07.2020
Date of Hearing: 31.01.2024
Date of Decision: 11.03.2024
First Appeal No. -99/2020
IN THE MATTER OF
TATA AIG GENERAL INSURANCE CO. LTD.,
DPJ-415, 4th FLOOR,
DLF TOWER-B, JASOLA DISTRICT CENTRE,
NEW DELHI.
(Through: Mr. Manoj Kumar, Advocate)
...Appellant
VERSUS
BHARAT EXPORTS PVT. LTD.,
THROUGH ITS PARTNER:
SH. JAVINDER SINGH
D-14, SMA INDUSTRIAL AREA,
G.T. KARNAL ROAD, JAHANGIR PURI,
NEW DELHI 110033.
(Through: Mr. Dinesh Minocha & Mr. Pratap Rana, Advocates)
.... Respondent
DISMISSED PAGE 1 OF 7
FA/99/2020 D.O.D.: 11.03.2024
TATA AIG GENERAL INSURANCE CO. LTD. VS. BHARAT EXPORTS PVT. LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. Manoj Kumar, counsel for the Appellant.
Mr. Dinesh Minocha & Mr. Hriday Minocha, counsel for the
Respondent.
PER : HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission records are as under:
"1. The Appellant obtained general insurance policy from respondent for his vehicle No. DL-4CNE-4505 Toyota Innova vide policy No. 0151100224100 for the period of 31.12.2010 to 30.12.2011 at a premium of Rs. 24,517/-. It is further alleged that on 10.12.2011 the vehicle met with an accident while it was driven by driver Jaspreet Singh for which case FIR No. 188/2011 dated 10.11.12 was registered at police station Swaroop Nagar, Delhi under Section 279&337 IPC. The mechanical inspection of the vehicle was done by Galaxy Automobiles Pvt. ltd. Plot No5, Rajasthani Udyog Nagar, Kamla Road Northwest Delhi-99 and the vehicle was repaired for Rs. 1,17,482/- paid by the Appellant. The Appellant then informed respondent to release aforesaid amount. However, the claim of the Appellant was rejected by OP on the ground that claim was not payable because the driver of the vehicle was under influence of liquor at the time of accident. The rejection of the claim being unjustified was challenged by way of present complaint. The complaint sought an award of Rs. 1,17,481/- being the repair charges of the damaged vehicle with compensation."
DISMISSED PAGE 2 OF 7 FA/99/2020 D.O.D.: 11.03.2024
TATA AIG GENERAL INSURANCE CO. LTD. VS. BHARAT EXPORTS PVT. LTD.
2. The District Commission after taking into consideration the material available on record passed the order dated 27.09.2019 whereby it held as under:
"5. We have gone through the medical slip of Emorial Hospital Delhi-110033 wherein it has been indicated that smell of alcohol was found. Now the question arises as to whether mere smell of alcohol from the mouth of insured/driver of the insured is enough to reject the claim. The answer is in the negative. In fact, a person can be understood to have been under the influence of liquor if a specific amount of alcohol is found in his blood at the time of accident making him unfit to be rational. Admittedly there is no indication in the medical slip as to how much quantity of liquor was found in the blood of the insured. Besides this there is no blood test of the driver was conducted to ascertain the quantum of liquor found in the blood. Therefore, it is very difficult to hold that the remarks "smell of alcohol" would attract the applicability of exclusion clause 2 (c) Section i) of the complaint. Thus, the ground for rejection of claim is unjustified and unwarranted. Apart from this the term relied upon by the insurance company does not form part of the insurance policy. There is also no evidence that the separate set of terms and conditions was ever supplied to the insured either at the time of inception of the policy or at any time thereafter. It is now well settled law that the terms and conditions which were not supplied to the insured cannot, for any purpose, be relied upon by the insurance company. Another aspect of this case is that surveyor also submitted its report indicating total amount of Rs. 67,196/- being insurer's liability and Rs. 32,098.38 being liability of DISMISSED PAGE 3 OF 7 FA/99/2020 D.O.D.: 11.03.2024 TATA AIG GENERAL INSURANCE CO. LTD. VS. BHARAT EXPORTS PVT. LTD.
insured, whereas the Appellant has placed on record a bill of Rs. 1,17,482/- regarding repair of the vehicle given to Galaxy Automobiles Pvt. Ltd. The surveyor report does not indicate reasons and the basis upon which deductions were carried out, therefore, the surveyor report is not acted upon. Two authorities of National Commission one Revision Petition No. 817 of 2006 titled D.N. Badoni Vs Oriental Insurance Company wherein it was held that the Surveyor's report has significant evidentiary value unless it is proved otherwise which petitioner has failed to do so in the instant case. The second in Consumer Complaint No. 155 of 2013 titled M/s Shital Fibres Ltd. Vs M/s Bharti Axa General Insurance Company Ltd. decided on 04.07.2013. It was again held that the Hon'ble Supreme Court of India has already held that the surveyor's report has significant evidentiary value unless it is proved otherwise.
6. Keeping in view the discussion stated above we are of the considered view that Respondent committed deficiency in service by not allowing the justified claim of the Appellant. We, therefore, pass an award in the sum of Rs. 1,17,482/- One Lakh Seventeen Thousand Four Hundred Eighty-Two) to be paid by respondent within 45 days from the date of receipt of this order failing which respondent shall be liable to pay interest @ 6% p.a. from the date of filing of the complaint actual realisation. Further we award 10,000/- as compensation for harassment, agony, and litigation expenses."
3. Aggrieved by the aforesaid judgement of the District Commission, the Appellant/Opposite Party has preferred the present appeal, contending that the District Commission failed to consider the Medico-Legal case (MLC) of DISMISSED PAGE 4 OF 7 FA/99/2020 D.O.D.: 11.03.2024 TATA AIG GENERAL INSURANCE CO. LTD. VS. BHARAT EXPORTS PVT. LTD.
the driver who was driving the insured vehicle at the time of accident. The Appellant further submitted that the District Commission erred in considering the surveyor report filed by the Appellant before it. Lastly, the Appellant contended that the District Commission erred in holding the deficiency of service on the part of Appellant. Pressing the aforesaid submissions and contention, the Appellant prayed for the setting aside of the impugned order dated 27.09.2019.
4. The Respondent, through its reply, denied all the allegations of the Appellant and submitted that there is no error in the impugned order as the entire material available on record was properly scrutinised before passing the said impugned order.
5. We have perused the material available on record and heard the counsel appeared on behalf of the parties.
6. The main question for consideration before us is whether the Appellant was justified in repudiating the claim of the Respondent on the ground that the driver of the insured at the time of accident was under the influence of the liquor and the accident was occurred due to the negligence of the insured.
7. From the chronology of the events, we find that the policy in question has been issued by the Appellant for the period of 31.12.2010 to 30.12.2011 vide policy number 0151100224100 included a "Zero-Depreciation" clause and premium of Rs. 24,517/- was charged from the Respondent. On 10.11.2012, the insured vehicle met with an accident in Delhi and the claim was rejected by the Appellant on the ground that the driver was under influence of Alcohol at the time of accident which violates the Exclusion clause 2(c) section (i) of Insurance contract.
8. Further, on perusal of record, we find that the Medico-Legal case (MLC) of the driver issued by Babu Jagjivan Ram Hospital, Delhi states "Smell of Alcohol from Mouth", however, the treating doctor has failed to mention the DISMISSED PAGE 5 OF 7 FA/99/2020 D.O.D.: 11.03.2024 TATA AIG GENERAL INSURANCE CO. LTD. VS. BHARAT EXPORTS PVT. LTD.
percentage of alcohol in the blood, in order to ascertain whether the driver was under the influence of the Alcohol at the time of accident.
9. Additionally, we deem it appropriate to refer to the first Appeal No. 230 of 2009 titled New India Assurance Co. Ltd Vs Ashminder Pal Singh dated 25.05.2015, wherein the Hon'ble National Commission while dealing with the similar issue has held as follows:
"This Commission in R.P. No. 3243 of 2007, National Insurance Co. Ltd. v. Soma Devi & Ors., MANU/CF/0148/2012 : II (2012) CPJ 50 (NC), in which it was observed as under:
"Both the post-mortem report and the investigators report merely state that the deceased had consumed alcohol without giving any details about the actual amount of alcohol consumed or the type of intoxicants consumed. Even if the post-mortem report stating that the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed.
Consumption of liquor is not a test for application of exclusionary clause of the policy, what is contemplated in the exclusionary clause of the policy is something more than merely consumption of liquor. Driver may not be under influence of intoxication of liquor at the time of, accident. In the present case appellant has not provided any evidence of proof that respondent was under influence of intoxication at the time of accident and learned State Commission rightly allowed complaint."
10. From the aforesaid dicta of Hon'ble National Commission, it is clear that the mere consumption of liquor is not a ground for repudiating the genuine claim of the insured. Moreover, in the present case, the Appellant failed to show any substantial evidence in order to prove that the driver of the insured vehicle was under the influence of Alcohol and the percentage of alcohol in the blood was beyond the permissible limits in order to repudiate the claim of the Respondent. Therefore, we are of the considered view that Appellant was deficient in providing its service by repudiating the claim of the Respondent.
DISMISSED PAGE 6 OF 7 FA/99/2020 D.O.D.: 11.03.2024
TATA AIG GENERAL INSURANCE CO. LTD. VS. BHARAT EXPORTS PVT. LTD.
11. In view of the foregoing, we are in agreement with the reasons given by the District Commission and fail to find any cause or reason to reverse the findings of the District Commission. Therefore, we uphold the order dated 27.09.2019 passed by the District Consumer Disputes Redressal Commission (West), Janakpuri, New Delhi.
12. Consequently, the present Appeal stands dismissed with no order as to costs.
13. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgement.
14. FDR, if any be released in favour of the Respondent.
15. The Judgment be uploaded forthwith on the website of the Commission for the perusal of the parties as well as forwarded to the corresponding E-mail address available on the record
16. File be consigned to the record room along with a copy of this Judgement.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
11.03.2024 LR-AJ DISMISSED PAGE 7 OF 7