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LATEST CONSUMER JUDGEMENTS
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 complainant’s
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 complainant’s 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 complainant’s
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 MLC’s 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 complainant’s
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 Hon’ble
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 Hon’ble 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 MLC’s 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
Hon’ble 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
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