Oral Order: (R. Lakshminarasimha Rao, Member)
1) The appeal preferred by the complainant against the order of the District Forum allowing the complaint on the premise of the appellants failure to prove intoxicated condition of the driver at the time of the accident and its failure to examine Mani Kumar to whom the respondent said to have given oral intimation of the accident and resultant damage caused to the insured car.
2) The respondent got his car bearing registration number AP 16 BM 6679 insured with the appellant-insurance company for a sum of Rs. 5,75,696/- covering the period from 10.08.2011 to 09.08.2012. The car met with an accident on 01.01.2012 during night hours near Siddhartha College, Vijayawada. The respondent got the vehicle repaired by spending an amount of Rs.1,98,000/-.The appellant-insurance company repudiated the claim on19.03.2012 on the ground that driver was under the influence of alcohol and notice in writing was not given immediately after occurrence of the accident. The appellant got issued notice dated 12.04.2012 and assailing the repudiation of his claim he filed the complaint claiming Rs. 1,98,000/- with interest @ 12% p.a., together with compensation of Rs.50,000/- towards mental agony and costs.
3) The case of the appellant is that he informed the executive of the appellant-insurance company, Mani Kumar immediately after the car met with accident on 01.01.2012 and Mani Kumar informed him that the accident intimation was registered in the records of the appellant-insurance company and the driver was not under the influence of alcohol at the time of the accident as also that on giving intimation he got repaired the car and on failure of the appellant-insurance company to depute surveyor, he appointed surveyor who assessed the damage caused to the car at Rs.1,50,000/-.
4) The appellant-insurance company resisted the case admitting the issuance of policy, it has contended that it carefully examined the claim of the respondent. The appellant contended that respondent had not given notice in writing immediately after the occurrence of the accident and he had not submitted spot survey and re-inspection reports and there is no service log book or register of authorized mechanic. As per the police records, the driver of the car was in drunken condition at the time of the accident. The appellant contended that the respondent is not consumer and there was no deficiency in service on the part of the appellant-insurance company. Hence, its repudiation of the claim was just and therefore prayed for dismissal of the complaint with costs.
5) The learned counsel for the appellant has filed written arguments.
6) The appellant in proof of his case filed his affidavit and got Exs. A1 to A-13 marked while on behalf of the appellant- insurance company, its Divisional Manager filed his affidavit and got Exs. B1 to B-9 marked.
7) Aggrieved by the order of the Forum, the opposite Party has filed appeal contending that the District Forum did not appreciate either facts or law in correct perspective The appellant contended that the District Forum ignored the delay of 62 days in the respondent giving intimation to the appellant-insurance company and the driver of the car was in intoxicated condition at the time of the accident and that the surveyor assessed the damage caused to the vehicle at Rs.1,50,000/-.
8) The point that arises for consideration is whether the order of the District Forum is vitiated by mis-appreciation of fact or law?
9) It is an undisputed fact that the car bearing registration number AP 16 BM 6679 which was insured with the appellant-insurance company covering the period from 10.08.2011 to 09.08.2012 for a sum of Rs. 5,75,696/-. The car met with accident on 01.01.2012 when it was proceeding from Sidhartha College to D.V. Manor side. There are two versions of the accident. As seen from the FIR, the accident occurred when the insured car was proceeding at high speed and dashed against Eicher van and thereafter dashed against the motor cycle of China Babu who was working as S. I. of police, P. S., Machavaram had sustained injuries and died while undergoing treatment at Help Hospital, Vijayawada. The other version as found in the Charge sheet is that the respondent along with his three friends was proceeding in his car which he was driving at high speed and in rash and negligent manner and dashed against the motor cycle of Chinna Babu at Sidhartha Engineering College. The fact remains that the respondent along with his friends was proceeding in his car and while driving the car at high speed he caused the accident as a result of which Chinna Babu sustained injuries and died while undergoing treatment at Help hospital.
10) The car met with the accident on 01.01.2012 and the respondent gave intimation to the appellant insurance company on 02.03.2012 i.e., 62 days after occurrence of the accident. The appellant repudiated the claim on the ground that the respondent had not given intimation about the accident immediately after the accident occurred and as such there was violation of condition No. 1 of the Insurance policy which reads as under :
œNotice shall be given in writing to the company immediately upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured shall give all lsuch information and assistance as the company shall require?
11) The respondent was driving the car at the time of the accident. The appellant repudiated the claim on the premise of the respondent driving the car while he was under the influence of alcohol which is violation of the terms of the Insurance policy. The learned counsel for the appellant has contended that the respondent was under the influence of alcohol at the time of the accident and the police records would support the repudiation of the claim. The learned counsel for the respondent has contended that the police did not conduct Breath Analyzer Test in absence of which it cannot be concluded that the respondent in intoxicated condition at the time the car met with the accident. The learned counsel for the appellant has relied upon the following decisions:
(i) Revision Petition No. 3926 of 2012 on the file of the Honble National Commission in between Budha Ganesh Vs. New India Insurance Company Limited pronounced on 21.01.2014
(ii) F. A. No. 321 of 2005 on the file of the Honble National Commission in between New India Assurance Company Ltd Vs. Trilochan Jane pronounced on 09.12.2009.
12) in the afore mentioned decisions it was held that the claim intimation has to be given to the insurance company immediately and any delay in giving information would deprive the insurance company from conducting investigation as by the time the insured vehicle which was caused theft of would have been dismantled and sold of. In the instant case, the vehicle was not stolen. However, there had been inordinate delay in giving intimation to the appellant insurance company whereby it lost the chance of conducting investigation.
13) The District Forum proceeded to allow the complaint on the premise that the appellant failed to file the affidavit of its executive Manikumar to whom the respondent stated to have given intimation of the vehicle meeting with accident and the District Forum further held that the Breath Analyzer Test was not conducted by the police and thus the respondent could not be said to have been under the influence of alcohol at the time of the accident. The charge sheet would indicate the confession of the respondent that he was in intoxicated condition and drove the vehicle in such condition which resulted in causing accident and loss of life of China Babu.
14) The respondent had not chosen deny that he was not driving the vehicle and show the particulars of the person who had driven the vehicle at the time of the accident. The copies of FIR and charge sheet would establish the respondent driving the vehicle at the time of the accident. Having driven the vehicle and caused the accident which resulted damage to the car, the obligation in terms of condition No. (1) of the insurance policy would cast on him to report the matter of accident in writing to the appellant Insurance company which he had not done and he did not explain any cause for not giving intimation in writing immediately after the vehicle met with accident.
15) In so far as the repudiation of the claim on the ground of the respondent driving the vehicle in intoxicated condition at the time of the accident is concerned, the confession of the respondent mentioned in the charge sheet would show that he was under the influence of alcohol at the time of the accident. The respondent got issued notice stating that there was no evidence to the effect he was under the influence of alcohol at the time the vehicle met with the accident. The fact that the respondent being under the influence of alcohol at the time of the accident is so complex that it cannot be decided in summary proceedings by Consumer Forum. As such, the order of the District Forum is liable to be set aside.
16) In the result the appeal is allowed setting aside the order of the District Forum. The complainant is at liberty to approach appropriate Forum/Court and in such an event the complainant can avail the benefit of exclusion of time U/s. 14 of Limitation Act, 1963 in the light of decision of the Honble Supreme Court in œ Trai Foods Vs. National Insurance Company Limited and others œ reported in (2004 ) 13 SCC 656.