July 11, 2021 12:45:44 pm
Holding that “mere smell of alcohol cannot lead to an inference that a person is incapable of taking care of himself or to drive a vehicle”, the District Consumer Disputes Redressal Commission has directed an insurance company to pay Rs 1.84 lakh to a city resident, whose car accident claim was rejected on the ground that he was under the influence of intoxicating liquor.
The complainant, Rajan Deep Singh of Chandigarh, said that his Hyundai Verna car was insured with Oriental Insurance for the period from May 31, 2018 to May 30, 2019 for an IDV of Rs 8 lakh. It met with an accident on the intervening night of February 1 and February 2, 2019 with another car due to fog at light point of Sector 34/35, Chandigarh while driven by the complainant. The complainant was taken to the Government Hospital, Sector 16, Chandigarh for treatment where he remained admitted till February 3, 2019. The Hyundai dealership workshop informed the complainant that since the insurance was cashless, so he could take away his car after depositing Rs 8,000. Thereafter, he took the delivery of the vehicle by paying Rs 10,000 to Hyundai dealership. On March 14, 2019, complainant again received a call from Hyundai dealership regarding depositing the balance amount of Rs 1,61,178 as the insurance firm denied the cashless facility.
Subsequently, he paid Rs 1,61,178 in cash to the dealership, as the insurance company illegally rejected the claim vide letter dated May 22, 2019 on the ground that the insured is under the influence of intoxicating liquor or drugs, the complaint said. The Oriental Insurance, in its reply, submitted that after receipt of the survey report and the investigator report and keeping in view the terms and conditions of the insurance policy, the claim was rightly rejected on the ground that the complainant was driving the vehicle under the influence of intoxicating liquor and the fact is confirmed from the discharge summary and MLR report of Government Hospital, Sector 16, Chandigarh. It has further been pleaded that the complainant has refused to give the blood and urine sample as per the MLC report of the hospital.
The Commission, after hearing the arguments, said, “We are of the considered view that the onus to prove that the complainant was under influence of the liquor at the time of the accident or that he was not in a fit condition to drive the vehicle in question due to the influence of any intoxicant was entirely upon the insurance company. The insurance company has not been able to bring on record any concrete and reliable evidence in the shape of medical test report of the complainant to prove that he was under influence of the liquor at the time of the accident and was incapable of taking care himself/drive the vehicle.”
It added: “The insurance company cannot take the shelter of treatment record issued by the hospital and the investigator report to contend that the complainant was under the influence of the liquor. Mere observations of the treating doctor on the basis of some foul smell coming from the complainant, without conducting any blood test to confirm the presence of the alcohol concentration, cannot be believed. There was no mention of any alcohol concentration, by which it can be established that the complainant was drunk or that he was not in a fit condition to drive the vehicle in question due to the influence of intoxicant. Besides this, the complainant was diagnosed to be head injury and on examination he was suffered pain right frontal region of scalp with history of vomiting, advised NCCT head, Surgical consultation due to which he was disoriented,” held the bench.
“As per Sections 185 and 202, of the Motor Vehicles Act, it would be considered intoxicated only if the person is tested and found to have more than 30 mg of alcohol in his blood, per 100 ml.In the present case, no test was conducted to ascertain whether Blood Alcohol Concentration (BAC) had exceeded the legally stipulated limit. Mere smell of alcohol cannot lead to an inference that a person is incapable of taking care of himself or to drive a vehicle,” said the bench while allowing the plea of complainant.
The Commission thus directed the insurance firm to pay Rs 1,63,281 as assessed by the surveyor to the complainant and to pay Rs 11,000 as compensation and Rs 10,000 as litigation expenses.
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