Exclusion clauses in insurance agreements are subject to interpretation based on evidence, and lack of evidence regarding alcohol influence can render the exclusion clause inapplicable.

ORDER

Barkat Ali Zaidi, President (Oral)- The short facts of the case are that a Honda City Car No. DL-3CY 0424 belonged to the ownership of M/s. Sudeep (India) International, was insured with the OP New India Assurance Co. w.e.f. 5.12.2003 to 4.12.2004 for an amount of Rs. 4,66,920. The car met with an accident on 11.7.2004 on National Highway within the jurisdiction of Police Station Gurgaon. The complainant suffered injuries and the car was totally damaged. On intimation to the OP Insurance Company with regard to the damage of the car, the OP asked the complainant to get its estimate, and the workshop Honda Southend, Honda, Saket, Delhi gave the estimate of Rs. 7,33,887. The complainant claimed Rs. 3,32,420 from the OP company, which the OP did not pay, and the complainant filed a complaint before the District Consumer Forum claiming Rs. 3,32,420 with 24% interest and a compensation of Rs. 2 lacs and also the costs, against the opposite party.

2. The OP Insurance Company filed the written statement and opposed the claim on two grounds, (i) that the complainant was heavily drunk at the time of the accident. The Exclusion Clause (c) given in the policy agreement, contemplates that if the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of liquor or drugs, the OP company shall not be liable to make any payment in respect of such accidental loss, (ii) the OP had already paid Rs. 1,25,912 for an earlier claim on basis of this policy to the complainant. Therefore, after taking this amount into consideration, amount payable as per terms and conditions remained Rs. 3,32,420.

3. The District Forum on consideration of the material on record held that Exclusion Clause (c) of the Insurance Agreement, was not applicable as there being no evidence to suggest that the complainant was unable to drive the vehicle under the influence of alcohol at the time of the accident, the medical report is silent about the extent of the effect of the alcohol, and passed an award of Rs. 2,06,528 with interest at a rate of 9% per annum from 20.12.2005 till date of payment plus compensation of Rs. 5,000 and litigation costs Rs. 3,000 in favour of the complainant against the OP company.

4. That is what brings the OP Insurance Company in appeal before this Commission.

5. We have heard Mr. Navdeep Singh, Counsel for the appellant and Mr. Saurabh, proxy for Mr. N.K. Kukreja, Counsel for the respondent in this appeal.

6. The sole contention of the Counsel for the appellant company is that from the Medical Examination Reports of the complainant filed by him before the Trial Forum, it is manifest that he was heavily drunk while driving the car, and caused the accident, and therefore according to the Exclusion Clause provided in the Insurance Agreement, as referred above, he is not entitled to any reimbursement, as claimed by him. He has referred to two documents, copies of Medical Examination Reports filed by the appellant on the appeal file. Out of these two at pages 62-63-64 are Clinical Notes dated 11.7.2004, and the other is also the Clinical Note dated 12.7.2004 of Sheetla Hospital, but none of them contains the name of examinee injured person or the patient. Therefore how can it be said that they relate to the complainant. No affidavit has been filed of their author (Doctor) in evidence to prove these reports in evidence. For these reasons it can safely be said that these documents do not help in any manner to substantiate the contention of the appellant that the complainant was driving the vehicle at the time of accident in a drunken state and his case therefore falls under the Exception Clause of the Insurance Agreement.

7. No other argument has been advanced by the side of the appellant.

8. The appeal is therefore dismissed. Costs easy.

9. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.

10. A copy of this order as per the statutory requirements be forwarded to the parties f