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KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Chandrashekaraiah, President, Hariappa Gowda and Rama Ananth, Members
MOHAN SINGH - Appellant
Versus
CITYBANK N.A. AND ANR. - Respondents
Appeal No. 1272 of 2008
Decided on : 16-10-2008
Mr. Harish M.R., Advocate, for the Appellant; Mr. M.V. Kini, Advocate, for the Respondent
Mere smelling of alcohol does not prove driver was under the influence of liquor
Headnote:
Insurance - Vehicle Insurance - Repudiation of claim based on driver's alleged intoxication - Court held that mere smelling of alcohol does not prove driver was under the influence of liquor - Insurer directed to pay compensation to complainant
Fact of the Case:
The complainant's vehicle was insured and met with an accident. The insurance company repudiated the claim, alleging that the driver was under the influence of liquor at the time of the accident.
Finding of the Court:
The court found that the mere smelling of alcohol does not prove that the driver was under the influence of liquor. The insurer was directed to pay compensation to the complainant.
Issues: Repudiation of insurance claim based on alleged driver intoxication
Ratio Decidendi: Mere smelling of alcohol does not prove driver was under the influence of liquor
Final Decision: Impugned order was set aside, and the insurance company was directed to pay compensation to the complainant
ORDER
Chandrashekaraiah, President - This appeal is by the complainant challenging the order dated 11.6.2008 passed by the DF, Bangalore Urban I Additional in Complaint No. 207/2008 dismissing his complaint.
2. The complainant is the owner of vehicle bearing registration No. KA-02-MA-8874. The said vehicle was insured with O.P. for the period from 17.5.2007 to 16.5.2008. The vehicle met with an accident on 24.7.2007. In the said accident the vehicle suffered substantial damage. The fact of accident was intimated to the Insurance Company and also to the bank which advanced the loan to the complainant for the purpose of purchase of the vehicle.
3. The Insurance Company no doubt after coming to know of the fact of the accident appointed a Surveyor to assess the loss. But in the meanwhile the Insurance Company on the basis of the report of the investigator repudiated the claim on the ground that the driver who was driving the vehicle at the time of the accident was under the influence of liquor relying upon the post-mortem report. This repudiation has made the complainant to file the complaint before the DF claiming compensation of Rs. 8,85,138 in respect of the damage caused to the vehicle and has also claimed compensation of Rs. 50,000 towards mental agony and Rs. 50,000 towards expenses.
4. The said complaint was contested by the Insurance Company. The defence of the Insurance Company is that the post-mortem report discloses that the driver who was driving the vehicle at the time of the accident appears to have consumed alcohol because it appears they found that there is a smell of alcohol and, therefore, according to the Insurance Company as per the terms of the policy the complainant is not entitled for any compensation and it is open for the Insurance Company to avoid its liability in the event if the driver was found to be under the influence of the liquor at the time of the accident.
5. The DF accepted the defence put forward by the Insurance Company dismissed the complaint. This order is under challenge by the complainant in this appeal.
6. In this appeal notice is served on R-2/O.P.-2 Insurance Company, But R-2/O.P.-2 remained absent.
7. The case of the Insurance Company before the DF is that the post-mortem report discloses that there is a smell of alcohol.
8. Mere smelling of alcohol in the food said to have been consumed does not mean that the person who died in the accident was under the influence of liquor. There is a medical literature to the effect that if the body were to be kept for one or two days for biological reasons there may be a scope to get the food consumed to smell like alcohol.
9. Further in order to prove the contents of the post-mortem report the Insurance Company ought to have filed the affidavit of the doctor who prepared the post-mortem report. In the instant case no such affidavit has been filed.
10. This Commission in its order dated 25.6.2007 in Appeal No. 804/2007has observed that "assuming that the alcohol is present as observed by the doctor, we are of the view that mere presence of alcohol cannot be proof to the effect that the driver was under the influence of intoxicating liquor or drugs".
11. Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal has observed as follows:
"If the medico legal aspect of ethyl alcohol is considered that would make the thing clear that the deceased even if had consumed intoxicating liquor, but, that was not in the quantity of fatal level."
12. In the instant case also assuming for a moment that the driver had consumed the alcohol, no evidence has been produced to the effect that he was under the influence of intoxicating liquor. Therefore, the repudiation of the claim of the complainant by the Insurance Company is not correct. Further in the said view of the matter the District Forum is also not right in dismissing the complaint of the complainant.
13. The complainant has claimed compensation of Rs. 8,85,138 apart from other claims. There are some correspond
