Dear All,
The following appeared in "Times of India", Mumbai Edition on July 01, 2009, page no. 03.
Keep Smiling ... HemantAgarwal
Whiff of booze doesn’t mean driver’s drunk
Consumer Panel Tells Insurance Firm To Compensate Complainant
Subject: Does the smell of alcohol on the breath mean that a person is drunk?
Backdrop: It is a common but mistaken belief that the smell of alcohol on the breath of a person can indicate that s/he is drunk. Is such a presumption correct? Definitely not. This ruling has been given on March 27, 2009 by the Delhi State Consumer Disputes Redressal Commission in the case of A P Singh v/s The New India Assurance Co. Ltd.
Case Study: Ashminder Pal Singh had bought a Mitsubishi Lancer in October 2000 for Rs 8,26,000. The car was insured by New India Assurance. About two months later, the vehicle was badly damaged in an accident. Singh filed the insurance claim. The spot surveyor as well as the final surveyor, who were appointed by the insurance company, assessed the loss at Rs 7 lakh. Even though Singh was willing to accept this amount, the insurance company appointed an investigator to probe further.
The insurance company then told Singh that the investigator had reported that he had learnt that the records of AIIMS Hospital, where Singh was taken immediately after the accident, showed he was heavily intoxicated. Hence the claim had to be rejected on the grounds o f drunk driving. However, a copy of the investigator’s report was not provided to Singh.
As Singh was in the US, he had executed a special power of attorney appointing his grandfather to pursue the insurance claim. A complaint was lodged with the insurance ombudsman who heard the matter on three occasions and recorded statements of the parties without following the due process of the law of evidence, and then upheld the insurance company’s rejection.
Singh then filed a consumer complaint before the Delhi State Commission. During the proceedings, certain facts emerged. It was found that when Singh was taken to AIIMS, he had also complained about pain in his ear. The doctor on duty examined his ears and noted in his records that Singh was conscious and oriented; there was tenderness over his left ear; his blood pressure was 120/80; and his pulse was normal at 80; there was no ENT bleeding or vomiting; and that his ‘breath smells of alcohol’. However, no tests were carried out to establish whether Singh was under the influence of alcohol. No action had been taken by the police either.
The insurance firm tried to prove its case by producing the hospital’s record which showed the remarks ‘alcohol present’ and ‘verified’, but this was not accepted by the panel in view of Singh rebutting its correctness by producing the certified copy in which no such remarks had been made.
The commission observed that there is a vast difference between consuming liquor and being under its influence. Having a small drink may make a person’s breath smell of alcohol but that does not mean he is drunk. To term a person to be under the influence of intoxicant, 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 this.
After considering the rival contentions and the medical records, the commission observed that even though Singh’s BP, pulse and other parameters were normal, the insurance company had given undue weightage to the noting about the breath smelling of alcohol without taking into account the fact that it was Singh who had complained to the doctor and got himself examined.
Similarly, the insurance company had disregarded the fact that no mandatory tests had been carried out to determine the level of alcohol contents, if any, in the body or blood to establish whether Singh under the influence of alcohol as alleged. The investigator had also not considered Singh’s statement that at the time of the accident, he was taking homoeopathic treatment for cough and sneezing and these medicines have a smell similar to alcohol.
In view of this, the commission directed the insurance company to pay Rs 7,00,000 together with Rs 50,000 as compensation for mental agony, harassment and costs.
Impact: Insurance firms would do well to settle claims on merit rather than appoint investigators to obtain a convenient report to reject claims
