State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Sh. Hira Nand Sharma. on 16 November, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 14/2018
Date of Presentation: 12.01.2018
Order Reserved on : 31.07.2018
Date of Order : 16.11.2018
......
National Insurance Company Limited Division Office Himland
Hotel Circular Road Shimla H.P 171001 through its Administrative
Officer (Legal) National Insurance Company Ltd. Divisional Office
Himland Hotel Circular Road Shimla.
...... Appellant/Opposite Party
Versus
Shri Hira Nand Sharma son of late Shri Shiv Nand Main Bazar
Shoghi Shimla through its proprietor Shri Hira Nand Sharma.
......Respondent /Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Jagdish Thakur Advocate.
For Respondent : Mr. Hoshiar Kaushal vice
Ms. Neelam Sharma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 28.11.2017 passed by Learned District Forum in consumer complaint No.311/2013 titled Hira Nand Sharma Versus M/s. National Insurance Company Ltd.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
National Insurance Company Ltd. Versus Hira Nand Sharma (F.A. No.14/2018) Brief facts of consumer complaint:
2. Shri Hira Nand filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that vehicle No.HP-07C-0646 was insured with opposite party for IDV value of Rs.346568/-(Three lac forty six thousand five hundred sixty eight) w.e.f. 19.09.2012 to 18.09.2013. It is pleaded that premium to the tune of Rs.11014/-(Eleven thousand fourteen) was also paid to the opposite party. It is pleaded that on dated 27.01.2013 vehicle met with accident.
It is further pleaded that factum of accident was informed to the opposite party and all codal formalities were completed. It is pleaded that FIR was also recorded. It is pleaded that opposite party did not settle the claim and committed deficiency in service. Complainant sought relief of Rs.346568/-(Three lac forty six thousand five hundred sixty eight) alongwith interest @ 9% per annum till actual payment. In addition complainant sought relief of payment of Rs.50000/-(Fifty thousand) for mental harassment. In addition complainant sought litigation costs to the tune of Rs.15000/-(Fifteen thousand). Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that insured had violated the terms and conditions of insurance policy and claim was repudiated by 2 National Insurance Company Ltd. Versus Hira Nand Sharma (F.A. No.14/2018) the insurance company vide letter dated 13.06.2013 on the ground that driver of vehicle in question was driving the vehicle under the influence of liquor. It is further pleaded that insurance company deputed surveyor to assess the loss. Factum of information to insurance company about accident is admitted. It is pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum ordered opposite party to pay O.D claim of the vehicle to the tune of Rs.345568/-(Three lac forty five thousand five hundred sixty eight) alongwith interest @ 9% per annum from the date of filing of complaint till the date of actual payment. Learned District Forum further ordered that salvage of vehicle would be handed over to opposite party. Learned District Forum further ordered that in case complainant did not hand over the salvage of vehicle then opposite party would be at liberty to deduct salvage value from the O.D claim. In addition learned District Forum ordered that opposite party would pay a sum of Rs.10000/-(Ten thousand) to complainant on account of mental agony and harassment. In addition learned District Forum further ordered that opposite party would pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand). Feeling aggrieved against order 3 National Insurance Company Ltd. Versus Hira Nand Sharma (F.A. No.14/2018) passed by Learned District Forum insurance company filed present appeal before State Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arise for determination in present appeal.
1. Whether appeal filed by insurance company is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed his affidavit in evidence. There is recital in affidavit that deponent purchased vehicle Maruti Swift Dezire in consideration amount of Rs.346568/-(Three lac forty six thousand five hundred sixty eight). There is recital in affidavit that vehicle was insured with the opposite party w.e.f. 19.09.2012 to 18.09.2013. There is recital in affidavit that in the intervening night of 26/27.01.2013 near Kandaghat vehicle met with accident and FIR No.06/2013 was filed. There is further recital in affidavit that information was given to the insurance company. There is recital in affidavit that insurance company did not settle the claim and repudiated the claim of complainant and committed 4 National Insurance Company Ltd. Versus Hira Nand Sharma (F.A. No.14/2018) deficiency in service. State Commission has perused all the annexures filed by complainant carefully.
8. Opposite party filed affidavit of Shri Vivek Suman Administrative Officer (Legal). There is recital in affidavit that insured had violated the terms and conditions of the insurance policy. There is recital in affidavit that driver of the vehicle in question was driving the vehicle under the influence of intoxicating liquor. There is recital in affidavit that insurance company is not liable to indemnify the claim of complainant. State Commission has also perused all the annexures filed by opposite party carefully.
9. Submission of learned Advocate appearing on behalf of insurance company that driver namely Shri Abhijeet Rathi was under the influence of liquor at the time of accident to the extent of 178.08 mg% and on this ground appeal filed by insurance company be allowed is decided accordingly.
Medical certificate of Shri Abhijeet Rathi is placed on record. As per medical certificate placed on record there was alcohol in blood sample of driver namely Shri Abhijeet Rathi to the extent of 178.08 mg%. Accident took place on 27.01.2013 and driver namely sh. Abhijeet Rathi was medically examined on same day i.e. 27.01.2013 by medical officer vide MLC No.0001897. Medical Officer has specifically mentioned in MLC No.0001897 that driver namely Shri Abhijeet Rathi had 5 National Insurance Company Ltd. Versus Hira Nand Sharma (F.A. No.14/2018) consumed alcohol to the extent of 178.08 mg%. MLC has been issued by Medical Officer while discharging his public official duty and is a corroborative piece of evidence and could be used for corroborative purpose.
10. Shri Abhijeet Rathi did not file his affidavit in order to rebut the allegation that he had not consumed alcohol at the time of accident. No reason assigned as to why affidavit of driver namely Shri Abhijeet Rathi was not filed in order to prove that driver had not consumed alcohol at the time of accident. Hence adverse inference is drawn against the complainant.
11. Shri Hira Nand was not eye witness of the accident. Shri Hira Nand was not present at the spot at the time of accident. Affidavit filed by Sh. Hira Nand is based upon derived knowledge only. Hence no reliance could be placed upon affidavit filed by Sh. Hira Nand on the basis of derived knowledge. MLC of Shri Laxender Singh also placed on record and Sh. Laxender Singh was medically examined vide MLC No.0001895 on dated 27.01.2013. As per MLC alcohol to the extent of 107.21 mg% was found in the blood sample of Sh. Laxender Singh. Similarly Shri Samir Sharma was also medically examined on dated 27.01.2013 on the date of accident vide MLC No.0001896 and as per MLC alcohol to the extent of 223.25 mg% was found in the blood sample of 6 National Insurance Company Ltd. Versus Hira Nand Sharma (F.A. No.14/2018) Shri Samir Sharma. MLCs of Shri Samir Sharma and Shri Laxender Singh have been issued by public servant in discharge of his public official duty and could be used for corroborative purpose.
12. As per section 185 of Motor Vehicles Act 1988 driving of vehicle by drunken person under the influence of alcohol exceeding 30 mg% per 100 ml in blood is offence punishable with terms of six months or fine which may exceed to Rs.2000/- or both.
13. State Commission is of the opinion that vehicle was used in violation of terms and conditions of insurance policy at the time of accident and it is held that there was fundamental breach of terms and conditions of insurance policy. It is held that in view of fundamental breach of terms and conditions of insurance policy insurance company is not liable to indemnify the complainant. It is held that driver of vehicle was clearly under the influence of intoxicated liquor when accident took place. Even in the claim form insured kept blanked details of accident claim. No reasons assigned by complainant that why he had kept column of detail of accident as blanked. Adverse inference is drawn against complainant by State Commission for his act and conduct. Even there is no evidence on record in order to prove that owner of vehicle had instructed driver of vehicle not to drive 7 National Insurance Company Ltd. Versus Hira Nand Sharma (F.A. No.14/2018) on public road in intoxicated condition as prohibited under section 185 of Motor Vehicles Act 1988.
14. Submission of learned Advocate appearing on behalf of complainant that order passed by learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly. State Commission is of the opinion that learned District Forum has not carefully perused MLCs of S/Shri Laxender Singh, Samir Sharma and Abhijeet Rathi which were placed on record of file of learned District Forum. There is positive recital in the MLC issued by public servant in discharge of his official duty that alcohol was found in the blood sample of S/Shri Laxender Singh, Samir Sharma and Abhijeet Rathi exceeding permissible limit as mentioned under section 185 of Motor Vehicles Act 1988. State Commission is of the opinion that order of learned District Forum is contrary to law and contrary to proved facts and same warrants interference by State Commission. See 2016 (IV) CPJ 267 NC Lakshmi Rohit Ahuja Versus SBI Life Insurance Company Ltd. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
15. In view of findings upon point No.1 above appeal is allowed. Order of learned District Forum dated 28.11.2017 announced in consumer complaint No.311/2013 titled Hira 8 National Insurance Company Ltd. Versus Hira Nand Sharma (F.A. No.14/2018) Nand Sharma Versus M/s. National Insurance Company Ltd. is set aside and consumer complaint filed by complainant is dismissed. MLC No.0001897 of driver Shri Abhijeet Rathi, MLC No.0001895 of Shri Laxender Singh eye witness and MLC No.0001896 of Shri Samir Sharma eye witness shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 16.11.2018 K.D * 9 National Insurance Company Ltd. Versus Hira Nand Sharma (F.A. No.14/2018) H. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION SHIMLA Misc. Application No. : 43/2018 First Appeal No. : 14/2018 Date of Presentation of application : 12.01.2018 Date of Order in application : 16.11.2018
--------------------------------------------------------------------------------------- National Insurance Company Limited Division Office Himland Hotel Circular Road Shimla H.P 171001 through its Administrative Officer (Legal) National Insurance Company Ltd. Divisional Office Himland Hotel Circular Road Shimla.
...... Applicant/Appellant Versus Shri Hira Nand Sharma son of late Shri Shiv Nand Main Bazar Shoghi Shimla through its proprietor Shri Hira Nand Sharma.
......Non-applicant/Respondent Coram Hon'ble Justice P.S. Rana (R) President Hon'ble Mr. Vijay Pal Khachi Member Whether approved for reporting?2 Yes. For Applicant : Mr. Jagdish Thakur Advocate. For Non -applicant : Mr. Hoshiar Kaushal vice Ms. Neelam Sharma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT :
O R D E R :-
1. Present application is filed for adducing additional evidence at appellate stage of matter by way of placing on record copy of Forensic Science Laboratory report of the driver, Final investigation report, terms & conditions of insurance policy and final survey report on record. It is 2 Whether reporters of the local papers may be allowed to see the order? Yes. 10
National Insurance Company Ltd. Versus Hira Nand Sharma (F.A. No.14/2018) pleaded that above stated documents are material documents for adjudication of appeal. It is further pleaded that no prejudice would be caused to non-applicant in case application is allowed. Prayer for acceptance of application sought.
2. Non-applicant did not file any response to application.
3. We have heard learned Advocates for applicant & non-applicant and also perused the entire record carefully.
4. Following points arise for determination in present application.
1. Whether application filed by applicant for adducing additional evidence in appeal is liable to be accepted as mentioned in memorandum of grounds of application.
2. Final order.
Findings upon point No.1 with reasons:
5. Submission of learned Advocate appearing on behalf of applicant that documents mentioned in the application are material documents for just decision of appeal properly and effectively and on this ground application filed for adducing additional evidence at appellate stage be allowed is decided accordingly. State Commission is of the opinion that at appellate stage additional documents could be placed on record if following conditions are fulfilled:- 11
National Insurance Company Ltd. Versus Hira Nand Sharma (F.A. No.14/2018) (1) That learned District Forum has refused to admit the document in evidence which ought to have been admitted. (2) That parties seeking to produce additional evidence in appellate stage established that notwithstanding after exercise of due diligence such evidence was not within the knowledge of party or could not after exercise of due diligence be produced at the time when final order was passed by learned District Forum.
(3) That appellate authority require the document to pronounce order or for any other substantial cause.
6. We are of the opinion that applicant did not fulfill the above stated mandatory conditions and appeal could be disposed of properly and effectively without allowing the application. It is well settled law that additional evidence cannot be adduced at appellant stage to fulfill lacuna in the matter.
7. Submission of learned Advocate appearing on behalf of non-applicant that applicant intend to fill up lacuna in the appeal and on this ground application be dismissed is decided accordingly. It is well settled law that party could not be allowed to fill up lacuna at appellate stage. It is held that applicant intend to fill up lacuna in the appeal at appellate stage. It is held that it is not expedient in the ends of justice and on the principle of natural justice to allow the applicant to fill up lacuna at appellate stage. It is held that appeal 12 National Insurance Company Ltd. Versus Hira Nand Sharma (F.A. No.14/2018) could be disposed of property and effectively without allowing application for adducing additional evidence. Point No.1 is decided accordingly.
Point No.2: Final Order
8. In view of findings upon point No.1 above application for adducing additional evidence at appellate stage is dismissed. Observations shall not effect the merits of appeal in any manner. It be tagged with the main appeal after due completion. M.A. No.43/2018 is disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 16.11.2018 K.D * 13