State Consumer Disputes Redressal Commission
Smt. Nirmla Devi. & Ors. vs New India Assurance Co. Ltd. on 5 January, 2023
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA.
First Appeal No: 48/2021
Date of Presentation: 30.09.2021
Order Reserved on : 14.12.2022
Date of Order : 05.01.2023
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1. Smt. Nirmla Devi wife of late Shri Som Dev.
2. Shri Roshan Lal son of late Shri Som Dev.
3. Smt. Usha Devi daughter of late Shri Som Dev.
4. Smt. Fimu wife of Shri Nant Ram and mother of late
Shri Som Dev,
All R/O Village Narla, P.O. Kunnu, Tehsil Padhar,
District Mandi, HP.
........ Appellants/Complainants
Versus
The New India Assurance Company Ltd. Divisional Office,
Hospital Road, Mandi, HP-175001 through its Divisional
Officer.
........Respondent/Opposite party
Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Ms. Sunita Sharma, Member
Hon'ble Mr. R.K. Verma, Member
Whether approved for reporting?1 Yes
For the Appellants: Mr.H.S. Rangra, Advocate.
For Respondent: Mr. Jagdish Thakur, Advocate.
1
Whether reporters of the local papers may be allowed to see the order?
Smt.Nirmla Devi & Ors. Versus New India Assurance Co. Ltd.
(F.A. No.48/2021)
Justice Inder Singh Mehta, President
ORDER
Instant appeal is arising out of the order dated 21.08.2021 passed by Learned District Consumer Forum, Mandi in Consumer Complaint No.03/2021 titled Smt. Nirmla Devi & Ors. Versus New India Assurance Company Ltd.
Brief facts of Case:
2. Briefly, the case of the complainant is that late Shri Som Dev (predecessor-in-interest of the complainants) was the owner of a Tata Nano car bearing registration No.HP-76-4064. The said vehicle was insured with the opposite party/Insurance company. Compulsory personal accident cover for owner-cum-driver of the vehicle to the tune of ₹15,00,000/- was also given by the opposite party. On 30th October, 2019 Shri Som Dev died in a car accident while returning home. Accident occurred due to rash and negligent driving of Shri Dinesh Kumar, the driver of truck No.HP-69A-7545. The vehicle was got repaired by complainants by expending ₹1,15,000/-. Information regarding the occurrence was given to the opposite party/Insurance company and relevant documents were 2 Smt.Nirmla Devi & Ors. Versus New India Assurance Co. Ltd.
(F.A. No.48/2021) supplied. Genuine claim was rejected by the opposite party/insurance company vide letter dated 16.10.2020 on the ground that Shri Som Dev (deceased) was driving the vehicle after consuming alcohol. Viscera and blood samples of the deceased remained unsafe and un-attended while being in the Police Station. Possibility of tampering with the samples cannot be ruled out.
3. The opposite party/Insurance company filed reply. It is not disputed that car belonged to late Shri Som Dev was insured with the answering opposite party. It met with an accident during the period of insurance policy. The owner-cum-driver of the vehicle died in the accident. After receiving intimation regarding the accident, Shri Vishal Kumar Gautam, Surveyor-cum-Loss Assessor, was deputed to inspect the damaged vehicle and assess the loss. The surveyor assessed the loss to the tune of ₹57,848/- on repair basis subject to the policy terms and conditions. Post- mortem was conducted on the body of Shri Som Dev (deceased) in Zonal Hospital, Mandi and his viscera etc. were preserved and sent for chemical test to RFSL, Mandi. Report of the laboratory shows that 236.75 3 Smt.Nirmla Devi & Ors. Versus New India Assurance Co. Ltd.
(F.A. No.48/2021) mg% ethyl alcohol was detected in the blood sample of the deceased owner-cum-driver Shri Som Dev. The complainants are not entitled to the money claimed.
4. No rejoinder was filed.
5. Thereafter, the parties led their evidence in support of their respective pleadings.
6. After hearing the parties, learned District Commission dismissed the complaint of the complainant.
7. Feeling aggrieved by the order of the Ld. District Commission, the appellant/complainant has preferred the instant appeal before this Commission.
8. We have heard learned counsel appearing on behalf of the parties and have also gone through the record carefully.
9. Learned counsel of the appellants has submitted that the complaint of the complainant has been dismissed on the ground that the driver of the vehicle in question was in drunkard condition, whereas, there is no evidence to prove on record that the driver was in drunkard condition and the findings given by the learned District Commission below is bad in law and same is liable to be set aside.
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Smt.Nirmla Devi & Ors. Versus New India Assurance Co. Ltd.
(F.A. No.48/2021)
10. On the other hand, learned counsel of the respondent has submitted that the autopsy report is Annexure OP-4 which clearly shows that the driver was under the influence of liquor and the contents of the alcohol were to the extent of 236.75 mg% in his blood vide report Annexure OP-5. He further submitted that the autopsy report issued by the Medical Officer has not been rebutted and proved on record. The closure report filed by the concerned SHO of Police Station also finds mention that the driver was in a drunkard condition and has also relied upon case titled as IFFCO Tokio General Insurance Company Ltd. vs. Pearl Beverages Ltd., AIR 2021 Supreme Court 2277 and First Appeal No.14/2018 titled as National Insurance Company Ltd. vs. Hira Nand Sharma decided on 16.11.2018 passed by this Commission.
11. In rebuttal learned counsel of the appellant has submitted that whatever the documents as alleged by the respondent have not been proved by the respondent as per law.
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Smt.Nirmla Devi & Ors. Versus New India Assurance Co. Ltd.
(F.A. No.48/2021) FINDING
12. The whole question hinges around whether the insured, driver at the time of accident, was under
the influence of liquor?
13. The onus lies upon the appellant/opposite party The New India Assurance Company Ltd., to prove that the driver at the time of accident was under the influence of liquor.
14. The complainant has placed on record copies of documents i.e. copies of Malkhana register (appearing at page No.39 to 41 of the record of learned Forum below). Its perusal indicates that there are no entries regarding deposit of case property of FIR No.119/2019. So in our opinion possibility of tempering with the viscera and blood sample of the deceased cannot be ruled out.
15. There is no primary evidence examined by the appellant/opposite party No.2 i.e. the doctor who conducted the post mortem on the person of the deceased, the official who took the blood sample to the Forensic Science Laboratory, Mandi without tampering, the police official who deposited the viscera as well as blood sample to the police Malkhana and the officers 6 Smt.Nirmla Devi & Ors. Versus New India Assurance Co. Ltd.
(F.A. No.48/2021) who analyzed and prepared the FSL report to show that the parcel received by them was without tampering. Mere Simpliciter filing of the FSL report is not sufficient to reject the claim of the complainant in this regard.
16. Further as per the FSL report, traces of ethyl alcohol were not found/detected in preservative parcel P/3.
17. There is not even a single whisper in the FSL report as to whether any urine of the deceased was sent for chemical examination.
18. Since as per FSL report, no urine sample was taken, therefore, it cannot be said that the deceased was under the influence of liquor resulting into FSL report to be inconclusive.
19. The authority relied upon by the counsel of the appellant is not helpful to the appellant as the facts and circumstances of the present case are quite distinguishable to the facts of the ibid case law.
20. In view of the discussion made hereinabove, the appeal is allowed. Consequently, the order passed by the learned Forum below is set-aside.
21. Accordingly, the complaint is partly allowed with costs of `50,000/-. The appellant/opposite party is 7 Smt.Nirmla Devi & Ors. Versus New India Assurance Co. Ltd.
(F.A. No.48/2021) directed to pay PA claim of Rs.15.00 lacs as well as own damage claim of Rs.57,848/-as assessed by the surveyor of the opposite party to the complainant along with interest @ 9% per annum from the date of filing of the complaint, till its realization.
22. Certified copy of order be sent to the parties and their counsel(s) strictly as per rules. File of District Commission along with certified copy of order be sent back and file of State Commission be consigned to record room after due completion. Appeal is disposed of. Pending applications, if any, also disposed of.
Justice Inder Singh Mehta President Sunita Sharma Member R.K. Verma Member 05.01.2023 Pkw 8