State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Smt. Gumta. & Anr. on 15 July, 2022
H. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
SHIMLA
First Appeal No. : 158/2019
Date of Presentation : 20.04.2019
Order Reserved on : 15.06.2022
Date of Order : 15.07.2022
......
The New India Assurance Company Limited, Mandi, HP through its
Senior Divisional Manager, New India Assurance Company Limited,
Divisional Office, 3rd Floor, Block No.7, SDA Complex, Kasumpti,
Shimla-9, H.P.
......Appellant/Opposite part No.2
Versus
1. Smt. Gumta w/o late Sh. Taritar Kumar, Resident of Village
Chandpur,Post Office Kandha, Tehsil Chachiyot, District Mandi, HP
..........Respondent No.1/complainant
2. Corporation Bank No. 163, Ground Floor, Ram Nagar, Mandi
Town, District Mandi, HP
......Respondent No.2/Opposite party No.1.
Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Ms. Sunita Sharma, Member
Whether approved for reporting?1 Yes
For the Appellant: Mr. Jagdish Thakur, Advocate.
For Respondent No.1: Mr. Devinder K. Sharma, Advocate.
For Respondent No.2: Exparte
Justice Inder Singh Mehta, President
ORDER
Instant appeal is arising from order dated 19.03.2019 passed by learned District Forum Mandi, in Consumer Complaint 1 Whether reporters of the local papers may be allowed to see the order? New India Assurance Company versus Smt.Gumta and another (F.A No.158/2019) No.260/2017 titled Smt. Gumta versus Corporation Bank and another.
Brief facts of Case:
2. Briefly, the case of the complainant is that, her husband Sh. Taritar Kumar was having a saving bank account with opposite party No.1. He was insured for a sum of Rs.2,00,000/- under Pradhan Mantri Suraksha Bima Yojna (PMBSY) after payment of premium. Insurance was valid w.e.f 08.05.2015 to 07.05.2016. During the subsistence of the insurance policy, on 23.09.2015, he suffered injuries due to fall from his motor cycle. The insured was rushed to the hospital but on 24.09.2015, he succumbed to the injuries sustained by him. The complainant being nominee lodged the claim before the opposite parties, but the same was declined. She has been harassed. The opposite parties indulged in unfair trade practice and are deficient in providing the service.
3. The complaint was contested by the opposite parties by filing a joint reply. It is admitted that the husband of the complainant was insured under the policy in question and that during the subsistence of the policy, he died in an accident. It is contended that the insured, who was owner-cum-driver of motor cycle No.HP-32B- 1796 was driving the same under the influence of liquor at the time of mishap. The urine and blood samples were also preserved. Quantity of ethyl alcohol in the blood of the deceased was found 2 New India Assurance Company versus Smt.Gumta and another (F.A No.158/2019) 163.92mg%. Liability of insurance company is contractual. There is fundamental breach of the terms and conditions of the insurance policy. The complainant is not entitled to the money claimed. Therefore, the claim has rightly been repudiated. 4 A rejoinder denying the contents of the reply and reiterating those of the complaint was filed. Both the parties had adduced their respective evidence.
5. After hearing learned counsel for both the parties, the learned District Forum, below allowed the complaint of the complainant.
6. Feeling aggrieved by the order of the Ld. District Forum, the appellant/opposite party No.2 has filed the present appeal before this Commission.
7. We have heard learned counsel for the parties and have also perused the entire record carefully.
8. Learned counsel of the appellant has submitted that whole dispute in the present appeal arises whether deceased at the time of accident was under the influence of liquor. He further submitted that as per FSL report, deceased had consumed 163.92 mg% of alcohol prior to meeting with the accident and further submitted that since deceased was under the influence of alcohol, the insurance company is not liable to make payment of the insurance amount. He further submitted that FSL report is public document and has been issued by the public authority while discharging public duty and it is 3 New India Assurance Company versus Smt.Gumta and another (F.A No.158/2019) per se admissible under section 293 of Cr.P.C and upon the judgments as mentioned in the list filed.
09. On the other hand, learned counsel for the respondent No.1 submitted that District Forum below has rightly passed the order in favour of the respondent No.1 and relied upon the Rules for the Pradhan Mantri Suraksha Bima Yojna. He further submitted that as far as FSL report is concerned, same has not been proved in accordance with law FINDINGS
10. The whole question hinges around whether the insured, owner-cum-driver of the motor cycle, at the time of accident, was under the influence of liquor?
11. The onus lies upon the appellant/opposite party No.2 The New India Assurance Company Ltd., to prove that the driver- cum-owner of the motor cycle at the time of accident was under
the influence of liquor.
12. 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 who analyzed and prepared the FSL report to show that the parcel received by 4 New India Assurance Company versus Smt.Gumta and another (F.A No.158/2019) them was without tampering. Mere Simpliciter filing of the FSL report is not sufficient to reject the claim of the complainant in this regard.
13. The opinion given in the post mortem report Annexure C-3 is that the deceased had died due to blunt trauma abdomen leading to septicemia shock and both, whereas it does not show the factum of awaiting opinion from Forensic Science Laboratory, Mandi.
14. The authorities relied upon by the counsel of the appellant are not helpful to the appellant in the present facts and circumstances of the case.
15. We have gone through the order passed by the learned Forum below which is well reasoned and does not call for any interference by this Commission. Therefore, the same is upheld. The appeal of the appellant fails. No order as to costs.
16. Certified copy of this order be sent to District Forum below and file of State Commission be consigned to record room after due completion. Certified copy of order be sent to the parties and their counsel(s) strictly as per rules. Pending applications, if any, also disposed of.
Justice Inder Singh Mehta President Sunita Sharma Member 15.07.2022 pkw 5