State Consumer Disputes Redressal Commission
Ms. Suriti Tyagi. vs Tata Aig Insurance Co. Ltd. on 2 August, 2023
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA.
First Appeal No.: 96/2019
Date of Presentation: 20.06.2018.
Order reserved on: 21.07.2023
Date of Decision: 02.08.2023
....................................................................................................................
Shruti Tyagi Daughter of Shri Satish Tyagi, Sole Prop. M/s
Copia Beverages Bindravani, Tehsil Sadar, District Mandi,
H.P.
.......Appellant/Complainant.
Vs
Tata AIG Insurance Company Ltd. 2nd Floor SCO 232-234,
Sector 34-A, Chandigarh-1600229, Branch Office at Gutkar,
Village and P.O. Gutkar, Tehsil Sadar, District Mandi, H.P.
through its Branch Manager.
....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 Appellant: Mr. Rakesh Thakur, Advocate.
For the Respondent: Mr. Virender Sharma, Advocate.
.........................................................................................................
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Whether Reporters of the local papers may be allowed to see the order?
Shruti Tyagi v/s Tata AIG Insurance Company.
F.A.No.96/2019
Justice Inder Singh Mehta, President.
O R D E R:
Instant appeal is arising from order dated 27.02.2018 passed by learned District Commission, Mandi in consumer complaint No.134/2015, titled Shruti Tyagi Vs. Tata AIG Insurance Company Ltd.
Brief facts of Case:
2. Briefly, the case of the complainant is that complainant is the owner of a vehicle (Mahindra Bolero Pick Up Jeep) bearing registration No.HP-65-4188. The said vehicle was insured with the opposite party/Insurance company and the risk was covered from 13.04.2014 to 12.04.2015. IDV (Insured Declared Value) of the vehicle was Rs.5,08,250/-. The complainant employed one Shri Hukam Chand (now deceased) as a driver to drive the jeep.
On 26th November, 2014, the vehicle met with an accident on Mandi-Pandoh road. FIR No.279/2014, dated 26.11.2014 was registered in Police Station Sadar, Mandi PSI Kulwant Singh and as per FIR, driver was found dead and the vehicle was badly damaged. Information regarding the accident/loss was given to the opposite party/Insurance Company. A Surveyor of the opposite party/Insurance Company took photographs of the vehicle and assured for 2 Shruti Tyagi v/s Tata AIG Insurance Company. F.A.No.96/2019 early settlement of claim on total loss basis. The opposite party/Insurance Company repudiated the claim vide letter dated 15.05.2015 on the ground that ethyl alcohol was detected in the blood sample of the deceased driver. The claim has been wrongly, illegally and arbitrarily repudiated by the opposite party. Hence, this complaint.
3. The complaint was opposed by the opposite party/Insurance Company by filing a reply. It has been pleaded that after receiving intimation regarding the accident, Shri Rajinder Kumar Sharma, Surveyor was deputed to inspect the vehicle and assess the loss. Surveyor assessed the loss to the tune of Rs.4,57,750/- on net of salvage basis subject to the policy conditions. The driver died in the accident. Blood sample of the deceased driver was collected by the investigating officer of the case and sent to Regional Forensic Science Laboratory (RFSL), Central Range, Mandi for examination. As per the report of RFSL, quantity of ethyl alcohol in the blood sample of the deceased driver was found to be 159.98 mg%. Since the driver was driving the vehicle under the influence of liquor in breach of the policy conditions and provisions of the Motor Vehicles Act, 1988, the claim of the complainant was rightly 3 Shruti Tyagi v/s Tata AIG Insurance Company. F.A.No.96/2019 repudiated vide letter dated 30.06.2015. A prayer for dismissal of complaint was made.
4. In rejoinder, the complainant has reiterated the contents of complaint and refuted the objections put forth by the opposite party/Insurance company.
5. The parties led evidence and after hearing the counsel for the parties, learned District Commission dismissed the complaint of the complainant.
6. Feeling aggrieved by the order of learned District Commission, the appellant/complainant has filed the present appeal before this Commission.
7. We have heard learned counsel for the parties and have also gone through the record carefully.
8. Learned counsel of the appellant/complainant has submitted that the factum of drunkenness of the driver at the time of accident has not been proved on record. Therefore, the order passed by the learned District Commission below is bad in law and same is liable to be set aside. He has relied upon judgment of Hon'ble Apex Court in case titled (1) Bharat Watch Company through its Partner vs. National Insurance Company Ltd. through its Regional Manager, (2) 2019 STPL 4685 SC and (3) order 4 Shruti Tyagi v/s Tata AIG Insurance Company. F.A.No.96/2019 of this Commission titled Bhawna Gupta vs. United India Insurance Company Ltd., F.A.No.192/2019 dated 04.11.2020.
9. On the other hand learned counsel of the respondent/Insurance company has submitted that report of RFSL indicates that alcohol in the blood of the driver was found to be 159.98 mgs%. The order passed by the learned District Commission below does not require any interference and prays that the appeal of the appellant be dismissed. He has also relied upon judgment of Hon'ble High Court of Madhya Pradesh titled Smt. Gayatri Devi Vs. Sangram Singh decided on 30.10.2013.
FINDINGS:
10. The admitted fact which emerges on record is that the complainant is registered owner of vehicle No.HP- 65-4188 (Mahindra Bolero Pick Up Jeep). It is also an admitted fact that the vehicle in question was insured with the opposite party/Insurance Company w.e.f. 13.04.2014 to 12.04.2015 and IDV (Insured Declared Value) of the vehicle was Rs.5,08,250/-.
11. On 26th November, 2014, the vehicle met with an accident at Mandi-Pandoh road. FIR No.279/2014, dated 5 Shruti Tyagi v/s Tata AIG Insurance Company. F.A.No.96/2019 26.11.2014 was registered in Police Station Sadar, Mandi and information regarding accident was given to the opposite party/Insurance company. In the said accident, the driver expired, whereas, the vehicle was badly damaged.
12. The Insurance company repudiated the claim of the complainant solely on the ground that at the time of accident the driver of the vehicle namely Hukam Chand (now deceased) was driving the vehicle in drunken condition and as such violated the terms and conditions of the policy in question.
13. The complainant has refuted the allegation of insurance company in rejoinder that at the time of accident, the complainant/driver was driving the vehicle in drunken condition. Complainant never instructed the driver to ply the vehicle after consuming alcohol or drugs.
14. Relevant portion of para-5 of rejoinder to preliminary objection is reproduced as under:-
"5.....It is denied that the driver of the vehicle was under influence of alcohol as alleged. The policy condition mentioned in this para is not applicable in the facts of the present case. The driver was never instructed by owner to drive the vehicle under the influence of intoxicating 6 Shruti Tyagi v/s Tata AIG Insurance Company. F.A.No.96/2019 liquor or drug and thus knowledge and consent of vehicle owner cannot be blamed on him. No person who is a owner of the vehicle can have knowledge and give consent to his driver to drive the vehicle after taking liquor or drug as if any driver does so......"
15. Since the complainant has denied the allegations of driving the vehicle by her driver in drunken condition at the time of accident, the onus lies upon the Insurance company/respondent to prove the said fact.
16. The insurance company has placed on record the copy of post mortem report of deceased driver. The insurance company has not filed affidavit of the doctor who had conducted the medical examination/post mortem of driver to prove that he is author of the post mortem report and he sent the viscera of the deceased driver Hukam Chand to RFSL, Mandi.
17. As per the Insurance company, viscera of the deceased driver Hukam Chand was taken and sent for chemical analysis.
18. The onus to prove the factum that viscera of the deceased driver Hukam Chand sent for chemical analysis 7 Shruti Tyagi v/s Tata AIG Insurance Company. F.A.No.96/2019 was of the deceased driver only, lies upon the insurance company.
19. The insurance company has not placed on record the affidavit of the person who has taken said Viscera for chemical analysis indicating therein that same was not tampered and was of the deceased driver Hukam Chand only.
20. The insurance company/respondent has failed to produce the author or affidavit of author of aforesaid documents and mere saying that the deceased driver Hukam Chand was in a drunken condition at the time of accident, ipso-facto is not sufficient to discharge the onus of proof casts upon the insurance company.
21. In the instant case, neither the affidavit of doctor who has medically examined/conducted post mortem upon the deceased driver Hukam Chand nor the affidavit of chemical examiner who allegedly examined the Viscera of the deceased driver have been filed.
22. Even the affidavit of person who took the said viscera for chemical analysis to RFSL, Mandi has not been filed, who could have proved that Viscera was of the 8 Shruti Tyagi v/s Tata AIG Insurance Company. F.A.No.96/2019 deceased driver Hukam Chand only and said Viscera was not tampered with while taking from Malkhana to RFSL, Mandi. Affidavit of the Investigating officer, who has collected the blood samples for examination is also not filed Therefore, the respondent/Insurance Company has failed to discharge its onus.
23. Since the respondent/Insurance company has failed to prove the factum of driving the vehicle under the influence of liquor at the time of accident by deceased driver Hukam Chand, repudiation of claim of the complainant on the said ground is bad in law and such act on the part of the insurance company amounts to deficiency in service and unfair trade practice.
24. Judgments relied upon by the Insurance Company/opposite party are not applicable in the present case.
25. The appellant/Insurance company in its reply has specifically pleaded that after receipt of intimation about incident, Shri Rajender Kumar Sharma, surveyor-cum-Loss assessor was appointed to assess the loss, who assessed the loss to the tune of Rs.4,57,750/- (Rs.Four lacs fifty 9 Shruti Tyagi v/s Tata AIG Insurance Company. F.A.No.96/2019 seven thousand seven hundred fifty) on net of salvage basis.
26. The insurance company/respondent failed to pay the aforesaid amount to the complainant and repudiated the genuine claim of the complainant, which amounts to deficiency in service and unfair trade practice.
27. In view of the above discussion, appeal of the appellant/complainant is allowed and the impugned order dated 27.02.2018 passed by learned District Commission, Mandi is set aside.
28. The Opposite party/Insurance company is directed to pay a sum of Rs.4,57,750/- (Rs.Four lacs fifty seven thousand seven hundred fifty) to complainant, alongwith interest @ 9% per annum from the date of filing of complaint till realization of amount.
29. The opposite party/Insurance company is further directed to pay a sum of Rs.20,000/- (Rs.Twenty thousand) to complainant as compensation, alongwith litigation expenses of Rs.10,000/- (Rs.Ten thousand).
30. The opposite party/Insurance company is directed to comply the order within 45 days from the date of receipt of copy of this order.
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Shruti Tyagi v/s Tata AIG Insurance Company. F.A.No.96/2019
31. A copy of the order be sent to each of the parties and their counsel free of cost, as per Rules. Certified copy of this order be sent to learned District Commission below and file of State Commission be consigned to record room after due completion. Appeal is disposed of. Pending application(s), if any, also disposed of.
Justice Inder Singh Mehta President Sunita Sharma Member R.K.Verma Member Manoj 11