State Consumer Disputes Redressal Commission
Oriental Insurance Company vs Darshan Narula on 28 September, 2010
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Appeal against the order dated 02.07.2008 passed by District Forum, K.G. Marg, New Delhi in complaint case No. 1245/2006 ) Date of Decision : 28.09.2010 Appeal No. FA-08/992 Oriental Insurance Company Divisional Office-X, 15-16, Scindia House, K.G.Marg, New Delhi-01. .. Appellants/OP. VS Smt. Darshan Narula, w/o Late Shri Madan Narula, w/o 40/123, Cittranjan Park, New Delhi-19. ..Respondents/Complainant. CORAM Justice B.A. Zaidi, President M.L. Sahni, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
M.L. Sahni, Member(Judicial)
1. The Oriental Insurance Co. Ltd., have challenged the order dated 02.07.2008, passed by District Forum , K.G. Marg, New Delhi, directing the Appellant to pay Rs. 4,91,077/- to the Complainant/ Respondent, alongwith Rs. 1,00,000/- as compensation for mental agony , harassment and deficiency-in-service and also Rs. 10,000/- as cost of litigation.
2. Facts as alleged by the Respondent in his complaint case no. 1245/06, briefly stated, are that she insured her car No. DL-3C Y- 1234, for a sum of Rs. 5,90,000/- with the Appellant for the period from 24.10.2005 to 23.10.2006 . The car met with an accident on 12.12.2005 while it was being driven by her nephew Shri Amit Seth with a three-wheeler scooter which came from wrong side and suffered extensive damages. A police case was also registered with the concerned Police Station. An intimation regarding the loss was communicated to the Insurance Company and a surveyor was deputed by the Company to carry out the survey and asses the loss.
3. It is alleged that the Appellant wrongly and illegally repudiated the claim on the false ground that the driver of the said vehicle was driving the vehicle in a drunken state and prayed that the Appellant be directed to pay a sum of Rs. 4,91,077/- towards expenses incurred by the Respondent for getting the vehicle repaired, with interest @ 12% p.a. together with damages of RS. 50,000/-.
4. The Appellant contested the complaint, pleading that the driver of the vehicle was since found driving under the influence of liquor, while the car met with accident, as confirmed by the Doctor at the time of medical examination, the police also challaned him u/s 185 of Motor Vehicle Act, 1988 in addition to offences u/s 279 and 337 IPC. Since, the vehicle was being driven by the driver while he was under the influence of liquor in violation of provision of section 185 of Motor Vehicle Act as well as in contravention and breach of terms and conditions of the policy, the insurance claim was not payable under the policy and was rightly repudiated. They also stated that Shri Dinesh Kumar Aggarwal, Surveyor was deputed to carry-out the preliminary motor survey and thereafter M/s Raman Kumar and Co. was deputed to carry out the final survey and re-inspection of the vehicle to assess the loss and in the survey report dated 18.3.2006, the loss was assessed to the extent of Rs. 2,90,941/-. Since the insurance claim was not payable it was rightly repudiated.
5. We have heard the Ld. Counsel for the parties and examined the impugned order.
6. The Ld. District Forum observed after considering the material on record before, it , the case was initially registered against Shri Amit Seth as per FIR u/s 279 & 337 of IPC which offenses deal with endangering human life by Rash and negligent driving. While submitting the charge-sheet the police acted and added section 185 of Motor Vehicle Act to show the driver was drunk at the time of driving the vehicle. It is however, worthwhile to mention that the case is still pending in the Court and there is no judicial finding convicting Amit Seth u/s 185 of Motor Vehicle Act. There is absolutely no record much less the medical record to show that Amit Seth was driving in a drunken state. There is no medico legal report on the record. It is only conjectural on the part of the O.P. The complainant has himself mentioned that Amit Seth used to take wine only and had never touched hard liquor.
7. The Appellant have contested tha the onus was upon the Respondent to prove that the driver Amit Seth was wrongly challend by the Police under section 185, Motor Vehicles Act and that he was not under the influence of alcohol while driving the car at the time of accident ; that the Forum has ignored the admission on the part of the Respondent that Amit Seth used to take the wine only and have never touched hard liquor in drawing the inference that the driver Amit Seth at the time of accident was not under the influence of alcohol in the absence of any evidence produced and proved on record by the Respondent to establish that at the time of accident driver Amit Seth was not under the influence of liquor.
8. It is also submitted on behalf of the Appellant that the Forum without any cogent reason rejected the loss assessed by the Surveyor and awarded the repair charges as alleged by the Respondent, whom the compensation amount of Rs. 1,00,000/- has been awarded as against the prayer of Rs. 50,000/- with cost of litigation amounting to Rs. 10,000/- not even demanded by him.
9. We have thoughtfully considered the impugned order in the light of the grounds of appeal as briefly stated above.
10. We, find no merit in the contention of the Appellant that onus to prove that driver of the vehicle when it met with accident was not under influence of liquor, lay on the Respondent. It lies on the Appellant who alleged that driver was under
liquor , because, it is well settled legal position that the party who avers a fact has to prove the same. It is for the Appellant to advance cogent evidence to prove that Shri Amit Seth was under the influence of liquor when the vehicle met with accident. They did not do so and rather shifted the burden on the Insured, while rejecting the claim of the Respondent. Thus they have been rightly held guilty of deficiency-in-service, for repudiating the claim of the Respondent without any just cause, despite the fact that their own surveyor had assessed the loss at Rs. 2,19,947.17 paise.
11. However, we find the impugned order as totally un-realistic in awarding Insurance claim of Rs. 4,91,071/-, when the Insurance value of the vehicle was Rs. 5,90,000/- only. It is not a case of total loss and if repair charges for such a vehicle as allegedly paid by the Respondent is believed , it tantamount to approximately total loss case. Thus, the Ld. District Forum has not given any reason as to why the Surveyors report should not be relied upon and what persuaded the District Forum to award compensation of Rs. 1,00,000/- plus Rs. 10,000/- as cost of litigation, especially , when the Respondent himself asked for a sum of Rs. 50,000/- only. To this extent, the Ld. Forum has gone totally over board.
12. We, therefore, feel constrained to hold that the impugned order is liable to be modified to this extent.
13. Hence, partly allowing the appeal, we modify the impugned order to the extent that the Appellant should pay to the Respondent a sum of Rs. 2,90,941/- as admitted by the Appellant themselves with interest @ 9% p.a. w.e.f. the date of repudiation of the claim till realization. No separate order for compensation or cost of litigation is needed because, award of interest shall amply take care of the same.
14. Appeal is disposed off in above terms .
15. FDR, if any , deposited by the appellant be released after completing due formalities.
16. Copy of order be provided to the parties free of cost and one copy be sent to the concerned District Forum and thereafter file be consigned to record room.
(Justice B.A. Zaidi) President (M.L. Sahni) Member sk