State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Himanshu Sharma on 7 March, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Appeal No.FA/12/431
Instituted on : 22.08.2012
Himanshu Sharma, S/o Shri V.K. Sharma,
R/o : Bramhan Para, Ward No.33,
Tehsil & District - Rajnandgaon (C.G.) ... Appellant.
Vs.
National Insurance Company Limited,
Through : Branch Manager,
Branch ‐ Rajnandgaon, Kamthi Line,
District ‐ Rajnandgaon (C.G.) ... Respondent.
Appeal No.FA/12/499
Instituted on : 14.09.2012
National Insurance Company Limited,
Branch Manager, Branch Office,
Kamthi Line, Rajnandgaon (C.G.)
Through : It's Divisional Manager, Divisional Office,
Second Floor, Mobin Mahal, G.E. Road, Raipur,
Tehsil & District - Raipur (C.G.) ... Appellant.
Vs.
Himanshu Sharma, S/o Shri V.K. Sharma,
R/o : Bramhan Para, Ward No.33, Rajnandgaon,
Tehsil & District - Rajnandgaon (C.G.) ... Respondent.
PRESENT: ‐
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SMT. VEENA MISRA, MEMBER HON'BLE SHRI V.K. PATIL, MEMBER COUNSEL FOR THE PARTIES IN BOTH THE APPEALS :
// {PAGE } // Shri Sanjay Tiwari, for complainant /Shri Himanshu Sharma. Shri V.K. Bajpai, for O.P./National Insurance Company Limited.
ORAL ORDER Dated : 07.03.2013 PER: ‐ HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This order will govern disposal of Appeal No.FA/12/431, as well as Appeal No.FA/12/499, which have been respectively filed by the complainant and O.P. of Complaint Case No.16/2012, decided by District Consumer Disputes Redressal Forum, Rajnandgaon (C.G.) (hereinafter called "District Forum" for short), vide order dated 25.07.2012 directing the O.P./Insurance Company to pay Rs.54,000/‐ to the complainant towards compensation for loss to the insured vehicle, along with interest @ 6% p.a. w.e.f. the date of filing of the complaint till date of payment and also to pay Rs.2,000/‐ as cost of litigation within a period of two months from the date of order. It has further been directed that if the amount is not paid within period of two months from the date of order, then it will carry interest @ 9% p.a. at the place of 6% p.a. Both parties felt aggrieved by the impugned order and have filed these appeals before us.
2. The grievance of the complainant is that the amount awarded by the District Forum, is much less than the amount, which was spent // {PAGE } // by him on repair of the insured vehicle, and therefore a prayer for enhancement of amount of award has been made by the complainant in the appeal preferred by him, whereas the ground of appeal for O.P./Insurance Company is that O.P. / Insurance Company, was not liable to pay any amount to the complainant/insured, in view of the fact that driver of the insured vehicle was driving the vehicle at the relevant time under influence of liquor and was not having any control over his faculties, which resulted in accident, which amounts violation of terms of the insurance policy. For the purpose of convenience, hereinafter in this order, the parties will be referred as per their original nomenclature in the complaint case. The original of this order be retained in the file of Appeal No.FA/12/431 and it's copy be placed in the file of Appeal No.FA/12/499.
3. The facts of the case in brief are that vehicle bearing registration No.C.G.08‐5113, is of the registered ownership of the complainant and was insured by the O.P. / Insurance Company for the period between 10.05.2010 to 09.05.2011. On 22.09.2010, the said vehicle suffered road accident and was damaged. A claim was preferred before the O.P. / Insurance Company, which was repudiated by it on the ground that as per the investigation conducted by the Investigator, and the Report of // {PAGE } // the Surveyor, the driver of the insured vehicle was driving the vehicle under the influence of liquor and was also facing prosecution before a Criminal Court and therefore, the O.P. / Insurance Company, cannot be held liable to pay any compensation to the complainant, who permitted the driver to drive the vehicle in such condition.
4. Learned District Forum did not agree with the defence taken by the O.P. / Insurance Company and allowed the claim of the complainant on the basis of Report of the Surveyor.
5. We have heard arguments advanced by both parties and perused the record of the District Forum.
6. Learned counsel for the O.P. / Insurance Company has submitted that as per the papers, which were received from the Police Station, it was found by the Police during the investigation that the driver of the insured vehicle, was under the influence of liquor, which resulted in accident and that is why a criminal case was registered against him by the Police. In this regard he has drawn our attention toward papers, which were filed before the District Forum in respect of charge sheet filed by the Police under Section 185 of the Motor // {PAGE } // Vehicles Act, 1988 before Chief Judicial Magistrate, Rajnandgaon (C.G.) against the driver of the insured vehicle, Shri Uttam Verma.
7. We have very anxiously gone through these papers and other material, which were brought on record before the District Forum, but from the entire material, we fail to take note of any fact on the basis of which it can be concluded that driver of the insured vehicle, Shri Uttam Verma, was driving the vehicle at the relevant time under the influence of liquor and was fully intoxicated. It is just possible that driver might have consumed some alcohol, but it never means that he has become intoxicated under the influence of liquor and lost his control over his faculties. Merely breathing test of the driver was taken, which confirmed smell of alcohol, but there is no medical evidence to show that he was intoxicated and was unable to have control over his faculties. Medical Report does not prove the effect that he had consumed particular quantity of liquor and can be said a person under intoxication. Medical report of the driver Shri Uttam Verma, has been filed before the District Forum. The photocopy of MLC report of Shri Uttam Verma also merely says that he had suffered an injury on his left cheek, and had consumed alcohol, but there is no positive finding in the medical report that he was intoxicated. Any // {PAGE } // affidavit of the Doctor, who had given medical report, has also not been filed before the District Forum. Thus, best evidence was not available and therefore, the District Forum, has not committed any mistake in arriving the conclusion that there is no evidence to prove that driver of the insured vehicle, was under intoxication while driving the vehicle.
8. On the basis of aforesaid discussions, it cannot be held that driver of the insured vehicle, was intoxicated and the complainant committed any criminal act or any breach of any policy condition. In fact policy document does not contain any such condition, under which it can be said that the O.P. / Insurance Company, will not be having any liability in case anybody drives the vehicle merely consuming liquor.
9. The ground of appeal of the complainant was that complainant had to spend a lot of money on repairing of the insured vehicle, but the District Forum has not properly taken into consideration the documents, which were filed by him before it and has merely acted upon the Report of the Surveyor.
// {PAGE } //
10. We find that Report of the Surveyor, has been brought on record by the O.P. / Insurance Company as document No.28. The Surveyor Shri Ravinder Bagga, has minutely taken into consideration all damages to the insured vehicle. He has also taken into consideration the depreciated value of the damaged parts of the vehicle and after deducting the amount of depreciation, as per terms of the insurance policy, has recommended for payment of compensation to the complainant. There appears no infirmity in the finding of the District Forum in acting upon the report of the Surveyor. The finding of the District Forum, does not appear perverse, illegal or infirm. So far as quantum of award is concerned, there appears hardly any scope to interfere.
11. However so far as direction of the District Forum, in respect of payment of penal interest on the amount of award, in case of failure of O.P. / Insurance Company to pay the same to the complainant within a period of two month from the date of order of the District Forum, is concerned, that condition will be applied from the date of order of this Commission and if now the O.P. / Insurance Company, will pay the amount of award within two months from today, then it will not be liable to pay penal interest.
// {PAGE } //
12. In view of aforesaid discussion, the appeal of O.P./Insurance Company is allowed in part and the order of District Forum is modified only in respect of direction of payment of penal interest. The appeal of complainant fails and is dismissed. No order as to cost of these appeals.
(Justice S.C.Vyas) (Smt.Veena Misra) (V.K. Patil)
President Member Member
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