State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. vs Sh. Vidya Bhushan. on 26 August, 2021
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 250/2019
Date of Presentation: 16.07.2019
Order Reserved on : 11.08.2021
Date of Order : 26.08.2021
......
United India Insurance Company Ltd., through its Branch
Manager, Roy Building, near Petrol Pump, NH-22 Khaneri,
Rampur Bushahar, District Shimla (H.P).
...... Appellant/Opposite Party
Versus
Vidya Bhushan son of Shri Surender Kumar R/o Village and Post
Office Pangi, Tehsil Kalpa, District Kinnaur (H.P).
......Respondent/Complainant
Coram
Hon'ble Ms. Sunita Sharma, Presiding Member
Hon'ble Mr. R.K. Verma, Judicial Member
Whether approved for reporting?1
For Appellant : Mr. Vivek Negi, Advocate.
For Respondent: Ms. Mamta vice Mr. B.N. Sharma,
Advocate.
Mr. R.K. Verma, Judicial Member :
O R D E R :-
This appeal has been preferred under section 15 of the Consumer protection Act,1986 (hereinafter called as the Act) against order dated 29.05.2019 passed by District Consumer Disputes Redressal Forum, Kinnaur at Rekong Peo, whereby complaint filed by the complainant under section 12 of the Act was partly allowed and the Opposite 1 Whether reporters of the local papers may be allowed to see the order?
United India Insurance Co. Ltd. Versus Vidya Bhushan F.A. No.250/2019 Party was directed to make payment of Rs.3,37,938/- along with interest @ of 9% p.a. from the date of filing complaint till payment. The Opposite Party was further directed to pay a sum of Rs.10,000/- towards mental harassment etc. and Rs.5000/- as litigation charges.
2. It would be apposite to mention here that the parties will be referred, as have been arrayed before the District Forum.
3. Brief facts, as averred in the complaint, are that the complainant is registered owner of vehicle No.HP-25B- 1299, which was insured with the opposite party for the period from 18.04.2013 to 17.04.2014. The said vehicle met with an accident on 11.08.2013 at 11.30 PM at HHC Power House, Kasang, District Kinnaur, H.P. The matter was reported to the police, upon which FIR was registered in P.S, Reckong Peo. Intimation about this accident was also given to the opposite party. In this accident the vehicle of the complainant was extensively damaged and the driver of the vehicle had also received fatal injuries and died on the spot. The opposite party appointed surveyor, who assessed the loss at Rs.3,39,438/-. After completion of all codal formalities, the complainant submitted his claim to the opposite party but the opposite party wrongly and illegally repudiated the claim of the complainant on the ground that at the time of the 2 United India Insurance Co. Ltd. Versus Vidya Bhushan F.A. No.250/2019 accident the vehicle in question was being driven by the driver under the influence of liquor.
4. The opposite party resisted and contested the claim of the complainant by filing its written version, in which various preliminary objections against the maintainability of the complaint have been taken. On merits, the opposite party has not disputed that the vehicle in question was insured with it and that the same met with an accident during the period the insurance policy was in force. It is also not disputed that the claim of the complainant was repudiated by it on the ground that at the time of the accident, the driver of the vehicle had consumer alcohol. However, the OP has denied that the claim of the complainant has been repudiated wrongly and illegally but pleaded that the vehicle in question was being driven in violation of the terms and conditions of the policy. Hence, the OP is not liable to pay any compensation to the complainant.
5. The complainant has filed rejoinder in which the stand of the OP was controverted and the allegations made in the complaint were reiterated.
6. The parties have led oral as well as documentary evidence in support of their respective cases. The consumer Fora below after hearing the parties partly allowed the complaint as aforesaid.
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United India Insurance Co. Ltd. Versus Vidya Bhushan F.A. No.250/2019
7. Feeling aggrieved by the impugned order dated 29.05.2019 passed by the learned District Forum, the opposite party has filed the instant appeal on the ground that the learned District Forum while passing the impugned order has failed to appreciate the pleas set up and evidence led on behalf of the opposite party in true prospective and as such the same is not sustainable and deserves to be set aside.
8. We have heard Sh. Vivek Negi, Advocate counsel for the opposite party and Ms. Mamta Bhatwan, Advocate, vice counsel for the complainant and also carefully gone through the record of the case.
9. The learned counsel for the appellant/opposite party while assailing the impugned order dated 29.05.2019 passed by the Fora below has vehemently argued that the same is not based upon correct appreciation of facts and law. According to him, the opposite party after due verification and application of its mind, repudiated the claim of the complainant vide letter dated 08.07.2014, Annexure OP-9 on the ground that at the time of this accident, the driver of the vehicle was driving the same under the influence of liquor, which was in violation of the terms and conditions of the policy. As per the report of postmortem report, Annexure OP- 3, 111.77 mg% alcohol was found in the blood sample of the deceased driver Sh. Hem Raj, which shows that at the time of this accident he was driving the vehicle under the influence of 4 United India Insurance Co. Ltd. Versus Vidya Bhushan F.A. No.250/2019 liquor. The factum regarding the consumption of liquor by the driver stands duly proved on record by the final report, Annexure OP-2 and postmortem report, Annexure OP-3 produced by the opposite party but the learned District Forum did not appreciate the evidence led by the opposite party in its right perspective and came to the wrong conclusion that the ground of repudiation was not legal and valid.
10. Per contra, the learned counsel for the complainant has supported the impugned order and vehemently argued that the same is based upon proper appreciation of facts and law and as such the same calls for no interference by this commission.
11. The opposite party has repudiated the claim of the complainant on the sole ground that 111.77%mg was found in the blood sample of driver Sh. Hem Raj and as such he was driving the vehicle under the influence of liquor. To prove this fact, the OP has relied upon Annexure OP-2, which is report submitted by the police under in the court of District & Sessions Judge, Kinnaur at Rampur (MACT) under the provisions of Motor Vehicles Act, 1988 and postmortem report, Annexure OP-3. In the impugned order, the learned District Forum has wrongly treated this report as final report filed by the police under section 173 of the Code of Criminal Procedure. The OP has also relied upon postmortem report, 5 United India Insurance Co. Ltd. Versus Vidya Bhushan F.A. No.250/2019 Annexure OP-3 of deceased driver Sh.Hem Raj. In both of these documents, it has been mentioned that as per Chemical Examiner Report 111.77% alcohol was found in the blood sample of Sh. Hem Raj, driver. However, the OP has not filed the affidavit of the SHO, who had received the report of the Chemical examiner and sent accident information report to MACT under section 158(6) of Motor Vehicles Act, 1988. Similarly, the affidavit of the doctor, who had conducted the postmortem on the dead body of the aforesaid deceased driver and preserved his blood sample has not been filed. The OP has also not produced the report of the Chemical Examiner, which forms the very basis of opinion recorded by the doctor on the postmortem report and his accident information report prepared by the SHO. Thus, both of these documents cannot be relied upon to hold that at the time of this accident, the driver of the vehicle was under the influence of liquor. In addition to this, the OP has not produced any other evidence to show that at the time of the accident the driver was driving the vehicle under the influence of liquor.
12. For the foregoing reasons, we hold that the opposite party has failed to prove that at the time of this accident the driver of the vehicle was driving the vehicle under the influence of liquor. In view of this no fault can be found in the impugned order passed by the Fora below negating the stand of the opposite party and allowing the complaint filed by 6 United India Insurance Co. Ltd. Versus Vidya Bhushan F.A. No.250/2019 the complainant partly. Accordingly, this appeals sans merit and deserves to be dismissed and is accordingly dismissed. Point No.2: Final Order
13. In view of findings upon point No.1 above, appeal is dismissed. Parties are left to bear their own litigation costs before State Commission. Certified copy of order be sent to learned District Commission for information forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Sunita Sharma Presiding Member R.K. Verma Judicial Member 26.08.2021 7