Appeal No.649/05

National Insurance Company V. Pushpa Rani

Before:



Mr.Justice Sunil Kumar Garg-President

Mrs.Vimla Sethiya-Member



Shri Sanjeev Arora,counsel for the appellant

Shri Pramod Khanna,counsel for the respondent




Date of Judgement: 20.7.09



BY THE STATE COMMISSION


This appeal has been filed by the appellant insurance company against the order dated 14.3.05passed by the District Forum,Nagaur in complaint case no.95/04, by which the complaint of the complainant respondent was allowed against the appellant insurance company in the manner that the appellant insurance company was directed to pay Rs.1,75,000/- with interest @ 9% p.a from the date of filing of the claim within two months and further to pay Rs.3000/- as amount of compensation for mental agony.


It arises in the following circumstances:


That the complainant respondent had filed a complaint against the appellant insurance company before the District Forum,Nagaur on 27.8.04 interalia stating that his Indica car bearing registration no.RJ.07 C 5070, was got insured with the

2


appellant insurance company for the period 26.4.01 to 25.4.02 for Rs.3,18,000/-. It was further stated in the complaint that on 1.8.01 the car had met with an accident on the national high way no.11 just before Beneser bus stand and at the time of accident,the driver of the car was Swroop Singh and the car had dashed against a tree as a result of which the car was damaged and a report of the incident was lodged with the police station,Dungargarh of District Bikaner bearing FIR no.230 dated 2.8.01 and information was also given by the complainant respondent to the office of the appellant insurance company. It was further stated in the complaint that the surveyor, Shri Subodh Sobat in his report dated 11.12.01 had found the case of total loss, but as per the case of the complainant respondent had estimated the loss to the tune of Rs.3,18,000/-. It was further stated in the complaint that the claim was repudiated by the appellant insurance company through letter dated 28.3.02 in the following manner:


“With reference to the above claim file it was observed that you had hide the drivers' particulars,actual facts in claim form. The matter was investigated & according to investigation report,the driver Mr.Swaroop Singh,who was driving the above vehicle at the time of accident was under influence of liquir,which is breach of our policy condition. Therefore,our competent authority decide to repudiate your above claim. This is for your information.”

Thereafter the present complaint was filed.


A reply was filed by the appellant insurance company before the District Forum on 18.10.04 and in the reply the appellant insurance company had taken the same pleas which were taken by the appellant insurance company in the repudiation letter dated 28.3.02 and it was further stated in the reply that the surveyor had assessed a sum of Rs.1,75,000/- only on net loss basis and thus the

3


case of the complainant respondent that he had suffered the loss to the tune of Rs.3,18,000/- was a wrong one and it was prayed that the complaint be dismissed.


The District Forum after hearing both the parties,through the impugned order dated 14.3.05 had allowed the complaint interalia holding that the appellant insurance company had failed to prove the fact that at the time of accident,the driver of the complainant respondent was under intoxication and thus repudiation of the claim was not justified and the amount as assessed by the investigator was ordered to be paid by the appellant insurance company to the complainant respondent.


Aggrieved from that order,this appeal has been filed by the appellant insurance company.


In this appeal,the main contention of the learned counsel for the appellant insurance company is that since a challan for the offence u/s 279 & 304 A IPC had been filed against the driver Swroop Singh of the complainant,therefore,the fact that he was under intoxication was found to be established and further the manner in which the accident was caused clearly reveals that it could not have taken place until and unless the driver was under intoxication,therefore,on ground of intoxication the claim was rightly repudiated and thus the findings recorded by the District Forum are erroneous one and be quashed and set aside and appeal be allowed.


On the other hand,the learned counsel for the complainant respondent has supported the impugned order.


We have heard the learned counsel for the parties and perused the record.

4

In this case,there is no dispute on the point that at the time of accident,the driver of the vehicle of the complainant respondent was Swroop Singh and on record there is no medical evidence to support the fact that the driver Swroop Singh at the time of accident was under intoxication.


No doubt,the matter was investigated by the police and police had submitted the challan against Swroop Singh for committing offence u/s 279 & 304 A, but no challan was filed for any offences pertaining to intoxication under the provisions of S.181 of M.V.Act.


Merely because during investigation some statements u/s 161 Cr.PC of Jagdish and Ramlal were recorded and in that they were stated that the driver of the complainant respondent, Swroop Singh had consumed liquir, but that would not be a sufficient proof that the driver of the complainant respondent was under intoxication at the time of accident.


In this case,even the fact that there was smell of alcohol in the blood of the driver,Swroop Singh is also missing. It may be stated here that there is distinction between a person having consumed liquor or being under the influence of liquor,drug or narcotic. Onus is always on the insurance company to prove that the accident had taken place solely on account of deceased being under the influence of intoxicating liquor or drug or narcotic while driving the vehicle.Merely because a person has consumed liquor does not mean that he was under the influence of liquor resulting in loss of power of reasoning of reflexes unless one suffers from this element he cannot be accused of being under the influence of liquor. The words 'under the influence' are of great significance and that is why there are some permissible limits under the law which do not deem a person under the influence of liquor.

5

Apart from that in order to succeed on the plea of driving by a drunken person,the insurer must prove by chemical test that the driver had in his blood alcohol exceeding 30 mg per 100 ml of blood. This aspect is also missing in this case.


For reasons as stated above,the findings recorded by the District Forum that the appellant insurance company had failed to prove the fact that the accident was caused by the driver under intoxication are liable to be confirmed one as they are based on correct appreciation of evidence on record.


So far as the amount of compensation is concerned,the same had been awarded by the District Forum on the report of the surveyor,Shri Subodh Sobat dated 11.12.01 appointed by the appellant insurance company itself,therefore,we see no reason to differ with the findings of the District Forum evenon point of compensation and thus on that point of view also this appeal deserves to be dismissed.


The result is that this appeal filed by the appellant insurance company is dismissed.




Member President