IMPORTANT POINT
Plea of drink and drive has to be proved by the Insurance Company.

ORDER

S.M. Kantikar, Presiding Member—This Revision Petition has been filed against the order 27.02.2019 passed by the H.P. State Consumer Disputes Redressal Commission, Shimla (hereinafter referred to as “the State Commission”), whereby the Appeal No. 164 of 2018 preferred by the Petitioner herein has been partly allowed. The State Commission modified the order of the District Consumer Disputes Redressal Forum, Shimla (in short “the District Forum”) and directed the Petitioner to pay to the Complainant 70% of the OD claim as assessed by Surveyor-Cum-Loss Assessor alongwith interest @ 9% p.a. from the date of filing of complaint till the date of realization.

2. Brief facts are that, the complainant Mr. Lalit Kumar is the owner of the vehicle ‘Mahindra Pick up’ bearing registration no. HP-06A-4287. The vehicle was duly insured with insurance company (OP) for the period from 25.04.2014 to 24.04.2015. During subsistence of the policy on 19.07.2014 at about 6:00 pm the vehicle met with an accident and got damaged on Rattanpur – Majhewali Road, PS Jhakri, Tehsil Rampur, District Shimla. An FIR was registered with the police was filed and intimation of accident was also given to the OP -insurance company. Complainant submitted an insurance claim to the OP along with necessary documents, but the OP did not settle the claim and repudiated it on 02.12.2014. Therefore, being aggrieved by the deficiency n service from OP, the complainant filed a complaint before District Forum.

3. The OP- Insurance Company filed its written version. OP submitted that the vehicle was overloaded at the time of accident and three persons died who were travelling in the vehicle. At the time of accident, the driver was under the influence of alcohol. The driver was not having valid and effective driving license at the time of accident. The driving license submitted by the complainant was fake. Thus, the terms and conditions of the insurance policy were violated and repudiation of claim was justified.

4. The District Forum on hearing the parties partly allowed the Complaint and directed the OP- insurance company to refund a sum of Rs.2,45,340/- along with interest @ 9% p.a. from the date of filing of this complaint till the realization. Also awarded Rs. 10,000/- towards harassment and mental agony along with a sum of Rs. 5,000/- towards litigation cost. The District Forum observed as below:

“11. in the absence of legal proof of the report of SFSL, the OP has failed to prove that the driver of the vehicle in question was driving the vehicle in question under the influence of liquor. Consequently, repudiation of the claim of the complainant by the OP on this count cannot be upheld and the OP is liable to indemnify the complainant for the loss suffered by him in this accident.”

5. Aggrieved by the order of the District Forum, Insurance Company on an preferred the first appeal before the State Commission

6. The State Commission on hearing the parties held that as per the Registration Certificate (RC) was for Light Goods Vehicle and the seating capacity of the vehicle was two persons. It is proved on record that three persons were travelling in the vehicle at the time of accident and they died. Therefore, the State Commission allowed the claim to be settled on non-standard basis as per the surveyor Mr. Dinesh Kumar’s report. In this regard, the State Commission relied upon decisions of Hon’ble Supreme Court namely National Insurance Company Limited v. Nitin Khandelwal (2008 (IV) CPJ 1 SC) and Amalendu Sahoo v. Oriental Insurance Co. Ltd., (2010 (II) CPJ 9 SC). Accordingly the appeal was partly allowed with modification of order of the District Forum that the OP was liable to pay the claim to the complainant on non-standard basis.

7. Being aggrieved by the order of State Commission, the Insurance Company filed this revision petition.

8. We have heard the learned cou