ORDER

Inder Singh Mehta, President.—Instant appeal is arising from order dated 06.09.2019 passed by learned District Forum, Shimla, in Consumer Complaint No.155/2016 title Pradeep Kumar Versus Branch Manager,

M/s Bharti Axa General Insurance Company, Limited.

Brief facts of Case:

2. The case of the complainant Sh Pradeep Kumar, is, that, he is registered owner of a car No. HP-08A-1110, which was insured with the opposite party M/S Bharti Axa General Insurance Company. The said vehicle met with an accident on 26.11.2015 and was totally damaged. The surveyor of the opposite party visited the spot and assessed the loss of the vehicle, to the tune of Rs.1.25 lacs, but the opposite party did not settle the claim of the complainant.

3. The opposite party has resisted the complaint and pleaded that the driver Sh. Rakesh Kumar of the vehicle in question, was under the influence of alcohol, at the time of accident and as such insurance company is not liable to indemnify the complainant. The opposite party further pleaded that quantity of Ethyl alcohol in the blood of the deceased driver Sh. Rakesh Kumar was 224.93 mg% and as such claim was repudiated vide letter dated 04.05.2016.

4. Learned District Forum below allowed the consumer complaint, by directing the opposite party, to pay Rs.1,25,000/- as insurance amount, Rs.10,000/- as compensation and Rs.5000/- as litigation expenses.

5. The opposite party aggrieved from the order of the Learned District Forum, filed the present appeal on the ground that the impugned order of District Forum is illegal, erroneous and against the law and same be set aside.

6. We have heard learned counsel appearing on behalf of appellant and learned counsel appearing on behalf of respondent and we have also perused the entire record carefully.

7. Learned counsel of the appellant has submitted that learned District Forum below did not appreciate evidence on record appropriately and reached to the wrong conclusion. Learned counsel of the appellant has further pointed out that driver of the vehicle Sh. Rakesh Kumar, was under the influence of the liquor, as per postmortem report, and as such the appeal of the appellant be allowed.

8. Learned counsel of the respondent has submitted that District Forum below passed the detailed and reasoned order and there is no reason to interfere into. Learned counsel of the respondent further submitted that there is no FSL report on record to show that the driver was in drunken condition at the time of meeting accident at the spot.

Findings

9. Complainant Pardeep Kumar, owner of the vehicle No. HP-08A-1110, has filed the Consumer Complaint, before the Ld. District Forum Shimla, on 29.06.2016, claiming therein that the opposite party be directed to pay him Rs.1,25,000/-, as damages, assessed by the surveyor of the opposite party, Insurance company, to his vehicle.

10. The said complaint was contested by the opposite party on the ground that the driver of the vehicle Sh. Rakesh Kumar, had consumed 224.93 mg% Ethyl Alcohol and was in drunken condition which disentitles the claim of the claimant’s.

11. The whole question hinges around whether Sh Rakesh Kumar, driver of the vehicle, at the time of accident, was in drunken condition? Answer No.

12. The onus lies upon the opposite party i.e. Bharti Axa General Insurance Company to prove that the driver at the time of accident was in drunken condition.

13. In the instant case, as per Post Mortem Report, dated 26.11.2015, deceased Sh. Rakesh Kumar died due to road side accident probably due to head injuries leading to brain hemorrhage resulting into death. The opposite party relied upon Physician Statement of Dr. Himanni Singh, Medical Civil Hospital, Chopal, indicating consumption of Ethyl Alcohol, 224.93mg% in the blood. The Physician Statement, loses its significance, in the absence of affidavit on behalf of said physician namely Dr. Himanni Singh, Medical Civil Hospital, Chopal. Further, there is no Viscera Report or Forensic Scien