JUSTICE SUDIP AHLUWALIA, MEMBER

2. The factual background, in brief, is that Complainant No. 1 is the wife of the deceased, Late Sh. Tulsi Ram, and the other Complainants are his children and mother. The deceased, Tulsi Ram, was the owner of an Alto K10 car bearing registration No. DL-8CZ-3443, which he purchased for personal use. He insured the car with the Opposite Party/Petitioner Insurance Company for a sum assured of Rs. 2,41,633/, valid from 18.04.2014 to 17.04.2015. The car met with an accident on 25.01.2015 near Kashdhar, Theog, District Shimla, resulting in extensive damage.  An FIR was lodged with the Police, and intimation was given to the Insurance Company.  After submitting the documents requested by the Insurance Company, a final survey was conducted by the Insurance Company's Surveyor.  About one year after the accident, the Complainants received a letter dated 09.07.2015, in which the Claim was repudiated on the grounds that the driver was under the influence of liquor at the time of the accident.  Aggrieved by the wrongful repudiation by the Insurance Company, the Complainants filed their Complaint before the Learned District Forum, Shimla.

 3. The District Forum vide its Order dated 15.11.2017 allowed the Complaint and directed the Petitioner to pay the Complainants the sum of Rs. 2,31,068/- with interest @ 9% p.a. from the date of filing of Complaint till the date of realization, along with Rs. 10,000/- towards mental agony and Rs. 5,000/- towards litigation cost. The Petitioners then filed Appeal before the Ld. State Commission, which partly allowed it and modified the Order of the District Forum. The relevant extracts of the impugned Order are set out as below -

“15. Submission of learned Advocate appearing on behalf of Insurance company that driver of vehicle in question namely Shri Tulsi Ram was under the influence of liquor and quantity of alcohol in blood of driver was found to the extent of 101.14mg% which was in violation of terms and conditions of Insurance policy and in violation of section 185 of Motor Vehicles Act and on this ground appeal filed by Insurance company be allowed is decided accordingly. Insurance company relied upon photostat report of SFSL Junga Annexure-OP6 placed on record signed by Sh. Rajesh Kumar Scientific Officer and Dr. V.S. Jamwal Assistant Director. State Commission has carefully perused photostat report submitted by FSL Junga. There is recital in photostat report that report is admissible under section 293 of Code of Criminal Procedure 1973. As per section 293 of Code of Criminal Procedure 1973 report of scientific expert is per se admissible in any inquiry, trial or other proceedings under Code of Criminal Procedure 1973. It is well settled law that proceedings of original consumer complaint under Consumer Protection Act are not criminal proceedings in nature but are civil proceedings in nature. State Commission is of the opinion that section 293 of Code of Criminal Procedure 1973 relates to certified copy of public document and does not relates to photostat copy of public document. It is well settled law that photostat copy is not primary evidence of document but is only secondary evidence of document.

16. In view of fact that proceedings of original consumer complaint under Consumer Protection Act are civil proceedings in nature State Commission is of the opinion that photostat report of scientific expert is not per se admissible in civil proceedings. Insurance company did not file affidavit of Sh. Rajesh Kumar Scientific Officer and Dr. V.S. Jamwal Assistant Director in order to prove controversial facts mentioned in photostat FSL report. Even Insurance company did not send any interrogatories to Sh. Rajesh Kumar Scientific Officer and Dr. V.S. Jamwal Assistant Director. Hence adverse inference is drawn against Insurance company by State Commission. It is well settled law that party could not be allowed to take benefits of its own laxity & non action in quasi judicial proceedings under Consumer Protection Act. Admittedly proceedings under Consumer Protection Act are quasi judicial proceedings.

17. Plea of Insurance company that Alcohol to the extent of 101.14mg% was found in the blood of insured driver time of accident as per photostat FSL report Annexure-OP6 is defeated on the concept of ipse dixit (An assertion made without proof). It is well settled law that photostat copy of FSL report is not per se admissible in the absence of certified copy of public document FSL report with certificate written at the foot of certified copy of pubic document that certified copy of public document is true copy of original public document with name and official title and seal of public official who is custodian of original public document as per section 76 of Indian Evidence Act 1872. Word true copy has been written by learned Advocate in photostat copy of FSL report placed on record. Learned Advocate is not custodian of original SFSL report and is not legally competent to give certificate under section 76 of Indian Evidence Act 1872 relating to SFSL report. As per section 77 of Indian Evidence Act 1872 only certified copy of public document could be produced in proof of contents of public document. There is no recital in section 77 of Indian Evidence Act 1872 that photostat copy could be produced in proof of contents of public document. Insurance company did not seek permission to prove SFSL report by way of secondary evidence. Plea of Insurance company that insured driver was intoxicated at the time of accident is defeated on the concept of ipse dixit (An assertion made without proof). 

18. It is well settled law that contents of controversial document in civil proceedings should be proved by way of affidavit of a person who has signed controversial document. See 2018(3) CLT 432 H.P. High Court titled Bharat Bhushan Vaid Versus National Insurance Company Ltd. See 2019(1) Himachal Law Reporter 294 H.P. High Court titled Shaminder Kumar Chaudhary Versus Sukhdev Chand and others. As per section 13(4)(ii) of Consumer Protection Act 1986 and as per section 38(9) of Consumer Protection Act 2019 learned DCF/DCC shall have same power as are vested in civil court under Code of Civil Procedure 1908 for production of any document or other material object as evidence. It is well settled law that proceedings under Consumer Protection Act are quasi judicial proceedings. 

19. Submission of learned Advocate appearing on behalf of Insurance company that Surveyor cum Loss Assessor has recommended loss on total loss basis on net of salvage basis to the tune of Rs.170033/-(One lac seventy thousand thirty three) and learned DCF/DCC has ordered Insurance company to pay Rs.231068/-(Two lac thirty one thousand sixty eight) contrary to report submitted by Surveyor cum Loss Assessor and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission has carefully perused Insurance policy issued by Insurance company. IDV of vehicle in question has been mentioned as Rs.241633/-(Two lac forty one thousand six hundred thirty three) and repair costs assessed by Sh. Dinesh Kumar is Rs.231068/-(Two lac thirty one thousand sixty eight). State Commission is of the opinion that when repair costs exceeds 75% of IDV of vehicle then claim of vehicle should be assessed on the concept of total loss basis. Admittedly in present matter costs of repair exceeds 75% of IDV of vehicle in question. State Commission is of the opinion that complainants are entitled for damage amount on the concept of total loss basis because repair charges exceed 75% of IDV value of vehicle in question. 

20. Submission of learned Advocate appearing on behalf of Insurance company that on the concept of total loss basis Insurance company is under legally entitled for salvage of vehicle in question is decided accordingly. It is well settled law that in total loss cases Insurance company is legally entitled for salvage of vehicle in question. See 2005(1) CPJ 93 NC titled Shankar Lal and Anr. Versus Branch Manager United India Insurance Company Ltd. and Ors.

21. Submission of learned Advocate appearing on behalf of Insurance company that as per FIR filed under section 154 Cr.P.C at the time of accident vehicle in question was driven by Sh. Tulsi Ram son of Sh. Deep Ram insured and on this ground appeal filed by Insurance company be allowed is decided accordingly. Complainants did not plead in original consumer complaint that vehicle in question at the time of accident was driven by some other person. Complainants themselves filed driving licence of deceased insured. It is well settled law that facts admitted need not to be proved. Shri Tulsi Ram was holding valid LMV driving licence w.e.f. 16.05.2014 to 03.05.2020 and class of vehicle in question was also LMV (Car) as per report of Surveyor cum Loss Assessor Sh. Dinesh Kumar Annexure-OP4 dated 11.05.2015 placed on record. 

22. Submission of learned Advocate appearing on behalf of Insurance company that financier i.e. State Bank of India is necessary party in the present matter and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission has carefully perused relief clause. Complainants did not seek any relief against financier i.e. State Bank of India. In view of fact that complainants did not seek any relief against financier State Commission is of the opinion that financier is not necessary party in order to dispose of present matter properly and effectively and to impart substantial justice inter se parties. 

 

23. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has granted excessive punitive compensation on account of mental agony and harassment to the tune of Rs.10000/-(Ten thousand) and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the opinion that learned DCF/DCC has  granted equitable punitive compensation and it is not expedient in the ends of justice and on the principles of natural justice to interfere in punitive compensation order passed by learned DCF/DCC.

24. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has granted excessive litigation costs to complainants to the tune of Rs.5000/-(Five thousand) and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the opinion that complainants have engaged Advocate and have also paid litigation costs & other expenses and Learned District Consumer Forum/Commission has granted equitable litigation costs to complainants.

25. Submission of learned Advocate appearing on behalf of Insurance company that vehicle was financed by State Bank of India and complainants are not directly entitled  for damage amount of vehicle unless NOC is issued by financier is decided accordingly. It is well settled law that financier is owner of vehicle till loan amount is not liquidated by loanee. It is well settled law that loanee is simply trustee of vehicle till loan amount is not liquidated. See 2012(II) CPJ 8 (SC) titled Suryapal Singh Versus Siddha Vinayak Motors & Anr. See AIR 1979 SC 850 titled Trilok Singh and others Versus Satya Deo Tripathi. See 1996(7) Supreme Court Cases 212 titled K.A. Mathai alias Babu & Anr. Versus Kora Bibbikutty & Anr.

26. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has granted excessive interest @ 9% per annum and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the opinion that grant of interest rate is discretion of learned DCF/DCC and State Commission is of the opinion that learned DCF/DCC has granted equitable rate of interest and it is not expedient in the ends of justice and on the principles of natural justice to interfere in interest rate ordered by learned DCF/DCC. 

27. Facts of case laws cited by learned Advocate appearing on behalf of Insurance company i.e. (1) R.P. No.3117/2018 dated 04.04.2019 NC titled New India Assurance Company Ltd. Versus Suksham Chauhan (2) 2014(4) ACJ 2421 SC titled Narinder Singh Versus New India Assurance Company Ltd. (3) 2009(2) ACJ 925 SC titled National Insurance Company Ltd. Versus Rattani & others (4) 2009(5) SCC 136 titled Bhuwan Singh Versus Oriental Insurance Company Ltd. (5) 2016(3) CPJ 678 NC titled Maya Pandey Versus Oriental Insurance Company Ltd. (6) 2016(4) CPJ 267 NC titled Lakshmi Rohit Ahuja Versus SBI Life Insurance Co. Ltd. and facts of present case are entirely different. It is held that ruling cited supra are distinguishable in present matter due to distinguishable facts.

28. Submission of learned Advocate appearing on behalf of complainants that order of learned DCF/DCC is in accordance with laws and proved facts and does not warrant any interference by State Commission is decided accordingly. State Commission is of the opinion that order of learned DCF/DCC partly warrants interference by State Commission because on the concept of total loss basis Insurance company is legally entitled for salvage of vehicle in question. In view of above stated facts point No.1 is decided accordingly. 

 

Point No.2: Final Order 

 29. In view of findings upon point No.1 above appeal filed by Insurance company is partly allowed. It is ordered that Insurance company shall pay IDV value of vehicle in question to complainants to the tune of Rs.241633/-(Two lac forty one thousand six hundred thirty three) alongwith interest @ 9% per annum from the date of institution of complaint till actual payment subject to production of NOC from financier i.e. State Bank of India. If complainants will not produce NOC from financier in that eventuality IDV of vehicle in question to the tune of Rs.241633/-(Two lac forty one thousand six hundred thirty three) will be directly transmitted to financier i.e. State Bank of India in loan account of deceased insured for liquidation of loan amount.

30. Complainants will return salvage of vehicle to Insurance company and complainants will also executesubrogation deed in favour of Insurance company and complainants shall transfer R.C of vehicle in question in the name of Insurance company. Insurance claim of vehicle in question to the tune of Rs.241633/-(Two lac forty one thousand six hundred thirty three) will be divided equally among all complainants. Shares of minors namely Ankita and Bumik shall be deposited in nationalized bank in fixed deposit till minors attained age of majority if NOC is produced by complainant from financier. 

31. Order of learned DCF/DCC that Insurance company would pay sum of Rs.10000/-(Ten thousand) as punitive compensation for harassment and mental agony is affirmed. Order of learned DCF/DCC that Insurance company would pay litigation costs to complainants to the tune of Rs.5000/-(Five thousand) is also affirmed. Insurance company and complainants shall comply their parts within one month after receipt of certified copy of order. Report submitted by Surveyor cum Loss Assessor Shri Dinesh Kumar dated 11.05.2015 annexure-OP4 shall form part and parcel of order. 

32. Parties are left to bear their own litigation costs before State Commission. File of learned DCF/DCC alongwith certified copy of order be sent back 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.”

4. Ld. Counsel for Petitioner/Opposite Party has argued that the Hon’ble Apex Court in "Malay Kumar Ganguly v. Dr. Sukumar Mukherjee (2009) 9 SCC 221" has held that Consumer Fora are to comply merely with the principles of natural justice and are not bound by any other prescribed procedure and it was categorically held that the CPC and the Indian Evidence Act are not applicable to proceedings under the Consumer Protection Act, and the same view has been taken by the Hon’ble Apex Court in "V. Kishan Rao v. Nikhil Super Speciality Hospital (2010) 5 SCC 513" and "Laxmi Engineering Works v. P.S.G. Industrial Institute (1995) 3 SCC 583"; That Regulation 26 of the Consumer Protection Regulations, 2005 categorically mandates that in consumer proceedings, the use of provisions of the CPC are to be eschewed; That it is clearly provided in Proviso B of the terms and conditions governing the insurance contract that the Petitioner would not be liable to pay any compensation in respect of death or bodily injury due to an accident occurring whilst the driver is under the influence of liquor or drugs; That in the present case, the FSL Report dated 03.03.2015 has concluded that the blood alcohol level of the deceased was 101.14 mg/100ml of blood, i.e., three times the permissible amount; That the State Commission, vide the impugned Order, directed that the Complainants will return the salvage of the vehicle to the Petitioner and will execute a subrogation deed in favour of the Petitioner and also transfer the Registration Certificate of the vehicle in question in the name of the insurance company. However, the vehicle was a total loss and Section 55(1) of the MV Act categorically mandates that in case a motor vehicle has been destroyed or rendered permanently incapable of use, a statutory duty is cast upon the owner to notify the registering authority within 14 days regarding the same; That further, in terms of Section 55(2) of the MV Act, it is incumbent upon the registering authority to cancel the certificate of registration.

5. Ld. Counsel for Respondents/Complainants has argued that since the Respondents had no grievance against the financier, namely State Bank of India, it was not made a party in the Consumer Complaint filed by the Respondents, therefore the contention that the appeal should be decided accordingly, is wholly unfounded and should be dismissed; That the Respondents have lost their sole breadwinner, and all expenses incurred or payments made due to the deficiency in service, specifically the wrongful repudiation of the Insurance Claim, must be compensated; That the Petitioners failed to produce any Affidavit from HC Sadhu Ram to substantiate his claim about who was driving the car at the time of the accident, especially since there was another person, Vikas, present in the vehicle; That Vikas, being the sole eyewitness to the accident, would be the most appropriate person to testify regarding who was driving the car at that time; That the District Forum has rightfully questioned the authority of Annexure OP-5, i.e., the report by Investigator Sh. Kamal Narain, as it is solely based on the FIR contents and discussions with the Investigation Officer, and the conclusions drawn by the Investigator are merely hearsay and do not conclusively prove that the deceased, Sh. Tulsi Ram, was driving the vehicle in question; that the Petitioners did not submit the Final Investigation Report of FIR No. 18/2015 lodged at PS Theog, Shimla; That the District Forum correctly noted that the Petitioners have not proven that the deceased was driving the vehicle at the time of the accident and the presence of ethyl alcohol in the deceased's body, as indicated by the FSL report, is immaterial; That the State Commission, in the impugned Order, rightly observed that non-compliance with statutory provisions regarding the submission of documents/evidence renders such documents (photocopies of the relied-upon documents) as secondary evidence, which cannot conclusively prove the allegations.

6. This Commission has heard both the Ld. Counsel for Petitioners and Respondents, and perused the material available on record.

7. It may be mentioned at the outset that in its repudiation letter dated 9.7.2015 addressed to Complainant No. 1, the Insurance Company had specifically stated that the deceased Tulsi Ram was driving the vehicle at the time of accident and was under influence of liquor because as per report of State Forensic Science Laboratory (SFSL), H.P., alcohol was found in the blood of Tulsi Ram and its quantity was 101.14 mg%.  Admittedly, the Complaint was filed much later on 28.6.2016 challenging such repudiation, on account of which the Complainants could not have been in any doubt whatsoever, regarding the reason for repudiation.  But, a careful perusal of the entire Complaint filed goes to reveal that it was never the case of the Complainants that the deceased Tulsi Ram was not driving the vehicle at the relevant time.  As such, the argument that co-passenger Vikas being the sole eye witness to the accident would be the most appropriate person to testify regarding who was driving the car at that time, is meaningless because it was not at all the case of the Complainants that the said Vikas or anybody else excepting Tulsi Ram was driving the vehicle.

8. It may be further mentioned that this Commission had directed the Petitioner to produce the certified copies of the record, and the Counsel for the Petitioner had applied for certified copies of the file in Case No. 804 of 2015 arising out of FIR No. 18/2015.  The Office of the Court of the Ld. Magistrate, who was seized with the above-mentioned criminal proceedings that were initiated against the deceased driver, provided “uncertified” copies of the record.  The record was obtained from the concerned Court, but as the Insurance Company was not a party in the criminal case, the Registry provided only “uncertified” copies. The Insurance company vide Application dated 26.6.2023, sought certified copies of the entire record from the concerned Court. However, the Registry of the Ld. Court refused to supply the same by taking the objection that “since Shri Pritam Singh Chandel is not counsel in case FIR No.18/2015. Hence, copy of certified documents as applied could not be supplied” and the said objection was sustained by the Ld. Addl. CJM, Theog, Shimla.

9. Ld. Counsel for the Petitioners alongwith the Written Submissions has placed a copy of the original Application submitted by his Clients seeking certified copies of the FIR No. 18 of 2015 of P.S. Theog, and its connected documents being the Charge Sheet and FSL Report.  But such Application was rejected by the Court of the Ld. Chief Judicial Magistrate concerned with the endorsement that the Petitioner’s Counsel was not the Counsel in the case (i.e. the criminal case), so “copy of certified documents as applied could not be supplied”.

10. In this view of the matter, this Commission is of the view that the hyper technical view taken by the Ld. State Commission in not accepting the photocopies of the certified copies of the Charge Sheet, as well as FSL Report which would go to show that there was ethyl alcohol in the blood of the deceased Driver to the extent of 101.14 mg%, cannot be regarded as just and proper, since admittedly proceedings under the Consumer Protection Act are to be conducted in a summary manner and not by the stringent technical rigors of the Evidence Act, especially in a situation in which inspite of best efforts, certified copies of the said documents were not made available to the Petitioner.

11. On the contrary, it was nowhere the case of the Complainants/Respondents that the documents so relied upon or the Final Report submitted by the Police after investigation were incorrect or forged.

12. In such circumstances, this Commission has no hesitation in coming to the conclusion that both the Ld. Fora below had erred in allowing the Insurance Claim by ignoring the fact that driver of the Insured vehicle deceased Tulsi Ram was found to be under the influence of liquor, the quantity of which was found after the post-mortem examination conducted on his body, to be three times in excess of the permissible limit.  

13. The Revision Petition is, therefore, allowed after setting aside the impugned Orders of both the Ld. Fora below.  The Complaint filed by the Respondents accordingly stands dismissed.  Parties to bear their own costs.

14. Pending application(s), if any, also stand disposed off as having been rendered infructuous.