BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSALFORUM,
SHIMLA,H.P
.
Complaint No. 03/2012
Presented On: 4.1.2012
Decided On: 26.3.2015
………………………………………………………………………....
Smt. Prabha Devi, W/o Late Sh. Jawahar Lal, R/o Village Shawala, P.O
Mahasu Tehsil Kotkhai, District Shimla, H.P, through her General Power of
Attorney Sh. Ram Lal Lahaik, S/o Sh. Hira Singh, R/o Village Shawala, P.O
Mahasu, Tehsil Kotkhai, District Shimla, H.P
…..Complainant
Versus
National Insurance Company Ltd, Through its Divisional Manager, Divisional
Office, Himland Hotel, Circular Road, Shimla.
…..Opposite party
………………………………………………………………………………..
CORAM
Sh. K.S.Chandel, President
Smt. Yogita Dutta, Member.
Sh. Subneet Singh Chauhan, Member
………………………………………………………………………………..
For the complainant: Sh. K.S.Thakur, Advocate
For the Opposite Party: Sh. Anil Tomar, Advocate
………………………………………………………………………………..
ORDER:.
K.S.CHANDEL,( District Judge) President
The complainant Prabha Devi has preferred this complaint
under section 11 & 12 of Consumer Protection Act, 1986 against
the opposite party through her GPA Sh. Ram Lal Lahaik vide
Annexure C-2 ( hereinafter referred as OP for short) claiming
deficiency in service as well as unfair trade practice by the OP.
The complainant has pleaded and claimed that her husband Late
Sh. Jawahar Lal the owner of the vehicle bearing registration No.
HP-09-2938 and the copy of the registration certificate of the
vehicle is Annexure C-1. The complainant has further pleaded and
claimed that the vehicle met with an accident on 14.1.2011 for
which the FIR Annexure C-3 was registered with police station
Kotkhai as Jawahar Lal owner of the vehicle and his son Master


Aryan had died in the accident . The complainant has specifically
pleaded that accident had occurred due to winter season as the
road was frozen and it skidded off the road and fell into the
nallah. The complainant has further claimed that the vehicle was
totally damaged and she intimated the OP regarding the accident
and thereafter submitted all the relevant documents along with
claim form seeking settlement of the claim, but, the OP has failed
to settled the claim which amounts to deficiency in service as well
as unfair trade practice. The complainant has also claimed that
she had given her consent for settlement of claim for Rs.
2,23,000/- vide letter dated 9.6.2011 and consent letter as per
Annexure C-5 and C-5 (A). The complainant has further claimed
that the OP has failed to settle the claim and repudiated the same
vide letter Annexure C-6 and C-7 which amounts to deficiency in
service as well as unfair trade practice and has sought direction to
the OP to pay the claim of Rs, 2,73,000/- along with interest as
she had supplied the estimate repair of cost of Rs. 3,45,468.19p
vide Annexure C-9 and further sought compensation for
harassment including litigation expenses. The complaint is duly
supported with an affidavit of complainant.
2. In reply the OP has taken preliminary objections claiming
that the complaint is not maintainable as neither any deficiency in
service as well as unfair trade practice as the claim of the
complainant was surveyed/inspected/investigated and assessed
and thereafter found violation to the terms and conditions of the
policy and the OP has rightly repudiated the claim of the
complainant. The OP has further claimed that the owner cum driver
was being under intoxication at the time of accident during
investigation in his postmortem report the quantity of ethyl alcohol
was observed in his blood and urine samples beyond permissible
limit and, as such, the claim has been rightly repudiated. The OP
has also claimed that the surveyor has assessed loss to the tune of
Rs. 2,23,000/- on net of salvage value subject to the terms and


conditions of the policy as per survey report Annexure R-7, but, in
view of the violation to the terms and conditions of the policy the
same has been repudiated despite consent letter of the complainant
Annexure R-8. On merits, the OP has specifically pleaded and
claimed that there is violation to the terms and conditions of the
policy since the driver cum owner was found to be under
intoxication at the time of accident as per post mortem report
Annexure R-4 during investigation and after assessment of loss to
the vehicle by the surveyor for Rs. 2,23,000/- for which
complainant has given her consent as the same has been rightly
repudiated and there is no deficiency in service as well as unfair
trade practice as pleaded by the complainant and has sought for the
dismissal of the complaint. The reply is duly accompanied with an
affidavit of Divisional Manager OP.
3. We have heard the ld. Counsel for the parties and considered
the record carefully.
4. The insurance of the vehicle by the OP is not disputed as
per R.C Annexure C-1 and certificate of the insurance Annexure
C-4 including accident of the vehicle as per FIR Annexure C-3
and damage thereof as per final survey report Annexure C-7 of Rs.
2,23,000/- on net of salvage basis for which the complainant has
given her consent as well. The only ground for repudiation of the
claim of the complainant by the OP is violation to the terms and
conditions of the policy as the driver cum owner was under
intoxication at the time of accident as per post mortem report
Annexure R-4 in which the quantity of ethyl alcohol was
observed in blood and urine samples of the driver beyond
permissible limit and, as such, the OP has repudiated the claim.
The complainant has specifically pleaded and claimed in para- 4
of the complaint that the accident had taken place due to skidding
off the vehicle on the road since the road was frozen during
winter season and thereby rolled down and there is no specific


denial of these facts pleaded by the complainant in the reply of
the OP including any investigation report to such fact that cause
of accident was not due to frozen road during winter season and
thereby skidding off the vehicle. The cause of accident is not due
to intoxication of the driver cum owner as observed the quantity of
ethyl alcohol in his blood and urine sample as per postmortem
report Annexure R-4. Therefore, in view of these specific
pleadings that the cause of accident being road was freezing
during winter season and skidding and in the absence of denial to
such facts by OP there is no violation to the terms and conditions
of the policy and, as such, to deny the rightful claim of the
complainant despite the estimate of loss as per final survey report
Annexure R-7 to Rs. 2,23,000/- on net of salvage basis for
which the complainant has given consent letter Annexure R-8 and
to deny this rightful claim of the complainant amounts to
deficiency in service as well as unfair trade practice by the OP.
Therefore, the present complaint is allowed and the OP is directed
to pay the claim of Rs.2,23,000/- on net of salvage value with
interest @ 9% P.A from the date of filing the complaint
i.e.4.1.2012 till realization and OP is further directed to pay Rs.
25,000/- as compensation for deficiency in service as well as
unfair trade practice including mental harassment as well as
litigation expenses. The OP is directed to pay this amount within
45 days from the receipt to the copy of the order. Hence, the
present complaint stands allowed. Copy of this order be supplied
to the parties free of cost as per rules.
Announced on this 26th day of March ,2015
( K.S.Chandel)
President
(Yogita Dutta) (Subneet Singh Chauhan)
Member Member
(Mahajan)