Haryana

StateCommission

A/678/2016

FUTURE GENERALI INDIA INSURANCE CO. - Complainant(s)

Versus

NITIN MAAN - Opp.Party(s)

R.K.SHARMA

25 Apr 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No.    678 of 2016

Date of Institution:  22.07.2016

Date of Decision:   25.04.2018

 

 

Future Generali India Insurance Company Limited, 303-310, 3^rd Floor, Kailash Building, K.G. Marg, Cannaught Place, New Delhi, through its authorized office Shri Sandeep Kapoor, Senior Executive-Legal Claims, Future Generali India Insurance Company Limite, 2^nd & 3^rd Floors, SCO No.78-79, Sector 17-C, Chandigarh.

 

…..Appellant-Opposite Party

 

Versus

 

Nitin Maan son of Jai Narain Maan, resident of House No.72, Master Jawahar Ke Aas Pass Wali Gali, Village Halambi Khurd, Delhi-82.

 

  …..Respondent-Complainant

 

 

CORAM:   Mr. R.K. Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.

                  

   

 

Present:     Shri R.K. Sharma, Advocate for appellant.

                   Shri Surender Pal, Advocate for respondent.

                  

                            

O R D E R

 

R.K. BISHNOI, JUDICIAL MEMBER

 

          It was alleged by complainant that on 22.01.2015 his vehicle met with an accident while being driven by his friend Keshav son of Jai Parkash.  FIR No.21 of 23.01.2015 was also registered to this effect. He submitted claim with opposite party (in short ‘OP’), but, the same was not allowed.

2.      In reply, it was alleged by OP that it was informed about this accident on 07.05.2015 i.e. after delay of 105 days. Just thereafter an investigator and loss assessor was appointed. As per his report, loss was to the tune of Rs.5,65,000/-. Actually this vehicle was being used for illegal purpose. When FIR was registered for the offence punishable under Sections 147, 149, 323, 325 and 506 read with Section 34 of IPC, it was admitted by Keshav that he was also under the influence of liquor. In this way terms and conditions of insurance policy were violated and claim was not allowed.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Jhajjar (in short ‘District Forum’) allowed complaint vide impugned order dated 21.06.2016 and directed as under:

“…we therefore direct the respondent to make the payment of Rs.6,73,332/- as per policy Ex. R-11 to the complainant alongwith an interest @ 9% p.a. from the date of loss/accident i.e. 22.01.2015 till realization of final payment to the complainant. The complainant is also entitled for a sum of Rs.5500/- on account of litigation expenses for the present unwanted and unwarranted litigation only due to the deficiency in service on the part of the respondent.”

 

4.      Feeling aggrieved therefrom, OP has preferred this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for the appellant/OP vehemently argued that from the perusal of copy of FIR (Exhibit R-5), it is clear that the vehicle was drove on the right leg of a person and was used for illegal purpose. A case was registered for the punishable under sections as mentioned above. Keshav alias Vicky also made disclosure statement wherein it was alleged that he was under the influence of liquor and was unable to tell how the accident took place. As per copy of MLR attached with copy of FIR (Exhibit R-5) in complaint, smell of alcohol was coming from his mouth. In this way terms and conditions of insurance policy were violated and he was not entitled for any compensation as mentioned in repudiation letter (Exhibit R-10). 

7.      From the perusal of copy of judgment dated 18.02.2017, it is clear that Keshav has been acquitted in the aforesaid case. When he has been acquitted in the criminal case, it cannot be presumed that this vehicle was being used for illegal purpose. Had he been convicted then it could have been different matter.

8.      Further appellant has not produced any evidence to show the percentage of liquor in his blood. If it is stated by him that they were drinking or it is mentioned in copy of MLR that smell of alcohol was coming from his mouth it does not mean that he was under influence of liquor as per opinion of Hon’ble Supreme Court expressed in Behram Khurshed Pesikaka Vs. The State of Bombay; AIR 1955 SC 123. His disclosure statement was recorded in a criminal case wherein he has already been acquitted. So these arguments are no avail.

9.      As per report of surveyor (Exhibit R-7) net liability of insurance company to pay compensation is Rs.5,65,000/- i.e. more than 70% and it can be considered as a case of total loss. In such a situation, insured is entitled for insured declared value i.e. Rs.6,73,332/- as mentioned in survey report (Exhibit R-6). However insurance company can retain salvage. In view of above discussions, impugned order dated 21.06.2016 cannot be disturbed. Hence appeal fails and same is hereby dismissed, but, it is ordered that complainant will help insurance company to get this vehicle transferred in it’s name and handover salvage if it is in his possession. If he will not get the vehicle transferred in the name of insurance company then he will not be entitled for compensation equal to salvage value.

10.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules.

 

Announced 25.04.2018

(Urvashi Agnihotri) Member, Addl. Bench

(R.K. Bishnoi) Judicial Member, Addl. Bench

D.R.