BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSALFORUM,
SHIMLA,H.P
.
Complaint No. 267/2009
Presented On: 27.7.2009
Decided On: 20.3.2015
………………………………………………………………………..
Smt. Archna Shankta, W/o Sh. Vishal Shankta, R/o Village Bhawana, P.O
Purag, Tehsil Kotkhai, District Shimla, H.P
…..Complainant
Versus
The Oriental Insurance Company Ltd, Branch Office, Kothi No.4, Opposite
Anup Service Station, Kaithu, Shimla-171003,H.P, Through its Branch
Manager
…..Opposite party
………………………………………………………………………………..
CORAM
Sh. K.S.Chandel, President
Smt. Yogita Dutta, Member.
Sh. Subneet Singh Chauhan, Member
………………………………………………………………………………..
For the complainant: Sh. G.R.Chauhan, Advocate
For the Opposite Party: Sh. J.S.Bagga, Advocate
………………………………………………………………………………..
ORDER:.
K.S.CHANDEL,( District Judge) President
The complainant Archna Shankta has preferred this
complaint under section 11 & 12 of Consumer Protection Act, 1986
against the opposite party ( 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 to be the owner of
truck bearing registration No. HP-09A-1089 vide registration
certificate Annexure C-1 which has been insured with the OP and
during this period the vehicle met with an accident on 29.5.2009 for
which FIR Annexure C-3 was registered with the police station . The
complainant has claimed that the driver Ram Krishan / Ram Karan
was holding DL Annexure C-2 who died in the accident. The
complainant has further claimed that despite information to the OP
about the accident and the damage caused to the vehicle and filing
the claim with the OP, the OP has failed to settle the claim, though,
the OP has sought consent for settlement of claim for Rs. 2,80,000/-
on net of salvage basis, but, the complainant has not agreed and has


claimed total loss to the insured value of Rs. 3,50,000/-. The
complainant has further claimed that she (complainant) has sought
information vide letter Annexure C-5 dated 27.3.2009 which was duly
replied vide letter Annexure C-6 dated 1.5.2009/ 26.5.2009. The
complainant has further claimed that the OP has repudiated the claim
vide letter Annexure C-8 and thereby the complainant has sought
direction to the OP for claim of Rs. 3,50,000/- with interest and
further compensation for mental harassment as well as litigation
expenses. The complaint is duly supported with an affidavit of
complainant.
2. The OP has filed the reply by taking preliminary objections
qua maintainability claiming that unauthorized/ gratuitous passengers
were traveling in the vehicle at the time of accident and further
claimed that the surveyor has assessed the loss of Rs. 2,78,500/- less
wreck value on total loss basis as per terms and conditions of the
insurance contract. But, the claim of the complainant has been claimed
to be repudiated in violation to the terms and conditions of the policy as
unauthorized/ gratuitous passengers were traveling in the vehicle at
the time of accident. The OP has further denied that there is any
deficiency in service as well as unfair trade practice as pleaded and
claimed by the complainant. On merits, the OP has specifically
pleaded and claimed that since unauthorized/ gratuitous passengers
were traveling in the vehicle at the time of accident which amounts to
violation to the terms and conditions of the policy and further despite
the loss assessed by the surveyor for Rs. 2,83,000/- on total loss basis
subject to the terms and conditions of the policy and the claim of the
complainant has been rightly repudiated being violation to the terms
and conditions of the policy. The OP has further pleaded and claimed
that the driver of the vehicle was found under the influence of liquor
at the time of accident which further amounts to violation to the terms
and conditions of the policy and, as such, the OP has denied any
deficiency in service as well as unfair trade practice and thereby has
sought for the dismissal of the complaint.


3. The complainant in her affidavit has denied violation to the
terms and conditions of the policy as pleaded and claimed by the OP
and has further claimed in her affidavit that she has instructed her
driver not to take alcohol or any other contraband while driving and,
as such, the driver had never consumed alcohol with her knowledge
and consent. The complainant has also claimed in her affidavit that
the name of the driver was Ram Krishan @ Ram Karan as per his
D.L Annexure C-2 and she has also claimed that one Sh. Surinder
Singh has also filed an affidavit in which Surinder Singh has claimed
that the person who were labourers in the truck were asked by the
driver to get down and put the stone on the back of the tyre so as the
vehicle could take proper motion and , as such, Surinder Singh
claimed along with labourers to be standing on the road at the time of
accident.
4. We have heard the ld. Counsel for the parties and considered
the record carefully.
5. The OP has relied upon the survey report in which the loss has
been assessed to Rs. 2,80,000/- for which the insured has been
claimed giving consent Annexure OP-3 claimed by the consent letter
of the complainant. However, the OP has claimed breach of terms and
condition of the policy and thereby repudiated the claim vide letter
Annexure OP-6 claiming that five persons were travelling in the
vehicle being gratuitous person having capacity of three being Goods
Carrier Vehicle. The OP has further relied upon the investigation
report of Sh. Pritam Singh Chandel whose affidavit has been filed
by the OP and as per investigation report it has been concluded that
the claim is not maintainable on the ground that the vehicle was used
in contravention of the terms and conditions of the insurance policy as
the unauthorized/ gratuitous passengers were travelling in the goods
carrying vehicle at the time of accident and the driver was under the
influence of liquor and further there is difference in the name of the
driver in his D.L as well as claimed by the complainant. The
investigation report of Sh. Pritam Singh Chandel is also
accompanied by the copy of FIR including report of State Forensic


Science Laboratory, H.P in which quantity of ethyl alcohol has been
opined in the blood and urine samples of the driver exceeding to the
permissible limit and thereby investigator has claimed violation to the
terms and conditions of the policy as the driver being under the
influence of liquor at the time of accident.
6. It is not disputed that the vehicle of the complainant was
insured at the time of accident and as per final survey report
Annexure OP-4 the total loss has been assessed to Rs. 2,80,000/- for
which the surveyor has claimed consent of the complainant along
with consent letter. On bare perusal of the R.C Annexure OP-10 the
sitting capacity has been mentioned as three and as per copy of FIR
Annexure OP-9 it has been registered at the instance of Surinder
Singh who has claimed four persons including himself with the truck
at the time of accident and also in his affidavit has claimed that
before accident all of them get down from the truck at the instance of
the driver to put the stone before rear tyre of the vehicle for proper
motion of the vehicle and, as such, these labourers were already on
the road when the accident had taken place. Therefore, taking into
consideration the over all totality of these facts claimed by the
Surinder Singh the labourers had already get down from the truck
before the accident had taken place and moreover, the sitting capacity
of the vehicle has been mentioned as three and, as such, there is no
violation to the terms and conditions of the policy as claimed by the
OP to be unauthorized/ gratuitous passengers sitting in the vehicle at
the time of accident . Since, the sitting capacity of the vehicle
mentioned in the R.C three and with driver it comes to four but, in
the peculiar facts and circumstances Surinder Singh has claimed in
his affidavit that all the labourers had already get down from the
vehicle before the accident had taken place. The investigation report
of Sh. Pritam Singh Chandel in which it has been observed that the
quantity of ethyl alcohol were observed in the blood and urine
samples of the driver beyond permissible limit amounts to violation to
the terms and conditions of the policy as per report of State Forensic
Science Laboratory, H.P which has been specifically denied by the
complainant in her affidavit that any consent or knowledge for taking


liquor by the driver as she has specifically claimed that she had
instructed the driver not to drive the vehicle after taking liquor or any
contraband. Therefore, the use of liquor by the driver is not in the
knowledge and with the consent of the complainant and moreover,
the investigation report filed on record with an affidavit of Sh.
Pritam Singh Chandel that there is no date mentioned as to when this
investigation has been carried out despite the final survey report
already on record vide Annexure OP-4 dated 23.11.2008, who has
nowhere observed any such violation to the terms and conditions of
the policy to the fact that the driver was found under the influence of
liquor at the time of accident. Though, in the final survey report the
FIR has been specifically mentioned by the surveyor registered after
the accident. Therefore, to deny the claim of Rs. 2,80,000/- as
assessed by the final survey report Annexure OP-4 dated 23.11.2008
including consent letter of the complainant dated 3.11.2008 amounts
to deficiency in service as well as unfair trade practice by the OP as
there is no violation to the terms and conditions of the policy is made
out taking into consideration the sitting capacity of the vehicle at the
time of accident as well as supported by an affidavit of Surinder
Singh that all the labourers had already get down from the vehicle
when the accident had taken place and complainant has specifically
claimed in her affidavit that she had specifically instructed the driver
not to take liquor or any other contraband while driving the vehicle,
as such, even any alcohol observed in the blood and urine samples of
the driver beyond permissible limit the same is without with the
knowledge and consent of the complainant. Though the complainant
has sought claim for Rs. 3,50,000/- despite IDV of Rs. 3,00,000/- as
per policy Annexure OP-1 and the surveyor cum loss assessor of the
OP has assessed Rs. 2,83,584/- and the complainant has given
consent letter for Rs. 2,80,000/- as mentioned in the final survey
report Annexure OP-4 and, as such, the present complaint is allowed
and the OP is directed to pay the claim of Rs. 2,80,000/- with interest
@9% per annum from the date of filing the complaint i.e. 27.7.2009
till realization and the OP is further directed to pay Rs. 25,000/- as
compensation on account of 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 20th day of March ,2015
( K.S.Chandel)
President
(Yogita Dutta) (Subneet Singh Chauhan)
Member Member
(Mahajan)