ORAL ORDER

Per – Hon’ble Mr. S. R. Khanzode, Presiding Judicial Member

          Heard Adv. Girish D. Mulay on behalf of the Appellant/Complainant Mr. Bhaskarrao Malharrao Gadakh (hereinafter referred to as ‘the Complainant’ for the sake of brevity) and Adv. Smt. Shital Patil, proxy advocate for Adv. Asim S. Vidyarthi on behalf of the Respondent/Opponent – The New India Assurance Company Ltd. (hereinafter referred to as ‘the Insurance Company’ for the sake of brevity).  We have also perused the record.

[2]     This appeal takes an exception to an order dated 24/10/2005 passed by the District Consumer Disputes Redressal Forum, Nasik (hereinafter referred to as ‘the Forum’ for the sake of brevity) in Consumer Complaint No.158 of 2004, Mr. Bhaskarrao Malharrao Gadakh Vs.  The New India Assurance Company Ltd.  It is a case of arbitrarily repudiating the insurance claim by the Insurance Company.  Upholding the contention of the Insurance Company that the Complainant suppressed the fact that the driver of the insured vehicle was under the influence of some intoxicating drugs at the relevant time when the accident occurred, the consumer complaint stood dismissed.  Feeling aggrieved by the impugned order, the Complainant preferred this appeal.

[3]     In the instant case the Complainant categorically submitted that when the insurance claim was made there was no police case and as such, there was no question of disclosing the information about any criminal action pending against the driver of the insured vehicle who is the Complainant’s son.  Furthermore, the Insurance Company stated that they investigated the claim and their investigator found that the driver of the insured vehicle at the time of accident was under influence of intoxicating drugs and, therefore, Insurance Company repudiated the claim.  For that purpose Insurance Company relied upon Exception Clause (c) contained in the policy document.  We are afraid, if the Insurance Company wants to rely upon this particular exception clause then, they will have to establish the fact that at the relevant time of the accident, the driver of the insured vehicle viz. the Complainant’s son was under influence of intoxicating drug.  Admittedly, an affidavit of the investigator is not produced on the record.  There is no other material on the record to establish this particular fact.  Under the circumstances, it cannot be said that the Insurance Company, on whom the burden lies, has satisfactorily discharged the burden of proof to justify its action to repudiate the insurance claim of the Complainant.  The Forum did not consider this aspect and arrived at a wrong conclusion.

[4]     As far as quantum of compensation which needs to be indemnified by the Insurance Company can be safely assessed at `1,02,943/- i.e. the loss assessed by the Surveyor.  For the reasons stated above, we hold accordingly and pass the following order:-

ORDER

Appeal is allowed.

Impugned order dated 24^th October, 2005 passed by the District Consumer Disputes Redressal Forum, Nasik in Consumer Complaint No.158 of 2004 is hereby set aside.  Consequently, consumer complaint is partly allowed.

Respondent/Opponent – The New India Assurance Company Ltd., is hereby directed to pay to the Appellant/Complainant an amount of `1,02,943/- together with interest thereon @ 6% p.a. as from the date of filing of the complaint viz. 09^th September, 2004 till its realization.

Insurance Company to bear its own costs and shall pay costs of `5,000/- to the Appellant/Complainant.

Pronounced and dictated on 03^rd July, 2013