1. Present appeal has been filed by the complainant under Section 15 of Consumer Protection Act, 1986 against the order dated 05.04.2019 passed by District Consumer Disputes Redressal Forum, Mandi, H.P, whereby the complaint of complainant has been dismissed.

1 Whether reporters of the local papers may be allowed to see the order? Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 Brief facts of consumer complaint:

2. Brief facts necessary for adjudication of this appeal are that complainant is the registered owner of vehicle No.HP- 31B-3692 (Tata Zest car). The said vehicle was insured with the opposite party and the risk was covered from 02.11.2016 to 01.11.2017. It is further pleaded that IDV of the car was Rs.5,75,975/-. It is further pleaded that on 14th April, 2017 her sons Himanshu and Puneet Gupta along with Abhishek, Aditya and Sonu were travelling in the vehicle and Himanshu was driving the vehicle in question. The vehicle in question skidded and fell into BSNL Canal. In the accident, Himanshu (driver), Abhishek, Aditya and Sonu expired, whereas, Puneet Gupta swam to safety and survived. Puneet Gupta was not in a position to depose properly since he went under depression and shock. Relatives of Abhishek, Aditya and Sonu (all deceased) succeeded in manipulating and getting a false FIR bearing No.72/2017, dated 15.04.2017 registered against Shri Puneet Gupta in Police Station, Balh, District Mandi, Himachal Pradesh. Despite application dated 23.09.2017 moved by Shri Puneet Gupta before the police, the case was not properly investigated. The vehicle was totally damaged in the mishap. Information regarding the incident was given to the opposite party. It is further pleaded that signatures of complainant were taken on some blank papers/pro-formas by the officials of the opposite party by saying that the claim will Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 be paid soon, but neither any claim form was filled nor the particulars of driver were disclosed by her before the opposite party. Police officials forcibly took into possession the driving licence of her son namely Puneet Gupta. A letter dated 12.12.2017 was received from the opposite party. Her genuine claim was repudiated wrongly and illegally on the ground that the driver Shri Puneet Gupta was driving the vehicle under the influence of liquor. It is further pleaded that at the time of accident late Shri Himanshu was driving the car and Puneet Gupta was sitting in the same. It is further pleaded by the complainant that she has been harassed and suffered financial loss. The opposite party committed deficiency in service and unfair trade practice.

3. The complaint so filed has been contested by the opposite party by filing reply taking preliminary objections therein to the effect that the dispute raised by the complainant cannot be termed as a consumer dispute and that the complaint is not maintainable. It is further pleaded that complex questions of law and facts are involved in the case and detailed evidence is required to be adduced to prove and disprove the facts. It is further pleaded that controversy involved in the present complaint cannot be adjudged by the Forum in a summary manner and remedy lies before the Civil Court. On merits, it has been admitted that the vehicle in Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 question belongs to the complainant and the same was insured with the opposite party. It has been admitted that vehicle in question met with an accident during the period of insurance policy. However, it has been pleaded that after receiving intimation regarding the occurrence, Shri Mohinder K. Sharma, an independent Surveyor and Loss Assessor, was deputed to inspect the vehicle and assess the loss. who gave the report dated 31.10.2017 and recommended the indemnity payable as Rs.4,65,000/- on net of salvage basis subject to the terms and conditions of insurance policy. During police investigation, it surfaced that Shri Puneet Gupta (surviving son of the complainant) was driving the vehicle after consuming alcohol. His medico legal certificate and report of laboratory showed consumption of alcohol. Since the car was being plied in breach of the policy conditions, the claim was rightly rejected per letter dated 12.12.2017. The complainant is not entitled to the money claimed. It is further pleaded that application dated 23.09.2017 was moved by Shri Puneet Gupta before the police with an ulterior motive and to avoid third party liability. It is further pleaded that a false story has been concocted by the complainant and her signatures were never taken on blank papers as alleged.

4. The complainant filed rejoinder and the averments made in the complaint were reasserted and reaffirmed and refuted the allegations which were contrary to the complaint. Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019

5. Learned District Consumer Commission dismissed the consumer Complaint. Feeling aggrieved and dissatisfied with the aforesaid order passed by learned District Consumer Commission, the complainant filed present appeal before State Commission.

6. We have heard learned Advocates appearing for the parties and perused the pleadings and evidence adduced by the parties and we have also perused the record of the learned District Forum/Commission carefully.

7. Following points arise for determination in present appeal.

1. Whether appeal filed by the complainant is liable to be accepted as mentioned in memorandum of grounds of appeal?

2. Final order. Findings upon point No.1 with reasons:

8. Complainant filed her affidavit by way of evidence. In affidavit documents were stated to be false. It is also averted in affidavit that driver of the vehicle was not under the influence of alcohol as stated by the opposite party. The complainant also stated in the affidavit that non-payment of claim on false grounds amounts to deficiency in service. The complainant filed affidavit of Sh. Lal Singh, S/o Hari Ram who also supported the case of the complainant. No other point was pressed in the written submission filed by the appellant. Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019

9. The opposite party filed affidavit of Sh. Ashok Negi Sr. Divisional Manager, United India Insurance Company. In the affidavit it is averted that the claim is not maintainable in view of the fact that vehicle involved in the accident had been driven by Sh.Puneet Gupta, elder son of the complainant, in violation of terms and conditions of the policy, as per Police Investigation report and MLC as well as chemical analysis report of RFSL Central Zone Mandi H.P, the vehicle was driven by the son of the complainant under the influence of intoxication. It is also averted in the affidavit that the Insurance company has hired services of independent and qualified surveyor and loss assessor, who has recommended the indemnity on net of salvage basis i.e total loss for Rs.4,65,000/- subject to terms and conditions of the policy. Though, complainant is not entitled for the indemnity in violation qua terms and conditions of the Policy, as driver who was driving the vehicle at the time of accident was under the influence of intoxication and this being a specific breach qua terms and conditions of Insurance policy, which reads as follows any accidental loss or damage whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxication or drug. It is further averted that the matter required adjudication before the Civil court because of complexity, as voluminous evidence is required to be adduced by the parties. Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 The Insurance Company also filed affidavit of Sh. Mohinder Kumar Surveyor, who recommended the case of the complainant at Rs. 4,65,000/- on the net salvage basis subject to the terms and conditions of the policy.

10. Submission made by learned counsel appearing for the opposite party that as per FIR lodged in Police Station, Balh against Sh. Puneet Gupta, he was medically examined and report of MLC is Annexure O-2 found to be drunk, but neither the affidavit of investigating officer nor the affidavit of doctor who issued MLC has been filed by way of evidence on record. The learned District Commission below has rejected the case of the complainant without appreciating the facts and law. The whole case of the opposite party is based upon the report of Regional Forensic Science laboratory, Central Range Mandi, Annexure O-4. The affidavits by way of evidence of the signatories of report were not filed before the District Commission below and reports were only tendered by Sr. Divisional Manager of the Insurance Company. It is strange that learned Commission below has given much reliance upon the report of FSL, which is not proved in accordance with provision of section 13(4) of the Consumer Protection Act. As per section 13(4) of Consumer Protection Act, 1986 document should be produced as evidence which is producible in evidence. It is well settled law that the contents of document can be proved only by way of affidavit of a Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 person, who has signed the document in order to prove controversial facts and mere production and even marking of a document will not prove the truth or correctness of the fact stated in the contents of document, those have to be proved by the evidence of the person who is author of the document. In absence of evidence by way of affidavits of Investigating Officer, Doctor who issued MLC, signatory of FSL report, pleadings cannot be seen and learned Commission below has given findings only on the assumptions, therefore, finding of the District Commission below is not sustainable in law. Hence, the plea of opposite party is also defeated on the concept of assertion made without proof. Reliance can be placed on the judgment rendered in case reported in 2019(1) CPR 701 NC titled New India Assurance Co. Ltd. Versus Nitin Kamalakar Ahire, judgment of Honble High Court of Himachal Pradesh in FAO No.481/2011 titled OIC Versus Champa Devi decided on 21.06.2017 and the Judgment of Honble National Commission in case title National Insurance Company Versus Mohd. Ishaq and other in Revision petition No.3657 and 3658/2011 dated 28.02.2012.

11. It is well settled that the proceedings under the Consumer Protection Act are Quasi Judicial proceedings and First Information Report is not per se admissible in evidence, no doubt it is substantive piece of evidence which has to be used, corroborated or contradicted during the course of trial Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 against the accused persons in the Criminal Court only, therefore, in absence of reports having been proved this Commission refrain itself to accept the finding given by the District Commission below in para-10 of the judgment and therefore, finding given by the forum below accepting the reports without proving the same on record is set aside.

12. The learned counsel for the Insurance Company further argued that as per report submitted by Regional Forensic Science laboratory, Central Range Mandi, Annexure O-4 depicts that ethyl alcohol to the extent of 25.85mg in blood and 63.25 mg in urine of Sh.Puneet Gupta were detected and on this ground the appeal deserves to be dismissed. The Insurance Company neither filed affidavit of Dr. Dubey or Dr. Ajay Kumar who have submitted the report in order to prove the contents of documents nor certified copies, under whose possession record is there were produced. No reasons assigned by the respondent as to why affidavits of doctors who submitted the reports were not filed. The learned Counsel for the insurance company further argued that the report submitted by doctor is per se admissible in evidence. This submission made by the counsel for the respondent is rejected in view of section 13(4) of the Consumer Protection Act 1986. It is well settled law that contents of documents are producible as evidence only by way of affidavit of person who has signed the document or by way Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 of secondary evidence by filing certified copies under the signature of the custodian of the document like under the Right to Information Act. It is also well settled law that report submitted under section 293 of Cr.P.C. by the Government Scientific Expert could be used as evidence in inquiry, trial or other proceedings under the Code of Criminal Procedure 1973 only and not per se admissible in quasi Civil-Judicial proceedings under the Consumer Protection Act, 1986. Or the opposite party could have proved the reports by way of secondary evidence by producing them by way of certified as true copy from the custodian of the record. In the present case neither affidavits by way of evidence nor certified copy to be true copy from the custodian of the record have been filed. The learned District Commission below has rejected the case of the complainant without appreciating the facts and law.

13. The next question which arises for consideration if the driver of the vehicle in question drives the vehicle under the influence of liquor, what will be the situation then. The Honble National Commission in Revision petition No.3249 of 2015, titled Laxmi Rohit Ahuja versus SBI Life Insurance company ltd. decided on 28.04.2016 in para-10 held as follows:

10. Considering the opinion expressed in the Manual issued by All India Institute of Medical Sciences, which is the premier most medical Institution in this Country, we are not inclined to accept the opinion Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 expressed in Modis Medical Jurisprudence and Toxicology, particularly when the opinion of AIIMS also find corroboration from the opinion expressed in Lyons Medical Jurisprudence and Toxicology. Though, this is not a case of the death while driving after consuming alcohol, the maximum quantity of alcohol permitted by various countries for a person to drive a motor vehicle cannot be said to be an altogether irrelevant since the purpose of prohibiting driving after consuming liquor beyond the prescribed quantity is to ensure that the driver does not commit an accident on account of the effect of liquor on him. The purpose of the insurer behind excluding the cases of accident when the insured is under influence of intoxicating liquor is to ensure that the consumption of the liquor does not lead or contribute to happening of the accident in which the insured dies or injured. Therefore, consumption of liquor beyond a safe limit must necessarily disqualify the insured from getting the benefits of the insurance policy taken by him. The quantity of alcohol allowed to the driver of a motor vehicle is not more than 100 mg/100 ml of the blood in any country, including USA though, in our country it is only 30 mg/100 ml of blood. Therefore, in our opinion, if a person is found to have consumed more than 103.14 mg of alcohol/100 ml of his blood, which is position in the case before us, it would be reasonable to say that he was under the influence of the intoxicating liquor at the time he died or got injured. We are fortified in taking this view from the decision of this Commission in Priyanka Singh (supra). As far as the decision of this Commission in Ranjit Kaur (supra) is concerned, we find that the quantity of alcohol in the blood of the insured in that case was of 86.2 mg, which was much less than quantity of the alcohol found in the blood of the deceased Surya Kiran.

14. Thus, in view of above referred pronouncement of the Honble National Commission, it can hardly be disputed that deceased being having 25.85% mg. alcohol in blood, when accident occurred, which will hardly make a person under the influence of liquor. The consumption of liquor within permissible limit will not disqualify the insured from Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 getting the benefits of Insurance policy taken by him. Therefore, Insurance Company cannot escape from liability to make any payment to the complainant in terms of the policy. Even section 185 of the Motor Vehicles Act, 1988 prescribes that: whoever while driving or attempting to drive a motor vehicle has in his blood alcohol exceeding

30 mg per 100 ml of blood detected in a test by a breath analyzer shall be punishable. But, in the present case deceased was found having consumed 25.85% mg. alcohol in blood, which is less than 30 mg per 100 ml of blood. Therefore, case of the complainant is also covered under section 185 of the Motor Vehicles Act, 1985, because alcohol exceeding 30 mg per 100 ml of blood is punishable under section 185 of the Motor Vehicles Act, 1988 and not less than that. Even if it is presumed that driver has consumed the liquor, it is not established on record that the insured has knowing fully well had gived the possession of vehicle to the driver to drive the same under the influence of liquor, who is son of the insured. Therefore, it is not possible to accept that there was breach of terms and conditions of the policy or even any fundamental breach.

15. Now coming to the policy conditions, the complainant has filed Annexure C-VII, but the terms and conditions of policy were not there, perhaps terms and Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 conditions of policy were neither supplied to the complainant nor read over while insuring the vehicle in question. The opposite party filed the terms and conditions of the policy Annexure O-5, which seems to be downloaded from the internet and in duplicate of the policy in question pages of different dates are annexed, more specifically page 90 to 93 of the record file, in which, section I sub section 2 (C) which read as follows:- The company shall not be liable to make any payment in respect of:- (C) any accident loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs, on the basis of which the claim of the claimant is repudiated.

16. The exclusion clauses mentioned in the Annexure C-VII are as follows: Exclusions (1) Any accidental loss or damage and/or liability caused or sustain or incurred outside the geographical area (2) any claim arising out of any contractual liability (3) any accidental loss or damage to any property whatsoever or any loss or expense whatsoever resulting or arising therefrom or any consequential loss (4) any liability or whatsoever nature directly or indirectly caused by or contributed to or by arising out of ionizing radiations or contamination by radioactivity from any nuclear fuel. For the purpose of this exception, combustion shall include any self sustaining process of nuclear fission (5) any accidental loss or damage or liability directly or indirectly caused by or contributed to by or arising from under weapons material (6) any accidental loss damage and/or liability directly or indirectly or proximately or Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 remotely occasioned by or contributed to by or traceable to or arising out of or in connection with war, invasion, the act of foreign enemies, hostilities or war like operations (whether before or after declaration of war), civil war, mutiny rebellion, military usurped power or by any direct or indirect consequences of any of the said occurrence or any consequences thereof and in default of such proof of the company shall not be liable to make any payment in respect of such a claim. In the exclusion clause, drunk and driven conditions are not mentioned therein. Similar, policy at page 50 also filed, down below it is mentioned that subject to IMT Endst. No. terms and conditions printed herein/attached hereto 7,16,22,28, which are not attached with the Insurance Policy Annexure O-5, by the opposite party. Moreover, the duplicate policy filed by the opposite party seems to be of some other case, neither the date of downloading nor paging are matching, therefore, is not a complete document and cannot be relied upon. Moreover, there is nothing on record to show that the exclusion clause was explained to the insured by the insurer at the time of issuance of Insurance policy with respect to the vehicle in question. It is well settled law that if the Insurance company failed to explain the exclusion clause of the Policy Condition to the insured at the time of insurance, Insurance Company cannot take the advantage of exclusion clause. The Hon'ble Apex Court in 2019(2) SC 820 Himachal Law Reporter titled Bharat Watch Versus National Insurance Co. Ltd. held Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 that the exclusion clause is to explain to insured by the Insurance company while issuing the Insurance Policy.

17. On bare perusal of Annexure O-1 repudiation letter, it is clear that the opposite party has repudiated the claim of the complainant on the basis of report submitted by Regional Forensic Science laboratory, Central Range Mandi, which is not proved on record, therefore, repudiation letter is set aside.

18. Now coming to the amount of compensation the complainant is entitled for. The Insurance Company has hired the service of Mohinder K. Sharma, surveyor and loss assessor, who assessed the loss on the basis of net of salvage basis to the tune of Rs.4,65000/-. The Honble Apex Court in Venkateshwar Syndicate Versus OIC and another II 2010 CPJ

1 (SC) held that reports of the surveyor have to be given due importance. It has been held by Honble National Commission Dispute Redressal Commission, New Delhi in United India Insurance Co. versus Deen Dayal, II 2009 CPJ 45 NC that surveyor report being important document cannot burst aside without any material contrary on record. The Honble Apex Court in 2018 (1) CPR 311 NC also held that Insurance company cannot disbelieve report given by their appointed surveyor. In view of the aforesaid judgments which are binding precedent, we are accepting the report of surveyor. The surveyor in the instant case has been appointed by the Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 opposite party, who submitted the report Annexure O-6 and recommended the case of the complainant for the sum of Rs.4,65,000/- on the net of salvage basis. As there is no violation or fundamental breaches on the part of appellant, the principle on the basis of which admissible claim could be reduced does not apply in the present case as has been held by the Honble Apex Court in its judgment dated 19.11.2019 in Civil Appeal No.8796/2019 titled Kamlesh Versus Shri Ram General Insurance Co. In view of above, we are of the opinion that there is clear cut deficiency in service on the part of opposite party and also opposite party practiced unfair trade by repudiating genuine claim of complainant and complainant is entitled for a sum of Rs.4,65,000/- alongwith interest @ 9% per annum from the date of filing of the complaint till actual payment. In view of above stated facts point No.1 is decided accordingly. No other points were urged by the parties. Point No.2: Final Order

19. In view of findings upon point No.1 above appeal is allowed and order of the Consumer Forum below is set aside and opposite party is directed to make payment of Rs.4,65,000/- alongwith interest @ 9% per annum from the date of filing of the complaint till actual payment to complainant as full and final settlement on net of salvage Smt.Bhawna Gupta Versus United India Insurance Co. Ltd. F.A. No.192/2019 basis. Opposite party is also held liable to pay sum of Rs.10,000/- as compensation for mental agony and for deficiency in service and further sum of Rs.10,000/- as litigation costs. Opposite party is directed to comply the order within forty five days from the date of passing of order.

20. Certified copy of order be sent to learned District Commission forthwith for information 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. Sunita Sharma Presiding Member R.K. Verma Judicial Member 04.11.2020 Manoj