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Judgment
This revision petition has been filed by the petitioner against the order dated 24.05.2012 passed by the H.P. State Consumer Disputes Redressal Commission, Shimla (in short, ''the State Commission'') in Appeal No. 201/2010 & 233/2010 by which, while dismissing both appeals, order of District forum allowing complaint was upheld.
Brief facts of the case are that complainant/respondent got his Mahindra Max Cab HP 01 A 3068 insured from OP/petitioner for a sum of Rs.2,90,000/- for a period of one year from 7.4.2004 to 6.4.2005. On 22.6.2004, complainant while driving vehicle met with an accident and vehicle was damaged. Surveyor was appointed by OP, who recommended Rs.2,39,000/- after deducting salvage value. OP repudiated claim on the ground that complainant, who was driving vehicle was under influence of liquor at the time of accident. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and reiterated that as complainant was driving vehicle under influence of liquor, claim was rightly repudiated and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay Rs.2,39,000/- with 9% p.a. interest and further directed to pay Rs.3500/- as cost of litigation. Both parties filed appeal before learned State Commission and learned State Commission dismissed both appeals vide impugned order against which, this revision petition has been filed along with application for condonation of delay.
Heard learned Counsel for the parties finally at admission stage and perused record.
As there is delay of only 11 days in filing revision petition, delay stands condoned for the reasons mentioned in the application.
Learned Counsel for the petitioner submitted that inspite of proof of intoxication of owner of the vehicle at the time of driving vehicle, learned District forum committed error in allowing complaint and learned State commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
The core question to be decided in this case is whether complainant was driving vehicle at the time of accident under influence of intoxicating liquor or drugs.
Learned Counsel for the petitioner has drawn my attention towards injury report of complainant, who was examined on 23.6.2004 at 1.25 p.m. in which it was observed that his breath was smelling alcohol and his both pupils semi dilated, reacting to light equally. He has also drawn my attention towards the reported dated 25.9.2004 given by FSL in which blood and urine sample were shown alcohol contents 143.1 mg% in blood and 126.5 mg% in urine. Learned Counsel for the petitioner also placed reliance on judgment of this Commission in Complaint No. 401 of 2014 ? Baby Apoorva Rai Vs. New India Assurance Co. Ltd. & Anr. in which it was observed that if a person is found to have more than 103.14 mg. of alcohol in his blood, he would be treated under influence of intoxicating liquor. On the other hand, learned Counsel for the respondent has drawn my attention towards statement of Doctor who in his cross-examination admitted that preservative had not been added to the samples of blood and urine and if preservatives are not added there is possibility of production of alcohol in the sample of blood and
urine. Admittedly, FSL is of 25.9.2004 whereas accident occurred on 23.6.2004. After 3 months samples were analyzed by FSL and when preservatives were not added this possibility cannot be ruled out that percentage of alcohol increased in the samples of blood and urine in 3 months and in such circumstances, it cannot be presumed that complainant was under influence of intoxicating liquor/drugs.
Perusal of record further reveals that Motor Accident Claims Tribunal allowed claim against complainant as well Insurance Co. vide order dated 8.5.2007 and allowed Insurance Company to recover awarded amount from the complainant. Appeal filed by complainant was decided by Hon''ble High Court of Himachal Pradesh by order dated 14.11.2014 in which it was observed that complainant was acquitted in criminal case by Sessions Judge as offence under Section 185 of Motor Vehicle Act was not proved against him and on that basis, order of Motor Accident Claims Tribunal was modified and right to Insurance Company to recover awarded amount from complainant was set aside.
In the light of aforesaid judgment it becomes clear that complainant was acquitted under Section 185 of Motor Vehicle Act by Competent Court, it cannot be held that complainant was under influence of intoxicating liquor/drugs at the time of accident and in such circumstances, I do not find any illegality, irregularity or jurisdiction error in the impugned order and revision petition is liable to be dismissed.
Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.