NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 535 OF 2015

Transcription

1 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 535 OF 2015 (Against the Order dated 27/05/2015 in Complaint No. 151/1998 of the State Commission Uttar Pradesh) 1. PAWAN KUMARI WIDOW OF LATE SHRI KISHAN BABU, TEHSIL ROAD BALAJI MARKET MOHDA AND VILL. SISOLAR, TEHSIL MODHA, DISTRICT-HAMIRPUR UTTAR PRADESH...Appellant(s) Versus 1. LIFE INSURANCE CORPORATION OF INDIA & ANR. THROUGH BRANCH MANAGER, BRANCH MAHOWA, 114 GANDHI NAGAR, MAHOWA, DISTRICT-MAHOWA 2. DIVISIONAL MANAGER, JEEWAN VIKAS 16/98, MOHATMA GANDHI MARG, KANPUR Respondent(s) BEFORE: HON'BLE DR. B.C. GUPTA, PRESIDING MEMBER For the Appellant : For the Respondent : Dated : 26 May 2016 Mr. Basant Kumar Choudhary, Sr. Advocate with Mr. Rituraj Choudhary, Advocate Mr. Vivek Singh, Advocate ORDER PER HON'BLE DR. B.C. GUPTA, PRESIDING MEMBER These two first appeals have been filed against the impugned order dated , passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (hereinafter referred as State Commission ) vide which, the complaints filed by the present appellant in Case No.150 of 1998 and Case No.151 of 1998 were allowed, and it was stated that the petitioner shall be paid interest on the three life insurance policies taken by her husband from to , along with 9% per annum in addition to Rs.10,000/- as cost of litigation. -1-

2 2. The facts of the case are that the husband of the petitioner Kishanbabu Shivhare obtained three life insurance policies from the opposite party (OP Life Insurance Corporation of India) (hereinafter referred as LIC) as per the following details:- Sl.No. Policy No. date Amount Rs.6,00,000/ Rs.1,00,000/ Rs.3,00,000/- 3. The said Kishanbabu Shivhare was murdered on in a property dispute with some persons in his area. The petitioner filed claim under the three policies to the LIC for getting the sum insured, along with accidental benefit and bonus. On the failure of the LIC to pay the claim, the consumer complaint was filed before the State Commission. During the proceedings before the State Commission, the LIC filed their written statement stating that they had already approved death claim along with bonus payable under the said policies and the same had been offered several times for payment to the complainant, but she avoided receiving the same. The LIC took the stand that the claimant was not entitled to the accident benefit under the policies because it was a death due to murder and not a case of accidental death. The State Commission observed in the impugned order that the sum insured including bonus, amounting to Rs.11,26,332/- had already been released to the petitioner by the Insurance Co. on The State Commission ordered that simple interest should be paid on the said 9% p.a. for the period to the date of payment, i.e., The State Commission also held that the petitioner was not liable for accidental claim separately as compensation. Being aggrieved with this order, the petitioner is before this Commission by way of the present two appeals. The question, therefore, is can a murder be an accident in any given case? There is no doubt that murder, as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a murder which is not an accident and a 4. During hearing, the learned counsel for the appellant argued that the appellant was entitled to get the benefit of accidental claim as well, because under the terms and conditions of the policy, murder came under the definition of accident. In support of his arguments, the learned counsel has drawn attention to the order passed by the Hon ble Apex Court on , in Smt. Rita Devi & Ors. Vs. New India Assurance Co. Ltd. & Anr., [AIR 2000 SC 1930] in which, it has been stated as follows:- -2-

3 murder which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder. 5. The learned counsel argued that in the present, case the death of the insured has taken place during firing in a property dispute and hence, it can be presumed that the act of murder was originally not intended and hence such murder is an accidental murder. Death of the Life Assured : To pay an additional sum equal to the death benefit under this policy, if the Life Assured shall sustain any bodily injury resulting solely and directly from the accident caused by outward, violent and visible means and such injury shall within ninety days of its occurrence solely, directly and independently of all other causes result in the death of the Life Assured. However, such additional sum payable in respect of this policy together with any such additional sums payable under other policies on the life of the Life Assured shall not exceed Rs.1,00,000/-. 7. The learned counsel argued that in clause 10 of the policy, there were five exclusion clauses (i) to (v) stated therein, and it related to intentional self-injury, attempted suicide, civil commotion, rebellion, war or engagement in police duty etc. but the present case was not covered under any of these clauses. The learned counsel stated that the State Commission had taken an erroneous view that the accident benefit under the policy was not payable. He also argued that interest should have been allowed to the appellant from the date of death of the deceased. The learned counsel has drawn my attention to the order of the Hon ble Supreme Court in Laxmi Devi Vs. State of Bihar & Ors. [(2015) 10 SCC 241] in support of his arguments, saying that the ratio laid down in the previous judgements should be kept in view, while taking a decision in the present case. 8. Per contra, the learned counsel for the LIC has drawn attention to an order passed by this Commission in Prithvi Raj Bhandari Vs. LIC of India & Ors. [III (2006) CPJ 213 (NC), saying the double accident benefit under the insurance policy was not granted in this case, because the insured had been murdered. In this order passed by this Commission, reliance has also been placed on the judgement passed by the Hon ble Supreme Court in Rita Devi & Ors. Vs. New India Assurance Co. Ltd. (supra). The learned counsel argued that the facts and circumstances 6. The learned counsel has also drawn attention to an order passed by the Hon ble High Court of Andhra Pradesh in Manager, United India Insurance Co. Ltd. & Anr. Vs. Ummadi Shakunthala & Ors., [AIR 2005 Andhra Pradesh 336] in which the High Court has discussed in detail the meaning of the words, violent, external and accident and stated that the murder shall be treated as an accident. The learned counsel has further drawn my attention to the terms and conditions of the policy, saying that it had been mentioned in section 10(b) of the said policy relating to the accident benefit as follows:- -3-

4 of the present case show that it was a planned murder and hence, it did not come under the definition of accident and hence, relying upon the case Rita Devi & Ors. Vs. New India Assurance Co. Ltd. (supra) also, the benefit of double accident claim could not be given to the appellant. 9. I have been examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. The main point for consideration in the present appeals is whether accidental claim is payable to the appellant or not, considering the factual position of the case, when the husband of the appellant was murdered in a property dispute. 10. On record, is a copy of the First Information Report (FIR) lodged by the brother, of the deceased, Vishnu S/o Sunder Lal at police station Sisolar, Dist. Hamirpur, U.P. It has been stated therein that Vishnu was at the house of the deceased Kishanbabu on in the evening and they were talking about their crop production, with some other people inside the veranda of the house. At about 7 p.m., the said Kishanbabu went to the house of Nathu Soni and after 15 minutes, a loud sound was heard from his brother. When Vishnu reached the house of Nathu along with other persons, they observed that two persons had tied his deceased brother Kishanbabu with rope. The deceased brother came out of the rope and rushed towards the police station. On the way, Ram Rattan and his sons were standing with guns/rifles and they started heavy firing and in the process, killed his brother who died on the spot. A perusal of these facts makes it clear that there was a scuffle between the deceased and the accused persons over some property dispute, as a result of which, the policy holder deceased was killed in the firing done by the other party. It is to be considered, however, whether a murder in such circumstances is to be treated as accident or not. As stated in Condition No.10 (b) of the policies in question, the accident benefit is payable, if the life assured sustains a bodily injury, resulting solely and directly from the accident, caused by outward, violent and visible means. There is no doubt that the death occurred due to injuries caused by an incident of firing, which by itself implies that there were outward, violent and visible means, resulting in the death of the policy holder. Now looking at the legal proposition laid down by the Hon ble Supreme Court in Rita Devi & Ors. Vs. New India Assurance Co. Ltd. (supra), it is to be decided whether the act of this murder was originally intended, or it was an accidental murder, which was caused in furtherance of any other felonious act. From the version given in the FIR, it is clear that when the deceased was heading towards the police station, obviously after a scuffle with some persons in a property dispute, he was fired upon by Ram Rattan and his sons, and he died due to injuries inflicted upon him. It cannot be stated, therefore, that it was a case of murder simplicitor and that killing him on that day at that and very time by the accused, was predesigned. The accused in the case were acquitted by the Sessions Court, but in appeal filed by the State of U.P before the High Court, their guilt was established and they were convicted under section 302 I.P.C. 28. From the above it is clear that murder, which is an unexpected event from the standpoint of victim, is an accident. In the instant case, it is not in dispute that the deceased was killed allegedly by group of persons belonging to other faction. Indisputably 11. Further, relying upon the judgement passed by the Andhra Pradesh High Curt in United India Insurance Co. Ltd. & Anr. Vs. Ummadi Shakunthala (supra), it has been held that the murder which was the result of unexpected events from the standpoint of the victim was an accident. It has been held in the said judgement as follows:- -4-

5 as the injuries being vital, the deceased died. Though it is on record that somebody attacked, the reasons are not known and further it is also very difficult to discern as to whether the intention of the person who attacked the deceased was only to cause injuries or to completely annihilate the deceased or for some other reason. Of course from the injuries caused it could be provisionally understood that the deceased was attacked to annihilate him. However, it would be totally a different subject, which has to be dealt with separately in the criminal adjudication. But when it comes to the purpose of contractual obligation by the Insurance Company under the policy, the death of the deceased should only be understood, as already discussed above, as an 'accident'. The occurrence in my considered view satisfies all the conditions laid under the policy and hence it is inescapable for this Court to hold that the murder of the deceased in the present case shall be treated as an accident for the purpose of awarding compensation under the Janata Personal Accidence Policy. 12. A plain reading of the conclusion arrived at by the Andhra Pradesh High Court in the above case, shows that it was very difficult to discern, whether the intention of the person who attacked him was only to cause injuries, or to completely annihilate him. It is also stated that from the standpoint of the victim, it was an unexpected event. The facts and circumstances of the present case also show that the deceased first went to the house of Nathu Soni from where, he was tied by a rope by the persons present there. When he tried to go and report the matter to the police station, he was killed on the road. It is, therefore, clear from the standpoint of the deceased, it was an unexpected event, otherwise he would not have gone to the house of Nathu Soni, if he had known he shall be attacked and killed. 13. In so far as the order passed by this commission in Prithvi Raj Bhandari (supra) is concerned, it is seen that the facts of this case are entirely different from the facts of the present case. In Prithvi Raj Bhandari (supra), three criminal cases had been filed against the deceased/insured already. It has been observed by this Commission that a series of criminal cases filed against him as well as his killing by shooting him in the ear and also in the ribs, left no doubt that it was a murder by design and intent, rather than a case of accident murder. The order passed by the National Commission shall not be applicable to the facts of the present case, where it can be concluded that there is nothing on record to show that the murder of the deceased policy-holder was a predesigned or pre-planned murder. Considering the ratio of the judgements, therefore, quoted on behalf of the appellant, it is made out that murder in this case comes under the definition of accident. 14. Having stated so, it becomes evident that the OP LIC is liable to pay claim for the accident benefit as well, under the three policies taken by the husband of the appellant. The two appeals are, therefore, allowed and a direction is given to the LIC to provide accident benefit under the three policies to the appellant in addition to the grant of other benefits allowed by the State Commission. The State Commission vide impugned order had granted simple 9% per annum on the payment made already to the appellant w.e.f , i.e., the date on which the complaint was filed. The interest on the amount of accident claim shall also be 9% per annum w.e.f till realisation. There shall be no order as to costs. -5-

6 DR. B.C. GUPTA PRESIDING MEMBER