Ld. Advocate(s)
For Complainant: Makbul Rahaman
For OP/OPs : Raj Kumar Mondal
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Date of filing of the case :20.02.2018
Date of Disposal of the case : 14.06.2023
Final Order / Judgment dtd.14.06.2023
Complainant above named filed a petition u/s 12 of the Consumer Protection Act, 1986 against the aforesaid opposite parties praying for Rs.4,00,000/- at the rate of Rs.2,00,000/- each for death benefit in respect of two policy, interest over the said amount compensation amounting to Rs.1,00,000/- and cost of the case.
She alleged that her son Krishna Gopal Das during his life time have purchased two insurance policy (New Bima Gold of LICI), table no.179, term 16 years and 20 years vide policy no.427050537 and 425063782, sum assured at the rate of Rs.2,00,000/- each and death benefit at the rate of Rs.2,00,000/- each. Before purchase of said policy Krishna Gopal Das was in sound health. During validity of the aforesaid two policy, he was murdered and relating to the said incident Kaliganj P.S. started a case vide Kaliganj P.s. case no.366/13 dated 22.05.2013 u/s 364/34 IPC and P.M. Examination was held at Nadia District Hospital on 24.05.2015 vide P.M. No.502 of 2013. After the death of said Krishna Gopal Das death benefit was claimed but OP NO.1 & 2 granted sum assured in respect of aforesaid two policy at the rate of Rs.2,00,000/- each. But they did not pay death benefit in respect of aforesaid two policy at the rate of Rs.2,00,000/- each. They by issuing a letter refused the death benefit and stated that aforesaid murder was pre-planned and hence DAB is not payable against the aforesaid two policy. Hence the complainant filed this case.
OP No.1 contest the case by filing W/V and denied the entire allegations of the petition of complaint. He contended that he had received the death intimation of the policy holder and after considering all documents granted basic sum assured in favour of the complainant. He further contended that in case of death due to accident including accidental murder one additional amount equally to sum assured that is DAB can be granted. He further contended that life assured was murdered and cause of death was due to shock and haemorrhage resulting from injuries and which are anti-mortem and homicidal in nature and C.I.D. department investigated the matter and submitted charge sheet against the accused persons and it was revealed that the said murder was pre-planned murder and it was not accidental. In case of pre-planned murder policy does not cover the DAB. He prays for dismissal of the case.
Trial
During trial complainant filed affidavit in chief. OP No.1 filed questionnaire and complainant gave answer. Subsequently, OP NO.1 filed another set of
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questionnaire and complainant gave answer. OP NO.1 filed affidavit in chief. Complainant filed questionnaire and OP No.1 gave answer.
Documents
Complainant filed following documents viz :
- Xerox copy of LIC Policy status vide No.427050537 date of commencement 28.11.2008 amounting to Rs.2,00,000/-.......(One sheet)
- Xerox copy of LIC Policy status vide No.425063782 date of commencement 28.12.2005 amounting to Rs.2,00,000/-.....(One sheet)
- Original copy of Death Certificate date of Death 21.05.2013.......(One sheet).
- Certified copy of F.I.R. front......(One sheet)…....(Original)
- Certified copy of charge sheet (26 sheets)…..(Original)
- Certified copy of Post Mortem Report dated 24.05.2013.....(One sheet)…(Original)
- Original copy of letter of L.I.C.I ...........(One sheet)
Brief Notes of Argument
Complainant filed BNA on 19.05.2023.
OP No.1 filed BNA on 19.05.2023
Decision with Reasons
We have carefully gone through the petition of complaint filed by the complainant, W/V filed by the OP NO.1, affidavit in chief filed on behalf of complainant and OP NO.1 and documents filed on behalf of complainant.
We have carefully considered those documents.
Admitted position is that deceased Krishna Gopal Das during his life time had purchased two insurance policy namely new Bima Gold (Table 179, term 16 years) vide policy no. 427050537 and 425063782. Sum assured of those two policy were Rs.2,00,000/- each. Death benefit of aforesaid two policy were Rs.2,00,000/- each.
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It is also admitted position that said Krishna Gopal Das was murdered and Kaliganj P.S started case no.366/2013 dated 22.05.2013 u/s 364/34 IPC.
On perusal of copy of FIR dated 22.05.2013 and copy of death certificate, we find that Krishna Gopal Das was murdered on 21.05.2013.
On perusal of letter dated 26.09.2016 issued by OP NO.1, we find that they refused the claim of DAB against the aforesaid two policy.
It is also admitted position that OP NO.1&2 paid the sum assured in respect of aforesaid two policy amounting to Rs.2,00,000/- each..
Crux of the whole dispute is that OP NO.1 &2 refused the death accidental benefit that is DAB on the ground that the allegation of aforesaid murder was pre-planned. Ld. Advocate for the OP NO.1 & 2 argued before this Commission that as the aforesaid murder was pre-planned, hence complainant is not entitled to DAB amounting to Rs.2,00,000/- each in respect of aforesaid two policy that is Rs.4,00,000/-. He cited decision of Rita Devi and Others Vs New India Insurance Company Limited.
On perusal of the said decision, we find that Hon’ble Supreme Court held:-
In the instant case, as we have noticed the facts, we have no hesitation in coming to the conclusion that the murder of the deceased (Dasarath Singh) was due to an accident arising out of the use of motor vehicle. Therefore, the trial court rightly came to the conclusion that the claimants were entitled for compensation as claimed by them and the High Court was wrong in coming to the conclusion that the death of Dasarath Singh was not caused by an accident involving the use of motor vehicle. This leaves us to consider the second point raised before us by the counsel for the appellant. It is argued on behalf of the appellants that the appeal preferred by the Insurance Company purported to be under Section 173 of the Motor Vehicles Act was not maintainable because prior permission of the Court as required was not obtained by the appellants. In support of this contention of the appellants, reliance is placed on a judgment of this Court in the case of Shankarayya & Anr. Vs. United India Insurance (Co.Ltd. & Anr. 1998 3SCC 140). In the said judgment a Division Bench of this Court held: The Insurance Company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for that purpose the Insurance Company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the Insurance Company cannot have a wider defence on merits than what is available to it by way of statutory defence. It is true that the
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claimants themselves had joined Respondent Insurance Company in the claim petition but that was done with a view to thrust the statutory liability on the Insurance Company on account of the contract of the insurance. That was not an order of the Court itself permitting the Insurance Company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170. Consequently, it must be held that on the facts of the present case, Respondent Insurance Company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal.
We respectfully agree with the ratio laid down in the above case and in view of the fact admittedly the Insurance Company had not obtained leave from the tribunal before filing the above appeal. We are of the opinion that the appeal filed by the Insurance Company before the High Court was not maintainable in law. For the reasons mentioned above, this appeal succeeds, the judgment and order of the High Court dated 09.03.1998 is set aside and that of the Tribunal dated 24.06.1996 is restored. The appellants are entitled to costs in all the counts.
Ld. Adv. for the OP No.1 cited one judgment of this Commission passed in case no.CC/108/2016. Perused the same. It cannot be treated as a decision. Accordingly, same is not accepted.
He cited another decision, of N.C.D.R.C. reported in 3 (2006) CPJ 213 NC. We have carefully gone through the same.
In reply Ld. Advocate for the complainant argued before this Commission. It will be very clear from the documents on record that said Krishna Gopal Das was murdered and it cannot be said as a pre-planned murder. Said Krishna Gopal Das went to a marital house. Thereafter, he was kidnapped and murdered. In this Situation, there was no default on the part of the Krishna Gopal Das. He further submits that complainant is entitled to DAB amounting to Rs.2,00,000/- each in respect of aforesaid two policy, that is amounting to Rs.4,00,000/-. He cited a decision of Hon’ble N.C.D.R.C. in revision petition no.2824 of 2007.
On perusal of the said decision, we find that Hon’ble N.C.D.R.C. also discussed the aforesaid case of Rita Devi.
In the said decision Hon’ble N.C.D.R.C. held:-
Despite the aforesaid two judgements, in the case of Prithvi Raj Bhandari (supra), the Commission observed that the important point which required notice was whether murder was an accident would depend upon proximity of cause of such murder and held on facts that the complainant has suppressed the fact that various complaints against the deceased were filed under various Sections of the
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IPC, and concluded that there was no doubt that this was a murder by design and intent rather than a case of accidental murder.
In our view, the said reasoning cannot be justified by any standard. LIC policy excludes death due to limited causes mentioned in Exclusion clauses under para 10(b) and, therefore, it is totally irrelevant to find out the background of the deceased. Further, even in case where there is a criminal background of the assured, it would be difficult to hold that his murder was not accidental unless he has taken up the quarrel and that the immediate cause of injury was deliberate and wilful act of the insured himself.
Hence, this Revision Petition is allowed, impugned order passed by the State Commission is set aside. Order passed by the District Forum is restored. The insurance company shall pay the policy amount including Bonus with accidental benefit with interest at the rate of 12% per annum. The insurance company shall also pay Rs.5000/- as costs of litigation to the complainant.
From the aforesaid decision of Hon’ble N.C.D.R.C., it is clear before us that in case of murder of the policy holder, his legal heirs or nominee are entitled to get accidental benefit that is DAB. OP NO.1 & 2 cannot reject the DAB on the ground of pre-planned murder.
Two decisions have been filed before this Commission. One decision has been filed by the OP No.1 & 2 which passed by Hon’ble N.C.D.R.C. on 26.05.2006 another decision has been filed by the complainant passed on 21.05.2008. The decision filed by the complainant is the later decision of Hon’ble N.C.D.R.C. and accordingly, same is considered.
Having regard to the aforesaid decision, it is clear before us that complainant has able to established her grievance against the OP NO.1& 2.
On careful perusal of documents on record, we find that complainant being a nominee of deceased Gopal Krishna Das is a consumer and OP No.1& 2 are service provider.
We also find that OP NO.1 &2 without valid reason refused the claim of DAB amounting to Rs. 2,00,000/- each in favour of the complainant.
Accordingly, complainant is entitled to DAB Rs.2,00,000/- each that is Rs.4,00,000/- from the OP NO.1 & 2.
In the result present case succeeds.
Hence,
It is
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Ordered
that the present case be and the same is allowed on contest against the OP NO.1with cost of Rs.5,000/- (Rupees Five thousand) to be paid by OP NO.1 in favour of the complainant.
OP NO.1 is directing to pay DAB amounting to Rs.2,00,000/-(Rupees Two lakh) in respect of Policy no.427050537 and he is further directed to pay Rs.2,00,000/-(Rupees Two lakh) as DAB in respect of policy no.425063782 in favour of the complainant within one month from this date failing which aforesaid amount shall carry interest at the rate of 9% per annum form this day to till the date of actual payment and complainant shall have liberty to put this order into execution.
OP NO.1 is further directed to pay Rs.10,000/- (Rupees Ten thousand) as compensation in favour of the complainant for her harassment, mental pain and agony.
Let a copy of this judgment be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
We concur,
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MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) (MALLIKA SAMADDAR)
