DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.607/2013

Shalini Sharma

Widow of Late Sh. Nitin Sharma

3/13, Shabdh Pratap Ashram,

Gwalior, M.P.-474012                                                 ….Complainant

Versus

Life Insurance Corporation of India,

Through Branch Manager,

Branch 11F, M-1, South Extension Part-II,

New Delhi-110049                                             ….Opposite Party

                                                  Date of Institution      : 19.12.13          Date of Order                 : 22.01.19

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

Naina Bakshi, Member

ORDER

Briefly stated, the case of the complainant is that the complainant’s husband during his lifetime taken four separate insurance policies (with profits) from the OP between the period 2006 to 20009 which duly covered the accident benefits and the complainant was made the nominee. The husband of the complainant was making regular payment and not made a single default in paying the premium during his life time.   The details of the insurance policies are as follows:-

          The husband of the complainant was working as Deputy General Manager (Retail) in a reputed company namely ‘Woodland’ and was looking after affairs of the company in National Capital Region (NCR).  On 20.07.12 the husband of the complainant was killed by gun shots in a broad daylight  by some unknown persons at around 8:00 AM infront of his own house  i.e. flat No.827, 2^nd Floor, Shakti Khand-4, Indirapuram, Ghaziabad, U.P. The whole incident was witnessed by the complainant from the balcony of the house. Thereafter, she immediately rushed down stairs but by that time the assailants fled away. Then she alongwith her neighbour rushed her husband deceased Nitin to hospital where the doctors declared him brought dead. It is submitted that the First Information Report No.933/2012 dated 20.07.12 was got registered at about 9:15 AM on the same day by the complainant against unknown assailants at P.S. Indirapuram, Ghaziabad under section 302 IPC. Post-mortem of the deceased Nitin Sharma was conducted on the same day. The investigation agencies were still conducted the investigation and charge sheet has not been filed by the police till filing of the case.  After demise of her husband the complainant alongwith her two minor daughters shifted to Gwalior which is the native place of the husband of the complainant. The complainant made the representation to the OP for claiming accidental benefits. The complainant received letter dated 11.05.13 from the OP wherein final police enquiry report was demanded from the complainant.  It is submitted that the husband of the complainant had taken another insurance policy (with profits) bearing No.200636281 wherein he had his mother as a nominee. In the claim made by the mother- in-law of the complainant the OP put the similar condition for providing the final enquiry report for claiming the benefits. The mother- in-law of the complainant filed a complaint No.20/2013 in the District Forum, Gwalior, MP. The Forum was pleased to allow her complaint with the direction to redress the dispute regarding accidental claim benefits within 30 days of the order. The complainant vide letter dated 17.06.13 informed the OP that her mother- in-law got benefits of insurance policy in similar circumstances and further requested the OP to clear the genuine and bonafide claim in respect of the insurance policy.  The OP once again vide letter dated 24.08.13 in a  routine manner demanded the copy of charge sheet filed by the police and till date not paid the claim amount . It is submitted that the complainant had filed an application in the month of September, 2013 through her father-in-law in the court of Chief Judicial Magistrate Ghaziabad, U.P. for directing the police to file the status report of the investigation. The police authority had again adopted a lethargic approach and had belatedly filed the status report in the court stating that three accused persons have been arrested and sent to  Judicial custody, one accused has died, weapon used in the offence has been seized, charge sheet against one accused person has been filed on 30.03.13 and against the remaining accused persons,  the matter is still under investigation. It is submitted that the OP had committed deficiency in service by demanding the final police enquiry report which has no relevance in clearing the genuine and bonafide dues to the complainant.  Hence, pleading deficiency in service and unfair trade practice on the part of the OP the complainant has filed the present complaint for the following reliefs:

1. Direct the OP to release the claim amount under the insurance policies bearing Nos.115342814, 114822368,115899712 & 115360004 alongwith interest @ 18% per annum  from the date of claim made with the OP with immediate effect;
2.  Direct the OP to pay to the complainant a compensation of Rs.25,000/- for mental harassment  and Rs.10,000/- as cost.

OP in the written statement has inter-alia stated that it is a well settled principle of law that 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, not covered under the terms of “accident”. It has been held by the Hon’ble Supreme Court of India in Rita Devi Vs. New India Assurance Company Ltd. reported in (2000) 5 SCC 113 that:

“ 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 common parlance is 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 the accident on a given set of facts. The difference between a ‘murder which is an accident’ and ‘murder which is not 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 was originally not intended and, the same was caused in furtherance of any other felonious act, then such murder is an accidental murder.”

It is submitted that the Hon’ble Supreme Court of India in above case has relied upon the Hon’ble National Consumer Dispute Redressal Commission in Prithvi Raj Bhandari Vs.  LIC of India reported in (2006) 2 CPR 8 NC wherein the life insured was murdered and the double accidental benefits was denied by the Hon’ble National Commission. 

It is submitted that in this case the OP in accordance with the terms and conditions of the policies had paid the sum assured to the complainant herein. It is submitted that as far as policy bearing No.115899712 is concerned, the policy was a simple endowment assurance with profit. It is clarified here that said policy has no provision for the death accidental benefits (DAB). The fact that the policy without DAB is specifically mentioned in the policy itself.   The present case is of an intentional murder of the life assured which has been admitted by the complainant herself in FIR lodged by herself, therefore it is not covered under the accidental death of the life assured as per the terms and conditions of the policy and the law laid down by the Hon’ble Supreme Court of India and Hon’ble National Commission. OP has prayed for dismissal of the complaint.

Complainant has filed rejoinder to the written statement of OP and stated that the contentions made by the OP are denied in toto and the case laws relied upon by the OP are not applicable in the facts and circumstances of the present case, as the said case law Rita Devi Vs. New India Insurance Co. Ltd.   (2000) 5 SCC 113 is relating to the death in motor accident whereas the fact of the present case are different  in the present case is an accidental death by gut shot. The principle propounded in the judgment of Prithiviraj Bhandari Vs. LIC of India (2006) 2 NC are not applicable in the present case as the facts of this case are different. Three Judges bench of Hon’ble National Commission has considered the judgment of Rita Devi and Prithviraj which are relied upon by the OP and in the judgment reported as Maya Devi Vs. LIC of India, Revision Petition No. 2824/2007 on the basis of similar facts as that of the complainant  held that the death by murder is a accidental death. This principle is also reiterated in the judgment reported as National  Insurance Company Ltd. Vs. Theegla Laxmi and Anr. R.P. No. 1154/2006. It is submitted that the FIR lodged by the complainant was against unidentified persons. As per the postmortem report the cause of death of the complainant’ s husband was stated to be  by shock and hemorrhage as a result of ante mortem gunshot injuries. The insured was not a party to the murder i.e. he did give rise to the pre-vocation. He was returning back after dropping the children to the school when the attack was made at him by un-indentified assailants and, therefore, he is not a party or privy to the extent of murder. The Hon’ble National Commission has exactly on the same principle and  exactly on the identical terms and conditions of the policy has passed the judgment of Maya Devi and Theegla Laxmi (supra). It is further stated that the Hon’ble Supreme Court has categorically held in the judgment reported as United Insurance Co. Ltd. Vs. Pushpalya Printers (2004), 3 SCC 694 that in the matter of construction of a contract  intention of the parties is to be gathered from the words used in the contract and in para 6 it has been held on the basis of settled law that if there is any ambiguity or a term is capable of two possible interpretation, one beneficial to the insured should be accepted consistent with the purpose for which the policies is taken namely to cover the risk on the happening of certain events. Relying on a judgment of a constitution bench reported as a General Assurance Society Ltd. Vs. Chandmull Jain AIR 1966 1644 wherein principles were propounded that “ in a contract of insurance there is requirement of uberrima fides i.e. good faith on the part of the assured and the contract is likely to be construed contra proferentem, that is, against the company in case of ambiguity or doubt.” It is denied that the policy bearing No.115899712 was a simple endowment assurance with profits as it is clearly mentioned in the conditions and privileges appended to this policy that the said is payable on surviving to the term or death if earlier and in the clause 10.2 of the conditions and privileges at page 22 accident benefits are payable and the exclusion clause does not distinct between accidental murder or murder simplicitor and thus it cannot be said that the said policy has no provision for death accidental benefits. It is denied that the present case is of intentional murder as alleged to be admitted by the complainant  in the FIR, the instead the FIR only mentioned about two un- identified persons  had shot the husband of the complainant and fled away.  It is denied that the case is not covered under the accidental death of the life assured as per the terms and conditions of the policy and law laid down by the Hon’ble Supreme Court of India and Hon’ble National Commission.

Complainant has filed his affidavit in evidence. On the other hand, affidavit of Sh. D. K. Joshi, Manager (Legal & HPF) has been filed in evidence on behalf of the OP.

Written arguments have been filed on behalf of the parties.

We have heard the arguments on behalf of the parties and have also gone through the file very carefully.

 The complainant has filed copies of the policy Nos.114822368 dated 12.05.06, 115342814 dated 26.03.07, 115360004 dated 31.03.08 & 115899712 dated 31.03.09 as Annexure C-1 (Colly). The complainant has filed copy of FIR dated 20.07.12 as Annexure C-2. The copy of the postmortem report has been filed as Annexure C-3.  The OP vide letter dated 11.05.13 requested the complainant to file policy enquiry report as Annexure C-4. The complainant has filed the copy of the order dated 12.03.13 of District Forum, Gwalior, M.P.  as Annexure C-5.  The vide letter dated 17.06.13 requested the OP to make the payment as Annexure C-6. The OP vide letter dated 24.08.13 requested the complainant to file the policy report as Annexure C-7. The complainant’s father- in-law filed a Misc. Application before the Chief Judicial Magistrate, Ghaziabad as Annexure C-8 (Colly).  The complainant has filed copy of the charge sheet dated 30.03.13 Annexure C-9. The OP vide letter dated 22.03.14 repudiated the claim as Annexure C-10 wherein it was mentioned as:

“ With reference to your claim for Accidental Benefit under above policies on the life of your deceased husband, we have to inform you that as per the FIR & Charge sheet, this was a pre-planned and pre-mediated murder and it is not an accidental murder but it is murder simplicitor.

As such the above case falls in the category of murder simplicitor, the accident benefit claim under above policies is rejected as per terms and conditions of the policy.”

Both the parties have relied upon on the aforesaid judgments.  In the case of Maya Devi Vs. LIC of India, R.P. No. 2824 of 2007 decided on 21.05.08 discussed the case of Hon’ble Supreme Court in the case of Rita Devi (supra). The Apex Court considered and interpreted a phrase providing “death due to accident arising out of the use of motor vehicle”.  Thereafter the Court referred to various  decisions and arrived at a conclusion that they have no hesitation in coming to a conclusion that the deceased, Dashrath Singh,  was employed to drive an auto riskshaw for ferrying passengers on hire. On the fateful day the auto riskshaw was parked at auto riskshaw stand and unknown passengers engaged the said auto riskshaw for their journey and during that journey, it was alleged that the passengers caused murder of Dashrath Singh. The Apex Court held that death is in such case was due to accident. The Court further observed that the difference between ‘murder which is not an accident’ depends on the proximity of the cause of such murder. If the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any felonious act then such murder is an accidental murder arising out of the use of motor vehicle and held that the insurance company was liable to be reimburse the claimant. The Court referred to the decision in the case of Nisbet Vs. Rayne and Burn (1910) 1 KB 689, where a cashier, while travelling in a railway to a colliery with large sum of money for the payment of his employer’s workman, was robbed and murdered. The Court of Appeal held that murder was an accident from the standpoint of the person who suffered from it and that it arose ‘out of an employment which involved more than ordinary risk and consequently the widow was entitled to compensation under the Workmen’s Compensation Act. Despite the aforesaid two judgments, 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 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 clause 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 willful act of the insured himself”.

It is clear that the OP has relied upon the case of Rita Devi (supra) but the same was discussed in the case of  Maya Devi Vs. LIC of India by the Hon’ble National Commission. 

In view of the above LIC policy excludes death due to limited causes mentioned in Exclusion clause 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 willful act of the insured himself.  The complainant’s husband had taken four separate insurance policies from the OP. As per the policy No.115899712 dated 31.03.2009 it is clearly mentioned in the face of the policy endorsement assurance with profit without DAV.  In other three policies nowhere it is written without DAV. Therefore, not paying for the three policies for accidental benefits amount to deficiency in service and unfair trade practice on the part of OP.

In view of the above discussion, we allow the complaint and direct the OP to pay Rs.9,50,000/- as sum assured for three policy Nos. 114822368, 115342814, 115360004 and Rs.15,000/- as compensation for mental pain and agony undergone by the complainant.

The order shall be complied within 30 days of receipt of copy of this order failing which OP shall become liable to pay interest @ Rs. 6% per annum on the amount of Rs.9,50,000/- from the date of filing of the complaint till its realization.

          Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 22.01.19.