STATE CONSUMER DISPUTE REDRESSAL COMMISSION

BIHAR, PATNA

Appeal No. 34 of 2018

The National Insurance Company Limited, Gaya through the Chief Regional Manager and the Constituted Attorney Regional Office, National Insurance Co. Ltd. 4^th Floor, Sone Bhawan, Bir Chand Patel Marg, Patna-1

                                                                                                                                                     … O.P. no. 1 & 2/Appellant

Versus

1.  Manoj Kumar, Son of Chandradeep Yadav, Resident of Village- Barki Delha, Gaya at present R/o- Shivpuri Colony, PS- Chandauti, District- Gaya

                                                                                                                                   …. Complainant/Respondents 1^st Set

2.  The Branch Manager, Golden Trust Financial Service, K.P. Road, PS- Kotwali, District- Gaya    

                                                                                                                                      …. O.P. no. 3/Respondent 2^nd set.

Counsel for the Appellant: Adv. Raj Kumar Singh Vikaram

Counsel for the Respondent: Adv. Ramkant Singh

Before,

Hon’ble Mr. Justice Sanjay Kumar, President

Mr. Ram Prawesh Das, Member

Dated 11.07.2023

As per Sanjay Kumar, President.

O r d e r

1. Present appeal has been filed for setting aside the order dated 03.08.2017 passed by District Consumer Forum, Gaya in Complaint case no. 36 of 2014 whereby and whereunder the claim of the complainant has been allowed and appellant insurance company has been directed to pay Rs. 11 lacs to complainant with interest @8% p.a from the date of submission of claim and further to pay Rs. 10,000/- as compensation and Rs. 2,000/- as cost of litigation within 2 months failing which interest @8% p.a shall become payable.
2. Breifly stated the facts of the case as disclosed in complaint petition is that complainant is sole legal heir and representative of deceased insured 1. Chandradeo Yadav 2. Manmatiya Devi 3. Anita Kumari, 4. Radkhika Devi who were parents and sisters of complainant.
3. Aforesaid deceased persons had obtained accidental insurance policy from National Insurance Company through G.T.F.S, Gaya branch for covering risk of Rs. 50,000/-, Rs. 2,00,000/-, Rs. 3,00,000/- and Rs. 1,00,000/- respectively for the period from 23.01.2004 to 22.01.2014.
4. It is further stated that on 30.04.2004 criminals variously armed with deadly weapon forcibly entered into the house to commit dacoity but due to protest made by house inmates all four were killed by criminals and they took away valuable article from the house.
5. Complainant lodged FIR against unknown criminals but during investigation police found involvement of complainant in crime and submitted charge sheet against him. Complainant remained in jail and was released after being acquitted by the Sessions Court on 16.09.2006.
6. Complainant submitted claim form along with relevant documents for payment of sum assured amount but his claim was not settled and thereafter he send a legal notice to insurance company and from reply of which complainant came to know that his claim was repudiated on 10.06.2010 on ground that it was not an accidental murder however complainant was never communicated repudiation letter dated 10.06.2010.
7. Complainant thereafter filed complaint case before District Consumer Forum, Gaya for payment of sum assured amount with interest and compensation as well as cost of litigation.
8. Notices were issued to National Insurance company Ltd but inspite of valid service of notice they did not appear as such complaint case was decided ex-parte by order dated 03.08.2017.
9. In support of his claim complainant has submitted FIR with respect to Dilhe P.S Case no. 29 of 2004 dated 30.04.2004 U/s 302, 207/120B of I.P.C, charge sheet, copy of order of sessions Trial no. 682 of 2004, 120/2005, copy of insurance policies, copy of indemnity bond, reply of legal notice dated 20.09.2013, succession certificate, letter of repudiation.
10. The District Consumer Forum held that complainant is legal heir and successor of deceased insured.
11. The District Consumer Forum has further held that from FIR it is apparent that on 29^th April, 2004 in midnight at about 12.00 extremist killed mother, father and two unmarried sisters by indiscriminate firing. From charge sheet submitted dated 12.08.2004 U/s 307,302 & 120(B) of I.P.C it appears that informant/claimant Manoj Kumar has been made main accused in the case and after Trial he has been acquitted by the Sessions Court. Parents and two unmarried sisters were killed by extremist by indiscriminate firing by sudden attack as such it is an accidental murder.
12. The District Consumer Forum further held that there was deficiency in service of insurance company and complainant is entitled for payment of sum assured amount of Rs. 11 lacs and further directed insurance company to pay interest @8% p.a from the date of filing of claim. It was further directed to pay Rs. 10,000/- compensation for physical and mental harassment and Rs. 2,000/- as cost of litigation within two months failing which interest @8% per annum shall become payable.
13. It is submitted on behalf of counsel for appellant that claim was repudiated on 10.06.2010 but complaint case was filed in the year 2014 as such claim case was time barred and was liable to dismissed as time barred.
14. Counsel for the appellant submits that insured deceased were killed and assailants had come with intention to kill as such it was a murder simplicitor and not an accidental murder as such claim was rightly repudiated by letter of repudiation dated 10.06.2010.
15. It is submitted that all the four insured persons were murdered for which FIR bearing Delhe P.S Case no. 29 of 2004 was instituted U/s 302, 307 & 120B of IPC and during investigation it transpired that complainant /informant was sole accused and charge sheet was submitted against him and he was put on trial but subsequently was acquitted as witness turned hostile, however as insured were murdered as such complainant is not entitled for sum assured.
16. Charge sheet includes name of an eye witness of occurrence who suffered injury during commissions of criminal act and who had made statement U/s 164 of Cr. P.C before the Magistrate that complainant himself had murdered all four insured and seriously injured him.
17. Trial court has acquitted complainant from charge of murder but there is specific finding of Trial court that it is a case of murder. Complainant has also stated that he had locked himself in a room and assailant tried to break open the door to kill him as such intention of assailants was to commit murder. The relevant part of judgment of Trial court is extracted below:

“On closed scrutiny of the evidence adduced by the prosecution, it appears that the prosecution has been able to prove the murder of Chandradeo Yadav, Manmatiya Devi, Kumari Radhika and Anita but have not been able to prove that the murder has been done by the accused as alleged. On going through the evidence, I find that the prosecution, miserably failed to bring home the charges of murder by the accused facing the trial or even involvement in the murder of Chandradeo Yadav, Manmatiya Devi, Anita Kumari and Kumari Radhika. I further find and hold that Manoj Yadav is not guilty for the charge of murder of his father Chandradeo Yadav, mother Manmatiya Devi and sisters Anita Kumari and Kumari Radhika”.

18. On the other hand it is submitted on behalf of counsel for the respondent/complainant that there is no infirmity in the order passed by District Consumer Forum as such appeal ought to be dismissed.
19. It is further submitted that District Consumer Forum has rightly come to a finding based on materials available on record as well as several pronouncements of Supreme Court as well as National Commission that it is  a case of accidental murder and not murder simplicitor. Counsel for the respondent has relied upon judgment of Hon’ble Supreme Court as well as National Commission in support of his contention.
20. Heard the parties
21. From materials available on record although complainant has been acquitted from the charges of murder as witness turned hostile but there is strong suspicious against complainant of murdering all four insured person. There is no satisfactory explanation as to why assailants killed all the house inmates but spared complainant.
22. From the material placed on record only inference which can be drawn is that assailants intention was to commit murder and in furtherance of their intention they murdered all the four insured house intimates as such it was a murder simplicitor and not accidental murder. The difference between murder simplicitor and accidental murder has been lucidly explained in case of National Commission in its judgment delivered in case of Prithvi Raj Bhandari Vs. LIC since reported in 2006 (III) CPJ 2013 distinction between murder simplicotor and accidental murder has been explained. Paragraph no. 6 and 7 of which reads as follows:

                         “ 6.The Hon’ble Supreme Court had occasion to go in the similar set of circumstances, in the case of Smt. Rita Devi v. New India Assurance Co. Ltd., IV (2000) SLT 179: II (2000) CLT 192 (SC):II (2000) ACC 291 (SC): 2000 SOL Case No. 289. Para 9 of this judgment is relevant for our purpose, which is as follows:

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 cause 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 ‘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 the 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.

“7. For our purpose, the important point to note is whether murder is an ‘accident’ would depend on the proximity of cause of such murder? Two points need to be noted in this regard. Firstly, there is no doubt that three criminal cases were filed against the decease/insured in 1996 and 1997 under I.P.C. Section 427/336, as well as under Arms Act, 365, 323 and 34, I.P.C. Section 27/54/59 as also 397 case under section regarding theft of Ceillo Car. There is no disputing the fact that the deceased was acquitted in all these cases, but series of criminal case filed against him as well as his killing by shooting him in the ear as also in the ribs, leaves us in no doubt that this was a murder by design and intent rather than a case of accident murder. Even though, the murderer could not be traced in this case but the two points made above, i.e. The long criminal record as also the places where wounds have been made by bullet, unless something points out to the contrary, in our view, it would be case of an intentional killing, i.e., murder of the deceased, and shall not fall within the term ‘accident’ by any stretch of argument in the facts and circumstances in this case.

23. It is a case of murder simplicitor and not accidental murder as such complainant is not entitled for payment of sum assured amount.
24. For the reasons stated above the judgment and order dated 03.08.2017  passed by Ld. District Consumer Forum, Gaya is not sustainable either in law or on facts and is accordingly set aside.
25. Appeal is allowed and the Complaint case no. 36 of 2014 filed before the District Consumer Forum, Gaya is dismissed.

(Ram Prawesh Das)                                                                                                     (Sanjay Kumar,J)

       Member                                                                                                                     President

Md. Fariduzzama