F.A.No1518/2008 against C.C.No.115/2007, District Forum-II, TIRUPATHI.

Between:

The New India Assurance Co. Ltd.,

Rep. by its Divisional Manager,

D.No.1/64, Prakasam Road,

Tirupathi.                                                                                                                      Appellant/

                                                                                                                                       Opp. party

And

Kavali Ravindra Babu,

S/o.Rangaiah, Hindu, aged 32 years,

Painter, Polakalareddivaripalli,

Challavaraipalli Post, Irala mandal,

Chittoor District.                                                                                                          Respondent/

                                                                                                                                      Complainant.

Counsel for the Appellants: Mrs.S.N.Padmini

Counsel for the Respondent: Mr.S.Raj Kumar

QUORUM:   THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

AND

SMT.M.SHREESHA,  MEMBER

.

THURSDAY, THE TWENTY EIGHTH DAY OF OCTOBER,

TWO THOUSAND TEN

Oral order:(Per Hon’ble Justice Sri D.Appa Rao, President)
***

        This is an appeal preferred by the insurance company against the order of the District Forum directing it to pay Rs.1,00,000/- together with interest and costs.

        The case of the complainant in brief is that his wife, the assured, C.Jayanthi, was holder of Janata Personal Accident Insurance Policy for Rs.1,00,000/- for the period from 17-11-2004 to 16-11-2009.  While so on 26-12-2004 she slipped accidentally into water leading to her death which was registered as a case in Crime No.235/2004 U/s.174 Cr.P.C.  Later the investigation altered into 302 IPC basing on the opinion in post mortem certificate and a charge sheet was laid against the complainant and another as accused on the ground that they had smothered her to death.  He was accused in Sessions case in S.C.139/2005 and was acquitted on 23-11-2006 as the prosecution could not prove the case against him beyond all reasonable doubt.  Thereafter, when he approached the insurance company, his claim was repudiated on the ground that the claim was belated and that it amounts to violation of policy conditions.  Therefore, he claimed Rs.1,00,000/- together with interest, compensation of Rs.50,000/- and costs.

        The insurance company resisted the claim.  While admitting the issuance of the policy,  it alleged that the husband of the assured smothered her to death basing on which a Sessions case was filed against him.  When the complainant approached them, they made investigations and found that the complainant was the culprit and the death was not accidental and was in violation of the policy conditions.  Since the claim was not made within 30 calendar days from the date of event and in this case made after 25 months, the repudiation was just.  The claim was repudiated not only on the ground that there was delay but also against the conditions of the policy and prayed for dismissal of the complaint with costs.

        The complainant in proof of his case filed his affidavit evidence and got marked Exs.A1 to A9 while the opposite party, insurance company, filed  Ex.B1.

        The District Forum after considering the evidence placed on record allowed the complaint directing the appellant to pay the amount covered under the insurance policy holding that the Sessions case against the complainant was ended in acquittal for the death of the assured and also in the light of the fact that he was attending the trial of the case, the repudiation on the ground that there was delay is unjust.

        Aggrieved by the said order, the insurance company preferred this appeal contending that the District Forum did not appreciate the facts in correct perspective or law.  It ought to have seen that the death was  Aspxhyia due to smothering evidenced from the post mortem certificate issued by the doctor.  The complainant was suspected and charged for offence U/s.302 IPC for having killed his wife, the assured.  The fact of death was not informed to them within the period stipulated and therefore the repudiation was just and therefore the delay of 25 months could not have been condoned.  Therefore it prayed for dismissal of the complaint.

        The point that arises for consideration is whether the order of the District Forum is vitiated by mis-appreciation of fact or law in that regard?

        It is an undisputed fact that the policy, Ex.A1, was taken by the assured Jayanthi, the wife of the complainant, for an amount of Rs.1,00,000/- wherein the complainant was shown as the nominee and was entitled to the assured amount, in case of death of the assured by accident.  It is not in dispute that she died on 26/12/2004.  A post mortem was conducted by the Medical Officer, District Head Quarters hospital on 27/12/2004, who found  that there were number of external as well as internal injuries and finally opined that:

“deceased would appear to have died of Asphyxia due to smothering 12-24 hours prior to P.M. examination”

Originally, on the report, that it was an accident by slipping into water, a case was registered U/s.174 Cr.P.C., however after receipt of the post mortem certificate disclosing death was due to murder they changed the section of law into 302 IPC and filed a case against the complainant along with Shaik Fareed. No doubt the case filed against the complainant was ended in acquittal, as all the witnesses turned hostile.  It is not in dispute that the death was not an accident.  It was a clear case of murder and in view of the acquittal of the complainant, it cannot be said that he killed her.  However, the fact remains that the death was due to murder and this fact was not in dispute.   Obviously after his acquittal, he made a claim 25 months after the death and the insurance company repudiated the claim on two grounds, 1) it was not an accidental death and 2) that there was delay in informing and submitting the claim. 

The question is whether the ‘murder’  could be termed as accidental or murder simplicitor,  the Supreme Court in SMT.RITA DEVI v. NEW INDIA ASSURANCE COMPANY LTD., reported in 2003(3) SC 698  opined that “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 ‘murder’ which is an accident, depends upon the promixity 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 or murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder”.

          When the insurance company could prove by evidence that the death was caused due to murder, she had sustained several internal and external injuries.  She was smothered ultimately leading to asphyxia and death, it cannot be treated as an accidental death.  It is murder simplicitor.  Therefore, the complainant is not entitled to the amount on the ground that the death is an accidental death.  In the light of the above, delay has no significance.  The repudiation was just.

        In the result this appeal is allowed and the order of the District  Forum is set aside, consequently the complaint is dismissed.  There shall be no order as to costs.

Sd/-PRESIDENT.

Sd/-MEMBER.

JM                                                                                                                     Dt.28-10-2010