BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 819/2008 against C.C. 81/2005, Dist. Forum-II, Visakapatnam
Between:
Koneti Sudha,
W/o. Late Venkata Jagadeswara Rao
Age: 37 years, R/o. Gandhinagaram
Anakapalli (V&M), Visakapatnam. *** Appellant/
Complainant.
. And
The New India Assurance Company Ltd.
Rep. by its Branch Manager
Woodpet, Opp. George Club
Ankapalli (V&M), Visakapatnam. *** Respondent/Op
Counsel for the Appellant: M/s. Rama Krishna A.
Counsel for the Resp: M/s. B. Naresh
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
MONDAY, THIS THE ELEVENTH DAY OF OCTOBER TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that her husband Koneti Venkata Jagadeswara Rao owned lorry bearing No. AAK 2701 got it insured with the respondent insurance company for a sum of Rs. 1 lakh. It includes risk of owner also. On 1.12.2002 he himself was driving the lorry after loading the cement from Dutchipalli to Rajahmundry and by the time he reached Dwaraka-Tirumala due to heavy snowfall he stopped it at an extreme road margin. The cleaner-cum-second driver along with her husband had slept in the lorry. Some unknown persons came on a jeep with deadly weapons entered into the cabin and attacked with deadly weapons. As a result of which he succumbed with injuries and died on spot. On a report the police registered a case in crime no. 84/2002 u/s 396 IPC. When she made claim it was repudiated on the ground that her husband was not having effective driving license. Assailing the said repudiation she filed the complaint claiming Rs. 1 lakh covered under the policy together with interest and costs.
3) The insurance company resisted the case. While admitting issuance of policy in respect of the vehicle it alleged that on the night of 30.11.2002 while he was sleeping in the vehicle some unknown offenders entered into the lorry and killed him. The death of the deceased was not due to any accident. His death does not cover the conditions of the policy. Even otherwise he was not having an effective driving licence. His driving license was expired on 14.11.2002. He did not get it renewed subsequently. Therefore it repudiated the claim. There was no deficiency in service on its part and therefore it prayed for dismissal of the complaint with costs.
4) The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A5 marked while the opposite party filed the affidavit evidence of its Divisional Manager and got Ex. B1 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the death being not covered by policy and it was not during driving of the vehicle as such it dismissed the complaint.
6) Aggrieved by the said decision the complainant preferred the appeal contending that the Dist. Forum did appreciate either facts or law in correct perspective. It ought to have seen that her husband died when the un-known offenders attacked him with deadly weapons it has to be considered as accidental death when he stationed the lorry on the extreme road margin. She was entitled to the amount covered under the policy. Therefore she prayed that the appeal be allowed.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the complainant’s husband late Koneti Venkata Jagadeeshwara Rao was the owner of the lorry which he got it insured for a sum of Rs. 1 lakh including his own risk (owner’s risk). It is also not in dispute that on 1.12.2002 he stationed his lorry on the left side of the road due to heavy snow fall and during mid-night some un-known offenders armed with deadly weapons entered into the cabin inflicted injuries due to which he died. It was not known the persons who had inflicted injuries. Basing on the report of the cleaner the police registered a case in crime No. 84/2002 u/s 396 IPC in FIR Ex. A1. An inquest was conducted under Ex. A3 followed by post-mortem examination evidenced under Ex. A2. The medical officer who conducted the post-mortem examination opined that “he died of shock and haemorrhage due to multiple fractures of skull and injury to brain. The injuries might have been caused due to heavy impact with a heavy sharp and blunt object.” When the wife complainant herein claimed the amount the insurance company repudiated on two grounds (i) murder cannot be termed as ‘accident’ (ii) the driver was not having effective driving license on the date of accident.
9) The question is whether the ‘murder’ could be termed as accidental or murder simplicitor. The Supreme Court in Smt. Rita Devi Vs. 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 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 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. “
10) Coming to the facts the cleaner who was an eye witness gave report to the police mentioning that four persons armed with weapons got down from a jeep entered into the cabin and killed the assured. It looks as though the persons had asked the identity of Jagadeswara Rao and threw a rod against him on which he ran away and in the meantime the other three killed the deceased. At the time of inquest neither his father nor his wife who were examined mentioned the persons who had committed the offence was due to previous enmity. The insurance company having received the claim ought to have appointed a surveyor to find out as to what happened to the investigation made by the police. The exact intention of the culprits either to commit theft of the lorry or for any other reason was not known. Considering the fact that the deceased stopped the vehicle on the road side margin in view of poor visibility and at that juncture some un-known offenders had killed him, in the circumstances as was held by the Hon’ble Supreme Court in the decision cited above, it should be termed as accidental. Therefore his death would cover the terms of the policy.
11) The second point that was raised is that the driver was not having valid and effective driving license when the incident took place. Except alleging the said fact the insurance company could not prove by filing any certificate from the transport authorities that he was not having valid driving license by the date of incident. The insurance company ought to have verified concerned records to find out whether the driving license was expired or whether it was in force on the date of incident. It is not a case where there was no driving license at all. The insurance company alleges that the driving license has been expired. It is not known from where they could gather that the driving license has been expired. Therefore, we are of the opinion that it was a ruse to deny her claim. The repudiation was unjust. The complainant is entitled to the amount covered under the policy.
12) In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently the complaint is allowed directing the insurance company to pay Rs. 1 lakh together with interest @ 9% p.a., from the date of repudiation viz., 5.8.2004 till the date of realization together with costs of Rs. 2,000/-. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 11. 10. 2010
*pnr
“UP LOAD – O.K.”
