Tripura

StateCommission

A/18/2015

Bajaja Allianz General insurance Company Ltd. - Complainant(s)

Versus

Smt. Anju Majumder & 1 others. - Opp.Party(s)

Mr. Utpal Das, Mr. Karmajit De

27 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No.A/18/2015

 

 

1. Bajaj Allianz General Insurance Company Ltd.,

N.H. Central Point, 2^nd Floor,

Opposite Bora Service, Ulubari,

Guwahati – 781007.

                                                  ….    ….    ….    ….    Appellant.

 

 

                   Vs

 

 

1. Smt. Anju Majumder,

W/o Lt. Champak Majumder,

147, Milan Datta Para, P.S. R.K. Pur, P.O. Gakulpur,

Dhajanagar, Udaipur, District - Gomati Tripura.

Pin – 799114 (Previously District South Tripura).

 

2. Branch Manager,

Golden Trust Financial Services, (Udaipur Branch),

P.O. & P.S. R.K. Pur, Udaipur,

District – Gomati Tripura, Pin – 799120,

(Previously District South Tripura).

                                                            ….    ….    ….    ….    Respondents.

 

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

 

For the Appellants             :         Mr. Karnajit De, Adv. & Mr. Utapal Das, Adv.

For the Respondent No.1    :         Mr. Niladri Mukherjee, Adv.

For the Respondent No.2    :         Absent.

Date of Hearing       :         06.06.2016. 

Date of delivery of Judgment:       27.07.2016

 

J U D G M E N T

 

S. Baidya, J,

This appeal filed on 21.05.2015 under section 15 of the Consumer Protection Act, 1986 by the appellant-Bajaj Allianz General Insurance Company Ltd. is directed against the Judgment and Award dated 07.11.2014 passed by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), Gomati District, Udaipur, in connection with case No.CC-03/2013 whereby the Ld. District Forum allowed the application filed under section 12 of the Consumer Protection Act directing the opposite party Bajaj Allianz General Insurance Company Ltd., the appellant herein, to pay the sum assured of Rs.3.00 lakhs along with bonus as per terms and conditions of the policy with a further direction allowing interest over the delayed payment since 2009 till the date of payment @6% per annum to the petitioner. By the same judgment, the Ld. Forum also allowed the petitioner to get Rs.25,000/- for deficiency in service and harassment. It further appears that by the said judgment, the Ld. Forum also directed that in default of making payment by the Insurance Company, the amount will carry interest @12% per annum till the payment is made.  

2. The case of the appellant, as narrated in the memo of appeal, in brief, is that the husband of the respondent no.1 Anju Majumder, (the complainant in case No.CC-03/2013) during his lifetime purchased a Personal Accident Policy through respondent no.2 Golden Trust Financial Services for an amount of Rs.3.00 lakhs for himself and Rs.2.00 lakhs only for the respondent no.1 in one policy vide policy no.OG-05-2401-9960-00000041 w.e.f. 15.08.2005 to 14.08.2010 and the respondent no.1 was a nominee of her deceased husband Champak Majumder in respect of the said policy.  
3. It is alleged that Champak Majumder, the husband of the respondent no.1, was murdered by miscreants on 30.08.2009 and the case was registered in R.K. Pur Police Station vide F.I.R. No.06/2009 dated 30.08.2009 under section 302/34 of the I.P.C. and after the death of the husband of the respondent no.1, she met the officials of the respondent no.2 on 23.09.2009 and according to their advice, the respondent no.1 again went to the office of the respondent no.2 in the month of December, 2009, and then the respondent no.1 was advised to contact with the appellant for her claim.
4. It is also alleged that the respondent no.1 visited the office of the appellant in the month of January, 2011 wherein she was told to visit again on 17.03.2011 and accordingly, as per advice, she did so and narrated all the facts, but the appellant straightway refused to entertain the claim of the respondent no.1 and thereafter also the respondent no.1 made repeated attempts to convince the appellant, but in vain and then the respondent no.1 for such refusal on the part of the appellant filed the complaint before the Ld. District Forum for her redress along with a claim for compensation for deficiency in service on the part of the Insurance Company.
5. It is also alleged that the present appellant contested the claim of the present respondent no.1-complainant stating that Janata Personal Accident Insurance Policy was executed between the appellant and the deceased Champak Majumder and the policy was issued by the respondent no.2. It was also contended that the insured is to inform the Insurance Company within one calendar month in the event of death and in the event of delay, the reasons for the same has to be given properly. It was also contended that in the event of death, post mortem examination is to be done. It was further contended that the interest over the assured sum is not payable under the policy and if any difference arises regarding the quantum of claim to be paid, the matter should be referred to the Arbitrator and the Consumer Courts do not have any jurisdiction and hence, it was prayed for dismissal of the complaint.  
6. The respondent no.2 Golden Trust Financial Services as o.p.no.2 submitted written statement alleging that Champak Majumder was murdered by the miscreants and the dead body was recovered from the bush of the east bank of river, and requested the appellant Insurance Company for arranging payment of compensation. It was also alleged by the respondent no.2 that withholding of payment of claim to the legal representative of the deceased insured for an indefinite period without any reasonable cause amounts to deficiency in service on the part of the appellant Insurance Company.
7. It is also alleged that the Ld. District Forum relying on the judgment of the Hon’ble Supreme Court passed in Rita Devi’s case reported in (2000)5 SCC 113 allowed the complaint and passed the impugned judgment holding that the word “accident” includes murder also.       
8. Being aggrieved by and dissatisfied with the impugned judgment dated 07.11.2014, the appellant Insurance Company has preferred the instant appeal on the grounds that the Ld. Forum wrongly awarded compensation in as much as there is no deficiency in service on the part of the appellant, that the Ld. Forum wrongly interpreted the judgment passed in Rita Devi’s case having no application in the present case, that the Ld. Forum wrongly held that “murder is an accident”, that the Ld. Forum ought to have considered the element of intent involved in murder, that the Ld. Forum ought to have discussed the terms of Insurance Policy and ought to have dismissed the complaint and hence, the instant appeal has been preferred.

Points for Consideration

9. The points for consideration are (i) whether the Ld. Forum was proper, legal and justified in allowing the complaint petition by the impugned judgment and (ii) whether the judgment under challenge in this appeal should be set aside or otherwise.

Decision with Reasons     

10. Both the points are taken up together for the sake of convenience and brevity.
11. Admittedly, Champak Majumder, the deceased husband of the complainant Anju Majumder purchased a Personal Accident Insurance Policy from the appellant Insurance Company through respondent no.2 for an assured sum of Rs.3.00 lakhs vide policy no.OG-05-2401-9960-00000041 w.e.f. 15.08.2005 to 14.08.2010 making his wife complainant Anju Majumder as the nominee. It is also admitted fact that by the same policy a sum of Rs.2.00 lakhs was also insured under Personal Accident Policy in favour of the present respondent no.1 Anju Majumder making the husband of Anju Majumder as nominee. The present dispute is in respect of policy purchased by Champak Majumder for an assured sum of Rs.3.00 lakhs in respect of which the present respondent no.1 is a nominee.
12. It is also found admitted position that Champak Majumder, the deceased husband of the complainant was murdered by the miscreants on 30.08.2009 for which R.K. Pur P.S. case no.06/2009 dated 30.08.2009 under section 302/34 of the I.P.C. was registered. It is also admitted fact that the o.p.no.2 Golden Trust Financial Services was the facilitator through whom the deceased insured Champak Majumder purchased the policy from the o.p.no.1, Bajaj Allianz General Insurance Company Ltd. (in short Insurance Company) with insurance coverage from 15.08.2005 to 14.08.2010. It is also admitted fact that the Deceased Life Assured (DLA) was murdered within the validity period of the insurance coverage.
13. The Ld. Counsel for the appellant submitted that the murder as per terms and conditions of the insurance policy is not an accident and as such, the complainant as nominee of the DLA is not legally entitled to get any benefit from the Insurance Company. He also submitted that the Ld. District Forum misinterpreted the decision of the Hon’ble Apex Court given in Rita Devi’s case and erroneously held that the accident includes murder also and passed the impugned judgment awarding compensation in favour of the respondent. He further submitted that the Insurance Company also is relying on the decision of the Hon’ble Apex Court pronounced in the said Rita Devi’s case. He also submitted that the Hon’ble Apex Court has been pleased to hold that if the intention is to kill a particular person, such killing is not an accidental murder, but is a murder simplicitor. He also submitted that in the instant case, the act of murder was not caused in furtherance of any other felonious act and therefore, the murder of the DLA Champak Majumder is a murder simplicitor, but the Ld. District Forum wrongly relied upon the decision of the Hon’ble Apex Court given in the Rita Devi’s case and passed the impugned judgment which, not being sustainable in law, should be set aside and the appeal should be allowed.
14. The Ld. Counsel for the appellant further submitted that in the instant appeal, there involves only one point to be adjudicated and that is whether the accident also includes murder or not. He also submitted that if it is held that the murder also falls within the ambit of the definition of accident, then the Insurance Company should have no case. He categorically submitted that barring this particular point, no other point requires to be decided in this appeal.
15. The Ld. Counsel for the respondent-complainant submitted that the Ld. District Forum rightly relied on the decision of the Hon’ble Apex Court pronounced in Rita Devi’s case. He also submitted referring to a decision of the Hon’ble National Commission pronounced on 21^st May, 2008 between Maya Devi Vs Life Insurance Corporation of India arising out of the judgment dated 21.05.2007 passed in appeal no.2675/2003 by the State Consumer Disputes Redressal Commission, Uttar Pradesh reported in III (2008) CPJ 120(NC) that the Hon’ble National Commission also relying on the decision of the Hon’ble Apex Court in a case pronounced on 27.04.2000 between Smt. Rita Devi and other (petitioners) Vs New India Assurance Company Ltd. and another (respondents) has been pleased to hold that the accident also includes murder. He also submitted that the Ld. District Forum rightly relied on the decision of the Hon’ble Apex Court in Rita Devi’s case and passed the impugned judgment which, being proper, legal and justified, should be affirmed and the appeal should be dismissed.
16. Going through the materials on record and also after hearing the Ld. Counsels of both sides with the reference to the decision of the Hon’ble National Commission as well as the decision of the Hon’ble Apex Court, we are of the view that this Commission requires to decide only one point and that is whether the murder of the DLA Champak Majumder can be covered within the ambit of definition of ‘accident’. The Ld. Advocates of both sides have placed their reliance upon the decision of the Hon’ble Apex Court in Rita Devi’s case. At the same time, the Ld. District Forum also passed the impugned judgment relying on the principle of law laid down by the Hon’ble Apex Court in the said Rita Devi’s case. So, it is necessary to go through the judgment of the Rita Devi’s case for arriving at the point which is the only issue in this appeal. A brief fact of Rita Devi’s case is as follows:-

One Dasarath Singh was a driver of an auto rickshaw owned by Lalit Singh and the said vehicle was registered as a public carrier vehicle used for hire by the passengers and the said vehicle was insured with the respondent Insurance Company i.e. New India Assurance Company Ltd. On 22^nd March, 1995, it is stated that some unknown passengers hired the said auto rickshaw from rickshaw stand at Dimapur between 5 to 6 pm, but the said auto rickshaw was reported stolen and the dead body of the driver Dasarath Singh was recovered by the police on the next day, although the auto rickshaw was never recovered, but the claim of the owner for the loss of auto rickshaw was accepted by the Insurance Company and settled the claim at Rs.47,220/-.

From the said referred case, it transpires that one Darshan Singh claiming to be a power of attorney holder of the appellant Rita Devi and others filed a claim petition along with appellants under section 163 A of the Motor Vehicles Act, 1988 claiming damages for the death caused to the deceased Dasarath Singh during the course of his employment under Lalit Singh as the death was caused in an accident arising out of the use of vehicle. It also transpires that the Motor Accident Claims Tribunal, Nagaland as per its judgment dated 24^th June, 1996 came to the conclusion that the death of the driver of the auto rickshaw (Dasarath Singh) was caused by an accident coming within the purview of the M.V. Act and held that the owner of the vehicle was liable to compensate for the death of the driver in money value, having an agreement between the vehicle owner and the Insurance Company. Legal and statutory liability to compensate for the death of the driver stood fastened on the Insurance Company for indemnifying the owner of the said vehicle and passed the award of a sum of Rs.2,81,500/- against the Insurance Company with interest @12% on the amount awarded from the date of application till payment.

From the said referred judgment, it further transpires that the Insurance Company preferred an appeal by itself before the Hon’ble Gauhati High Court (Kohima Bench) in M.A. (F) No.8 (K) 96 and the Hon’ble High Court by its judgment dated 09.03.1998 came to the conclusion that there was no motor accident as contemplated under the M.V. Act and also held that it was a case of murder and not of an accident and accordingly, allowed the appeal and set aside the judgment passed by the Tribunal. It further appears that as per order of the Hon’ble Apex Court dated 18^th February, 2000, the wife and children of the deceased driver were impleaded as appellants as they were made originally as proforma respondents. It was argued from the side of the Insurance Company before the Hon’ble Apex Court that the death of the driver of the auto rickshaw was caused by felonious acts of certain unknown persons and the same was not caused by an accident arising out of the use of the vehicle. It has been mentioned in the said judgment that the contention of the Insurance Company which was accepted by the Hon’ble High Court is that the death of the deceased Dasarath Singh was not caused by an accident arising out of the use of motor vehicle. It has also been mentioned that murder, as it is understood, in the common parlance is a 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 accident on a given set of facts. The Hon’ble Apex Court has been pleased to opine that the difference between a murder which is not an accident and a murder which is an accident, depends on the proximity of the cause of such murder. The Hon’ble Apex Court is also of the opinion 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, 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.”       

17. From the above observation of the Hon’ble Apex Court, we find that the intention i.e. mens rea plays a vital role in determining whether a murder is an accident or is a murder simplicitor. In the case on hand, the result of the investigation regarding the incident of murder of DLA Champak Majumder has not been placed either before the Ld. Forum or before this Commission by either of the parties. The F.I.R. is lying with the record of the Ld. Forum. From the said F.I.R. it cannot be ascertained if the murder of the DLA was originally intended or not. There is also nothing to hold that the murder was not caused in furtherance of any other felonious act. We also find nothing to believe and hold that DLA Champak Majumder was murdered straightway by miscreants. In that circumstance, we are of the view that it is not possible to say straightway that the DLA was murdered by a person or persons with an intention to kill him. If we go through the observation of the Hon’ble Apex Court mentioned earlier, it can be said without any hesitation that the death of DLA Champak Majumder is an accidental murder, but is not a murder simplicitor.
18. It is true that the Hon’ble Apex Court has been pleased to decide in Rita Devi’s case where there involved a matter of use of an auto rickshaw by the driver of the said auto rickshaw, when he was murdered, but in the instant case, there involves no question of using any motor vehicle by the DLA Champak Majumder. It may be argued that as the facts and circumstances are not similar, the principle of law laid down by the Hon’ble Apex Court in Rita Devi’s case is not applicable in the instant case. This Commission only relied on the observation of the Hon’ble Apex Court on a point when a murder is not an accident and when a murder is an accident. So, relying on the said observation of the Hon’ble Apex Court as mentioned above, it can be said that the death of DLA Champak Majumder is an accidental murder.
19. The appellant Insurance Company as o.p.nos.1 & 3 submitted written objection against the complaint in the Ld. Forum. From paragraph 5 of the said written objection, we find that the Insurance Company pleaded that their policy covers death or P.T.D. due to accident caused by external visible and violent means.  
20. The Ld. Counsel for the respondent referred to the case between Maya Devi Vs Life Insurance Corporation of India decided by the Hon’ble National Commission on 21^st May, 2008 (supra), wherefrom we find that as per referred case, the insured was going to the shop of one Jagdish for purchasing bidi and being refused, some altercation between the insured and the shopkeeper took place and on the next date, the brother of the shopkeeper shot the insured at his forehead with his country made revolver, which resulted in the death of the insured. It also transpires that the Insurance Company contended before the State Commission, UP that the death of the insured occurred due to murder and hence, the Insurance Company was not bound to pay the sum assured. It also transpires from the said referred case that only one question arose before the Hon’ble National Commission in the said revision petition and that question was whether death caused due to murder of the insured can be held to be accidental death. The Hon’ble National Commission in para 4 of the said judgment has been pleased to opine that it is absurd to contend that a ‘murder’ of an insured would not be treated as an accidental death in view of the terms of the policy. The Hon’ble National Commission in para 14 and 15 of the said referred case has been pleased to observe,
    •  

(i). As per the post mortem report, the insured was shot dead by the assailant who appeared from nowhere;

(ii). the insured is not party to the ‘murder’, i.e. he did not give rise to provocation. After appearing before a Panchayat, he was going somewhere, when this attack was made at him. Hence, he is not a party or privy to the event of murder.

(iii). the immediate cause of injury (bullet injury) is not the result of the deliberate or willful act of the insured.

(iv). this event is an unlooked for mishap or an untoward event which was not expected or designed by the insured nor the insured had expected the occurrence.

15. Hence, it is to be held that death of the insured was accidental.”

21. The Hon’ble National Commission has been pleased to hold in para 17 of the judgment in Maya Devi’s case which is as follows:-
    •  
22. Going through the judgment of Rita Devi’s case, the Hon’ble National Commission is of the view that 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. In the instant case, the certified copy of the post mortem examination report has made it clear that amputation of neck with sharp weapon was antemortem and homicidal in nature. The post mortem report clearly speaks that the DLA Champak Majumder was murdered. There is no material to establish that the DLA himself contributed for causing his death as a result of murder by miscreants. There is also no material to show that the DLA picked up quarrel with the miscreants and his immediate cause of injury was deliberate and wilful act of himself. That being the decision of the Hon’ble National Commission mentioned above, we are of the view that the death of DLA Champak Majumder was caused due to accident. Going through the scope of policy coverage mentioned under the heading Terms, Conditions, Exclusions, Definitions printed on the reverse side of the insurance policy, we find that the insurance policy of the DLA covers “Death, loss of sight on both eyes, loss of both hands, loss of both feet, loss of one hand and one foot, loss of one eye and one hand, loss of one eye and one foot, loss of one limb or one eye, Other Total Permanent Disablement of Insured Person resulting solely and directly from accident caused by external visible and violent means, subject to terms, conditions, exclusions of Personal Accident Insurance.” There is nothing mentioned in the policy coverage that the death of the insured due to accident must be caused arising out of the use of the motor vehicle. So, it is palpable that causing of death from accident is covered by the insurance policy of the DLA.
23. The Hon’ble National Commission quoted the meaning of the word accident in para-10 of the judgment of Maya Devi’s case (supra) after quoting from Halsbury’s Laws of England Vol.25 Pg.307 Para 569, 4^th Edition (2003 reissue) which is as follows:-
    •  
24. From the above interpretation of the meaning of the word ‘accident’ as illustrated by the Authority also leads this Commission to hold that under the facts and circumstances of the instant case, the cause of death of the DLA Champak Majumder is an accidental death and is not a murder simplicitor. Furthermore, the terms and conditions of the insurance policy as appearing from the reverse side of the policy, does not disclose the definition of the word accident. In that case, this Commission has to accept the general interpretation given by the Authority as to the meaning of the word ‘accident’.
25. In view of the above and relying on the principle of law laid down by the Hon’ble National Commission in Maya Devi’s case (supra) and the observation of the Hon’ble Apex Court given in Rita Devi’s case (supra) mentioned earlier, we are of the opinion that the causing of death of the DLA Champak Majumder, the deceased husband of the complainant is an accidental death as a result of murder which is included within the ambit of the word ‘accident’ and that accident or the accidental death is covered by the policy of the DLA and therefore, the complainant, being admittedly the nominee, is legally entitled to get the assured sum and other benefits admissible under the policy. Therefore, we are of the view that the refusal of the claim of the complainant by the appellant Insurance Company is not sustainable in law.
26. Going through the impugned judgment, we find that the Ld. District Forum rightly relied on the observation of the Hon’ble Apex Court recorded in Rita Devi’s case and allowed the complaint petition and accordingly, passed the impugned judgment awarding compensation and other admissible benefits which, being found proper, legal and justified, should be affirmed and the appeal preferred by the Insurance Company should be dismissed.
27. In the result, the appeal fails. The impugned judgment dated 07.11.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Gomati District, Udaipur in case no.CC-03/2013 is hereby affirmed.
28. There is no order as to costs.                       

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura