AT HYDERABAD

FA  582/2008  against C.C. 147/2007, Dist. Forum, Karimnagar.          

Between:

The Branch Manager                   

National Insurance Company Ltd.

Divisional Office: 2-1-103  

Near Municipal Office,   

Karimnagar                                                ***                        Appellant/

                                                                                                Opposite Party

                                                                   And

Smt. Chigurla  Anjanli

W/o. Late Komuraiah 

Age: 29 years, Household

R/o. Kismatpet, Jogapur (P.O)  

Chandurthi Mandal

Karimnagar Dist.                                        ***                         Respondent/

                                                                                                Complainant.

Counsel for the Appellant:                          M/s. Naresh Byrapaneni.

Counsel for the Resps:                               M/s. P. Nagendra  Reddy

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

SMT. M. SHREESHA, MEMBER

MONDAY, THIS THE NINETH DAY OF AUGUST TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

*****

1)                 The  opposite party  insurance company preferred  the  appeal against the order of the Dist. Forum  directing it to pay  Rs. 5,00,000/-  covered under the policy  together with interest and costs.

2)                The case of the complainant in brief is that  her husband late  Ch. Komuraiah  @  Kumar Yadav  took Janata Personal Accident   policy (JPA) for a sum of Rs. 5 lakhs  covering the period from  5.5.1999 to 4.5.2014.  He was correspondent of   Prathibha Vidyalayam a day and residential school besides owner of a fertilizer shop.   While so on 6.5.2005 when he went to meet his relatives in a function he was shot dead by the police in the midnight of 7.5.2005.    It was registered as case in crime No. 88/2005.    To cover up their latches the police prepared a false case branding him as extremist.  The death was accidental.   He has no concern either with naxalites or extremists.    He was leading a normal life along with his family members.    In fact he was having an account with  Andhra Bank,  and enjoying  electricity and telephone connections.    When she made claim  followed by legal notice for which  the insurance company repudiated  she filed the complaint  claiming Rs. 5 lakhs together with compensation and costs.

3)                 The appellant insurance company resisted the case.   While admitting  the issuance of policy it alleged that the assured was a commander in CPIML Janashakthi an extremis wing since one year and on 7.5.2005 he died in an exchange of fire with the police.   Since he was involved in the illegal activities and died in a police encounter his risk was not covered by virtue of clause-4 (d) of terms and conditions of the policy.    Therefore the claim was repudiated and prayed that the complaint be dismissed. 

4)                The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A15 marked, while the insurance company filed Exs. B1 to B3. 

5)                The Dist. Forum after considering the evidence placed on record, and relying a decision on the said aspect opined that he died due to external injuries and the death could be termed as accidental death, and therefore directed the insurance company to pay the amount covered under the policy together with interest and costs. 

6)                Aggrieved by the said decision, the insurance company preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.    It ought to have seen that insured had suppressed his association with extremist organization by falsely declaring that he was a businessman.    He died in a police encounter.    The death cannot be termed as accidental; admittedly he died in an encounter and therefore 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 and law?

8)                 It is an undisputed fact that the assured had taken JPA Policy Ex. A1 for sum assured of Rs. 5 lakhs.  While so on 6.5.2005 he died in an encounter for which a case was registered vide Ex. A10, inquest report Ex. A11 and post mortem examination Ex. A12.   The complainant contends that the deceased was no way concerned with the extremist group wing Janashakthi.  He was doing business living an ordinary family life, and doing business in fertilizers evidenced under pass book Ex. A2 issued by Andhra Bank in the name of Kavitha Fertilizers, Pesticides & Seeds besides running a day and residential school Prathibha Vidyalayam vide card Ex. A13.    The allegation that he had mis-represented stating that he was a businessman obtained a policy cannot be true.   When the policy was issued obviously after satisfying with his credentials the insurance company must have issued the policy.   He was also having electricity service connection to his residence vide Ex. A4. 

9)                 While the complainant alleges that he left his home to his relatives to attend to a function and the police shot him dead in the midnight alleging that he was an extremist,  the insurance company by relying the very same FIR Ex. A10 alleges that he died of injury arising or resulting from the insured committing breach of law with criminal intent attracting clause 4(e) of terms and conditions of the policy, and therefore not entitled to any claim. 

Exclusion Clause 4(e) reads as follows:

Provided always that the company shall not be liable under this policy for … 4(e) Arising or resulting from the insured committing any breach of the law with criminal intent. 

10)              The moot question is whether the death  was accidental or attracts the above clause in order to justify repudiation of claim by the insurance company.  This question is no longer res-integra covered by a decision of  this Commission  in   United India Insurance Company Vs.  Bairi Rajaiah  reported  in II (2001) CPJ 291.  That was a case where  the assured was killed in an encounter  with the police.    It was observed that

The F.I.R. did not establish convincingly that the death of the insured arose or resulted “from the insured committed any breach of the law with criminal intent”. Even according to the F.I.R., the insured was not possessing any gun to open fire at the police party at the time of the  encounter.    His dead body had a bomb in the pocket. Moreover, the F.I.R. is not reliable evidence. No other material was placed by the appellant before the District Forum to establish satisfactorily that the death of the insured arose or resulted from any breach of the law committed by the insured. The burden was on the appellant to establish that the death of the insured occurred under Exception 5(e) which reads as follows :

“The Company shall not be liable under the policy for :

xxx         xxx             xxx           xxx           xxx           xxx

5. Payment of compensation in respect of death ...(e) arising or resulting from the insured committing any breach of the law with criminal intent.”

There can be no doubt that in the present case death of the insured resulted “solely and directly from accident caused by external violent and visible means” and not by natural causes. On this aspect we are supported by the decision of the National Commission in Smt. Manda Savarna v. LIC of India, 1986-1999 CONSUMER 3498 (NS).

11)              Coming to the facts,  in FIR  Ex. A10  there was a mention  that  on the information furnished by  town C.I. Sri Amarender Reddy that Janashakthi  Naxals of Vemulawada  intend to kidnap  a person belonging to  Prathibha school, S.I. of Police Vemulawada along with his   some other colleagues  were going towards  Lingampally village at about 2.30  in the early hours  by the time they reached  Mulavagu Mattadi  they found four persons were coming opposite to them.   When they questioned  as to their identity  they opened fire,   immediately they  went into the shrubs and asked them to stop fire.   Despite their repeated pleas to surrender they opened fire without any abetment and in order to save themselves  they opened fire against them.    After abatement of  sounds of fire  they found with the help of lights  a person aged about 32 years died of bullet wounds.    Later they recognized him as deceased who was working with   CPIML outfit as Commander.  They found  a .32 revolver  by his side besides a bag. 

12)              It  is not known   whether any final report was filed.    It is not known whether any investigation was made by the police to  find out whether he was the person who was shot dead by the police for his connections with extremists and was indulged in criminal activities.    The insurance company did not file  investigation report or final report as observed in the above decision.  The  FIR cannot be taken as substantive  evidence  for the facts mentioned therein.  The insurance company could not file the affidavits of the villagers to show that he was in any way have connections  with the above said organization.  It might be  the very same assured was  kidnapped by the extremists  as is evident from in the first  part of the FIR. When the complainant could prove that he was having  fertilizers shop, besides running  a  school and doing banking transactions, it cannot be said that he was involved  in those activities.  When the death was  solely and directly from accident caused by external violent and visible means  the insurance company was liable to pay the amount covered under the policy.   The repudiation was unjust and we do not see any mis-appreciation of fact or law by the Dist. Forum in this regard.   There are no merits in the appeal.

13)              In the result the appeal is dismissed with costs computed at Rs. 5,000/-.  Time for compliance four weeks. 

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

   Dt.  09. 08. 2010.  

*pnr

“UP LOAD – O.K.”