ORDER

(Per: Mrs. Veena Sharma, Member):

This is insurer’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 08.04.2013 passed by the District Forum, Nainital in consumer complaint No. 116 of 2005.  By the order impugned, the District Forum has allowed the consumer complaint partly and directed the opposite party to pay to the complainant a sum of Rs. 1,00,000/- against Personal Accident policy alongwith interest @ 6% per annum on the said amount from the date of filing the consumer complaint till actual payment and Rs. 3,000/- towards cost of litigation within one month from the date of order.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant Smt. Parvati Bhatt is mother of deceased Sh. Mahesh Bhatt alias Manoj Bhatt, who was the owner of Hero Honda motorcycle which was insured by National Insurance Company Ltd.-opposite party. The insurance policy No. 451800/31/03/6204641 was valid for the period from 27.11.2003 to 26.11.2004 and it covers Rs. 1.00 lac under Personal Accident Risk. On 29.05.2004 at 7:30 p.m., the complainant’s son fell into canal at Damuwadhunga, Haldwani, District Nainital and had died.  The dead body of complainant’s son was recovered from canal at Ghooni No. 1 near Gyandeep Public School, Kathghariya.  On the next day, i.e. 30.05.2004 an F.I.R. was lodged by deceased’s brother at Police Station, Haldwani.  The complainant has applied to the Insurance Company for a Personal Accident claim for a sum of Rs. 1.00 lac, but they orally assured to her and no action was taken in this regard. Thereafter, on 02.08.2004 the complainant sent a letter in the office of opposite party-insurance company, but the same was not replied by the opposite party till now.  Due to this behaviour of the opposite party, the complainant has filed a consumer complaint before the District Forum, Nainital. 

3.       The opposite party-National Insurance Co. Ltd. has filed written statement and accepted that the deceased was insured by the insurance company vide Policy No. 451800/31/03/6204641. The deceased was entitled to get Rs. 1.00 lac against the Personal Accident Policy.  The opposite party has also accepted that the dead body of the deceased alongwith his motorcycle was recovered from canal, but the death of insured, as stated, is not true because the insured was not died during driving the insured vehicle.  It is a case of murder.  It is specifically stated in the Postmortem report that the deceased had received lacerated, contusion and abrasion injuries all over the body. In Police Station, Kathgodam, this case was registered at Criminal Case No. 5185/04 under Section 147/148/302/201/342 I.P.C., which specifically indicates that the insured was murdered. The opposite party has intimated the complainant vide letter dated 23.06.2005 that her son was murdered and he had not died while driving the motorcycle (insured vehicle), as such her claim was not covered under the terms and conditions of the insurance policy.  The consumer complaint is not filed bonafidely.  Accordingly, the complainant is not entitled to get any compensation/damages against the insurance policy.  Therefore, there is no deficiency on the part of the opposite party. 

4.       The District Forum, on an appreciation of the facts and circumstances of the case, has partly allowed the consumer complaint     No. 116 of 2005 vide order dated 08.04.2013 in the above terms.  Aggrieved by the said order, the opposite party-insurance company has filed the present appeal.

5.       We have heard learned counsel for the parties and perused the material placed on record.

6.       Learned counsel for the appellant-opposite party has submitted before this Commission that the order of the District Forum is against the law, facts and merits of the case.  The District Forum has failed to appreciate the evidence and records of the case.  He further stated that the District Forum has failed to appreciate that the respondent-complainant, in her consumer complaint, had stated that the deceased had died during driving his motorcycle and fell into the canal.  However, the Forum below has failed to appreciate the fact when the body of the deceased recovered on next day, it bore gunshot wounds and other injuries which indicated that the deceased had been murdered.  Learned counsel also submitted that the District Forum has failed to appreciate the fact that the FIR in respect of the above, was registered under Section 147/148/302/201/342 I.P.C. and the charge sheet was also filed against all the accused, who were arrested and sent to jail.  He further submitted that the District Forum has not considered the fact that the evidence filed by the appellant which includes the certified copy of the statement of Dr. M.S. Sharma who conducted the Postmortem of the deceased wherein it was clearly proved that the deceased was murdered due to loss of blood and shock which occurred due to gunshot wounds.  The District Forum has failed to appreciate that the personal accident insurance of the deceased under the said policy only covered the injury or death of the deceased in a Motor Vehicle Accident involving the insured vehicle.  The complainant had misrepresented before the District Forum, the manner in which the death of the deceased took place and had not come with clean hands. The District Forum has wrongly granted the compensation of Rs. 1,00,000/- to the complainant-respondent.  Learned counsel for the appellant-opposite party has submitted that the terms of the contract between the insurer and insured have to be relied upon and nothing can be added or altered to suit the purpose of either of the contracting parties.  Since the complainant-respondent could not furnish any proof that the death of the insured was solely because of alleged accident or independently of any other cause, the claim could not be allowed and as such there is no deficiency in service committed by the appellant-Insurance Company and as such the consumer complaint is liable to be dismissed. 

7.       On the other side, the learned counsel for the respondent-complainant has submitted before this Commission that the deceased Sh. Mahesh Bhatt alias Manoj Bhatt has been died while he was driving his motorcycle and fell into canal.  He was not murdered under any conspiracy and the wounds founded in his dead body were due to accident of motorcycle.  Therefore, the complainant is entitled to get Rs. 1,00,000/- as Personal Accident Insurance Policy of her deceased son.

8.       There is no dispute with regard to the fact that the deceased-          Sh. Mahesh Bhatt was insured by the appellant-insurance company vide Policy No. 451800/31/03/6204641 for the period from 27.11.2003 to 26.11.2004 with the coverage of Rs. 1.00 lac under Personal Accident risk upon payment of premium of Rs. 944/-.  There is also no dispute that the insured died on 29.05.2004 at 7:30 p.m. and his body was recovered from the canal near Kathgharia alongwith his motorcycle and the opposite party-insurance company was informed about the same. The main dispute in this case is whether the insured-deceased was died due to accident or he was murdered.  After perusal of the Postmortem report (paper Nos. 33 to 34) and statement (paper Nos. 55 to 60) of Dr. M.S. Sharma, Sr. Radiologist, it is evident that the deceased Sh. Mahesh Bhatt alias Manoj Bhatt had many wounds all over the body.  An F.I.R. was lodged by Sh. Lalit Mohan Bhatt, younger brother of deceased, on 30.05.2004, in which he stated that unknown culprits have murdered his brother Sh. Mahesh Bhatt alongwith his friend Sh. Virendra Singh Karki and the dead body of his brother was found in the canal near Kathgharia alongwith his motorcycle and the dead body of Sh Virendra Singh Karki was found at other place on the same day.  The main point involved in this dispute is whether the murder of the insured can be considered an accidental death.  In the Postmortem report, filed before us, it has been held that according to Dr. M.S. Sharma, who conducted the Postmortem of the deceased, 18 injuries were found on the body of Mahesh Bhatt.  According to Dr. M.S. Sharma, it is possible that the insured had died due to excessive loss of blood from the injuries and shock.  No gunshot wound was found on the deceased’s dead body.

9.       Learned counsel for the appellant has cited a decision of the Hon’ble National Commission in the case of Mrs. Madhumita Bose vs. The Manager Retail PA Claim Team, HDFC Ergo General Insurance Company Ltd. & Anr.; 2015 (1) CPR 525 (NC).  In this case, the Hon’ble National Commission has held that in cases of accidental death it must be established that cause of death of insured was injury caused by accident.  In the present case, the claim of the complainant was for the accidental death.  Before the claim can be admitted by the insurance company, it was incumbent on the part of the complainant to provide proof to establish that the death was accidental.  While in the present case, the younger brother of the deceased has reported in the FIR that his brother has been murdered by some unidentified persons (paper Nos. 41 to 42). Learned counsel also cited a decision of Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in the case of Life Insurance Corporation of India vs. Anita Gupta; 2012 (3) CPR 67.  In the case, the Madhya Pradesh State Commission has held that murder simplicitor cannot be treated as accident.  In the case of Smt. Rita Devi & Ors. vs. New India Assurance Co. Ltd. & Anr. the Hon’ble Supreme Court has held that “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 caused with intent and the perpetrators of that act normally have a motive against the victim for such a killing.  But there are also instances where a murder can be an 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 on 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 a 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.”  These citations, given by the appellant, are fully applicable in the instant case.

10.     From the careful perusal of the vital documents, namely FIR, Postmortem report and chargesheet, it is evident that the insured had been murdered by some unidentified persons, as it is reported in the FIR lodged by the younger brother of the deceased. The respondent’s averment that the payment of compensation by the insurance company on the ground of death of the insured, does not establish the fact that the death of the insured was accidental death.  We are unable to go by the submissions put forward on behalf of the respondent.  In the aforesaid circumstances we are of the considered view that the impugned order passed by the District Forum is liable to be set aside and the consumer complaint filed by the complainant-respondent is liable to be dismissed.  As such the appeal filed by the appellant-insurance company is deserves to be allowed.

11.     The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside and the consumer complaint is liable to be dismissed. As such, the appeal is fit to be allowed.

12.     For the reasons aforesaid, the appeal is allowed.  The impugned judgment and order dated 08.04.2013 passed by the District Forum, Nainital is set aside and the consumer complaint No. 116 of 2005 is dismissed.  No order as to costs.