KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 38/2004
ORDER DATED:24-03-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI.M.K. ABDULLA SONA : MEMBER
The New India Assurance Company Ltd.,
Rep. by its Deputy Manager, : APPELLANT
Regional Office, Kandomkulathy Towers,
MG Road, Kochi-11.
(By Adv:M/s Mathews Jacob & Associates)
Vs.
T.Sajith Kmar,
2/2021, Thayyil House, : RESPONDENT
Civil Station P.O, Kozhikkode-20.
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
The above appeal is preferred against the order dated:18th November 2003 of CDRF, Kozhikkode in OP.152/02. The complaint in the said OP.152/02 was filed by the complainant therein alleging deficiency of service on the part of the opposite parties/New India Assurance Company Ltd in repudiating the insurance claim with respect to the Janatha Personal Accident Insurance Policy issued by the opposite party/New India assurance Company Ltd under the master policy No.4771060000846. The opposite party/New India Assurance Company Ltd. repudiated the insurance claim on the ground that the death of the insured Sanjeev Kumar was a suicidal death and that it is not covered by the Janatha Personal Accident Insurance Policy. Thus, the opposite party prayed for dismissal of the complaint preferred by the complainant as nominee of the insured.
2. Before the Forum below Exts.A1 to A7 and B1 to B5 documents were produced and marked on the side of the parties to the complaint. No oral evidence was adduced from either side. On an appreciation of the documentary evidence on record, the Forum below passed the impugned order dated:18/11/2003 allowing the complaint and thereby directing the opposite party/New India Assurance Company Ltd. to pay a sum of Rs.4.lakhs with 9% interest to the complainant and also to pay compensation of Rs.5000/- and cost of Rs.500/-. It is against the said order the present appeal is preferred.
3. We heard the counsel for the appellant and the respondent. The learned counsel for the appellant/opposite party(New India Assurance Company Ltd.) submitted his arguments on the strength of the grounds urged in the memorandum of the present appeal. He much relied on the FIR in crime No.168/01 of the Nadakkavu police Station, Kozhikkode and also police case in the aforesaid crime No.168/01 and argued for the position that death of the insured Sanjeev Kumar was a suicidal death and the said death cannot be treated as an accidental death. It is further submitted that the Janatha Personal Accident Insurance Policy is covered for death due to accident. Thus, the appellant/ opposite party/New India Assurance Company Ltd. prayed for setting aside the impugned order passed by the Forum below. The appellant has also challenged the correctness of the impugned order awarding compensation of Rs.5000/-. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below. He argued for the position that the insured had accidental death and the said risk was covered by the policy issued in favour of the insured, Sanjeev Kumar. He further submitted that there is no evidence to support the case of the appellant/insurance company to infer that the insured had a suicidal death. He further submitted that the benefit of doubt regarding the cause of death of the insured is to be infavour of the respondent/complainant, the nominee of the insured. Thus, the respondent prayed for dismissal of the present appeal.
4. The points that arise for consideration are:-
1. Whether the appellant/opposite party/insurance company has succeeded in establishing their case that death of the insured Sanjeev Kumar was a suicidal death?
2. Whether the Forum below can be justified in considering the death of the insured as an accidental death?
3. Is there any sustainable ground to interfere with the impugned order dated:18/11/2003 passed by the CDRF, Kozhikkode in OP.152/02?
5. Points 1 to 3:-
There is no dispute that the appellant opposite party/New India Assurance Company Ltd. issued a master policy and thereby the members holding dollars save card are covered by the Janatha Personal Accident Policy and that the 2nd respondent’s brother (complainant’s brother) Sanjeev Kumar was covered by the said Janatha Personal Accident Insurance Policy for the period from 12/3/1999 to 11/3/2009 for a sum of Rs.4.lakhs. There is also no dispute that the said Janatha Personal Accident Insurance Policy was covered the risk of accidental death to the insured persons. The respondent/complainant is the nominee under the said Janatha Personal Accident Insurance Policy. It is an admitted fact that the insured Sanjeev Kumar died on 2/5/2001 and death of the insured was caused by run over by a train. Post mortem was conducted on the body of the deceased Sanjeev Kumar. Ext.A3 is the postmortem report dated:3/5/2001 issued by the police surgeon, Department of Forensic Medicine, Medical College, Calicut. As per A3 postmortem certificate, the cause of death is shown as due to injuries to head, chest and neck. Thus, A3 postmortem certificate would show that the deceased Sanjeev Kumar died on account of the bodily injuries sustained. The prima-facie evidence on record would show that the insured Sanjeev Kumar had an accidental death. In such a situation it was incumbent upon the opposite party/New India Assurance Company Ltd. (insurer) to substantiate its case that the death of the insured was a suicidal death and the said death would come under the exclusion clause of the Janatha Personal Accident Insurance Policy.
6. The appellant/opposite party/New India Assurance Company Ltd. repudiated the insurance claim preferred by the respondent/complainant, the nominee of the insured. The repudiation was on the ground that the death of the insured was not covered by the Janatha Personal Accident Insurance Policy as the death was a suicidal death. There is no dispute that as per the personal accident policy suicidal death is not covered by the policy. Thus, it can be concluded that the suicidal death was an exclusion clause in the said policy.
7. Ext.A1 is the personal accident insurance policy claim form submitted by the complainant along with the claim form. The complainant submitted death certificate, postmortem report and original policy document. But the opposite party/New India Assurance Company Ltd. failed to produce the Janatha Personal Accident Insurance Policy issued infavour of the insured Sanjeev Kumar. Ext.B1 is copy of the agreement attached to and form part of master policy No.4771060000846. As per B1 agreement benefit of cover is shown as follows:-
8. This is as per the operative clause (a) of the master policy. If the insured person died due to an injury resulting solely and directly from accident caused by outward, violent and visible means, the company shall pay to the nominee, the sum insured as mentioned in the certificate issued to the insured person provide the death of the insured person takes place within 6 calendar months from the date of occurrence of the injury/accident. The operative clauses (b) (c) and (d) of the master policy which deal with the disablement benefits are deleted; as the cover extended under the master policy and agreement is only for accidental death. The provision 1 to 3 under the heading provisions of the master policy also stands deleted.
9. The aforesaid agreement would show that the nominee of the insured is entitled to the benefit of the insurance coverage only in the event the insured has an accidental death.
10. The postmortem report would show that the insured died due to the antimortem injuries sustained to his head, chest and neck. It is also admitted that the insured sustained those injuries in a train accident. It is categorically admitted that the insured, Sanjeev Kumar died on account of ran over by a moving train. There can be no doubt about the fact that death in a train accident or ran over by a moving train can only be an accidental death. Thus, the principle Res-ipso-loquitor can be made applicable in this case. So, respondent/complainant is justified in his submission that the insured Sanjeev Kumar had an accidental death on 3/5/2001.
11. Admittedly there was no eye witness to the accident in which the insured Sanjeev Kumar died. The body of the insured was found on the railway track with antimortem injuries including the injuries to his head, chest and neck. The police surgeon who conducted the postmortem has categorically reported that the deceased died due to antimortem injuries sustained to his head, chest and neck. So, the facts, circumstances and the available evidence would establish the fact that the insured had an accidental death by running over by a moving train.
12. It is the case of the appellant/opposite party/New India Assurance Company Ltd. that the insured Sanjeev Kumar had a suicidal death. But the appellant/opposite party has not succeeded in establishing their case regarding suicidal death of the insured. It is the case of the appellant that they deputed an investigator and that the investigator submitted the investigation report stating that the insured committed suicide. But the said investigation report was not available for the scrutiny of the Forum below. The so called investigator was not cited as a witness on the side of the opposite parties. It is also not forthcoming from the side of the opposite party as to how and when the insured committed suicide. No other cogent and acceptable evidence is available on record to substantiate the case of the opposite party/New India Assurance Company Ltd that the insured had a suicidal death. Thus, the appellant/ opposite party/New India Assurance Company Ltd. miserably failed in substantiating their case regarding suicidal death.
13. The appellant much relied on the case in crime No.168/01 of the Nadakkavu police station, Kozhikkode. Ext.A4 is copy of the FIR in the aforesaid crime No.168/01. The said FIR was lodged under the caption ‘un natural death’. The aforesaid FIR was lodged based on the intimation given by the Station Master, West Hill Railway Station at 11.10 am on 3/5/2001. Thus, the 1st informant had no direct knowledge about the train accident in which the insured Sanjeev Kumar died. The case diary in crime No.168/01 would show that there was no eye witness to the incident. The inquest report prepared by S.I of Police, Nadakkavu Police station on 3/5/2001 would only show that the deceased died in the train accident as the deceased was ran over by a moving train. It is also reported therein that the deceased died by hitting of a moving train. But there is no acceptable inference to come to a definite conclusion that the deceased had suicidal death.
14. The appellant/opposite party/New India Assurance Company Ltd. had relied on B3, B4 and B5 statements given by the witness to the police. But those statements would not give any indication that the authors of those statements are eye witnesses to the incident. It would also show that those statements were given on the basis of some probabilities; but those probabilities or presumptions or assumptions cannot be equated to evidence to come to the conclusion that the deceased had a suicidal death. Moreover, the authors of those statements have not been examined in this case. The person who recorded those statements had not been examined before the Forum below. The police officer who prepared and submitted the inquest report was not examined. The investigating officer who conducted the investigation in the said crime No.168/01 of the Nadakkavu police station, Kozhikkode was not examined in this case. Thus, the appellant/opposite party/New India Assurance Company Ltd. miserably failed in establishing their case that the insured, Sanjeev Kumar had a suicidal death and that the death of the insured was not an accidental death. The Forum below has rightly not upheld the case of the opposite party/New India Assurance Company Ltd. regarding suicidal death.
15. The presumptions and assumptions available in the case and the probabilities of the case would show that there were 3 probabilities for the death of the insured:-
1. The insured, Sanjeev Kumar had accidental death.
2. The insured Sanjeev Kumar was murdered by inflicting serious and fatal bodily injuries.
3. The insured committed suicide by jumping before a moving train.
16. The complainant would say that the insured had an accidental death. The opposite party/ insurance company would say that the insured committed suicide. But there is no case that the insured was murdered. The concrete evidence available on record viz. the postmortem report would show that the insured sustained fatal bodily injuries in a train accident and he died due to the fatal injuries sustained to his head, chest and neck. So, it can be concluded that the insured had an accidental death. The other possibility is for suicidal death; but nobody has spoken to about the suicidal death. The only probability is that the insured was much worried on account of the loss of his passport and he had given threatening that he will commit suicide if the passport could not be detected. But there is nothing on record to show that the passport was lost irrecoverably. In such a situation there was no necessity for the insured to commit suicide. It is a settled position that when two probabilities are available, the one in favour of the insured/nominee of the insured is to be accepted. The Forum below has rightly accepted the probability that the insured had an accidental death. It is also to be noted at this juncture, that out of the two probabilities the probability for accidental death is more probable than of the probability for suicidal death. Thus, in all respects, the Forum below can be justified in holding that the insured, Sanjeev Kumar had an accidental death and that the complainant being nominee of the insured is entitled to get the insurance amount of Rs.4.lakhs. The Forum below can also be justified in awarding cost of Rs.500/- to the complainant.
17. The Forum below has also awarded compensation of Rs.5,000/- to the complainant; but there is nothing on record warranting compensation of Rs.5000/-. It is further to be noted that in the complaint in OP.152/02, there is no prayer for compensation. Thus, the Forum below cannot be justified in awarding compensation of Rs.5000/- to the complainant. More over, the facts and circumstances of the case would justify the action of the officials of the opposite party, the New India Assurance Company Ltd in not honouring the insurance claim preferred by the complainant as there was no judicial verdict on the disputed question. Thus, the compensation of Rs.5000/- ordered by the Forum below is liable to be set aside. Hence we do so.
18. The Forum below has also awarded interest at the rate of 9% per annum on the insured amount of Rs.4.lakhs from the date of petition till realization. It is to be noted that the complainant has not claimed any interest on the insured amount considering the peculiar facts and circumstances of the case it is not just or fair to award interest on the insured amount from the date of complaint in OP.152/02. This State Commission is of the view that the complainant is only entitled to get interest at the rate of 9% per annum on the insured amount of Rs.4.lakhs from the date of the impugned order (18/11/2003) till the date of realization. Thus, the impugned order passed by the Forum below is modified as indicated above. These points are answered accordingly.
In the result this appeal is allowed partly. The impugned order dated:18/11/2003 passed by the CDRF, Kozhikkode in OP.152/02 is modified and thereby the appellant/opposite party/New India Assurance Company Ltd. is directed to pay the insured amount of Rs.4.lakhs to the respondent/complainant being the nominee of the insured, Sanjeev Kumar with interest at the rate of 9% per annum from the date of the impugned order (18/11/2003) till the date of realization with cost of Rs.500/-. The order passed by the Forum below for payment of compensation of Rs.5000/- and interest from the date of the complaint are deleted. As far as the present appeal is concerned, parties are directed to suffer their respective costs.
M.V. VISWANATHAN: JUDICIAL MEMBER
M.K. ABDULLA SONA : MEMBER
VL.
