West Bengal

Bankura

CC/30/2018

Mithu Rani Ghosh - Complainant(s)

Versus

The Branch Manager SBI General Insurance - Opp.Party(s)

Ardhendu Sekhar Ghosh

02 Feb 2023

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION BANKURA

C.C. No.30/2018

Date of Filing : 10.05.2018

Before:

1. Samiran Dutta                              Ld. President.      

2. Rina Mukherjee                           Ld. Member. 

3. Siddhartha Sankar Bhui             Ld. Member.

For the Complainant: Ld Advocate Ardhendu Sekhar Ghosh

For the O.P.  Ld Advocate Prabir Banerjee

Complainant

Mithu Rani Ghosh, Vill-Jheinya, P.O.Basubati, P.S.Kotulpur, Dist.Bankura

Opposite Party 

1.Branch Manager, SBI, Kotulpur Br., Bankura  2. Vice President & Head- Retail S.B.I.General Insurance. Corporation and Registered Office at Andheri Kurla, Andheri East, Mumbai

 

FINAL ORDER / JUDGEMENT

Order No.34                                                                             

Dt. 02-02-2023

The Complainant and O.P. No.2 filed hazira through Advocate.

No step is taken by the O.P. No.1

The case is fixed for argument.

After hearing argument from both sides the Commission proceeds to dispose of the case as hereunder:

The Complainant’s case is that her husband Late Goutam Ghosh had an original policy with Personal Accident Insurance cover of Rs.10 Lakh linked to S. B. A/c No.30392384825 (SBI, Kotulpur Branch) with O.P. No.2 / Retail S.B.I. General Insurance Corporation Master Policy No. being 143990000000 (Certificate No. being 44147387) commencing from 28-01-2014 with annual premium of Rs.500/- which was renewed for the 2^nd year from 24-02-2015 to 23-02-2016 with the same premium by Certificate No.55942853 on the same terms and conditions.

                                                                                                                                                                                          Contd……p/2

Page : 2

While the policy was in force an untoward incident took place on 20-11-2015 at about 3.15 Hrs. when said Policy holder was found hanging over a jackfruit tree nearby his house on attending on nature call and the incident being reported to the O.C.,Kotulpur P.S. was accordingly registered as Kotulpur P.S. Case No.161/15, dated: 20-11-2015 u/s 302/34 IPC. Post Mortem was held on 20-11-2015 by autopsy surgeon with the  opinion that the death is antemortem and homicidal in nature. Though Final report was submitted in that case No. being Kotulpur PSFRMF 94/16, dt.02-06-2016 but the case was re-opened for further investigation before Ld. A.C.J.M., Bishnupur which is still pending. Further expert opinion with regard to the Post Mortem report has been sought for in the matter.

Claim application was preferred by the Complainant before the O.P. No.2 by No. being 271970 but the same was refused by the O.P. authority by letter dated: 22-08-2017 stating that the insured has committed suicide by hanging as is evident from the Final Police report as he was going to a state of financial bankruptcy and personal crisis. The Complainant has therefore approached this Commission claiming Rs.10 Lakh as Personal Accident death benefit Claim of the Insured with interest together with Compensation and Litigation cost.

O.P. No.2 contested the case by filing a Written Version contending inter alia that the Complainant is not entitled to get any claim in this case as the Final Police report and result of re-investigation has not been produced before the Commission.

Having regard to the facts and circumstances of the case, contentions, submissions  and documents on both sides the Commission finds that the deceased Goutam Ghosh had a valid Policy with O.P. No.2 at the time of his un-natural death but the claim application has been refused by the O.P. as the nature of death is yet to be ascertained.

The Commission finds  from the claim rejection letter of the O.P. dated: 22-08-2017 wherein it has been clearly stated in Para-4 of the said letter based on the documents that the Insured had committed suicide and the Final Police report also shows that the Insured had committed suicide by hanging himself from a Jackfruit tree and in view of the exception Clause suicide is a ground for refusal of such claim application. On the contrary no plea has been taken in the written version of the O.P. whether it is suicide or homicide. Only plea taken in the written version for refusing the claim application is non-production of original Police Report without taking any plea whether it is suicide or homicide.

.                                                                                                                                                                                     Contd……p/3

Page : 3

Within the four corners of the F.I.R. and the P.M. report as placed before the Commission there is nothing to suggest that it is a case of suicide but the Final Police report which is not on record may suggest otherwise.

As stated above Final Report No. being 94/16, dt.02-06-2016 is not final as re-investigation is still pending.

So the above referred Final report cannot be relied upon for deciding the nature of the death. On the other hand P.M. report has become final and no clarification or further expert opinion on the P.M. report is permissible under the law save and except with the leave of the Court where the criminal case is pending. P.M. report is a medico legal expert report submitted by an autopsy Surgeon whose opinion is sacrosanct unless rebutted by any further opinion of a competent autopsy Surgeon. In this case the P.M. report so produced before this Commission clearly suggests that it is a case of homicide and no contrary P.M. report is forthcoming from either side. Now the matter is left open to the Trial Court to give a finding as to whether the death is suicidal or homicidal.  But till now the Commission and all other authorities are bound by the findings of the P.M. report. In case of conflict between P.M. report and final Police Report findings in the P.M. report will prevail over the Final Police Report  simply for the reason that P.M. report is an expert opinion whereas Final Police report is given by a Police Officer having no knowledge in medical science.

In view of the discussion made above the Commission is of the view that the nature of un-natural death of the Insured Goutam Ghosh is homicidal antemortem in nature. So far Insurance claim is concerned suicide falls within the exception Clause for refusal of Insurance claim and in this case the terms and conditions of the Policy contains in the Exception Clause that the Insurance Company shall not be liable for any claim under the Policy arising from suicide. But no exception has been stipulated in the Policy in case of  homicidal death.

In Maya Devi Vs. LIC of India (reported in III (2008) CPJ 120 NC, the NCDRC New Delhi while allowing Insurance claims on homicidal death of the Insured has come to the conclusion  relying on the authority of  Halsbury’s Law of England, Vol.25, Page- 307, Para 569 Fourth Edition (2003 Re-issue) where accident has been defined as under: -

“……………so that even while willful murder may be accidental as far as the victim is concerned.”

                                                                                                                                                                                         Contd……p/4

Page : 4

Para-575 of the said edition provides as follows: -

‘Injury caused by a Willful act even criminal act of a third person, provided the Insured is not a party or privy to do, is to be regarded as accidental for the purpose of Policy.  From insured’s point of view it is not expected or designed. However if the immediate cause of injury is the deliberate and willful act of the Insured himself there will seem to be no accident and no claim will lie under the Policy at any rate if the Insured is not mentally disordered at the time of his act.’

The decision of the said Maya Devi case has been upheld by the Supreme Court in another case No. being SLP (Civil) 34115 of 2010.

It is therefore clear from the above referred judicial pronouncement that homicide is also an accidental death unless it is not a deliberate and willful act of the Insured himself. No evidence is forthcoming on record to show that the un-natural death of the Insured occur due to any willful and deliberate act of the Insured.

Accordingly the Commission upon consideration of all the materials on record comes to an irresistible conclusion that the Insured Goutam Ghosh died an un-natural accidental death which is homicide in nature and as such the Complainant being the wife and nominee of the Insured is entitled to get the relief as prayed for.

 It is hereby made clear that the Commission has no power and jurisdiction to go into the merits of the crime aspect so as to determine whether an un-natural death is suicidal or homicidal which lies  within the exclusive domain of competent court of law. This decision has been rendered by the Commission based on the available material on record for the purpose of disposal of Insurance claim only and it will not however be applicable to any matter before any authority.

Hence it is ordered……….

That the case be and the same is allowed against O.P. No.2 and Ex-parte against O.P. No.1.

O.P. No.2 is directed to pay to the Complainant Rs.10 Lakh as Personal Accident Claim of the Insured under the Policy together with Rs.50,000/-  as Compensation within one month time from this date I/D the decretal amount may be realized in due process of law.                                                                                                            

____________________                   _________________                     _________________

HON’BLE   PRESIDENT            HON’BLE MEMBER                 HON’BLE MEMBER