Date of Filing : 05.12.2011
Date of Disposal : 09.04.2013
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Sri S.Niranjan Babu, B.A., B.L., President (FAC)
Sri M.Sreelatha, B.A., B.L., Lady Member
Tuesday, the 9th day of April, 2013
C.C.No.03/2012
Between:
Amara Sasikala,
W/o Late Amara Kesavaiah,
Obulanayanipalli Village,
Dharmavaram Mandal,
Anantapur District. … Complainant
Vs.
1. The Branch Manager,
Andhra Bank,
17/25B, Siddartha Complex, 1st Floor,
Railway Station Road, Dharmavaram,
Anantapur District.
2. The Divisional Manager,
United India Insurance Company Limited,
Divisional Office-IV, 7th Floor,
United India Towers, 3-5-817 & 818,
Hyderabad - 29 … Opposite Parties
This case coming on this day for final hearing before us in the presence of Sri S.Surendra Chari, Advocate for the complainant and Sri Dasari Sreedhar, Advocate for the 1st opposite party and Sri A.G.Neelakanta Reddy, advocate for the 2nd opposite party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Sri S.Niranjan Babu, (President (FAC): - This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite parties 1 & 2 claiming a sum of Rs.1,00,000/- towards insurance amount and Rs.20,000/- towards mental agony.
2. The brief facts of complaint are that: The complainant is the wife of the deceased Amara Kesavaiah. The deceased was eking out of livelihood by agriculture and he was an active leader of Telugu Desam Party in Dharmavaram Assembly constituency. The deceased held several posts in district and state committees and also worked as Regional chairman APSRTC for chittoor region. The opposite political party felt that the deceased Amara Kesavaiah will be an obstacle for them in future and with the aid of unruly elements murdered Amara Kesavaiah at his residence. A case was also registered under section 302 I.P.C. by Dharmavaram Town P.S. and after investigation the police filed charge sheet. The deceased Amara Kesavaiah has absolutely no enmity with any one and was living peacefully. During the life time of the deceased Amara Kesavaiah openedAbhaya Gold Bank account vide account No.706 (ABG) with the 1st opposite party. The 1st opposite party collected premium along with the amount for opening account and remitted the same to the 2nd opposite party. Hence the complainant became a policyholder under the 2nd opposite party for a sum of Rs.1,00,000/-. Subsequently on 02.05.2009 Amara Kesavaiah was murdered at his residence in the presence of the complainant. Due to the murder of her husband the complainant was shocked and fell sick for a few days. After recovery the complainant made a claim to the 2nd opposite party through the 1st opposite party. The 2nd opposite party repudiated the claim of the complainant with a reason “injured is involved with criminal activity” by a letter addressed to the 1st opposite party dt.04.12.2009. The repudiation by the opposite parties shows the gross negligence and deficiency of service on the part of the opposite parties. Hence, filed this complaint claiming a sum of RS.1,00,000/- and Rs.20,000/- towards mental agony.
3. The 1st opposite party filed counter stating that it is true the deceased opened Abhaya Gold Bank account vide account No.707 (ABG). The 1st opposite party submits that the deceased was active member of Telugu Desam Party and he worked as Regional Chairman, APSRTC and subsequently he was murdered by his opponents. The 1st opposite party submits that the allegation made in the complaint that the deceased has absolutely no enmity with any one and living peacefully is not true. If the deceased has really no enmity with any one and was living peacefully the question of murdering him does not arise. The 1st opposite party submits that the allegation made in the complaint with the 2nd opposite party refused to pay the insurance amount to the complainant as the “injured is involved with criminal activity” is not known to the 1st opposite party. The 1stopposite party is in no way concerned with the transactions between the deceased and the 2nd opposite party. The duty of the 1st opposite party is only to collect the premium amount and remit the same to the 2nd opposite party. The 1st opposite party submits immediately after receipt of the letter from the complainant the 1stopposite party forwarded the same to the 2nd opposite party. Thus the 1st opposite party has fulfilled his obligation in this regard and there is no deficiency of service on the party of the 1st opposite party. Hence, the complaint against the 1st opposite party shall be dismissed.
4. The 2nd opposite party filed counter stating that all the allegations made in the complaint are neither true nor correct. The 2nd opposite party submits that the deceased late Amara Kesavaiah has committed breach of law with criminal intent and the murder of the deceased is only out of the long standing enmity in between the deceased and his follower’s on one side and the accused and their followers on the other side. Number of criminal cases were registered against both the parties and the deceased has grossly violated the terms and conditions of the insurance policy and as such the 2nd opposite party is not liable to pay any compensation under the said contract of insurance. The 2nd opposite party submits that the murder of the deceased Amara Kesavaiah does not come under the purview of the contract of insurance and as such the complaint is liable to be dismissed. Further the 2nd opposite party submits that the there is ample evidence on record to show that the deceased has deliberately participated in the criminal activities before his murder and criminal case were also against the deceased and his followers. Further the 2nd opposite party submits that the murder of the deceased does not come under the purview of the accident and as the cause of the death of the deceased does not come under the purview of the said contract of insurance hence the 2ndopposite party is not liable to pay any compensation. Further the 2nd opposite party submits that the deceased has grossly violated the terms and conditions of the said contract of insurance by deliberately participating in criminal activities prior to his murder and as such the 2nd opposite party is not liable to pay any compensation. Further the 2ndopposite party submits that the complainant is put to strict proof that she is the nominee of the deceased Amara Kesavaiah under the said contract of insurance. Further the 2nd opposite party submit that the claim of the complainant was rejected on certain facts and that the Hon’ble Forum has no jurisdiction to entertain the claim against the 2ndopposite party as there is absolutely no deficiency of service on the party of the 2nd opposite party. Further the complainant has claimed Rs.20,000/- compensation for mental agony which is not also liable to pay.
5. Basing on the above pleadings, the following points that arise for consideration are:-
1. Whether there is deficiency of service on the part of the opposite parties 1 & 2?
2. To what relief?
6. In order to prove the case of the complainant, the complainant has filed his evidence on affidavit and marked Exs.A1 to A3 documents. The 1st opposite party has filed evidence on affidavit and no documents are marked. On behalf of the 2nd opposite party the evidence on affidavit of the 2nd opposite party has filed and marked Ex. B1 to B7documents.
7. Heard both sides.
8. POINT:- It is an admitted fact that the deceased Amara Kesavaiah was murdered on 02.05.2009. The complainant herself says that the deceased Amara Kesavaiah was an active leader of Telugu Desam Party in Dharmavaram Assembly constituency who was having large following. Further the complainant submitted that the deceased held several posts in District and state party committees and he also worked as Regional Chairman of APSRTC for Chittoor region. There is no dispute with regard to the deceased having Abhaya Gold Bank account vide account No.706 from the 1st opposite party which covers insurance and the sum assured under the said policy is Rs.1,00,000/-.
9. The counsel for the complainant argued that the deceased though had political rivalry with the opposite party they were long back settled by then strong political leader. Since then there were no dispute between the deceased and the accused. Further the murder took place in the residence of deceased in front of the complainant. Hence, the murder is purely an accidental murder and it is not a factional murder. Therefore the 2nd opposite party is liable to pay the compensation as per the policy treating the murder as an accidental murder.
The counsel for the complainant relied upon a decision (2005) I CPR 329 Aravapalli Omkaram Versus United Indian Insurance Company Limited Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad: In the said case the deceased took a Janata Personal Accident Insurance Policy for a sum of Rs.5,00,000/- and subsequently the insured was kidnapped and murdered. Subsequently the accused was arrested by the police, investigation revealed that victim was murdered and his body disposed off in canal insurance claim resisted on the plea that only when insured was involved solely and directly in an accident insurance company could be held liable criminal case investigation papers revealed that policy holder was kidnapped and murdered by violent means death resulting from such events could be termed as unforeseen and unexpected, and thus deemed to be an accident except asserting policy clause that only when death was caused by violent and visible means it could be made liable, insurance company did not produce any material to support its defense in repudiation of claim. It was held there was deficiency of service and the amount of Rs.5,00,000/- with interest @ 9% p.a. from the date of filing of complaint was awarded.
10. The counsel for the 1st opposite party argued that the 1st opposite party was only a facilitator of the 2nd opposite party and forwarded the claim of the complainant to the 2nd opposite party thereby their part of obligation was completed. Hence there is no deficiency of service on the part of the 1st opposite party.
11. The counsel for the 2nd opposite party argued that the deceased Amara Kesavaiah was murdered on 02.05.2009 by the accused Gadiputi Gangadhar and seven others. There is direct evidence to the murder of the deceased. Ex.B2 is the F.I.R. and Ex.B3 is the inquest report in which it is clearly mentioned that the deceased was murdered only due to old rivalry. The record of police investigation clearly reveals that there is a long standing enmity in between the deceased and his followers on one side and the accused and others on the other side criminal cases were registered against both the parties. The fact remains that the murder of the deceased insured is only out of the long standing enmity in between the deceased and his followers on one side and the accused and his followers on the other side.
12. Exclusions under the policy: Provision 7 (iii) (g) of memorandum of understanding abhaya Gold Savings Bank Account Holders Group Janata Personal Accident Policy, which is marked as Ex.B1, the company shall not be liable to pay any compensation under the said policy for “Provided always that the Insurance Company shall not be liable under this policy for: 7(iii) (g) Arising or resulting from the insured committing any breach of the law with criminal intent”.
There is ample documentary evidence on record that the deceased insured has participated in the criminal activities prior to his murder and deliberately violated the terms and conditions of the Abhaya Gold Savings Bank Account Holders Group Janata Personal Accident Policy and as such, the 2nd opposite party company is not liable to pay any compensation under the said insurance policy.
13. The murder of the deceased insured does not come under the purview of an accident: The word accidental is happening by chance or unexpectedly. In other words it should be understood as a mishap or an untoward event not expected or designed. The murder of the deceased is not an unexpected or untoward incident. The murder of the deceased is only out of the long standing enmity in between the deceased and his followers on one side and the accused and others on the other. So there was a design and plan on the part of the accused, who intentionally murdered the deceased.
14. The postmortem certificate of the deceased (Ex.B4) clearly reveals that there are as many as 6 incised injuries on the person of the deceased. The accused attacked the deceased with sickles and as a result of which, the deceased died instantaneously. The accused hacked the deceased with sickles indiscriminately.
15. Further the 2nd opposite party argued that there is abnormal delay of more than 3 ½ months in giving intimation to the 2nd opposite party company about the death of the deceased and the complainant has grossly violated the terms and conditions of the said Abhaya Gold Group Janata Personal Accident Policy (Ex.B1) and that the direct breach of the policy condition is very much fatal to the claim and as such, the 2nd opposite party company is not liable to pay any compensation under the said contract of Insurance. Ex.B7 is the claim intimation letter dt.14.08.2009 submitted by the complainant.
16. Further the 2nd opposite party argued that the complaint is barred by limitation under Consumer Protection Act, 1986 and as such the complaint is liable to be dismissed on that ground alone. Ex.B6 is the claim repudiation letter dt.4.12.2009 but the complaint was filed on 05.12.2011.
In support of the 2nd opposite party counsel submitted the following rulings for the kind consideration of the Hon’ble Forum.
1. 2000 ACJ page No.801 Supreme Court.
2. 2003 ACJ page No.1588, Patna High Court.
3. 2009(1) CPJ page No.6 Supreme Court.
4. 2009(4) CPJ page No.72 Orissa State Commission.
5. 2008(2) CPJ page No.168 National Commission.
6. 2006 CPJ page No.983 National Commission
What is Murder: Murder is a felonious act where death is caused with intent and perpetrators of that act normally have a motive against the victim for such killing.
17. It is held by the Supreme Court in the Ruling reported in 2000 ACJ page No.801, 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. It is further held by the Supreme Court that “in our opinion, if the dominant intention of the act offelony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter. 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 killing or murder is an accidental murder.
18. In an another ruling reported in 2003 ACJ page No.1588 Patna High Court wherein it is held that : Person going on motor cycle was shot at due to personal animosity resulting in his death no case of the claimants that the accused wanted to rob the motor cycle and deceased was murdered, while protesting whether murder arose out of use of motor cycle and claim application is maintainable held no dominant intention of the accused was to commit murder of the deceased, murder was not an accidental murder but a murder simpliciter. The murder of the deceased is not an unexpected or untoward incident. The deceased was murdered by the accused due to faction in between them. The main intention of the accused is to murder the deceased and accordingly, all the accused armed with sickles murdered the deceased. Under these circumstances, the murder of the deceased does not come under the purview of an accident. The murder of the deceased is not an accidental one and the 2nd opposite party company is not liable to pay any compensation under the said Abhaya Gold Group Janata Personal Accidental Policy.
19. After hearing the arguments and perusing the documents and the decisions submitted by both counsels the point that should be taken into consideration is that whether the murder of the deceased Amara Kesavaiah was murder which is an accident or murder simpliciter.
20. As discussed in the above judgments what is 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 with the dominant intention of the act of felony is to call any particular person then such claim is not accidental murder but is the murder simpliciter. while if the cause of murder of act a murder was originally not intended and the same was caused in any other violent act then such murder is an accidental murder. In the instant case the murder of the deceased was not an accidental murder because the accused had previous enmity and there were cases booked against the deceased and his followers on one side and the accused and his followers on the other side. The aim of the accused is to eliminate the deceased and the accused went to the house of the deceased only to murder and murdered the deceased. Hence the target of the accused was accomplished by murdering the deceased and hence the murder is not an accidental murder and it is a murder simpliciter.
21. Further the 2nd opposite party argued that there was delay of 3 ½ months in intimating the death of the deceased for which the counsel for the complainant explained the reason that the complainant was present at the time of murder of her husband and she was shocked at the murder of her husband and she fell ill. Hence, there was delay which is not a hindrance to the claim. Any how in the instant case the 2nd opposite party could establish beyond doubt that the deceased was murdered only due to previous enmity hence the murder of the deceased is a murder simpliciter but not accidental murder as claimed. Further we are satisfied with the arguments of counsel for the 2nd opposite party that the deceased was murdered by the accused with a pre plan and clear intention to eliminate the deceased. And it is the intention of the accused that is to be taken in to consideration to decide whether it is a accidental murder or murder simpliciter. In the instant case the accused went to the house of the complainant with a clear intention to murder and murdered the complainant’s husband hence it is a murder simpliciter. Hence this case does not come under the purview of accident. In view of the above observation the 2nd opposite party is not liable to pay a sum of Rs.1,00,000/- under the Abhaya Gold Group insurance policy.
22. In the result the complaint is dismissed without costs.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 9th day of April, 2013.
Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT:
NIL
ON BEHALF OF THE OPPOISITE PARTIES
-NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 Photo copy of letter dt.04.12.2009 issued by the 2nd opposite party to the
1st opposite party.
Ex.A2 Genealogy certificate issued by the VRO, Mallkaluva Village, Dharmavaram
Mandal, Anantapur District relating to deceased Amara Kesavaiah.
Ex.A3 Original Abhaya Gold Saving Pass Book issued by the 1st opposite party in
favour of the deceased Amara Kesavaiah.
EXHIBITS MARKED ON BEHALF OF THE 2nd OPPOSITE PARTY
Ex.B1 Certified copy of the memo random of understanding Abhaya Gold Savings
Bank Account Holders Group Janata Personal Accident Policy with terms and
conditions.
Ex.B2 Certified copy of F.I.R. in Crime No.45/2009 of Dharmavaram Rural P.S.
Ex.B3 Certified copy if Inquest Report relating to the deceased Amara Kesavaiah.
Ex.B4 Certified copy of Postmortem certificate relating to deceased Amara Kesavaiah.
Ex.B5 Certified copy of Charge Sheet in Crime No.45/2009 of Dharmavaram Rural
P.S.
Ex.B6 Repudiation letter dt.04.12.2009 issued by 2n opposite party to the 1st opposite
party.
Ex.B7 Photo copy of form of application intimation of Claim intimation letter
dt.14.08.2009 submitted the complainant .
Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR
