Date of Filing : 28.01.2012
Date of Disposal : 30.04.2013
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 30th day of April, 2013
C.C.No.05/2012
Between:
Amara Sasikala,
W/o Late Amara Kesavaiah,
Obulanayanipalli Village,
Dharmavaram Mandal,
Anantapur District. … Complainant
Vs.
The Divisional Manager,
Oriental Insurance Company Limited,
Kalpana Complex, 1st Floor,
Railway Feeder Road,
Anantapur. … Opposite Party
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 V.Krishna Sharma, advocate for the 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 party claiming a sum of Rs.5,00,000/- towards sum assured under the policy, Rs.50,000/- towards mental agony and Rs.10,000/- towards costs of the complaint..
2. The brief facts of complaint are that: The complainant is the wife of the deceased Amara Kesavaiah. The deceased was eking out his 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 in Telugu Desam Party 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 in the village murdered Amara Kesavaiah at his house. A case was also registered under section 302 I.P.C. by Dharmavaram Town P.S. and after investigation the police filed charge sheet. During the life time of the deceased Amara Kesavaiah he took Individual Nagrik Suraksha policy from the opposite party. The term of the policy is from 29.11.2006 to 28.11.2010 and the sum assured is Rs.5,00,000/-. Subsequently on 02.05.2009 Amara Kesaviah 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 opposite party. The opposite party without enquiring properly closed the claim file and addressed a letter dt.29.01.2010 to the complainant stating that the holder of the policy Amara Kesaviah was having criminal background enmity with the accused, hence the claim was repudiated. Due to rejection of the claim of the complainant the complainant and her family members were subjected to untold misery and hardship. The complainant’s husband was not having any faction with any one and there was absolutely no criminal back ground. The opposite party without proper enquiry and without any investigation closed the claim file which is gross negligence on the part of the opposite party and there by caused deficiency of service. Hence this complaint is filed by the complainant.
3. The opposite party filed counter stating that it is true that the deceased Amara Kesaviah obtained Nagrik Suraksha Policy from the opposite party and that the said Amara Kesaviah was murdered on 02.05.2009 as per the records. The opposite party submits that the allegation that the deceased was an agriculturist and an active leader of Telugu Desam Party and also worked as regional chairman APSRTC for Chittoor region is to be proved by the complainant. And the further allegation that due to political rivalry the deceased was murdered by the opposite political party leaders is absolutely false. The further allegation that the deceased Amara Kesaviah has absolutely no enmity with any one and living peacefully is a patent lie. The further allegation that the policy was in force as on the date of death of the deceased and the complainant is entitled for a sum of Rs.5,00,000/- and a sum of Rs.50,000/- towards mental agony and Rs.10,000/- towards costs is not correct.
4. The opposite party submits that as seen from the public records i.e., F.I.R., Charge Sheet, 162 Cr.P.C. statements it is very clear that the deceased had longstanding enmity with the rivalry group as he maintained faction group with his followers during his life time and the deceased also committed number of crimes during his life time, which lead to his murder. Further the records clearly shows that the deceased had participated in number of criminal activities and suppressing the same he obtained the alleged policy, fraudulently. Thus, the death of the deceased falls under exclusions of section 1 (9) of the policy which do not come under the purview of the terms and conditions of the Nagrik Suraksha policy. Hence, the opposite party is not liable to pay any amount towards the sum assured. Further the opposite party submits that the records reveal that the deceased was an accused in crime No.20/1992 in which Gaddam Pullanna’s jeep was blasted and in crime No.05/1995 a murder case was registered and another crime No.19/1998 a murder case was registered in which G. Narayana Swamy was murdered and the deceased had got close contacts with ROC group (Naxalites) and was maintaining a faction group in his village. Thus the records clearly show that the deceased had got longstanding enmity with his rival group. Thus the deceased knowingly and anticipating threat to his life intentionally taken the above said policy in order to get wrongful gain by suppressing all the above said facts. Further the opposite party submits that the deceased also obtained the Nagrik Suraksha policies from other insurance companies i.e., United India Insurance Company and the present complainant also filed cases for claiming amount from them. Thus the intention of the deceased is very clear that he was very well aware of a great threat to his life due to his criminal activities and suppressing all of them obtained the policy fraudulently. Thus the deceased has violated the terms and conditions of the policy. Hence the deceased does not come within the purview of accident and as such the policy absolutely does not cover the death of the deceased.
5. Further the opposite party submits that the policy covers for the death is only Rs.4,00,000/- not Rs.5,00,000/- as claimed by the complainant. As submitted above as the present case falls under exclusions of the policy section 1 (9) and in view of obtaining the policy by suppressing the criminal activities of the policyholder the death of the deceased will not come under the purview of the terms and conditions of the policy. Hence, the opposite party has rightly repudiated the claim under valid grounds and there is no deficiency of service on the part of the opposite party
6. 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 party?
2. To what relief?
7. In order to prove the case of the complainant, the complainant has filed his evidence on affidavit and marked Exs.A1 to A3 documents. On behalf of the opposite party, evidence on affidavit of the opposite party has been filed and marked Ex. B1 to B8 documents.
8. Heard both sides.
9. POINT: - It is an admitted fact that the deceased Amara Kesavaiah obtained Nagrik Suraksha policy from the opposite party on 28.11.2006 and it is also an admitted fact that 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.
10. 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 disputes 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 opposite party is liable to pay the sum assured.
11. 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.
12. The counsel for the opposite party argued that the deceased Amara Kesavaiah was murdered on 02.05.2009 by the accused. 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 longstanding enmity in the village between the deceased and his followers on one side and the accused and others and the other side and a number of criminal cases were registered against both the parties. The fact remains that the murder of the deceased insured is only out of the longstanding enmity in village between the deceased and the accused. Ex.B6 is the investigation report which clearly establishes that there was number of crimes registered against the deceased. This shows that the deceased was an active leader and the death of the deceased falls under exclusion clause of section 1 (9) of the policy. “Committing any breach of law of the land with criminal intent”.
13. There is ample documentary evidence on record to show that the deceased insured has participated in criminal activities prior to his murder and deliberately violated the terms and conditions of the Nagrik Suraksha policy. Further the counsel for the opposite party argued that the sum assured is only Rs.4,00,000/- but not Rs.5,00,000/- as claimed by the complainant.
14. 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 the accused so there was a design and plan on the part of the accused, who intentionally murdered the deceased.
15. Further the opposite party argued that there is abnormal delay in giving intimation to the opposite party company about the death of the deceased and the complainant has grossly violated the terms and conditions of the policy and that the direct breach of the policy condition is very much fatal to the claim and as such, the opposite party company is not liable to pay any compensation under the said contract of Insurance.
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.
16. 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.
17. After hearing the arguments and perusing the documents and the decisions submitted by both party’s counsel the point that should be taken into consideration is that whether the murder of the deceased Amara Kesavaiah was murder which is an accidental murder or murder simpliciter.
18. 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.
19. Further argument of the opposite party is considered to be a valid ground to repudiate the claim as the deceased suppressed the material facts that he is having faction with the opposite party group and obtained a policy fraudulently. Hence the claim of the complainant was repudiated rightly.
20. Further the opposite party argued that there was delay 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 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 an 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 opposite party is not liable to pay a sum of Rs.4,00,000/- under the Nagrik Suraksha policy and the opposite party repudiated the claim rightly. Hence there is no deficiency of service on the party of the opposite party.
21. 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 30th 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 PARTY
-NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 Photo copy of insurance policy bearing No.297 issued by the opposite party in
favour deceased Amara Kesavaiah.
Ex.A2 Photo copy of repudiation letter dt.29.01.2010 issued by the opposite party to
the complainant.
Ex.A3 Photo copy of genealogy report issued V.R.O. Mallakaluva Village,
Dharamavaram Mandal, Anantapur District.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY
Ex.B1 Carbon copy of insurance policy bearing No.297 issued by the opposite party in
favour deceased Amara Kesavaiah along with terms and conditions.
Ex.B2 Photo copy of F.I.R. in Crime No.45/2009 of Dharmavaram Rural P.S.
Ex.B3 Photo copy of Inquest Report relating to the deceased Amara Kesavaiah.
Ex.B4 Statement given by the complainant.
Ex.B5 Photo copy of repudiation letter dt.29.01.2010 issued by the opposite party to
the complainant.
Ex.B6 Investigation report submitted by Sub-Inspector of police retired/investigator,
Dharmavaram to the opposite party.
Ex.B7 Photo copy of complainant filed in C.C.No.03/2012.
Ex.B8 Photo copy of complainant filed in C.C.No.17/2012.
Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR
