Complainant Ram Charan Pal ill fated father of disease Dayasankar Pal by filing this complaint has alleged that op no.2 the Manager of Oriental Insurance Company stopped the payment in respect of the insurance claim for the death of Dayasankar Pal while he was proceeding by his driving vehicle No.WB-25A-1681 proceeding on 30.01.2006 and fact remains that the said vehicle was insured under the present Insurance Company vide Policy No.313303/2006/7298.

          On 30.01.2006 in the early morning local people of Gobindapur saw and detected that a dead body is found lying by the side of National High Way No.2 Bye-pass near Barsul P.S. under O.S. and District Burdwan.  Subsequently, the dead body was identified by the complainant as Dayasankar Pal the son of the complainant and as per policy Dayasankar Pal was insured of the op.

          Fact remains that prior to such accident, complainant’s son was proceeding from Kolkata on the way to Barsul by driving the said truck but and he was murdered on the way to destination by unknown miscreants who also fled away along with the said truck after killing the insured Dayasankar Pal and leaving him by the side of the road and the dead body of Dayasankar Pal the insured was taken to Burdwan Medical College & Hospital where Post Mortem was held vide P.M. No.120 dated 30.01.2006 and Burdwan P.S. started a specific case under section 302/201 I.P.C. and the said case was registered as Burdwan P.S. Case No. 80/06 dated 30.01.2006 and next on investigation I/O submitted Final Police Report before Ld. Chief Judicial Magistrate at Burdwan as no clue was searched out that means miscreants would be detected.

          Ops are well acquainted with the facts and matter was reported and claim was submitted but that was not properly disposed of.  Thereafter complainant continuously met with ops several times claiming the cheque but the op did not pay any heed to pay the cheque till date and such sort of conduct on the part of the op is no doubt unfair trade practice and at the same time the deficient and negligent manner of service and in the circumstances, the complainant has prayed for compensation and damages to the extent of Rs.3 lakhs.

          On the other hand Insurance Company by filing written statement submitted that there was no laches or negligent or deficient manner of the service on the part of the op but fact remains in respect of the use of the vehicle No. WB-25A-1681 in favour of the owner’s name of Dayasankar Pal op issued insurance policy which is a insurance policy for Zone C in respect of the goods carrying Vehicle and period of insurance was from 12.12.2005 to 11.12.2006 as per terms and conditions of the said policy and as per said policy company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the owner driver of the vehicle in direct connection with the vehicle insured if owner is also a driver and said death must be caused for violent accidental external and visible injuries etc.  But op after considering the entire materials as produced by the complainant but admittedly that death was due to murder but it was not due to any accident for which this claim was not processed and the claim was repudiated.  So the complainant’s claim is not maintainable in the eye of law for which they have prayed for dismissal of the same.

                                                      Decision with reasons

          In the present case practically it is undisputed fact that Dayasankar Pal was the insured under the present Insurance Company in respect of the vehicle bearing No.WB-25A-1681 and no doubt the said policy No.313301/06/7298 was valid for the period from 12.02.2005 to 11.02.2006 and no doubt the said Dayasankar Pal was murdered which is evident from the fact that in this regard police case No.80/2006 dated 30.01.2006 was started u/s 302/201 of I.P.C. and the case was investigated by the police station but ultimately police failed to get any clue that means police failed to search out miscreants who committed such murder and from the investigation report submitted by the I/O before the Ld. CJM Burdwan it is proved that on 30.01.2006 at about 8:20 hours dead body of unknown person was found by the side of the National Highway near Barsul and that the said body was recovered by the police as per information of the local people and after post mortem it was found that it was homicidal death of Dayasankar Pal in nature and from the said FIR it is also found that Dayasankar Pal son of Ram Charan Pal of 15/1B, Joy Krishna Pal, P.S.- Watgaunge, Kolkata – 700023 was owner-cum-driver of truck No.WB-25A-1681 and on 29.01.2006 Dayasankar Pal loaded sand to carry the same at Kolkata but the miscreant killed him and left with the loaded truck but anyhow miscreants could not be searched out.  So, FRT was filed ultimately on 28.02.2007.

          In this case everything is quite admitted fact that Dayasankar Pal at the time of proceeding by driving his own insured vehicle was murdered and the said truck was taken away and no doubt the complainant submitted the claim as per Insurance Policy.  But it is the op’s version that as per section IV of terms and conditions of the policy 100% compensation shall be paid by the company if death of the insured-cum-driver is caused by violent accidental external available means and it shall be within the 6 calendar month of such injury also and op has specifically relied upon that clause and alleged that this claim is not entertain able in view of the fact that death of Dayasankar Pal was not caused due to violent accidental external injuries due to accident faced by the truck for which op refused the claim.

          In this regard we have gone through the very language of the said section IV of the terms and condition of the policy and the said particular line is quoted in verbative “caused by violent accidental external and visible means which is evident of any other cause”. If the particular line is minutely taken in to consideration in that case it is found that there was direct violent external force for which Dayasankar Pal was removed forcibly while he was driving the said vehicle with sand loaded, by the miscreants and he was murdered and his dead body was found near the road side and entire act of the miscreant was no doubt violent and external force and no doubt the murder is an accidental death in the present case and in the said para it is also mentioned that if death sustained by the owner-cum-driver of the vehicle in direct connection of the vehicle insured and this term is also minutely considered and it can safely be said that there was direct connection with the vehicle insured when the owner-cum-driver Dayasankar Pal sustained bodily injured by external force of miscreants and he was murdered and his death was homicidal in nature and considering the terms and conditions of the section IV of the Policy, we are confirmed that the death was accidental in nature and in view of the judgement of the Hon’ble Supreme Court it has already been decided that if any driver-cum-owner or any driver at the time of proceeding by driving vehicle through road by driving the vehicle has been murdered by the miscreants and the vehicle is also taken away by the miscreants and it is not recovered in that case such a death (murder) which is homicidal in nature shall be treated as accidental death at the time of using the vehicle and in that case the policy condition of section IV can easily be applied in such cases and compensation should be allowed.  But anyhow the insurance company was well aware of those rulings but they had their no desire to show respect to the rulings of Hon’ble Supreme Court and only to avoid payment and to make this Forum a fool took such defence in this case which is no doubt unfaithful defence and fact remains the insurance companies are well aware of the decision of the Hon’ble Supreme Court that in such a case compensation should be allowed.

          On overall consideration of the fact and circumstances of this case and the cause of death of Dayasankar Pal and the provision of section IV of the Insurance Policy and terms we are confirmed that Dayasankar Pal died after sustaining bodily injury being injured by the miscreants while he was driving the said vehicle with sand loaded on the road and so his death was no doubt accidental death for violent external force and injuries and for which it is accidental in nature though such death is classified as homicidal death.  But it is to be mentioned that all homidical death is accidental in nature because it is caused due to external violent force and in the present case said external violent force was used by the miscreants for the purpose of committing theft of the entire truck and for causing death of the owner-cum-driver Dayasankar Pal and in the above circumstances we are convinced to hold that the insurance company is liable to pay 100% compensation to the nominee or the legal heirs of Dayasankar Pal.

          After considering the policy it is found that the said incident took place within the valid period of the insurance policy which was started from 12.12.2005 with expiry date 11.12.2006 but the present incident took place on 29.01.2006 at any time near Barsul under Burdwan District under P.S.-Burdwan on the NH-2.  So, it is proved that the life of the insured Dayasankar Pal was covered by the present policy of that date and in the above circumstances no doubt the op is bound to release the claim of the complainant without any fail.  But in this regard we have also gone through the insurance policy wherefrom we find that Ram Charan Pal the present complainant rightly claimed the said present claim because Dayasankar Pal as owner-cum-driver was covered by Personal Accidental Coverage and it was Rs.2,00,000/- and for which op shall have to pay Rs.2,00,000/- to the complainant without any fail.  At the same time the death of Dayasankar Pal was caused on 29.01.2006 and practically claim was submitted in the year 2007 after filing of the FRT by the police on 28.02.2007 and no doubt op received all the papers after 28.02.2007 but for some reasons best known to them they did not release the claim amount and for which the complainant is entitled to further interest @ 8% p.a. w.e.f. February 2007 and till full payment of the same by the op to the complainant.

          Moreover, in this case present complainant has suppressed many matters because it is not mentioned who was the nominee of the said policy and it is also not visible from the complaint whether complainant has his wife or not and if wife is alive in that case his wife is also entitled to some share of the policy.  At the same time complainant suppressed the marital status of Dayasankar Pal.  But his legal heirs are not brought on this record and at the same time complainant did not file any succession certificate in this regard.  So, we have relied upon the argument of the Ld. Lawyer for the op and relying upon that and for proper distribution of the compensation amount we shall have to pass such specific order.  But op shall have to clear decretal dues by depositing the same to the present Consumer Forum and when the complainant shall be able to file succession certificate at that time the said amount shall be released in favour of the successors as per succession certificate.

          Accordingly the complaint succeeds.

          Hence, it is

                                                         ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the ops.

          Ops are hereby directed to pay and deposit Rs.2,00,000/- as compensation and also interest over the same @ 8% p.a. since the month of February, 2007 and till its full payment before this Forum along with cost amount by a Demand Draft issued in favour of the District Consumer Disputes Redressal Forum, Unit-II, Kolkata within one month from the date of this order failing which ops shall have to pay punitive damages @ Rs.500/- per day till full payment of the said amount in this Forum as per spirit of this order and even for non-compliance of the present order the ops may be prosecuted u/s 27 of C.P. Act 1986 and for which they shall be liable.

          Complainant is directed to produce the succession certificate in this regard to substantiate the claim of the legal heirs in this regard and also to inform the status of the deceased and also the status of his legal heirs and in passing such order we have relied upon one ruling reported in 2013 (4) CPR 43 (NC) because as per the spirit of that ruling division of share of the decretal amount shall be made as per succession certificate.

          Sent a copy of this order to op no.1 at once to comply the same failing which necessary legal step shall be taken against the ops.