State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Smt. Yadu Kumari. on 9 June, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 241/2018
Date of Presentation: 05.09.2018
Order Reserved on : 20.11.2019
Date of Order : 09.06.2020
......
National Insurance Company Ltd. Divisional Office Palampur
District Kangra (HP) through its Divisional Office.
...... Appellant/Opposite party.
Versus
Smt.Yadu Kumari widow of Shri Ashok Kumar son of Sh. Desh
Raj resident of Village Bahru P.O. Trehal Tehsil Baijnath District
Kangra H.P.
......Respondent /Complainant.
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr.R.K.Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Jagdish Thakur Advocate.
For Respondent : Mr.K.K.Chaudhary Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 30.07.2018 passed by learned DCF/DCC in consumer complaint No.33/2018 titled Smt.Yadu Kumari Versus National Insurance Company Ltd.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018 Brief facts of consumer complaint:
2. Smt.Yadu Kumari widow of Shri Ashok Kumar filed consumer complaint under Consumer Protection Act pleaded therein that her deceased husband purchased Personal Accident Policy No. 421200/42/16/8100000290 on dated 18.03.2017 for a period of one year which was operative w.e.f. 18.03.2017 to 17.03.2018. It is further pleaded that premium was also paid to Insurance company to the tune of Rs.380/- (Three hundred eighty). It is further pleaded that Insurance amount was Rs.300000/- (Three lac). It is further pleaded that complainant is widow of deceased insured Ashok Kumar and complainant has been mentioned nominee in the Insurance policy. It is further pleaded that complainant is having three minor children to look-after and maintain. It is further pleaded that deceased insured Ashok Kumar was driver in vehicle bearing No. HP-53A-5613 (Tipper) which was owned by contractor namely Piare Lal.
3. It is further pleaded that on 01.05.2017 husband of complainant came after unloading vehicle on work site situated at Baijnath and when deceased insured reached at place Majehrna Tehsil Baijnath District Kangra H.P. then some mischievous persons inflicted injuries on the person of Ashok Kumar and Ashok Kumar died due to injuries. It is further pleaded that FIR No.0058/2017 dated 02.05.2017 2 National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018 was registered and post-mortem of deceased insured was also conducted. It is further submitted that complainant submitted Insurance claim before Insurance company but Insurance company repudiated claim and committed deficiency in service. Complainant sought relief for payment of Rs.300000/- (Three lac) alongwith interest @ 12% per annum w.e.f. 01.05.2017 till actual payment. In addition complainant sought relief of payment of compensation for mental agony and harassment. In addition complainant sought litigation costs to the tune of Rs.20000/- (Twenty thousand). Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of Insurance company pleaded therein that deceased insured purchased Individual Personal Accident Policy and risk was covered only in accidental injuries w.e.f. 18.03.2017 to 17.03.2018. It is further pleaded that deceased insured was murdered and it was not accidental case. It is further pleaded that as per terms and conditions of Insurance policy Insurance company is not under legal obligation to pay Insurance claim to complainant. It is further pleaded that 71.54% mg. of Alcohol was present in blood of deceased insured as per information of Medical Officer and deceased insured committed fundamental breach of terms and conditions of Insurance policy. It is further pleaded that Insurance company did not 3 National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018 commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
5. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint.
6. Learned DCF/DCC partly allowed consumer complaint and ordered Insurance company to pay sum of Rs.300000/- (Three lac) to complainant alongwith interest @ 9% per annum from the date of institution of complaint till actual payment. In addition Learned DCF/DCC further ordered that Insurance company would pay compensation to complainant to the tune of Rs.30000/- (Thirty thousand) for mental harassment. In Addition Learned DCF/DCC further ordered that Insurance company would pay litigation costs to the tune of Rs.5000/- (Five thousand) to complainant. Feeling aggrieved against order passed by Learned DCF/DCC Insurance company filed present appeal before State Commission.
7. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
8. Following points arise for determination in present appeal.
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National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018
1. Whether appeal filed by Insurance company is liable to be accepted as mentioned in memorandum of grounds of appeal and whether Insurance company is under legal obligation to pay genuine Insurance claim?
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed affidavit Ext.CW-1 in evidence.
There is recital in affidavit that husband of deponent namely Ashok Kumar purchased Personal Accident Policy from Insurance company which was operative w.e.f. 18.03.2017 to 17.03.2018. There is further recital in affidavit that premium was also paid to Insurance company to the tune of Rs.380/- (Three hundred eighty). There is further recital in affidavit that Insurance amount was Rs.300000/- (Three lac). There is further recital in affidavit that deponent is widow of deceased insured Ashok Kumar and deponent has been mentioned as nominee in the Insurance policy. There is further recital in affidavit that deponent is having three minor children to look-after and maintain. There is further recital in affidavit that deceased insured Ashok Kumar was driver in vehicle bearing No. HP-53A-5613 (Tipper) which was owned by contractor namely Piare Lal. There is further recital in affidavit that on 01.05.2017 husband of deponent was coming after unloading vehicle on work site situated at Baijnath and 5 National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018 when deceased insured reached at place Majehrna Tehsil Baijnath District Kangra H.P. then some mischievous persons inflicted injuries on the person of Ashok Kumar and Ashok Kumar was injured and consequently died. There is further recital in affidavit that FIR No.0058/2017 dated 02.05.2017 was also registered and post-mortem of deceased insured was also conducted. There is further recital in affidavit that deponent submitted Insurance claim before Insurance company but Insurance company repudiated claim and committed deficiency in service. State Commission has carefully perused all annexures filed by complainant.
10. Insurance company filed affidavit of Subhash Chand posted as Assistant Manager in National Insurance Company Ltd. in evidence. There is recital in affidavit that deceased was insured under Individual Personal Accident Policy and risk was covered w.e.f. 18.03.2017 to 17.03.2018. There is further recital in affidavit that deceased insured Ashok Kumar was murdered and deceased insured Ashok Kumar was under the influence of alcohol. There is further recital in affidavit that 71.54% mg. of Alcohol was present in blood of deceased insured Ashok Kumar. There is further recital in affidavit that deceased insured committed fundamental breach of terms and conditions of Insurance policy and Insurance company has repudiated Insurance 6 National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018 claim strictly as per laws and Insurance company did not commit any deficiency in service.
11. Insurance company filed corroborative affidavit of Kamlesh Kumar Surveyor-cum Loss Assessor in evidence. There is recital in affidavit that deponent visited the spot on 25.05.2017 and recorded statements of complainant Smt. Yadu Kumari, Vipan Kumar and Vijay Kumar. There is further recital in affidavit that deponent also collected material documents. There is further recital in affidavit that deponent submitted report Annexure OP-2 alongwith relevant documents to Insurance company. State Commission has carefully perused all annexures filed by Insurance company.
12. Submission of learned Advocate appearing on behalf of Insurance company that FIR under section 302 read with section 34 of Indian Penal Code 1860 was registered against Kalyan @ Nikka, Kamal Kumar & Bobby Kumar, Shubham Kumar @ Sabu, Harbans Lal @ Chottu, Anil Kumar @ Nilu, Mani Ram and Titu Ram and present matter is matter of murder and is not matter of accidental death and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the opinion that simply registration of FIR under section 302 read with section 34 of Indian Penal Code 1860 does not mean that murder against accused persons is proved before Criminal Court of 7 National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018 law. Insurance company did not file final judgment of Criminal Court in order to prove that accused persons were convicted for murder of deceased insured Ashok Kumar. It is well settled law that statement given to Criminal Investigating Agency under section 154 of Code of Criminal Procedure 1973 could not be used for any purpose except to contradict witnesses in manner provided under Indian Evidence Act 1872. See AIR 1999 Apex Court 1969 titled Ramprasad Versus State of Maharashtra.
13. Even Insurance company did not file personal affidavit of Investigating Officer in order to prove contents of controversial FIR. No reason assigned by Insurance company as to why Insurance company did not file personal affidavit of Investigating Officer. Hence adverse inference is drawn against Insurance company for non-filing of personal affidavit of Investigating Officer.
14. State Commission is of the opinion that murder and accidental murder are entirely two different concepts in Code of Criminal Procedure 1973. It is well settled law that in murder there is intention to kill individual with pre-planned motive and in accidental murder there is no intention to kill deceased. It is well settled law that homicide is of two types (1) Homicide amounting to murder (2) Homicide not amounting to murder. State Commission is of the opinion 8 National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018 that homicide not amounting to murder falls within concept of accidental murder. It is well settled law that when there is intention to kill then criminal offence falls within concept of homicide death amounting to murder and when there is no intention to kill then homicide death falls within the concept of culpable homicide not amounting to murder under section 304 of Indian Penal Code. See AIR 2012 Apex Court 3104 titled State Tr. P.S. Lodhi Colony New Delhi Versus Sanjeev Nanda. Even there are five exceptions in section 300 of Indian Penal Code 1860 relating to murder. See 1993 (1) Crimes 984 Apex Court titled Harinder Nath Mandal Versus State of Bihar.
15. Submission of learned Advocate appearing on behalf of Insurance company that 71.54% mg. of Alcohol was found in blood of deceased insured Ashok Kumar and on this ground appeal filed by Insurance company be allowed is decided accordingly. Himachal Pradesh State Consumer Disputes Redressal Commission Shimla comprised of three Members Bench in case titled Himachal Pradesh Road Transport Corporation Ltd. Versus New India Assurance Company Ltd. has held that when quantity of alcohol in mg. is to the extent of 70 to 150 in that eventuality deceased insured could not be considered in intoxicated condition and driver was fit to driver vehicle.
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National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018
16. Submission of learned Advocate appearing on behalf of Insurance company that Surveyor has mentioned in report that present matter falls within definition of murder and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the opinion that Surveyor cum Loss Assessor is not legally competent to decide whether offence committed was culpable homicide amounting to murder or offence was culpable homicide not amounting to murder. State Commission is of the opinion that as per Code of Criminal Procedure it is only Criminal Court who is legally competent to adjudicate factum of culpable homicide amounting to murder and culpable homicide not amounting to murder. State Commission is of the opinion that Surveyor cum Loss Assessor is not adjudicating authority relating to criminal offence. It is well settled law that report of Surveyor cum Loss Assessor is not sacrosanct document and it is not conclusive. See 2009(VII) SCC 787 Apex Court DB titled New India Assurance Company Ltd. Versus Pradeep Kumar.
17. State Commission is of the opinion that present Insurance claim is genuine claim and Insurance company is under legal obligation to pay genuine Insurance claim to legal representatives of deceased insured including three minor children. See AIR 2017 SC 4836 (DB) titled Om Prakash 10 National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018 Versus Reliance General Insurance & Anr. See 2019(1) CPR 471 NC titled ICICI Lombard General Insurance Company Ltd. Versus Honest Bio-vet Pvt. Ltd.
18. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has granted excessive interest @ 9% per annum and same be reduced is decided accordingly. State Commission is of the opinion that in view of the fact that deceased insured left behind three minor children and widow it is not expedient in the ends of justice and on the principles of natural justice to reduce rate of interest ordered by learned DCF/DCC.
19. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has granted excessive compensation to the tune of Rs.30000/- (Thirty thousand) for mental agony and harassment and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the opinion that in view of the fact that deceased insured left behind three minor children and widow aged 39 (Thirty nine) years it is not expedient in the ends of justice and on the principles of natural justice to reduce compensation amount ordered by learned DCF/DCC. It is well settled law that Consumer Authorities are legally competent to grant equitable compensation as per facts and circumstances of case. It is 11 National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018 well settled law that Consumer Authorities are guardian of minors. Keeping in view interest of three minor children it is not expedient in the ends of justice and on the principles of natural justice to interfere in compensation order passed by learned DCF/DCC relating to mental harassment.
20. Submission of learned Advocate appearing on behalf of Insurance company that learned DCF/DCC has granted excessive litigation costs to complainant to the tune of Rs.5000/- (Five thousand) and on this ground appeal filed by Insurance company be allowed is decided accordingly. State Commission is of the opinion that complainant has engaged Advocate before learned DCF/DCC and has paid Advocate fee and other expenses and State Commission is of the opinion that learned DCF/DCC has granted equitable litigation costs to complainant and it is not expedient in the ends of justice and on the principles of natural justice to reduce litigation costs ordered by learned DCF/DCC.
21. Facts of ruling cited by learned Advocate appearing on behalf of Insurance company (1) AIR 2009 SC 2493 titled Vikram Green Tech(II) Ltd. Versus New India Assurance Co. Ltd. (2) 2010 CPJ (Soft) 1 SC 2493 titled Oriental Insurance Co. Ltd. Versus Parvesh Chander Chadda (3) 2009(8) SCC 316 titled Satwant Kaur Sandhu Versus New India Assurance Co. Ltd. (4) 2013(1) CPJ 150 NC titled Dharam Pal Versus United Insurance Co. Ltd. (5) Revision 12 National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018 Petition No.924/2008 decided on 25.01.2016 titled United India Insurance Co. Ltd. Versus Smt. B Purnamma (6) 2016(4) CPJ 195 Para 2 and 3 titled Mamta Thakur Versus Future Generali India Insurance Co. Ltd. and others and facts of present matter are distinguishable. Hence ruling cited by learned Advocate appearing on behalf of Insurance company are non-operative in present matter keeping in view fact that deceased insured left behind three minor children and widow.
22. Submission of learned Advocate appearing on behalf of complainant that order of learned DCF/DCC is in accordance with laws and in accordance with proved facts and same does not warrant any interference from State Commission is decided accordingly. Keeping in view fact that deceased insured left behind three minor children and widow aged about 39 (Thirty nine) years State commission is of the opinion that order of learned DCF/DCC does not warrant any interference from State Commission. Point No.1 is decided accordingly.
Point No.2: Final Order
23. In view of findings upon point No.1 above appeal filed by Insurance company is dismissed. Order of learned DCF/DCC is affirmed. It is ordered that amount ordered by learned DCF/DCC will be divided equally between legal heirs of deceased insured i.e. widow and three minor children. It is 13 National Insurance Company Ltd. Versus Smt. Yadu Kumari F.A. No.241/2018 further ordered that shares of three minor children will be deposited by complainant Yadu Kumari wife of deceased insured Ashok Kumar in Nationalized bank till minors attain ages of majority. Insurance company shall comply order within one month after receipt of certified copy of order. Parties are left to bear their own litigation costs before State Commission.
24. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Certified copy of order be sent to Learned DCF/DCC forthwith for information and file of State Commission be consigned to record room after due completion forthwith. Functioning of State Commission remained non-operative during winter vacation w.e.f. 11.01.2020 to 23.02.2020 and functioning of State Commission also remained non-operative w.e.f. 24.03.2020 to 15.04.2020 due to Nation wide lock down on account of Corona virus. Hence present appeal is disposed of today. F.A.No.241/2018 is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President R.K.Verma Member 09.06.2020 Manoj 14