National Consumer Disputes Redressal
Bejanti Devi & Ors. vs Divisional Manager, National ... on 12 August, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3444 OF 2011 (Against the Order dated 02/08/2011 in Appeal No. 142/2009 of the State Commission Jharkhand) 1. BEJANTI DEVI & ORS. R/o Hamidganj, Chairman Road, P.O & P.S Daltonganj PALAMAU 2. BRANCH MANAGER, Goldern Trust Financial Services, Rajdhani complex, Daltonganj PALAMAU 3. ZONAL MAMAGER, Golden Trust Financial Services, 16,R.N Mukherjee Road KOLKATA - 700001 WEST BANGAL ...........Petitioner(s) Versus 1. DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD. & ANR. NatiuonalInsurence Co.Ltd, Ground Floor, Inida exchange Palace KOLKATTA - 700001 WEST BANGAL 2. GOLDEN TRUST FINANCIAL SERVICES - - - ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT HON'BLE DR. INDER JIT SINGH,MEMBER FOR THE PETITIONER : NONE FOR THE RESPONDENT : FOR THE RESPONDENT NO.1 & 3 : MR. KUNAL CHATTERJI, ADVOCATE (THROUGH V. C.) FOR THE RESPONDENT NO. 2 & 4 : MR. ABHISHEK KUMAR GOLA, ADVOCATE MR. ANSHUL MEHRA, ADVOCATE (THROUGH V. C.) Dated : 12 August 2024 ORDER A. P. SAHI, J (PRESIDENT)
1. The late husband of the Revisionist, Mr. Raj Kumar Prasad was the holder of a Janta Personal Accident Insurance Policy acquired from the National Insurance Company Limited through the Golden Trust Financial Services (GTFS). The policy was for an insured amount of Rs.50,000/- that was valid for the period 31.03.2002 to 31.03.2017. The Complainant is the nominee of the said policy. The insured Mr. Raj Kumar alias Raj Kumar Prasad was murdered in an incident on 09.02.2005.
2. The Revisionist set up her claim before the Insurance Company but the same was repudiated on 27.03.2008 primarily on the ground that it was only accidents that are covered under the policy, and since the risk of murder was not under coverage, the claim was not indemnifiable.
3. Aggrieved the Complainant filed CC No. 32 of 2008 before the District Forum, Palamau, Daltonganj, Jharkhand that was allowed directing the Insurance Company along with the Golden Trust Financial Services to make good for the deficiency and compensate with Rs.50,000/- to be paid accordingly. A sum of Rs.5,000/- as damages was also awarded and in the event of default the same would bear 10% interest if the amount is not paid in 60 days.
4. The Insurance Company filed an Appeal being FA No. 142 of 2009 that was allowed and the Order of the District Forum dated 19.11.2008 was set aside and the Complaint was dismissed.
5. The order of reversal in First Appeal No. 142 of 2009 dated 02.08.2011 is extracted herein under:
" 1. This appeal has been filed by the appellant/ OP against the order/ judgment dated 19-11-2008 passed by the District Consumer Forum, Daltonganj in his case No. CC 32 of 2008 whereby the appellant were directed to pay insurance claim Rs.50000 and compensation Rs.5000 and litigation costs Rs.5000 to the complainant. Being aggrieved by the impugned order the appellant has filed this appeal before us.
2. The facts leading to this appeal are in short that the husband of complainant / respondent has taken Janta Personal Accident Policy from the appellant. During validity of policy he was killed Being nominee she filed claim, but denied. Then the respondent filed complaint case before the Dist. Forum and hence the impugned order.
3. The case of the appellant is that there is no deficiency on his part and the complainant is not entitled for the relief awarded. The appellant asserted that the cause of death was murder which is not covered under accident policy.
4. This appeal is time barred and the appellant has filed petition for condonation of delay. However considering the facts of the case and hearing the learned counsel of the appellant we are inclined to allow the petition and proceed to decade this case on the merit of the case as under.
5. The respondents are absent despite several adjournments already given. However counsel of the respondent appeared on 28-7-11 and argued his case. Having gone through the materials available on the record and listening the argument of the learned counsels of the appellant and respondent we are passing this order.
6. We perused the impugned order. It transpires that the learned Dist. Forum failed to appreciate the scope of the insurance policy. From the policy paper it is evident that it is accident policy and the intentional murder is not accident. Learned Dist. Forum relied on simple fact of death. The difference between accidental death and murder has been clearly observed in Civil appeal No. 3021 of 2000 by hon'ble Supreme Court. This State Commission has also have laid down principles in FA248/08, FA751/2007, 521/2008 and FA220 of 2008 that in case of willful intention to cause death is not accident and not in the scope of personal accident policy. From the facts and materials filed on the record we find that instant case is murder not accident. So, in spite of human instinct, we are not inclined to help the widow of the deceased policy holder under law.
7. For the aforesaid reasons, we find and hold that the complaint case of the respondent has no merit in the eye of law and the impugned order can not sustain, therefore we set aside the same and allow the appeal but without any cost at this levels.
The office is directed to supply copy of the order to the party concerned according to rule."
6. Being aggrieved the Complainant has filed this Revision Petition which was initially dismissed on 31.01.2018 by the following order:
"1. This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 24.6.2011 passed in F.A. No. 142 of 2009 by Jharkhand State Consumer Disputes Redressal Commission, Ranchi (in short, 'the State Commission') whereby the appeal of the insurance company was allowed and the order dated 19.11.2008 passed by District Consumer Disputes Redressal Forum, Daltonganj (in short, 'the District Forum') was set aside.
2. The brief facts of the case are that the complainant, Bejanti Devi took Janta Personal Accident Policy from National Insurance Company Ltd./OP for a sum of Rs.50,000/- valid from 31.3.2002 to 31.3.2017. During the validity of the policy, he was killed on 9.2.2005. Being nominee for the said policy, she filed a claim with the OP, which was repudiated vide letter dated 27.3.2008. Hence, she filed a complaint before the District Forum, Daltonganj.
3. The OP resisted the complaint and submitted that it was not an accidental death. It was a murder, therefore, the claim was repudiated. Also submitted that there was no deficiency on the part of OP.
4. The District Forum allowed the complaint and directed the OPs to pay jointly and severally a sum of Rs.50,000/-, the insured amount, alongwith Rs.5,000/- as compensation and Rs.5,000/- as costs. Being aggrieved, the OP filed appeal before the State Commission. It was allowed and the order of District Forum was set aside. Being aggrieved, the complainant filed this revision petition.
5. We have heard the learned counsel for both the parties. Learned amicus curiae, Mr. K. P. Sundar Rao vehemently argued that the complainant was a poor widow and sustained mental trauma due to the murder of her husband. The policy amount was very meagre. She submitted the insurance claim in 2005 but, the OP took too much period to decide the matter and repudiated on 27.3.2008 i.e. after three years. Thus, it was a deficiency on the part of OP. Secondly, the murder was sudden unexpected event. Thus, the death was an accidental. The counsel relied upon the judgment in the case of Maya Devi and Rita Devi in this context.
6. Learned counsel for the respondents vehemently argued that it was a murder simpliciter, therefore, as per policy terms and conditions, the insurance claim was denied. The deceased was shot by gun due to personal enmity. The criminal case was decided and the accused were convicted in that case for the offence of murder, therefore, it was not an accident and murder simpliciter.
7. We have given our thoughtful consideration and perused the FIR and the Panchnama, which was prepared after murder. It transpired that there was personal enmity between the accused and the victim and they have fired the bullets in the head of the injured, who instantaneously died, therefore, it will not be wise to say that it was an accidental death.
8. On the basis of foregoing discussion, we do not find any merit in the instant revision petition, therefore, it is dismissed. However, there shall be no order as to costs"
7. However, a Review Application was filed and the same was allowed on 13.08.2019 by the following Order:
"Heard R.A. No. 132 of 2018 for recalling the Order dated 31.01.2018. Learned counsel for the review applicant produces three citations -
Civil Appeal No. 3021 of 2000 decided on 27.04.2000 in the case of Rita Devi (Smt.) & Ors. Vs. New India Assurance Co. Ltd. & Anr.
III (2008) CPJ 120 (NC) in the case of Maya Devi Vs. Life Insurance Corporation of India F.A. No. 1357 of 2016 decided on 25.09.2018 in the case of Royal Sundaram Alliance Insurance Co. Ld. Vs. Pawan Balram Mulchandani R.A. No. 132 of 2018 is allowed and the Order dated 31-01-2018 is recalled.
List the matter before the division bench on 05-09-2019 for final hearing."
8. The Revision came to be restored.
9. The revision seems to have been heard on several occasions but the matter did not proceed and it appears that Ms. A. Subhashini was later on appointed as Amicus Curie who also did not attend the case. The matter again got adjourned from time to time but could not be finalized and as such it remained pending.
10. Ultimately the case was directed to be listed before the appropriate Bench according to the roster and brief synopsis by the learned Counsel has been filed. Consequently the matter was listed before us on 05.08.2024 when the revision was finally argued and orders were reserved.
11. Learned Amicus Curie for the Revisionists did not appear. Learned Counsel for the Insurance Company Mr. Gola advanced his submissions contending that the risk of murder is not indemnifiable as the issue stands clinched with the accused having been convicted of murder vide judgment dated 25.09.2006 in Session Trial No. 116 of 2005 State Versus Anil Kumar Soni and Vijoy Ram to charge under Section 302/109 IPC and 27 Arms Act.
12. Mr. Abhishek Gola submitted that the factum of murder is established and is not disputed for which he has relied on the recitals contained in the judgment of the Trial Court in Paragraph No.-2 and then again in Paragraph No. 24 and 25 thereof. It is urged that a perusal of the narration of the incident by the learned Trial Judge establishes beyond doubt that the incident in which the insured had involved himself arose out of a communication that was received by him threatening him to be killed by the accused in case he did not pay a sum of Rs.10,000/-. Mr. Abhishek Gola contends that with this information the deceased along with his brother went to meet the accused at a particular place where they entered into a fight and physically assaulted each other. It is during the said skirmish that the accused pulled out a fire arm and shot the deceased by injuring him on his head who immediately fell dead.
13. Mr. Gola contends that once the insured was aware of the risks involved, it was the deceased who contributed voluntarily in getting himself invited to a brawl where in all probability according to the message received by him, he could have been killed. The contention of Mr. Gola is that this expectation manifested itself in the murder of the insured who inspite of having knowledge of the dangers and the risk involved in meeting the accused went there and engaged in a fight that ended up in his murder. Mr. Gola therefore contends that this conduct of the deceased establishes that the murder was not by accident but was clearly apprehended, and probably crystallized because of due diligence not being exercised by the insured who himself moved out to meet the accused who had threatened him to kill and was already waiting to assault the insured. The chain of events as described in the judgment of the Trial Court establishes that the insured himself travelled to meet the accused who had threatened him to kill. This threat was immediate and was in close proximity of the offence which was committed the same day. Thus, the claim has been rightly repudiated holding that it was not an accidental murder and even otherwise was not covered under the policy.
14. Mr. Gola urged that the District Forum did not appreciate the aforesaid legal position completely and allowed the Complaint contrary to the terms of the policy. Mr. Gola has relied on the same judgments that have been filed on record by the learned Counsel for Respondent No.1 and 3, Gold Trust Financial Services.
15. Mr. Kunal Chatterji appearing for Respondent No. 1 and 3 contends that the insurance claim of the Petitioner deserves to be allowed inasmuch as the ratio of the judgments on which reliance has been placed by him and have been extensively read during the course of the arguments hold that unless there is a willful act on the part of the insured, no person could have apprehended murder that was sudden and was unexpected. The incident was unforeseeable and therefore according to him it is an accident. While drawing the distinction in this regard he has cited copiously by reading the judgment of the Jammu and Kashmir High Court in the case of National Insurance Company Limited versus Shiv Dutt Sharma reported in (2002) SCC OnLine J&K 46 Paragraph No. 23 - 37.
16. He has then invited the attention of the Bench to the definition of the word 'accident' as quoted with approval from the Black's Law Dictionary in the case of National Insurance Company Limited versus M/s Ben and Thammy Catering Services Private Limited reported in (2015) SCC Online NCDRC 3435. Relying on the National Commission Order in the case of Maya Devi versus Life Insurance Corporation of India III (2008) CPJ 120 (NC), Mr. Kunal Chatterji, submits that murder in the present case was by chance and was an accident. He urges that the order passed in the case of Maya Devi (Supra) discusses the subject matter clearly indicating that if an injury is caused by the criminal act of a 3rd person, unless it is proved that the insured was party or privy to it, the same has to be regarded as accidental for the purpose of a claim under an Insurance policy. He has read the quote from Halsbury's Law of England, 4th Edition that has been extracted in the said judgment. He has then urged that compared with the facts of the said case the present facts also establish that this was a case of accidental murder and was therefore covered by the policy.
17. Mr. Gola for the Insurance Company however relied on the decision of Rita Devi and Ors. versus New India Assurance Company Limited and Ors. reported in (2000) 5 SCC 113 Paragraph No. 10 - 13 to urge that this incident was not an accident as has already been argued by him. The incident occurred on account of participation of the deceased in a brawl which he invited for himself.
18. Mr. Kunal Chatterji for the Financial Services then cited the order passed by this Commission in the case of Royal Sundaram Alliance Insurance Company Limited versus Pawan Balram Mulchandani in First Appeal No. 1357 of 2016 on 25.09.2018 and pointed out to Paragraph No. 9, 10 and 11 as also the observations made by the Bench Member in Paragraph No.14 ('f' and 'g' thereof). Mr. Chatterji also invited the attention of the order passed by the Apex Court in the case of National Insurance Company Limited and Anr. versus Taj Devi and Ors. in SLP (C) No. 34115 of 2010 where the orders passed by the Apex Court were reviewed and fresh orders were issued on 08.11.2011. He contends that in that case also a similar issue raised had been observed by the Apex Court.
19. Mr. Gola for the Petitioner submitted that in the wake of the facts as narrated in the Order of the Learned Trial Judge who conducted the trial of murder, it is evident that the incident was not an accident.
20. Having heard learned Counsel for the parties the simple meaning of the word, ' accident ' is "anything that happens". The happening is by chance or by misfortune which is fortuitous circumstance.
21. The contention of the learned Counsel for the Insurance Company is that the claim cannot be indemnified as it was a murder and has dealt with the cases that have been referred to above.
22. A very informative and analytical Article has been published on 21.06.2024 in SCC Online Times, authored by Ms. Namrata Chandorkar a learned Lawyer practicing in this field of law. The said Article states an analysis of all the judgments and the issues to conclude that unless the terms of an Insurance policy specifically excludes homicides from the scope of coverage, beneficiaries of such policies are entitled to indemnification, unless it can be demonstrated that the murder was directly caused by the action(s) of the deceased victim. The article is extracted herein-under along with the bibliography of the judgments and the articles taken into account:
" Introduction Accidental death is an insurable event. Accidental death coverage is sold either as a standalone product or as a rider in term life insurance policies, which, in both cases, entitles the insured to an extra payout in case of death due to an accident.
An "accident" is typically defined by policy terms as a sudden, unexpected, and involuntary incident caused by external, visible, and forceful means. This definition is generically worded and can encompass a wide range of occurrences. Generally, policy terms do not exhaustively outline every scenario that would constitute an accident, though certain exclusions are specified to define the scope of coverage. These exclusions include death by suicide but usually not death by homicide. Many consumers knocked on the doors of the Consumer Forum seeking accidental death benefits in cases of death by homicide. This article shall examine, from the angle of consumer protection, whether a murder constitutes an accident.
Difference between "accidental murder" and "murder simpliciter"
In the year 2000, the Supreme Court in Rita Devi v. New India Assurance Co. Ltd., created a distinction between an "accidental murder" and a "murder simpliciter" as follows:
1. It is an accidental murder if the act of murder was originally not intended but was caused in the furtherance of any other felonious act.
2. It is a murder simpliciter if the dominant intention of the act was to kill a person.
Thus, the motive and intention of the perpetrator were the deciding factors in concluding whether a murder was accidental or not. The distinction between accidental murder and murder simpliciter was not a definite position of law, rather it warranted an examination of the specific facts of each case. Consequently, this approach resulted in varied rulings based on subjective judgment. In certain cases, it was held that the murder of an insured with criminal antecedents, the murder of the deceased insured for being involved in a faction fight between two groups of his village, and the killing of an insured due to political rivalry, would not constitute accidental murders as they are pre-planned, intentional killings. Conversely, the murder of a kidnapping victim was deemed an accidental death.
Reviewing the aforementioned rulings would reveal numerous contrasting opinions based on individual judgment. In one matter, it was held that even if the murder accused was acquitted by the trial court, the murder would still be classified as a murder simpliciter. In another matter, the insurance company was directed to await the ruling of the criminal court on the charge of murder before adjudicating the claim. In a third instance, findings of murder in the charge-sheet were considered insufficient to classify the killing as murder simpliciter. Thus, different Benches of the National Consumer Disputes Redressal Commission (NCDRC) rendered equivocal rulings leading to multiple interpretations of the same legal issue. This necessitated a more precise criterion to distinguish accidental murder from a non-accidental one.
Test of proximate cause The ratio in Rita Devi case overlooked the perspective that regardless of the intentions of the offender, every murder is an accident from the viewpoint of the victim. No person can expect or contemplate his homicide. The distinction between accidental murder and murder simpliciter primarily focused on the perpetrator's motive while it ought to have considered the victim's perspective.
This stance was discussed by a three-member Bench of the NCDRC in Maya Devi v. LIC, wherein the insured was murdered by the shopkeeper's brother with whom he had had an altercation a day before. Whilst holding such a murder to be an accident, the NCDRC observed that even wilful murder would be an unforeseen event from the standpoint of the victim, unless the immediate cause of injury is the deliberate and wilful action of the insured himself.
With a similar observation, the principle established in Rita Devi case was also rejected by the High Court of Andhra Pradesh which remarked that determining the true intention of the perpetrator would be exceedingly challenging and would fall within the purview of criminal jurisdiction. Additionally, it was noted that for contractual matters, a murder must be regarded as an accident.
The aforementioned rulings introduced the test of proximate cause as a new criterion to determine which murder would constitute an accident. In the author's opinion, this test provided a better standard of assessment as it aligns with the definition of an accident. An accident postulates a mishap or an untoward happening, devoid of any design on part of the victim. Therefore, for an incident to qualify as an accident, it has to satisfy three ingredients i.e. it has to be sudden, unforeseen and involuntary. According to Maya Devi case, a murder will not be an accident if the immediate cause of the same is an act on part of the victim himself, as in that eventuality, the murder would neither be involuntary nor unforeseen.
Incorporation of exclusion clause in insurance policies An exclusion clause in a contract of insurance limits or exempts the liability of the insurer. Particularly in policies covering accidental death benefits, common exclusions consist of death resulting from suicide or self-harm, military service, involvement in war or rebellion, intoxication from alcohol or drugs, participation in attempted felonies, and operating an aircraft, among others.
These activities/situations are excluded from coverage because the occurrence of a death in the undertaking of the same would ordinarily be expected and hence, would not constitute an accidental death. The element of foreseeability of death in such situations excludes such death from the purview of an accident.
When the issue of murder as an accident was considered by the NCDRC from the angle of exclusion clauses, it was observed that if an exclusion clause does not exempt liability in case of homicide, the contra proferentem rule of interpretation would apply and insurance companies will be not be allowed to evade liability.
This view was recently reiterated by the NCDRC to hold that when an insurance policy does not exclude murder but explicitly excludes self-inflicted injuries, and by no stretch of imagination can murder be self-inflicted, a homicide shall constitute an accident under the policy.
Thus, the position of law on the issue has been settled as unless the terms of an insurance policy specifically exclude homicide from the scope of coverage, beneficiaries of such policies are entitled to payout unless it can be demonstrated that the murder was directly caused by the actions of the deceased victim himself.
Conclusion Under the realm of consumer protection law, the consumer fora are not only equipped with the judicial power to adjudicate and decide consumer disputes but also wield the power to issue directives to the service providers to effect policy alterations or cease unfair trade practices.
While this prerogative is much underutilised, in the present context, the NCDRC has censured insurance companies for continuing the arbitrary adjudication of accidental death claims of such nature whilst failing to amend the wordings of the policy concerned despite being involved in numerous litigations on the same issue. Such cognizance by the NCDRC has significantly contributed towards securing the rights of consumers and fostering their confidence in the consumer protection system.
*Senior Associate at Magnus Legal Services LLP. Author can be reached at: [email protected].
1. (2000) 5 SCC 113.
2. Prithvi Raj Bhandari v. LIC, III (2006) CPJ 213 (NC).
3. K. Sarojamma v. LIC, Revision Petition Nos. 865-866 of 2011, decided on 13-7-2011.
4. LIC v. Chinthareddy Vijayamma, 2016 SCC OnLine NCDRC 734.
5. Ganga Ram Rai v. LIC, 2015 SCC OnLine NCDRC 562.
6. N. Kabilan v. New India Assurance Co. Ltd., 2015 SCC OnLine NCDRC 164.
7. Sanrakshita Kumari v. LIC, 2018 SCC OnLine NCDRC 1675.
8. LIC v. Penti Aruna, 2017 SCC OnLine NCDRC 677.
9. (2000) 5 SCC 113.
10. Nisbet v. Rayen & Burn, (1910) 2 KB 689.
11. III (2008) CPJ 120 (NC).
12. Halsbury's Laws of England, Vol. 25 (4th Edn., 2003 reissue) p. 307, para 569. See also, Pawan Kumari v. LIC, First Appeal No. 535 of 2015.
13. Halsbury's Laws of England, Vol. 25 (4th Edn., 2003 reissue) p. 311, para 575.
14. (2000) 5 SCC 113.
15. United India Insurance Co. Ltd. v. Ummadi Shakunthala, 2004 SCC OnLine AP 604.
16. Alka Shukla v. LIC, (2019) 6 SCC 64.
17. ESI Corpn. v. Francis De Costa, 1993 Supp (4) SCC 100.
18. III (2008) CPJ 120 (NC).
19. Union of India v. Sunil Kumar Ghosh, (1984) 4 SCC 246.
20. Royal Sundaram Alliance Insurance Co. Ltd. v. Pawan Balram Mulchandani, 2018 SCC OnLine NCDRC 377.
21. LIC v. Gaurav Verma, Revision Petition No. 716 of 2020. case can't be traced- author to be consulted.
22. Consumer Protection Act, 2019, S. 39(1)(g).
23. 2018 SCC OnLine NCDRC 377"
23. The aforesaid article was published on 21.06.2024.
24. The question therefore that arises on the factual matrix of the case as to whether the insured had by his conduct involved himself in a manner which directly caused the murder due to the conduct of the deceased himself.
25. There is nothing on record to demonstrate the outcome of any further proceedings in respect of the criminal case where the accused had been convicted for the murder of the insured. The insistence of the learned Counsel for the Insurance Company was on paragraphs No. 2, 24 and 25 of the judgment of the Trial Court whereby the accused had been convicted of the murder of the insured. The said paragraphs are extracted herein under:
"2. The case of the prosecution, in short, is that on 9.2.2005 at 10.30 P.M. the informant Birju Kumar @ Palan got his farbeyan recorded mentioning therein that at about 9.30 P.M. the accused Anil Kumar Soni @ Annu rang on the mobile of his elder brother Raj Kumar @ Raju from the mobile of his own and threatened that if Rs.10,000/- was not repaid to him that day he would kill. Thereafter when he was assured for the same after the marriage of his daughter he started abusing and called him at Sudna and then he along with his brother started for there by the scooter and as soon as they had reached in front of the house of Ramnath Prasad, ahead of Sudna Gayatri mandir, the accused Annu also reached there along with accused Vijoy Ram by his own scooter. When his brother asked him why he had abused, he started again abusing and slapped him and then his brother pushed him by which he fell down having artificial legs and then other accused Vijoy Ram started fighting with his brother and he started intervening. Meanwhile accused Vijoy Ram ordered the accused Anil Kumar to shoot and on that the accused got up and whipped out pistol from his wallet and fired at the head of his brother from point blank distance and because of the same his brother fell down and died. There after he caught the accused Anil Kumar Soni and started calling his maternal brother Ramnath Prasad who was having his house in the same surrounding and just then other accused Vijoy Ram snatched pistol from the hands of accused Annu and fled away. His maternal brother Ramnath Prasad arrived there and helped him in catching accused Anil Soni @ Annu. Thereafter he gave information of this occurrence to the police station by telephone.
24. From careful perusal of the above evidence of the prosecution witnesses it is clear that supporting the case of the prosecution and corroboration every material particulars in his earliest version i.e. farbeyan (Ext.1/2) P.W.8 informant Birju Kumar @ Palan has very clearly stated in his deposition that at 9.30 P.M. on 9.2.05 accused Anil Kumar Soni asked for Rs.10,000/- that very day on telephone and also threatened to kill if not paid. When his brother assured him to pay the same only after the marriage of his daughter, then he abused and called him to meet and then he along with his brother Raju started on scooter to meet him and as soon as they reached in front of the house of Ramnath Prasad (P.W.2), accused Anil Kumar Soni was coming on his scooter along with other accused Vijoy Ram and both the parties stopped and his brother asked the accused Anil why he had abuse him and then he again started abusing and slapped his brother. Then his brother pushed him due to which he fell down because of having artificial legs and other accused Vijoy Ram started fighting with his brother and then he intervened and at the same time, on the order of Vijoy Ram to shoot, the accused Anil Kumar Soni stood up and taking out pistol from his waist, shot at the back of the head of his brother by which he fell down and died and then the informant caught Anil Kumar Soni and called his maternal brother Ramnath loudly and just then accused Vijoy Ram snatched pistol from the hand of accused Anil Kumar Soni and fled away. Within no moment, Ramnath and his Bhagna Pankaj arrived at the P.O. land whom he told about the occurrence and thereafter he gave information to the police by telephone who also came at the P.O. land.
25. This evidence of the informant has also been corroborated by PW2 Ramnath Prasad and PW 3 Pankaj Kumar who reached the place of occurrence on hearing fire and loud call by the informant and saw that the informant had caught the accused Anil Kumar Soni and he also told them about the occurrence and both these witnesses also saw the other accused Vijoy Ram fleeing towards Gayatri Temple and PW3 Pankaj also chased him up to some distance but he fled away. PW1 Satyendra Kumar, PW4 Bihari Sao and PW10Banodhi Sao have also corroborated the case of prosecution up to the extent that on relevant date and time of occurrence they reached the P. O. land on hearing fire and saw that the informant had caught accused Anil Kumar Soni and the dead body of Raj Kumar @ Raju was lying beside and the informant told them that accused Anil Kumar Soni shot his brother and the other accused Vijoy Ram fled away with pistol."
26. The aforesaid judgment therefore does demonstrate that the court observed that there was a threat to the deceased by the accused of being killed in the event he did not pay Rs.10,000/- to the accused. The narration also indicates that the deceased had assured paying the amount after the marriage of his daughter to the accused, and being annoyed at this the accused had called him to meet him at a particular place. The accused came in his scooter along with the co accused Mr. Vijoy Ram and the insured along with his brother Mr. Raju went on a scooter to meet him. It is at a meeting point that the accused started beating and slapping the insured and an altercation took place. The narration indicates that Mr. Vinoy Ram the other co accused exhorted the accused Mr. Anil Kumar Soni to shoot the insured, and it is on this exhortation that the accused Mr. Anil Kumar Soni pulled out his pistol from his waist and shot the insured on the back of his head who immediately fell down and died. The other co accused Mr. Vinoy Ram snatched away the pistol from the hands of Mr. Anil Kumar Soni and fled away.
27. The narration of this incident therefore does indicate that there was some altercation but the incident seems to be described in two parts. The first is the meeting of the accused and the insured and the physical assault on him.
28. The second part is that the co accused Mr. Vijoy Ram exhorted the accused Mr. Anil Kumar Soni to shoot him. It is then that the insured was shot.
29. In our opinion from the aforesaid facts the probability of a murder was talked about. The possession of a weapon and the killing was on an exhortation by the other co accused whereupon the shot is alleged to have been fired. To say that the insured had apprehended the murder yet he had deliberately gone to meet the accused cannot be said to have been established. The accused who shot was having artificial legs yet the incident seems to have occurred at an unexpected moment on an exhortation and the murder does not seem to be something attempted as a suicide. It seems that in all probability it was neither invited or expected with any certainty. From the facts as gathered this was not a case where it can be said that the insured had committed or done something deliberately to kill himself or to get killed. The contention raised on behalf of the Insurance Company therefore does not get substantiated on the facts of the present case on the strength of the Trial Court Judgment or even otherwise and consequently in view of the law as discussed herein above the District Forum was justified in allowing the Complaint.
30. The State Commission has proceeded to reverse the order which is not inconformity with the law as discussed herein above. The State Commission has recorded that this murder was not an accident for which reliance was placed on the judgment in the case of Rita Devi (Supra). To the contrary, the judgments that have been relied on by Mr. Kunal Chatterji particularly the judgments in the case of National Insurance Company Limited (Supra), Maya Devi (Supra) and the order in the case of Royal Sundaram (Supra) as well the analysis in the article quoted above, come to the aid of the Revisionist.
31. We are conscious that the case has gone unattended by the two learned Amicus Curiae who had been appointed by the Commission and who had earlier appeared to argue the revision. Nonetheless, the jurisdiction under Section 21(a) of the Consumer Protection Act, 1986 read with Section 58(1)(b) of the Consumer Protection Act, 2019 empowers the Commission to proceed to decide matters after calling for the records of the case upon providing opportunity to the parties concerned. No prejudice is therefore being caused as the matter has been extensively heard with the able assistance of learned Counsel for the Opposite Parties.
32. Accordingly the Revision Petition deserves to be allowed and the Impugned Order of the State Commission dated 02.08.2011 in Appeal No. 142 of 2009 is accordingly set aside. The order of the District Forum dated 19.11.2008 is restored. The Revisionist shall be entitled to all the reliefs in accordance with the Orders passed by the District Forum. Let a copy of this order be dispatched to the State Commission for being transmitted to the Complainant with information directly and also through the District Commission.
.........................J A. P. SAHI PRESIDENT ................................................ DR. INDER JIT SINGH MEMBER