State Consumer Disputes Redressal Commission
Life Insurance Corporation Of India vs Shilpi Barman(Roy) on 6 August, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/701/2016 ( Date of Filing : 04 Aug 2016 ) (Arisen out of Order Dated 17/06/2016 in Case No. Complaint Case No. CC/82/2015 of District Uttar Dinajpur) 1. Life Insurance Corporation of India Rep. by Branch Manager, Raiganj Br., P.O. & P.S. - Raiganj, Dist. Uttar Dinajpur. 2. The Divisional Manager, LICI Shantipara, P.O. & Dist. - Jalpaiguri, Pin Code - 735 101. ...........Appellant(s) Versus 1. Shilpi Barman(Roy) W/o Lt. Pradip Roy, Vill. Kamalabari, P.O. Miraul, Dist. Uttar Dinajpur. 2. Shilpi Barman (Roy), on behalf of her minor son Pritam Roy S/o Lt. Pradip Roy, Vill.- Kamalabari, P.O. Miraul, Dist. Uttar Dinajpur. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Ms. Shreemoyee Ghosh, Advocate For the Respondent: Mr. Dwaipayan Banerjee., Advocate Dated : 06 Aug 2018 Final Order / Judgement Sri Shyamal Gupta, Member
Aggrieved with the decision of the Ld. District Forum, this Appeal is moved by the Life Insurance Corporation of India. Incidentally, by such order, the instant complaint case was allowed by the Ld. District Forum.
Brief facts of the complaint case are that, in the wake of accidental death of her husband, a claim was lodged with the OPs by the Complainant No. 1. As the OPs did not accord accidental death benefit to her, the instant complaint case was filed.
Case of the OPs, per contra, was that the death of the policyholder was not accidental, but it was a planned murder according to the FRT and accordingly, she was not eligible to get accidental death claim benefit under the policy.
Decision with reasons Both sides were represented by their respective Ld. Advocates, who articulated their views at great length. Besides hearing them, we have also gone through the documents on record.
Ld. Advocate for the Appellant argued that in the FRT, there was clear mention of the fact that a prolong time commotion had been prevailing between the deceased and the FIR named accused persons.... The accused occupied a land used by the villagers.... Finally the road was vacated by the panchayat....the accused persons were influential and economically strong. They can't accept their defeat from Pradip Roy who lead the people for a village road that a mere person raise words against them and assembled all the people....FIR named persons decided to kill Pradip Roy.... arranged five notorious criminals and killed him in open day light on 26.05.2014. Accordingly, the Ld. Advocate claimed that it shows that the murder was not at all accidental. Thus, relying on the decision of Hon'ble national Commission in Prithvi Raj Bhandari v. LIC Of India, as also the decision of Hon'ble Supreme Court in Rita Devi v. New India Assurance Co. Ltd. 2000 ACJ 801 : (2000) 5 SCC 113, the Ld. Advocate concluded that there was no infirmity with the decision of the Appellant to reject the Respondent's claim for accidental death claim benefit.
Above spirited contentions of the Ld. Advocate for the Appellants notwithstanding, we cannot endorse such view for the following reasons:
Firstly, the Appellants have not shown us any such policy condition to the effect that expressly excludes injury through assault or murder. Terms and conditions of a policy cannot be altered at the convenience of the Insurer.
Secondly, on a reference to the photocopy of FRT (mostly illegible), it transpires that the relevant portion of the FRT, as pointed out by the Ld. Advocate for the Appellants, that, it was not the findings of the IO concerned, but merely the content of the FIR. Surely, based on the content of the FIR, it cannot be ascertained with certainty that the dominant intention of the act of felony was to kill the husband of the Respondent No. 1. Who knows, whether the dominant intention of the miscreants was only to intimidate the deceased policyholder or not.
Thirdly, the facts and circumstances of both cases being altogether different, a stray observation made by the Hon'ble Apex Court in the unique context of Rita Devi v. New India Assurance Co. Ltd. (supra), cannot be uniformly applied in all murder related death claims like the present one. It is well settled that judicial precedent cannot be followed as a statute and has to be applied with reference to the facts of the case involved in it. Also well settled is that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.
In this regard, we are inclined to quote the findings of Hon'ble National Commission in Maya Devi vs Life Insurance Corpn. of India, 2008) CPJ 120 (NC) :
"...in England law on the subject is settled. In Halsbury's Laws of England Vol. 25 Pg.307 Para 569, 4th Edition (2003 reissue), as to the meaning of the word 'accident', it is stated as under:
569. Meaning of 'accident'. The event insured against may be indicated in the policy solely by reference to the phrase 'injury by accident' or the equivalent phrase 'accidental injury', or it may be indicated as 'injury caused by or resulting from an accident'. The word 'accident', or its adjective 'accidental', is no doubt used with the intention of excluding the operation of natural causes such as old age, congenital or insidious disease or the natural progression of some constitutional physical or mental defect; but the ambit of what is included by the word is not entirely clear. It has been said that what is postulated is the intervention of some cause which is brought into operation by chance so as to be fairly describable as fortuitous. The idea of something haphazard is not necessarily inherent in the word; it covers any unlooked for mishap or an untoward event which is not expected or designed, or any unexpected personal injury resulting from any unlooked for mishap or occurrence. The test of what is unexpected is whether the ordinary reasonable man would not have expected the occurrence, it being relevant that a person with expert knowledge, for example of medicine, would have regarded it as inevitable. The stand point is that of the victim, so that even willful murder may be accidental as far as the victim is concerned.
11. From the above quotation, it is clear that 'even the willful murder' of the assured is accidental as far as insured is concerned and such murder is to be described as 'by chance' or 'fortuitous'.
12. Now, the question is, under which circumstances the 'willful act' of the third party can be held to be 'accidental'?
13. This is discussed in Halsbury's Laws of England Vol. 25 Pg.311 Para 575, 4th Edition (2003 reissue), as under:
575. Injury caused by a willful act. An injury caused by the willful or even criminal act of a third person, provided the insured is not a party or privy to it, is to be regarded as accidental for the purpose of the policy, since from the insured's point of view it is not expected or designed. Injuries sustained by gamekeeper in a criminal attack upon him by poachers, by a chashier who was murdered by a robber, and by a master at an industrial school who was murdered by the boys, have been held to be accidental. However, if the immediate cause of the injury is the deliberate and willful act of the insured himself, there would seem to be no accident, and no claim will lie under the policy, at any rate if the insured is not mentally disordered at the time of his act".
We also rely on the decision of the Honble Andhra High Court in Manager, United India Insurance Company Ltd vs Ummadi Shakuntala, AIR 2005 AP 336, where the Insured was murdered due to faction rivalry and the Hon'ble High Court held that murder which is unexpected event from the standpoint view of the victim, is an accident and when a deceased was killed allegedly by group of persons belonging to other factions all of a sudden which the victim never expected the same can be treated as an accident. The Hon'ble High Court further held that it was difficult to come to a conclusion as to assign reasons for the murder of the person and it observed that by mere looking at the injuries caused, it was difficult to discern the intention of the attackers whether they intended to cause injuries or annihilate the victim until it was dealt with in criminal adjudication.
The Hon'ble Supreme Court in Rita Devi v. New India Assurance Co. Ltd. (supra) drew distinction between a "murder" which is not an accident and a "murder" which is an accident. The Hon'ble Court laid down the test that if the dominant intention of the felonious act is to kill any particular person, then such killing is not accidental murder but a murder simpliciter. On the contrary, 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 murder is an accidental murder. Paragraph 10 of the judgment is worth mentioning which runs as under:
"10. The question, therefore is, can a murder be an accident in any given case? There is no doubt that "murder", as it is understood, in the common parlance is a felonious act where death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. 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. In our opinion, if the dominant intention of the Act of felony 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 murder is an accidental murder." (Emphasis supplied) In the aforementioned case, the deceased was employed to drive an auto rickshaw for carrying passengers on hire. On the date of incident, the auto rickshaw was parked in the rickshaw stand at Dimapur when some unknown passengers engaged the deceased for a journey. As to what happened on that day was not known. It was only on the next day that the police recovered the body of the deceased but the auto rickshaw in question could not be traced out. The owner of the auto rickshaw claimed compensation from the insurance company for the loss of auto rickshaw. The heirs of the deceased claimed compensation for the death of the driver on the ground that the death occurred on account of accident arising out of use of the motor vehicle. The Hon'ble Apex Court held that the murder to be an accidental murder. Paragraph 14 is quoted below:-
"14. Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the autorickshaw, was duty bound to have accepted the demand of fare-paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the autorickshaw and in the course of achieving the said object of stealing the autorickshaw, they had to eliminate the driver of the autorickshaw then it cannot but be said that the death so caused to the driver of the autorickshaw was an accidental murder. The stealing of the autorickshaw was the object of the felony and the murder that was caused in the said process of stealing the autorickshaw is only incidental to the act of stealing of the autorickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing theft of the autorickshaw." (Emphasis supplied).
In Challis v. London and South Western Rly. Co. [(1905) 2 KB 154 : 74 LJKB 569 : 93 LT 330 (CA)] the Court of Appeal held where an engine driver while driving a train under a bridge was killed by a stone wilfully dropped on the train by a boy from the bridge, that his injuries were caused by an accident. In the said case, the Hon'ble Court rejecting an argument that the said incident cannot be treated as an accident held:
"The accident which befell the deceased was, as it appears to me, one which was incidental to his employment as an engine driver, in other words it arose out of his employment. The argument for the respondents really involves the reading into the Act of a proviso to the effect that an accident shall not be deemed to be within the Act, if it arose from the mischievous act of a person not in the service of the employer. I see no reason to suppose that the legislature intended so to limit the operation of the Act. The result is the same to the engine driver, from whatever cause the accident happened; and it does not appear to me to be any answer to the claim for indemnification under the Act to say that the accident was caused by some person who acted mischievously."
In Varkeyachan v. Thomman [1979 (1) L.L.N. 477], was a case in which an employee engaged to do odd jobs died as a result of stab injuries received while on duty. The Division Bench held the injury to be an accident sustained by the deceased in the course of his employment.
In DTC v. Shakeela Parveen, 2014 ACJ 688 (Hon'ble Delhi High Court), the driver of a DTC bus was murdered on duty. The application for compensation was allowed by the Claims Tribunal which was challenged by DTC. The Hon'ble High Court held the murder to be an accident and dismissed the appeal. Relevant portion of the said judgment is as under:-
"11. The present case is squarely covered by the report of the Supreme Court in Rita Devi and a judgment of this Court in Kanshi Ram.
12. Turning to the facts of this case, admittedly the robbers wanted to rob the passengers. There was an alarm that pocket of a passenger has been picked. Possibly either there was some resistance or an objection to the act of robbery by the deceased which led to his stabbing by the robbers. Thus, the act of committing robbery was the felonious act intended by the robbers and the act of stabbing or causing death was originally not intended and the same was caused only in furtherance of the act of robbery. Thus, there is no escape from the conclusion that the death of Zamil in the instant case was accidental arising out of the use of bus No. DL-1P-9753."
In New India Assurance Co. Ltd. v. Shehzadi Yasmeen, 2014 SCC OnLine Del 4244 (Hon'ble Delhi High Court), there was altercation between the drivers of the two buses whereupon the driver of one bus crushed the other driver under his bus. The application for compensation under Section 163A of the Motor Vehicles Act was allowed. Jayant Nath, J., following Rita Devi (supra), dismissed the appeal. Relevant portion of the said judgment is as under:-
"14. The above facts show that it does not appear to be a case of murder simplicitor. There was some dispute pertaining to the time of running of the other bus. The bus driver of the offending vehicle was often deliberately trying to delay his bus and this resulted in a loss of passengers to the deceased. To sort this out, the deceased confronted the driver of the offending vehicle. He appears to have taken it amiss and appears to have decided to teach the deceased a lesson. It appears that the intention of the driver was only to teach the deceased a lesson. While trying to teach a lesson to the deceased, his act resulted in the death. The act of the driver of the offending vehicle cannot be termed to be a case of murder simiplicitor. It was neither pre-planned nor pre-meditated. The facts and circumstances of the death of the deceased show it is covered under Section 163 A of the M.V. Act."
In State of Maharashtra v. Arti, 2008 ACJ, 1406 (Hon'ble Bombay High Court), an employee killed his superior during an altercation in the office. The application for compensation under the Workmen‟sCompensation Act was allowed. The Hon'ble High Court dismissed the appeal. Relevant portion of the said judgment is as under:-
"17. Whether murder tantamounts to an accident: The term "accident" is not defined in the Workmen‟s Compensation Act. It is also not defined in the General Clauses Act. The learned Judge has therefore, rightly considered the definition of an accident taking into account a dictionary meaning of the term. Black‟s Law Dictionary defines "accident" under Workmen‟s Compensation Act as an unforeseen untoward incident which was not reasonably anticipated. The deceased workman could not and did not contemplate his murder. It was an unforeseen and untoward happening.
18. The incident ended in a criminal prosecution. The assaulter was convicted of murder. He has been sentenced to life imprisonment by the Court of Sessions at Solapur could neither be contemplated nor avoided by the victim. The workmen‟s Compensation Act is a social legislation. It was enacted to give succour to workmen against injuries caused by accident. The object of the Act does not specify the applicability of the Act only in case of accidents by machines. The injury in this case was caused by the act by another human being. It proved fatal. Hence, it tantamount to murder qua the assailant. The injury qua the workman is by an accidental act to which he succumbed. Consequently a murder committed upon a workman has to be taken as an accident.
19. The Judgment and order of the Court of Sessions, Solapur is the pan of record. It has been produced in evidence before the Commissioner and Judge in the claim of respondent No. 1. It has therefore, to be read in evidence. Paragraph 14 of the Judgment shows that on 30th March, 1985 the assailant (accused) applied for optional holiday. 31st March, 1985 was the holiday. He wanted to enjoy it in continuation. His request was refused by his Superior. Nevertheless he remained absent on 30th March, 1985. The deceased made a report to the Sub- Divisional Engineer in the Head Office. The application of the accused was produced at trial and so was the order passed by his Superior. We are not concerned with whether or not that amounted to sufficient motive to commit murder. The part of the judgment shows how the murder was committed. It resulted in the death of the workman at his work premises.
20. It arose out of a feud directly relating to the work of the workman. He fall victim to the accident by murder only because he performed his duties in the normal course. Hence, the fatal injury was caused to him by such accident arising out of and in the course of his employment. The observation of the learned Commissioner and Judge, to that extent cannot be faulted."
In the case in hand, although the Appellants relied upon the decision of Hon'ble Supreme Court in Rita Devi (supra), we find that they made no sincere effort whatsoever to establish that the dominant view behind attacking the policyholder was to eliminate him from this world. No confessionary statement, eyewitness account is placed on record; even the PM report is also not filed. As noted hereinabove, simply on the basis of contents of FIR or on the basis of FRT, truthfulness of a particular fact cannot be conclusively determined. The deceased could not and did not contemplate his murder. It was an unforeseen and untoward happening and therefore, an accidental murder.
Thus, we are fully in agreement with the findings of the Ld. District Forum.
Hence, O R D E R E D The Appeal stands dismissed on contest against the Respondents with a cost of Rs. 10,000/- being payable by the Appellants to the Respondents within 40 days henceforth. The impugned order is hereby affirmed. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER