State Consumer Disputes Redressal Commission
Manager,The New India Assurance ... vs Smt.Shantabai Gunwantrao Patil, on 26 July, 2011
1 F.A.No. :2225,2226/2006
Date of filing:18.10.2006
Date of order:26.07.2011
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
F.A. NO.:2225 OF 2006
IN COMPLAINT CASE NO. :178 OF 2005
DISTRICT FORUM : LATUR.
Manager,
The New India Assurance Co.Ltd.,
Chandra Nagar, Tq & Dist.Latur. ...APPELLANT
(Org.Opp. No.2)
VERSUS
1. Smt.Shantabai Gunwantrao Patil,
R/at Pochamma Nagar, Thodg Road,
Ahmedpur, Tq.Ahmedpur,
Dist.Latur.
2. The Chairman,
Maharashtra Vij Kamgar
Sah.Patpedhi Maryadit Latur,
Shyam Nagar, Ambajogai Road,
Latur. ...RESPONDENTS
(No.1-Org.Complainant,
No.2-Org.Opp.No.1)
F.A. NO.:2226 OF 2006
IN COMPLAINT CASE NO. :177 OF 2005
DISTRICT FORUM : LATUR.
Manager,
The New India Assurance Co.Ltd.,
Chandra Nagar, Tq & Dist.Latur. ...APPELLANT
(Org.Opp. No.2)
VERSUS
1. Smt.Shantabai Gunwantrao Patil,
R/at Pochamma Nagar, Thodg Road,
Ahmedpur, Tq.Ahmedpur,
2 F.A.No. :2225,2226/2006
Dist.Latur.
2. The Chairman,
Maharashtra Vij Kamgar
Sah.Patpedhi Maryadit Latur,
Shyam Nagar, Ambajogai Road,
Latur. ...RESPONDENTS
(No.1-Org.Complainant,
No.2-Org.Opp.No.1)
Coram : Mrs.Uma S.Bora, Hon`ble Presiding Member.
Shri.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.V.R.Mundada for appellant, Adv.Shri.A.K.Jawalkar for respondent No.1, None for respondent No.2.
O R A L O R D E R Per Mrs.Uma S.Bora, Hon`ble Presiding Member.
1. Both these appeals are filed by Manager, The New India Assurance Co.Ltd. Latur challenging orders passed by Dist.Forum, Latur on 21.08.2006 in complaint cases No. 178, 177/2005. Both these appeals are relating to similar subject matters, therefore we are deciding both the appeals with common judgment and order.
2. The facts of complaints are as under.
Smt.Shantabai Gunwantrao Patil, resident of Ahmedpur, Dist.Latur is wife of deceased Gunwantrao Patil. Gunwantrao Patil was serving in MSEB and was the member of Vij Kamgar Co.op.Society. Society obtained J.P.A. policy for it`s members for Rs. 1 lakh, Policy No.47152404-21760 obtained for the period 25.3.1998 to 24.3.2009 and Policy No.47/160903/09398 obtained for Rs.1 lakh for the period 15.11.2000 to 14.11.2005. In the midnight of 14.3.2002 to 15.3.2002, one Gopal Baliram Barad and other persons kidnapped the said 3 F.A.No. :2225,2226/2006 Gunwantrao and committed his murder. Complainant informed the said incident to police station. As complainant is nominee to the insurance policies she claimed insurance amount. Complainant supplied all the relevant documents like FIR, medical certificate, inquest panchanama, post-mortem report, charge sheet, insurance policy, letter issued by society etc. with Insurance Company. The claim was persuaded by complainant many times but Insurance Company did not settle the claim. Lastly on 1.4.2003, letter was received by the complainant. According to which claim of complainant was repudiated on the ground that death of Gunwantrao is not accident but murder. Therefore complainant is not entitled to claim any amount. Dissatisfied with the said complainant approached the Forum.
3. Insurance Company appeared before the Forum and contended that the claim of the complainant is not maintainable as complainant violated Clause 'b' of Policy condition No.4. As per said term, Insurance Company shall not be liable in respect of death, disablement of the insured from (b) whilst under the influence of intoxicating liquor or drug and Clause (d) arising or resulting from the insured committing breach of the law with criminal intent.
4. After hearing both the parties Dist.Forum relying on the authority of National Commission which held that, "The cause of injury was accidental in the sense the injury was casualty and unforeseen and unexpected". Dist.Forum allowed the complaints. Dist.Forum directed appellant to pay Rs.1 lakh with 9% interest in both the complaints.
5. Dissatisfied with the said judgment and order, The New India Assurance Co.Ltd. came in appeal.
4 F.A.No. :2225,2226/20066. Notices of final hearing were issued to the appellant as well as respondents. Adv. Shri.V.R.Mundada appeared for appellant, Adv.Shri.A.K.Jawalkar appeared for respondent No.1. None appeared for respondent No.2. It is submitted by Adv.Mundada that it is admitted fact that deceased was policy holder but he denied the cause of death. It is contended by Adv.Mundada that as per complaint deceased was kidnapped by some rival and killed while he was under influence of liquor. It is submitted by Adv.Mundada that the claim was repudiated rightly as per Clause No.4(b) and (d) of policy condition. According to said condition complainant was under influence of liquor at the time of accident and as murder of complainant was committed due to illicit relation. This is breach of law. It is further stated by Adv.Mundada that deceased obtained similar policies for different period. Therefore complainant is not entitled to both the claims as the policy was obtained by suppressing fact about another policy.
7. Adv.Shri.Jawalkar mentioned that death of Gunwantrao is accidental as he was not knowing about attack of some persons. He further submitted that whether deceased was under influence of liquor at the time of occurring accident was not proved by Insurance Company with any cogent evidence. No evidence brought on record by Insurance Company to show that deceased committed any breach of law. Therefore repudiation on the said ground is not legal and proper. It is further submitted by Adv.Jawalkar that deceased obtained two policies for different period. Therefore complainant is entitled for sum assured on both the policies. It is mentioned by Adv.Jawalkar that investigation report is not maintainable as statements of witnesses were not supported by affidavit therefore those statements have no evidential value. He fully supported the judgment and order passed by Forum. In support of his contention he relied on;
5 F.A.No. :2225,2226/2006i. " The New India Assurance Co.Ltd. -Vs- Smt.Hausabai Panalal Dhoka", reported in 2007(3)CPR 142 Mumbai State Commission. It is held by State Commission that statement recorded by police during investigation U/s 161 Cr.P.C. cannot be read in evidence unless person was examined before the Forum.
ii. In Jaigiri Goswami -Vs- Oriental Insurance Co.Ltd., III(2006) CPJ 306, it is held by State Commission that affidavit sworn on oath before notary have precedence over statements recorded by police.
iii. In Abhilash Jewellary -Vs- New India Assurance Co.Ltd., 2003 NCJ 627(NC) the Hon`ble National Commission held that to take defence against claim which was not a ground to repudiate the claim is deficiency.
iv. In 'Oriental Insurance Company Ltd.& Anr. -Vs-
Sukhdev Kaur & Ors.', IV(2008) CPJ 256, it is held by State Commission that, insured died due to strangulation, by outward, violent and visible act of third person, over which insured had no command- death of insured accidental proved.
v. In 'M/s Toorent Securities Pvt.Ltd. -Vs- National Insurance Co.Ltd.' , CPR(NC) 1(2007) 299, it is held by National Commission that when at the time of commencement of insurance, the Insurance Company chose to give only policy schedule and very late thereafter gave details of policy terms and conditions that too after accident had taken place, those terms and conditions could not be said binding on insured.
6 F.A.No. :2225,2226/2006vi. In 'National Insurance Co.Ltd. -Vs- Pushpa Devi & Ors.', II(2006) CPJ 12, Chhattisgarh State Commission held that Janata Personal Accident policy-Repudiation of claim-Contention, provision of ceiling limit for payment of assured amount, in case of other similar policies obtained by deceased-no such terms mentioned in policy, in fact provision for 100% benefit of assured sum to be given. Deficiency in service proved.
8. We heard both the counsels and perused the record. It is an admitted fact that deceased was policy holder. He obtained JPA policy for separate period. It is the contention of complainant that one Gopal Baliram Barad with five others was kidnapped the deceased from his house and dead body was found after 2-3 days. Therefore it can be said that incident was untoward incident which was not known to the deceased before haphazard.
9. In Maya Devi -Vs- Life Insurance Corporation of India, III(2008) CPJ 120(NC), the Hon`ble National Commission held that "difference between murder which is not an accident and murder which is accident depends on proximity of the cause of such murder. If cause of murder or act of murder was originally not intended and the same was caused in furtherance of any felonious act then such murder is accidental murder arising out of quarrel".
10. The meaning of 'accident' defined in Halsbury`s Laws of England as, " the idea of something haphazard is not necessarily inherent in the word, it covers any unlooked for mishap and untoward event which is not 7 F.A.No. :2225,2226/2006 expected or designed, or any unexpected personal injury resulting from any unlooked for mishap or occurrence".
11. In present case, Insurance Company repudiated the claim on the ground of policy condition No.4. According to which deceased was under
influence of liquor and committed breach of law. Both these facts are not proved by Insurance Company. No evidence brought on record by Insurance Company to show that deceased was under influence of liquor. The contention about illicit relation of deceased were also not proved by Insurance Company. Challenge regarding payment of sum insured in similar policies was also not made by Insurance Company before the Forum, it is first time raised before this Commission, we are therefore not considered the said challenge. Policy terms and conditions were not produced by appellant before the Forum and even before the Commission. It is not the case of appellant that policy terms and conditions were supplied to the policy holder at the time of issuance of policy. In the facts and circumstances mentioned above death of Gunwantrao is accidental and suicidal. Contention regarding breach of conditions is not proved by Insurance Company. We are relying on the authorities produced by respondent. All are squarely applicable to this case. Dist.Forum rightly considered all the facts and record while allowing the complaint. We pass the following order.
O R D E R
1. Both the appeals are dismissed.
2. Appellant to pay cost of Rs.2000/- to the complainant in appeal.
3. Copies of the order be sent to both the parties.8 F.A.No. :2225,2226/2006
K.B.Gawali, Mrs.Uma S.Bora Member Presiding Member Mane