State Consumer Disputes Redressal Commission
The Manager, The New India Assurance Co. ... vs Smt. Chhaya Adhikary on 26 March, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/463/2016 (Arisen out of Order Dated 11/04/2016 in Case No. Complaint Case No. CC/64/2015 of District South 24 Parganas) 1. The Manager, The New India Assurance Co. Ltd. Kolkata Regional Office, 4, Mangoe Lane, Kolkata - 700 001. 2. The Manager, The New India Assurance Co. Ltd. 39, Diamond Harbour Road, P.S. Thakurpukur, Kolkata - 700 008. ...........Appellant(s) Versus 1. Smt. Chhaya Adhikary W/o Sri Sailen Adhikary, Vill. & P.O.- Alampur, P.S. Nodakhali, Dist. South 24 Pgs., Pin-743 318. 2. The Manager, Golden Trust Financial Services 16, R.N. Mukherjee Road, Kolkata - 700 001. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. S. N. Ganguly, Advocate For the Respondent: Mr. Tapas Kumar Maity., Advocate Mr. Abhik Kumar Dutt., Advocate Dated : 26 Mar 2018 Final Order / Judgement Sri Shyamal Gupta, Member
This Appeal is directed against the Order dated 11-04-2016 passed by the Ld. District Forum, South 24 Parganas in CC/64/2015, whereof the complaint has been allowed.
In a short compass, case of the Complainant is that her son obtained a Group Janata Personal Accident Insurance Policy from the OP No. 1 through the OP No. 2. Her son died in an accident on 08-05-2002 during the validity period of the policy. Following such accidental death of her son, the Complainant lodged an insurance claim with the OP No. 1. As per the requirement of the OP No. 1, Complainant submitted requisite documents from time to time. Since the OP No. 1 did not settle her claim despite vigorous follow up of the matter with it by the Complainant, the complaint was filed.
Counter case of the OP No. 1 is that the deceased life assured (DLA) did not die of any accident, but he was murdered for his own criminal activity. From the complaint and police report u/s 173 in connection with Nodakhali P.S. case No. 40 dated 08-05-2002 u/s 304/34 it transpired that while the victim was retreating with an armed gang holding a pistol in his hand after raiding a villager with malice, he was apprehended by the villagers and beaten to death. The modality of the entire incident was related to an incident of murder simpliciter and not an accident. Therefore, such death of the victim was not covered under the subject policy and on such ground, the instant claim was treated as no-claim.
Decision with reasons All the parties were represented by their respective Ld. Advocates, who argued at length in support of their contention. Besides hearing them, we have also perused the documents on record.
Allegedly, the son of the Respondent No. 1 was lynched by a mob. It is also alleged that he was escaping along with his companions after hitting and injuring one Rajkumar Naskar with his revolver, when the villagers chased them. According to the Appellants, it was a case of 'murder' simpliciter and does not qualify as an accidental death.
Now, we have to decide whether the Appellants were liable to settle the claim over such death of the DLA.
At the very outset, let us make it clear that the Appellants could not show any provision anywhere in the policy terms and conditions, whereof 'murder' has been kept outside the purview of the subject policy.
That apart, be it mentioned here that amongst insurance policy definitions, the common verbiage dictates that an accidental death is a loss of life due to any reason other than natural causes. Murder at times is considered an accidental death.
There is no doubt that murder, as it is understood in 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 under 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 surrounding facts and circumstances of the same.
The Hon'ble Supreme Court in Smt. Rita Devi v. New India Assurance Co. Ltd., (2000) 5 SCC 113 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. But, if the cause of murder or act of murder was originally not intended and the same caused in furtherance of any other felonious act, then such murder is an accidental murder. Para 10 of the aforesaid judgment is reproduced hereunder:
"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 simplicitor, 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.".
The Hon'ble Gujarat High Court in National Insurance Co. Ltd. vs. Gitaben Saitansinh Rajput and ors., (2009)2GLR1348 held that, if the dominant intention of the crime was to kill the deceased, then the killing is a murder simpliciter, but if the murder was not originally intended but caused in furtherance of any other crime or if the murder was consequential to some other crime, then it can be considered to be an accidental murder.
A reading between the lines of the FIR makes it abundantly clear that the villagers had no deliberate intention to kill the DLA, but they turned furious when they were shot at and once they got hold of the DLA, they started beating him and thanks to merciless beating, he died on the spot accidentally. That such killing was not intentional also gets more prominent from the fact that FRT was filed u/s 304, IPC and not u/s 300 or 302, IPC. As we know, Sec. 304 prescribes punishment for culpable homicide not amounting to murder.
The Appellants though raised some other points in order to pick hole with the impugned order, on going through the impugned order we find that the Ld. District Forum correctly interpreted the law. We, therefore, refrain from reiterating the same here. We are fully in agreement with the views expressed by the Ld. District Forum.
There being no merit in this Appeal, the same fails.
Hence, O R D E R E D The Appeal stands dismissed on contest against the Respondents. The impugned order is hereby affirmed. Parties do bear their respective costs. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER