District Consumer Disputes Redressal Forum
Dakshin Dinajpur, W. Bengal
Surya Sen Sarani Municipal Building, 1st Floor, Balurghat Dakshin Dinajpur Pin – 733101.
Telefax: 03522-270013
Present
Sri B. Niyogi – President
Sri S. K. Ghosh – Member
Miss. Swapna Saha – Member
Consumer Complaint NO. : 48/2008
Smt. Sankari Karmakar
Lt. Ranjit Karmakar
Vill: Rahimpur, PO: Buniadpur, PS: Banshihari,
Dist. Dakshin Dinajpur ………………………………Complainant(s)
Present Add:
Smt. Sankari Karmakar
C/o Gantosh Karmakar
Vill: Bajrapukur (Hatkhola), PO: Nayabazar,
PS: Tapan, Dist. Dakshin Dinajpur
V-E-R-S-U-S
1. Divisional Manager,
Life Insurance Corporation of India, Jalpaiguri,
2. Branch Manager,
Life Insurance Corporation of India, Balurghat Branch,
PO.: Balurghat, Dist. Dakshin Dinajpur …………Opposite Party(s)
For the complainant ……………… – Sri Manosij Ghosh Ld. Adv.
&
- Sri Tritibendra Paul, Ld. Adv.
For the OP/OPs ………………… – Sri Sudip Chatterjee, Ld. Adv.
Date of Filing :18.11.2008
Date of Disposal :30.06.2009
Judgement & Order dt. 30.06.2009
Instant CC case bases upon a complaint u/s 12 C.P. Act, brought by the complainant Smt. Sankari Karmakar on 18.11.2008 against the OPs who are, in fact, two officials of the Life Insurance Corporation of India alleging deficiency in service.
Complainant’s case as made out in the said complaint, in brief, is that her husband Ranjit Karmakar was the holder of the insurance policy bearing No.452016318 under L.I.C.I. on 6.5.2000 while the said insurance Policy remained effective the said Ranjit was murdered by some persons. The complainant thereafter laid before the insurance authority her claim in prescribed form for the accidental death of her husband enclosing necessary documents. The Branch Manager, L.I.C.I., Balurghat Branch–the OP 2 herein, made payment of an amount of Rs.30,000/- but did not pay the amount of benefit for accidental death and of bonus. Persuasion made to the Divisional Manager, LICI, Jalpaiguri Division – the OP 1 herein, also proved abortive. In the back drop of such circumstances, the complainant brought the complaint praying for obtaining the said accidental benefit and bonus.
The OPs in their w.v. filed on 24.2.2009 have assailed the maintainability of the complaint and have denied the material allegation of such complaint. It has been their case that even though the death claim was “very early” in nature they settled the death claim and paid to the complainant the amount of sum assured Rs.30,000/- and the bonus of Rs.1,980/-. In the FIR lodged by the complainant over the incident it has been stated that the assured had illegal affairs with the wife of one Netai and that out of revenge the said Netai cut the throat of the assured by a knife and as a sequel thereto the assured suffered death. Here since dominant intention of the assailant was to kill, the killing was not accidental in nature. Therefore the complainant was not entitled to the accidental benefit. There was thus no deficiency in service on the part of OPs and so the complaint warrants dismissal.
Upon the pleadings of the sides following points come up for determination :-
Points
1.
Is the proceeding maintainable?
2.
Was there deficiency in service on the part of OPs?
3.
Is the complainant entitled to the reliefs sought for by her?
Decision with reasons:
The averments made in the complaint have been verified by the complainant herself. The complainant also in support of her complaint filed in this case a good number of documents some of which were annexed to the complaint while others were filed separately with notice to the OPs on 17.3.2009, 24.4.2009 and on 23.6.2009. Such documents include copy of FIR over the incident as a sequel to which alleged victim suffered death, Inquest Report, PM Report, Charge Sheet submitted by the police in the concerned PS Case, Judgement of the Criminal Court, copies of a number of letters issued to the complainant from the side of the OPs, copy of the complainant’s application made before Sub- Divisional Legal Services Authority in the year 2008.
The averments made in the w.v. of the OPs have been authenticated by the Senior Branch Manager of the OP Insurance Company simply by putting his signature and official seal. No other evidence was adduced in this case from any of the sides.
Let us now enter into the determination on the different points formulated above.
Point No.1
Copy of the OP 1’s letter dt. 28.12.2000 addressed to the complainant (filed by the complainant) purports that under such letter the OP 1 forwarded to the complainant a cheque for an amount of Rs.31,980/- being the basic sum assured and bonus towards the settlement of the complainant’s claim respecting the insurance policy. Drawing our attention to such letter dt. 28.12.2000 it was empathetically urged by the Ld. Counsel appearing for the OP insurer that since the settlement over the claim was made known to the complainant under such letter dt. 28.12.2000, it has to be regarded that the cause of action for this case actually arose on 28.12.2000 and so the present complaint having been brought on 18.11.2008 has to be regarded to have been barred by limitation under the provision of Sec.24A CP Act.
Ld. Counsel appearing for the complainant, on the other hand, urged that though under the said letter dt. 28.12.2000 the OP insurer forwarded a cheque for the basic sum assured, the OP insurer in such letter did not state that the accidental benefit would not be given to the complainant. Rather, such OP insurer under their letter dt. 18.6.2001 informed the complainant that they would not be able to take any decision over the payment of accidental benefit till obtaining of the certified copy of the final judgment in the concerned Criminal Case. At no point of time subsequent to the issuance of the said letter 18.6.2001 the OP informed the complainant that the accidental benefit would not be paid and so the complaint cannot be said to have been barred by time.
We have carefully gone through the materials on record and have taken into consideration the submissions advanced on behalf of the sides.
Under the OP 1’s the said letter dt. 28.12.2000 OP insurer forwarded a cheque for the basic sum assured and bonus and stated that they were making the payment “towards the settlement of the claim on the Corporation” in respect of the policy. It does not appear to have been expressly purported in such letter that the payment was made in full settlement of the claim. It has not also been expressly purported therein that the payment was made in partial settlement of the claim.
However, we find that the OP insurer under its letter dt. 12.2.2001 i.e. at a time subsequent to the OP insurer’s making payment of the basic sum assured the Jalpaiguri Divisional Office i.e. OP 2 asked the complainant to furnish certified copy of the judgment (in the concerned Criminal Case) for consideration of the complainant’s claim i.e. virtually for consideration of the complainant’s claim for the accidental benefit.
The said Jalpaiguri Divisional Office of the OP insurer under its letter dt. 18.6.2001 addressed to the complainant (filed by the complainant) further appears to have stated as quoted below, besides others:-
“*** As the charge sheet indicated some illicit relations between Late Ranjit Karmakar and Smt. Manju Mahanto, we will not be able to take any decision towards consideration of accidental benefit till we get the certified copy of the final judgment. Till then please bear with us ***”.
Copy of the judgment passed in Session Case No.16/2005 / Session Trial No.11/2005- (filed by the complainant) purports that the concerned Criminal Case over the charge of committing murder ended in acquittal on 2.4.2005.
Here it has not been claimed by the complainant and it is also not on record that the complainant furnished the certified copy of the judgment of the said Session Case to the OP insurer. The complainant might have figured as the defacto complainant in the said Criminal Case but it cannot readily be regarded that she came to be in possession of the certified copy of the final judgment of the Criminal Case or came to be aware about the passing of the said final judgment in the criminal case soon after the passing of such judgment.
Here it has not been claimed from the side of the OP insurer and it is also not on record that the OP insurer at any point of time subsequent to their issuing the aforesaid letter dt. 18.6.2001 they informed the complainant that they turned down the complainant’s claim for the accidental benefit from a consideration of judgment of the criminal case or for failure on the part of complainant in furnishing the certified copy of the judgment of the criminal case in response to their letter dt.12.2.2001 mentioned hereinabove.
Such being the position, we think that the complaint seeking virtually the accidental benefit for consideration of which the complainant was asked to wait under the OP’s letter dt. 18.6.2001, should be regarded to have been barred by time.
No other point was urged assailing the maintainability of the proceeding. On the materials on record we do not find any thing else which may render the proceeding untenable. We thus answer the Point No.1 holding that the proceeding is maintainable.
Point No.:2
Here the complainant’s allegation is that despite the policyholder’s having been murdered by some persons, the OP insurer did not make payment of the accidental benefit in terms of the policy and this constitutes deficiency in service on the part of the OP insurer.
Copy of the concerned certificate of insurance does not appear to have been brought on record from any of the sides in this case. However, that the accidental benefit was payable in the event of the assured’s accidental death, does not appear to have been disputed from the side of the OP insurer.
It has also not been disputed in this case that the policyholder was murdered by other person or persons. What has been disputed by the OPs is that the murder of the policyholder in this case cannot be regarded to be an accidental death.
In course of hearing it was contended by the Ld. Counsel appearing for the complainant that since the killing was by the 3rd party or parties it has to be regarded that the death was accidental. To strengthen his such submission Ld. Counsel made reference to a judgment to the Hon’ble Punjab State Commission report in 2009(1) CPR 292.
Ld. Counsel appearing for the OP insurer, on the other hand, strongly urged that the narration of the incident in the concerned FIR indicates that the murder of the policyholder was an intentional murder effected out of revenge on the part of assailant and that too, in a repeated attempt and so such incident of murder was a murder simpliciter and could not be regarded to be an accidental one. In support of his such contention Ld. Counsel placed reliance upon an observation of the Hon’ble Apex Court made in the judgment reported in 2000 ACJ 801 wherein the Hon’ble Apex Court purports to have laid down that 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 Ld. Counsel placed reliance also upon a decision of the Hon’ble National Commission reported III(2006) CPJ 213 (NC) wherein Hon’ble National Commission upheld a decision of the Hon’ble State Commission refusing to allow “double accident benefit observing that the killing of the policyholder was an intentional killing.
Here in the concerned PM report (filed by the complainant) it has been opined that the death was due to shock and haemorrhage resulting from a number of injuries which were ante-mortem and homicidal in nature.
It has been the narration of the FIR lodged by the complainant that in a night at about 11:00 PM while the policyholder was asleep on bed in his room alongwith his wife – the complainant herein, one Netai and a number of other persons entered into such room having broken open the door and hit the policyholder by a ‘lathi’ and cut his throat by a knife resulting in his death. It has further been narrated that the policyholder prior to his marriage, had illicit relationship with the wife of the said Netai and that earlier there had been an occasion in which the said Netai had hit the said policyholder on his head by a ‘lathi’.
Thus on the materials on record it can be regarded for our present purpose that the policyholder suffered death in an incident of murder which was effected with the object of causing death and also out of revenge and that attempt had been made on earlier occasion too on the life of the policyholder, as was contended by the Ld. Counsel appearing for the OP insurer.
In the case reported in 2009(1) CPR 292 (Oriental Insurance Company Ltd. and Anr.–vs – Sukhdev Kaur and Ors.) to which reference was made by the Ld. Counsel for the complainant Hon’ble Punjab State Commission upheld District Forum’s order granting benefit basing upon the insurance policy term over the death by accident. In that case Hon’ble State Commission found that the death was caused by strangulation and that it was neither a natural death nor a case of suicide.
The observation of the Hon’ble Apex Court to which reliance was sought to place by the Ld. Counsel for the OP insurer actually appears to have been recorded in Para-10 of the judgment made in the case of Rita Devi and Ors-vs- New India Assurance Co. Ltd. and Anr. reported in 2000 ACJ 801 and it goes to as under: -
“*** 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***”.
User of the expression “as it is understood, in the common parlance” goes to indicate that the said observation was made by the Hon’ble Apex Court to explain what the term “murder” ordinarily means as distinguished from the meaning of such term when used in some special field or subject. In the case that was dealt with in the reported judgment the driver of an autorickshaw had to suffer death while the passengers of such autorickshaw for the purpose of stealing away the autorickshaw eliminated the driver. In that case the question was whether the death of the driver could have been regarded to be “due to accident arising out of the use of the motor vehicle” so as to entitle the legal representative of the deceased to compensation under the MV Act.
Having the applied the principles laid down in two decisions of the Court of Appeal namely “Challis–vs- London and South Western Railway Company, (1905) 2 KB 154 and Nisbet –vs- Rayne and Burn, (1910) 1 KB 689” Hon’ble Apex Court in that case held that the death caused to the driver of autorickshaw was an accidental murder and that it arose out of the use of the autorickshaw.
From the said judgment of the Hon’ble Apex Court it is found that in the Nisbet’s case reasoning which was followed by the Hon’ble Apex Court in the said judgment, the Court of Appeal recorded an observation which runs as under:-
“*** I think it was an accident from the point of view of Nisbet, and that it makes no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet***”.
The question as to whether the death caused due to murder of the insured, can be regarded to be “accidental death” came up for consideration before the Hon’ble National Commission in the case of ‘Maya Devi –vs- Life Insurance Corporation of India’ reported in III (2008) CPJ 120 (NC). In that case the Hon’ble National Commission having made advertence to the meaning of word “accident” appearing in Halsbury’s Laws of England and having found in that case dealt with therein that the insured had not been a party to the murder in the sense that there had not been provocation on the part of insured and that immediate cause of the bullet injury was not the result of any willful act of the insured, held that the death of the insured was accidental.
In that judgment the Hon’ble National Commission took into consideration the observation of the Hon’ble Apex Court made in the case reported in 2008 ACJ 801 to which reliance was sought to be placed from the side of the OP insurer in this case. Reasoning given by the Hon’ble National Commission in the earlier case of ‘Prithvi Raj Bhandari –vs- LICI Ltd. and Ors. reported in III (2006) CPJ 213 (NC) to which also reliance was placed by the Ld. Counsel for the OP insurer in this case, was also disapproved by the Hon’ble National Commission.
Here in the case in hand before us the incident of murder took place at about 11:00 PM at night while the policyholder was asleep on bed in his room. Even though it can be regarded that the said policyholder prior to his marriage, had an illegal relationship with the wife of Netai and that a quarrel had also taken place in between the policyholder and the said Netai prior to the policyholder’s marriage, as have been narrated in the FIR, an illicit relationship of the policyholder or his getting entangled in quarrel with the said Netai that took place prior to the policyholder’s marriage, cannot be regarded to have been the provocation for the incident of murder narrated in the FIR.
Accepting that the said Netai since after the quarrel which took place prior to the policyholder’s marriage was threatening the policyholder to be murdered, as has been stated in the FIR lodged by the present complainant over the incident, it cannot readily be regarded that the incident of murder took place in the natural course of events or that a reasonable man would have the expectation of occurrence of such an incident.
From a consideration of attendant circumstances and having kept in view of the said decision of the Hon’ble National Commission reported in III (2008) CPJ 120 (NC), and the decision of the Punjab State Commission reported in 2009 (1) CPR 292, we are of the view that the incident of murder of the policyholder in this case was an accidental murder.
Failure on the part of the OP insurer in making payment of the accidental benefit and incidental bonus, if at all, is to be viewed to have been a deficiency in service on the part of OP insurer. Point No. 2 is thus answered.
Point No.3:
In view of our determination of Points No. 1 & 2 we hold that the complainant is entitled to accidental benefit. The complainant should also get from the OP insurer the bonus, if at all, incidental to the granting of the accidental benefit.
In the circumstances, the complainant should also get interest over the sum of total of the accidental benefit and incidental bonus w.e.f.18.11.2008 – the date of institution of this consumer complaint case till actual payment.
The complainant should also get from the OP insurer the costs of this proceeding which we assess at Rs.1,000/-.
Point No.3 is decided accordingly.
In the result, the complaint succeeds.
It appears from the case record that in this case notices of the complaint meant for the OPs were issued fixing 29.12.2008 for appearance. The OPs appeared in the proceeding on that dt. 29.12.2008. Instant case took time for about six months since the appearance of the OPs in this case. This is, as it appears from the record, mainly in view of adjournments sought for from the side of the OP as well as from the side of the complainant.
Under such circumstances, it is.
O R D E R E D
That the complaint u/s 12 of CP Act brought by the complainant Smt. Sankari Karmakar on 18.11.2008 is allowed on contest.
The OPs shall pay to the complainant the accidental benefit respecting the Policy No.: 452016318 which stood in the name of Ranjit Karmakar since deceased and the amount of bonus if at all incidental to the granting of the accidental benefit, within 30 days from the service of copy of this order upon them. They shall further pay to the complainant by the aforesaid period interest over the sum total of the accidental benefit and incidental bonus @ 10% p.a. w.e.f. 18.11.2008 – the date of institution of this CC case till actual payment and a sum of Rs.1,000/- (Rs. One thousand) only as costs of this proceeding.
In the event of failure on the part of OPs in making payment aforesaid or any part thereof, the complainant shall have the liberty to put this order in execution
Let plain copies of this order be furnished to the parties free of cost forthwith.
(B. Niyogi)
President
(Swapna Saha)
Member
(S.K. Ghosh)
Member