IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTEENTH DAY OF FEBRUARY, TWO THOUSAND NINE PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.21207 of 2002 Between: Smt. Sirigiri Jesintha … Petitioner AND M/s. New India Assurance Co., Ltd., Rep., by its Manager, Registered & Head Office, New India Assurance Building, M.G. Road, Fort, Bombay & others. … Respondents Counsel for the petitioner : Sri R. Ramanjaneyulu Counsel for respondent No.1: Sri Kota Subba Rao Counsel for respondent No.2: Sri Muddu Vijay This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.21207 of 2002 ORDER:- This writ petition is filed for a Writ of Mandamus to declare the action of respondent Nos.1 and 2 in not paying the insurance amount to the petitioner on account of death of her husband, as illegal and arbitrary. Heard Sri R. Ramanjaneyulu, learned counsel for the petitioner and Sri Kota Subba Rao and Sri Muddu Vijay, learned Standing Counsel for respondent Nos.1 and 2 respectively. The husband of the petitioner, who was an employee in the APSRTC, was insured under a joint insurance with respondent Nos.1 and 2. He died on 28.02.2002. The petitioner made a claim for payment of insurance amount for the death of her husband on the ground that he died on account of an accident. The claim of the petitioner was repudiated by respondent Nos.1 and 2 on the ground that her husband died on account of heart attack and not solely and directly from accident resulting in bodily injury. This action of respondent Nos.1 and 2 is questioned in this writ petition. At the hearing, learned counsel for the petitioner submitted that the postmortem report clearly shows that the husband of the petitioner died due to head injury and that as the death is on account of bodily injury, respondent Nos.1 and 2 are liable to pay compensation. Both the learned Standing Counsel for respondent Nos.1 and 2 relied upon the first information report filed by the petitioner. In the purported statement of the petitioner recorded by the women head constable (WHC No.1797) of II Town Police Station, Kurnool, it is stated as under: “I have got four female children and one son. All my children are kids. 1. Bharathi is studying Inter II year in K.V.R. College, 2nd baby is studying in X class in St. Joseph, 3rd baby is Niriskhana and son’s name is Balaraju. Since five years my husband Rajan Babu have got heart pain. He used to take treatment in Kurnool Government Hospital and private hospital. Today i.e., on 28.02.2002 at about 5 a.m., he was gone for duty and while going he was informed. In the evening at about 16.30 hrs he returned to our house and while climbing the steps of upstairs where my situated cried and fall down. When ran up to him and wake up and asked as to why he fell down, I am suffering with heart pain please take me to Kurnool Government hospital. Myself and my brother Vijayakumar took my husband in Auto and admitted in the hospital. The doctor was treated and told me that he died at 6.10 p.m.” From the above-reproduced statement, it is quite evident that the petitioner allegedly stated that her husband is a heart patient for the last 5 years for which he was taking treatment in Kurnool Government Hospital and private hospital, that while climbing the steps of his house, at 16.30 hours on 28.02.2002, he ‘cried’ and fell down and that when the petitioner and others ran up and asked him the reason for his fall, he stated that he was suffering from heart pain and requested them to take him to the Kurnool Government Hospital. The Janata Personal Accident Insurance Policy, a copy of which is produced by the learned Standing Counsel at the hearing, inter alia provides as follows: “If the insured shall sustain any bodily injury resulting solely and directly from accident caused by outward, violent and visible means, then the company shall pay to the insured the sum hereinafter set forth.” Learned counsel for the petitioner submitted that the statement contained in the FIR and attributed to the petitioner was prepared when the petitioner was unconscious and that therefore such a statement cannot be relied upon. He further stated that the postmortem report clearly shows that the petitioner’s husband died due to head injury. I am afraid, this Court, while exercising its jurisdiction under Article 226 of the Constitution, cannot go into the seriously disputed question as to the cause of death. Ordinarily, a dispute arising under a non-statutory contract is required to be adjudicated by common law Courts. Only in exceptional cases where the action taken even under a contract results in violation of fundamental rights or the action of the authority is patently arbitrary, this Court exercises its jurisdiction under Article 226 of the Constitution of India. In a case of this nature where repudiation of the claim of the petitioner is based on a genuine and bona fide plea that the cause of death does not fall within the ambit of the policy, it is for the petitioner to establish her claim as to the real cause of death in a civil Court by adducing necessary evidence. In this view of the matter, the writ petition is dismissed without going into the issue as to the cause of death by giving liberty to the petitioner to approach the appropriate civil Court. ____________________________ C.V.NAGARJUNA REDDY, J Date: 13.02.2009 ES