IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 RFA.No. 298 of 2009() --------------------- OS.428/2005 of ADDL.SUB COURT,PARAVUR .................... APPELLANT- 1ST DEFENDENT -------------------------------------------- LIFE INSURANCE CORPORATION OF INDIA, ANGAMALY (7001), P.B.NO.55,MANACHERY TOWER, ALUVA ROAD, NEAR ST.JOSEPH'S HIGH SCHOOL, NGAMALY-683572, REP. BY ITS DIVISIONAL MANAGER. BY ADV. SRI.S.EASWARAN RESPONDENT(S): PLAINTIFFS & 2ND DEFENDANT ----------------------------------------- 1. MARIAMMA JOSEPH, W/O. LATE K.G.ESTHAPANOSE, KOTTACKAL JOUSE, MALAYATTOOR.P.O. 2. BOBBY STEPHEN, D/O. LATE K.G.ESTHAPANOSE, DO-DO- 3. EBBY STEPHENE, S/O. LATE K.G.ESTAPANOSE, DO-DO- 4. THE KERALA STATE FINANCIAL ENTERPRISES LTD., ENAKULAM SOUTH BRANCH, ERNAKULAM SOUTH, KOCHI-16. ADV. SRI.JOHNSON ABRAHAM FOR R1-3 SRI.S.GOPINATHAN FOR R1-3 SRI.NELSON ABRAHAM FOR R1-3 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON 08/12/2009 DELIVERED THE FOLLOWING: ORDER ON I.A.NO. 1578/09 IN R.F.A.NO. 298 OF 2009 DISMISSED SD/- K.M.JOSEPH, JUDGE SD/- M.L.JOSEPH FRANCIS, JUDGE 8.12.2009 /TRUE COPY K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A.No. 298 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of December, 2009 JUDGMENT Joseph Francis, J. The appellant is the first defendant in O.S. No. 428 of 2005 on the file of the Additional Sub Judge, North Paravur. The suit was filed by respondents 1 to 3/plaintiffs for realisation of money under the policies on the life of late K.G. Esthapanose. Late K.G. Esthapanose was holding two life insurance policies for Rs.1.5 lakh each bearing No.660468253, the date of maturity being 17.7.2012 and policy No.66045523, date of maturity being 19.3.2012. During the life time of late K.G. Esthapanose, both the policies were assigned to the 2nd defendant/4th respondent herein as security for the prize money payment R.F.A.No. 298 of 2009 2 of Chitty No.37/2001 and chittal No.16. In paragraph 3 of the plaint it is averred that late K.G. Esthapanose died on 15.7.2003 at Malayattur and that he was murdered. 2. On the death of the life assured, claim was settled for the basic sum assured and bonus. However, according to the plaintiffs, as per the terms and conditions of the aforesaid two life insurance policies the plaintiffs are entitled to get additional sum equal to the sum assured under the policies in case of the death of the insured. Since according to the plaintiffs, first defendant/appellant did not settle the claim, the suit was filed. 3. The appellant entered appearance and contested the suit. The appellant filed a detailed written statement pointing out that the death claim was settled for basic sum assured and bonus to the 2nd defendant assignee for Rs.2,07,300/- and Rs.2,17,650/- as per consolidated cheque No.718052 dated 11.11.2003. It was further contended, inter alia, that the double accident benefit was R.F.A.No. 298 of 2009 3 rejected since the death of the life assured resulted from the life assured committing breach of law leading to provoked murder and a crime was registered as crime No.362 of 2003 of Kalady Police station under Section 302 of the Indian Penal code. 4. The investigation revealed that the life assured was running a gambling club in his own house. On 15.7.2003, during the course of engagement in the gambling with cards by the life assured along with one Sulaiman and the accused Eldo, the life assured was murdered. Under Clause 10(2)(b) (IV) of the policy conditions, the Corporation is not liable to pay the double accident benefit, if the death of the assured shall result from the life assured committing any breach of law. 5. The maintainability of the suit at the instance of the plaintiffs was also disputed since the policy was assigned in favour of the second defendant, Kerala State Financial R.F.A.No. 298 of 2009 4 Enterprises Ltd. As per Section 38 of the Insurance Act, 1938, once a policy is assigned, the right, title or interest over the said policy vests with the assignee and not with the nominee or legal heirs of the life assured. Therefore, the claim at the instance of the plaintiffs was clearly unsustainable. 6. In the Sub Court PW1, DW1 and DW2 were examined and Exts.A1 to A15 and B1 to B10 were marked. The learned Sub Judge, on considering the evidence, decreed the suit with costs. The plaintiffs were allowed to realise a sum of Rs.3,00,000/- with future interest at the rate of 12% per annum from the date of the suit till the date of decree and thereafter at the rate of 6% p.a. till the date of realisation. Against that judgment and decree the first defendant filed this appeal. 7. Heard the learned counsel for the appellant and the learned counsel for the respondents. R.F.A.No. 298 of 2009 5 8. The learned counsel for the appellant submitted that the court below committed an error in decreeing the suit, especially when the plaintiffs have no right to file the suit, since the policies were already assigned to the second defendant, Kerala State Financial Enterprises Ltd. and under Section 38 of the Insurance Act, 1938 the right title and interests over the policies vest with the second defendant. 9. The learned counsel for the appellant invited our attention to the decision in D. Mohanavelu Mudaliar and another, v. Indian Insurance and Banking Corporation Ltd., Salem and another (AIR 1957 Madras 115), in which it was held: “(b) Insurance Act (1938), S, 38 - Effect of assignment of policy. Under the general law, an assignment is understood as a transfer by an individual of his R.F.A.No. 298 of 2009 6 right or interest in the property to another resting upon a contract between them. That being the case if a policy is assigned it operates so as to completely divest the assignor of any right under it, for the essence of assignment is complete divesting. The assignee is, therefore, clothed with all the rights and liabilities which the insured occupied before the transfer, that is, there is a substitution for the assured so far as the benefits are concerned by the assignee.” 10. Section 38(1) of the Insurance Act, 1938 makes specific provision for transfer and assignment of policy of life insurance. Such transfer or assignment, as the case may be, must be effected either under the two methods, namely, (1) by an endorsement on the policy and (2) by a separate instrument. Admittedly, Ext.B1 is the original life insurance policy dt.29.12.1996 in the name of K.G. Esthapanose for the assured R.F.A.No. 298 of 2009 7 sum of Rs.1,50,000/- Ext.B2 is a original life insurance policy dt.24.6.1997 in the name of K.G. Esthapanose for the assured sum of Rs.1,50,000/- Exts.B1 and B2 would show that both these policies were endorsed by Esthapanose in favour of the second defendant Kerala State Financial Enterprises Ltd. for the sum received from the second defendant. 11. Ext.A15 is the certificate dt. 6.8.2008 issued by the second defendant Kerala State Financial Enterprises Ltd., Ernakulam branch stating that late Esthapanose was a subscriber in chitty No.37/01, chittal No. 16 of that branch and that he had released the chitty prize money on the strength of Exts.B1 and B2 insurance policies and that the chitty was terminated on 19.9.2004 and that the entire liability was cleared and no amount is outstanding in the chitty account and that they have no objection to collect any benefit from the life insurance policy in R.F.A.No. 298 of 2009 8 connection with the above policies by the legal heirs of deceased K.G. Esthapanose. 12. In the present suit, the second defendant Kerala State Financial Enterprises Ltd. remained ex parte. Endorsement of Exts.B1 and B2 policies in the name of Kerala State Financial Enterprises places the assignee Kerala State Financial Enterprises in the same status with respect to all rights and liabilities under the policies, which the insured occupied before endorsement. Since the second defendant was holding Exts.B1 and B2 policies by way of security, the second defendant is entitled only to the amount due under the chitty, which was terminated and as the second defendant Kerala State Financial Enterprises have no objection in allowing the plaintiffs to realise the amount claimed in the pliant, we are of the view that Section 38 of the Insurance Act is not a bar for the institution of the suit by the plaintiffs. R.F.A.No. 298 of 2009 9 13. The learned counsel for the appellant submitted that in clause 10(2) (b) and (iv) of Exts.B1 and B2 policies it is clearly stated that the first defendant Life Insurance Corporation shall not be liable to pay double accident benefit if the disability or death of the assured shall result from the life assured committing any breach of law. The learned counsel for the appellant submitted that the life assured KG. Esthapanose was murdered and Crime was registered as Crime No.362/03 of Kalady Police Station under Section 302 I.P.C. against one Eldo and that investigation revealed that the life assured was running a gambling club known as K.G.P. Recreation Club in his own building and that on 15.7.2003 the life assured Esthapanose, one Sulaiman and the accused Eldo were engaged in gambling with cards and accused Eldo lost money and he wanted to continue the gambling. The life assured denied Eldo to continue gambling and the life assured forcibly picked up Rs.67/- from the R.F.A.No. 298 of 2009 10 pocket of Eldo. By this act of the life assured, Eldo was provoked and he attacked Esthapanose with a hammer and Esthapanose succumbed to the injuries. 14. The learned counsel for the appellant invited our attention to the decision of the Apex Court reported in Jagat Singh Kishor Singh Darbar and others v. State of Gujarat (1979) 4 SCS 307), in which it was held: Gambling - Bombay Prevention of Gambling Act, 1887 (4 of 1887) - Sections 3(ii) and 7 - “Common gaming house” - If instruments of gaming are kept in a house with the purpose that profit or gain would in all probability result from the use of the instruments to the user or keeper of the house, the house, held, would be a 'common gaming house' within Section 3(ii) - Accrual of profit or gain need not be a certainty and even an expectation for the same would attract Section 3(ii) R.F.A.No. 298 of 2009 11 - As soon as the seizure of the instruments from the premises is established, the peremptory presumption under Section 7 regarding profit or gain and other requirement of Section 3(ii), held, would be raised by the Court - Public Gambling Act (3 of 1867) Section 3. 15. Ext. B9 is the copy of the F.I.R. in Crime No. 362 of 2003 of Kalady Police Station and Ext.B10 is the copy of the charge sheet in that case. The learned counsel for the appellant submitted that Exts.B9 and B10 are public documents under Section 35 of the Evidence Act and the contents of those documents are to be accepted in evidence subject to the provisions of Sections 74 to 77 of the Evidence Act. He further pointed out that DW2 is the Investigating Officer, who corroborated the statements in Ext.B10 in particular. R.F.A.No. 298 of 2009 12 16. The learned counsel for the appellant submitted that as per Section 6 of the Kerala Gambling Act any cards, gambling table, cloths, boards or other instruments of gaming found in any place entered or searched under Section 5 or any person found therein shall be evidence until the contrary is proved that such place is used as a common gaming house and the persons found therein were present for the purpose of gaming, actually play was taken or not. 17. DW2 is the Circle Inspector of Police, who investigated the crime No. 362 of 2003 of Kalady Police Station. DW2 has no case that he conducted search in K.G.P. Recreation Club under Section 5 of the Kerala Gaming Act, 1960. Therefore, even if DW2 had seized any cards or token in connection with the investigation of the murder case, it will not be evidence under Section 6 of the Kerala Gaming Act. R.F.A.No. 298 of 2009 13 18. An F.I.R. is not a substantive piece of evidence and that can be used only to corroborate the statement of the makers under Section 157 of the Evidence Act or to contradict it under Section 145 of the Evidence Act. Since the person, who gave the F.I. statement is not examined, no reliance can be placed on Ext.B9 F.I.R. The first defendant has not taken any steps to examine any of the witnesses mentioned in Ext.B10 to prove that deceased Esthapanose was conducting a Gaming house in violation of the Kerala Gaming Act, 1960 or the case as set up by it. 19. Ext.A14 is the copy of the order in Crl.M.C.No.6632 of 2002 of this Court dt. 1.8.2002 stating that K.G.P. Recreation Club is not a common gaming house and playing cards in that Club will not disclose commission of any offence under Sections 7 and 8 of the Kerala Gaming Act. Therefore, there is no R.F.A.No. 298 of 2009 14 evidence to show that deceased Esthapanose was killed at the time of committing any breach of law. 20. The learned counsel for the appellant invited our attention to the decision of the Apex Court reported in Rita Devi v. New India Assurance Co. Ltd. (AIR 2000 SC 1930), in which it was held: “Even though Motor Vehicles Act has not defined the word 'death' the legal interpretations with reference to word 'death' in Workmen's Compensation Act will be applicable. The relevant object of both the Acts are to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmen's Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapters X to XII of the Motor Vehicles Act is available to all the R.F.A.No. 298 of 2009 15 victims of accidents involving a motor vehicle. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word 'death' in Workmen's Compensation Act is, applicable to the interpretation of the word 'death' in the Motor Vehicles Act also. 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. If the dominent 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 R.F.A.No. 298 of 2009 16 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.” 21. The learned counsel for the appellant, relying on the above decision, argued that in the present case the murder of Esthapanose was not an accidental murder and as such insurance policy will not cover such death. The learned counsel for the appellant further submitted that this point was not argued before the trial court and also not mentioned in the appeal memorandum, but it was pleaded in the written statement. 22. In MacGillivary & Parkington on Insurance Law at page 1783 it is stated as follows: “1785. Intended injuries by another. Intended injuries inflicted by another are R.F.A.No. 298 of 2009 17 accidental from the point of view of the insured and are therefore covered unless they were invited or provoked by the insured. Fist fighting is not calculated to result in death, and the death of an insured who fell and hit his head on the pavement while so fighting was held to have been caused by accidental means.” 23. In the present case we have already found that there is no evidence to show that deceased Esthapanose was killed at the time of committing any breach of law. There is no reliable evidence to show that the fatal injuries inflicted by accused Eldo were invited or provoked by the insured. Therefore, the death of Esthapanose is covered by the life insurance policy as it is an accidental death. 24. In the written statement the first defendant admits that Exts. B1 and B2 policies were issued with double accident R.F.A.No. 298 of 2009 18 benefits and that the plaintiffs are the legal heirs of deceased Esthapanose. Since the two objections raised by the first defendant are not tenable, the plaintiffs are entitled to get the amount claimed in the plaint. Therefore, the learned Sub Judge was perfectly justified in decreeing the suit. 25. Accordingly this appeal is dismissed. The judgment and decree in O.S.No. 428 of 2005 on the file of the Sub Court, N.Parur is confirmed. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm