IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINETEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No:9516 of 2007 Between: The Oriental Insurance Company Limited represented by its Branch Manager V..Road, Ramgiri,Nalgonda. ..... PETITIONER AND Nadikudi Padma and others. ...RESPONDENTS IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINETEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No: 9933 of 2007 Between: The Oriental Insurance Company Limited represented by its Branch Manager V..Road, Ramgiri,Nalgonda. ..... PETITIONER AND Nadikudi Padma and others. ...RESPONDENTS The Court made the following : THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Writ Petition Nos.9516 & 9933 of 2007 ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) The respondents are the complainants before the District Consumer Forum at Nalgonda in C.D.No.2 of 2002 being filed by the 1st respondent-complainant and C.D.No.5 of 2002, by the 1st respondent and her minor children, claiming compensation and damages on the premise that husband of the 1st respondent i.e., Shankaraiah died on 24.07.1999. According to the claimants/respondents, the deceased during his life time had obtained a personal accident policy for Rs.1,00,000/- on 24.7.1999 and the policy shall come into force on 24.7.1999 and expires by 23.7.2004 and nominated his wife. After the death of her husband, 1st complainant made a claim to the opposite party for payment of the amount under the policy but the opposite party repudiated the claim. Being aggrieved, the complainants approached the District forum for appropriate relief. The District Consumer Forum has found that the opposite party failed to prove that the repudiation is just and since as per Ex.A1 and A2 policies, the policy holder has nominated his wife N.Padma, allowed the CDs directing the opposite party to pay Rs.2,00,000/- (Rs.1,00,000/- under each policy in separate C.Ds.2 and 5 of 2002) with interest @ 9% per annum from the date of claim i.e., from 24.07.1999 till the date of payment and Rs.2,000/- (Rs.1,000/- in each C.D) towards costs of the litigation to be paid within one month from the date of receipt of that order. Aggrieved by the same, the Oriental Insurance Company has filed First Appeal before the A.P. State Consumer Disputes Redressal Commission, Hyderabad. The State Consumer Disputes Redressal Commission observed that the deceased was murdered by the culprits and there is no record to show that the deceased was convicted in any criminal case. Relying on the judgment of the National Commission reported in 1998 (3) CPR 5 (NC) (Smt. Manda Savarna v. The Branch Manger, L.I.C of India & Another) wherein it was held that murder is also an accident, it was held by the State Commission that the complainant is entitled to the policy amount. It was further held that the District Forum has rightly allowed the claim and hence directed the appellant to pay the policy amount together with interest and costs and dismissed the appeal. Aggrieved by the same, the present writ petitions are filed by the Insurance Company. Heard the learned counsel for the petitioner and the learned counsel for the respondents. The learned counsel for the petitioner-Insurance Company submitted that the deceased belongs to C.P.I (M) party and that he was involved in the murder case of one Deepa Janardhan Reddy and arrayed as accused No.3 in Cr.No.7 of 1999 of P.S., Naryanpur and also involved in another case in Crime No.25 of 1999 before the R.D.O.,Nalgaonda under Section 107 Cr.P.C. He further stated that the said Snakaraiah was murdered due to personal enmity. Therefore, the claim is made in respect of the said policy but the same was repudiated as he was murdered due to personal enmity, which does amount to death due to accident. The learned counsel further stated that as per the terms of the policy, the Insurance Company is not liable to pay for the deaths that arose out of political/personal activity and therefore, denied the liability to pay any compensation. On the other hand, the learned counsel for the 1st respondent contends that if death takes place due to a homicide and if it is not treated as an accident, he is not entitled in view of the terms and conditions of the policy. He placed a copy of the policy before us for the first time and that the important term thereof reads as follows:- “If the insured shall sustain any bodily injury resulting solely and directly form Accident caused by outward, violent and visible means, then the company shall pay to the insured the sum hereinafter set forth that is to say…………………” He therefore, contends that the Policy contemplated that if the insured sustains bodily injury from an accident, then the company is required to pay. If death results, all due to a bodily injury, then it shall be construed to have occasioned all due to an accident. The learned counsel for the petitioner has placed reliance on the judgment in Smt.Rita Devi & Others v. New India Assurance Co. Ltd. & Another[1], wherein it was held by the Supreme Court at para Nos.10, 12 and 14, which reads as follows:- “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 a given set of facts. The difference between a ‘murder’ which is not an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominent intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but its 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. In the case of Nisbet v. Rayne & Burn[2], where a cashier, while traveling in a railway to a colliery with a large sum of money for the payment of his employers’ workmen was robbed and murdered. The Court of Appeal held: “That the murder was an “accident” from the standpoint of the person who suffered from it and that it arose “out of” an employment which involved more than the ordinary risk, and consequently that the widow was entitled to compensation under the Workmen’s Compensation Act 1906. In this case the Court followed its earlier judgment in the case of Challis (supra). In the case of Bisbet, the Court also observed that “it is contended by the employer that this was not an accident within the meaning of the Act, because it was an intentional felonious act which caused the death, and that the word “accident” negatives the idea of intention. In my opinion, this contention ought not to prevail. I think it was an accident from the point 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.” Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw, then it cannot but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw.” (Emphasis is supplied) We have gone through the judgment and there can be no dispute with regard to the principle set out therein. It was now found, as a fact by both the Courts, that the insured was not having any bad criminal record earlier and he was eliminated by the perpetrators, in the process of some other act. We do not have any material on record to come to any contra conclusion. Hence, we are not inclined to interfere with the findings recorded by the District Forum as well as the State Commission. The learned counsel for the petitioner also relied upon the judgment in The Central Bank of India, Ltd. Amritsar, v. The Hartford Fire Insurance Co.Ltd.,[3] wherein it was held at para No.11, as follows:- “Then it was said that what is called contra proferentem rule should be applied and as the policy was in a standard form contract prepared by the insurer alone, it would be interpreted in a way that would be favourable to the assured. It is well known however that the rule has no application where there is no ambiguity in the words in the standard form contract: London and Lancashire Fire Insurance Co.Ltd. v. Bolands, 1924 AC 836 at p.848. We have already stated that the words in cl.10 give rise to no doubt as to their meaning. There is, therefore, no scope for applying that rule here.” In the instant case also, we find no ambiguity in the words employed in the contract, which we extracted supra. Having regard to the facts and circumstances of the case and having regard to the fact that cause of the death is only because of the accident but not due to premeditated motive, therefore, repudiation by the Insurance Company, in our view is unjust and improper as per the dicta laid down in Smt. Manda Savarna v. The Branch Manager, L.I.C of India and Another[4] wherein it was held that the cause of the injury was accidental in the sense that the injury was and unforeseen and unexpected. In the circumstances, we do not find any merits in the writ petitions and accordingly, both the writ petitions are dismissed. No costs. ______________________________ JUSTICE GHULAM MOHAMMED ___________________________________ JUSTICE NOOTY RAMAMOHANA RAO Date:19.08.2009 mrb where an insurance company wishes to take defence as regarding its liability based on the terms of annusurance policy, it should file a copy of the insurance policy along with its defence but the opposite party did not file the terms of policy sofar to substantiate the ircontentionand to prove that the repudiation of the claim is in accordance with the terms of the policy. There is no record to show that thedeceasedinsurancedwas convicted in any case. There isalso no record orevidnece to showthat theconditions governing the inurance cove were communicated to the deceased- insured. Thereofre, the opposite party cannot relyon any such condition, evenifthere beone at all to repudiate theclaim. Thus, theopposite party has failed to prove tht the reputation is just. Thereofre, we hae o hesitation tohlldthe reuddatin of the claims put foth by N.Padma, the nominee f the deceased is not justified. _______________________________ JUSTICE GHULAM MOHAMMED ___________________________________ JUSTICE NOOTY RAMAMOHANA RAO Date:19.08.2009 mrb [1] 2000 (3) Supreme 698 [2] 1910 (1) KB 689 [3] AIR 1965 Supreme Court 1288 (V 52 C 208) [4] 1998 (3) CPR 5 (NC)