SHYAMPYARI Vs. UNITED INDIA INSURANCE CO LTD

JUDGEMENT

(1.) The complainant's husband Raghunath Ramjatan Yadav (deceased for short) filled in proposal form for personal accident policy for a sum of Rs.2,00,000/- and submitted it to the Divisional Office of the opponent insurance company (opponent for short) on January 3, 1992. This proposal was accepted by the opponent and personal accident policy for capital insured amount of Rs.2 lakhs for a period from January 3, 1992 to January 2, 1993 was issued in favour of the deceased. The deceased was murdered on June 14, 1992. Intimation regarding the death of the deceased was given to the opponent by the complainant in whose favour the insurance policy was assigned. The complainant submitted claim form and other necessary documents claiming the insurance money from the opponent. The opponent, however, did not pay the insurance money to the complainant till December 11, 1992 and, therefore, the complainant approached this Commission by way of this complaint claiming total compensation of Rs.2,41,000/- from the opponent alleging that there was deficiency of service on the part of the opponent. It appears that the opponent, thereafter, on March 17, 1993 repudiated the claim made by the complainant.

(2.) The main defence of the opponent is that the deceased had practised fraud on it when he took out the personal accident policy and, therefore, no money was payable under the said policy. It is alleged that when the deceased made proposal for the personal accident policy, he was in jail as under trial prisoner facing charge of murder under Sec.302 of IPC. He, therefore, could not have made the proposal or taken out personal insurance policy. It is further contended that in view of the fact that the deceased was in jail, statement regarding occupation and income made in the proposal form also could not be correct. According to the opponent, the proposal form did not bear the signature of the deceased. Thus, according to the opponent, personal accident policy was procured by practising fraud. It is further contended that the insurance policy covers only accidental injury which is defined in the policy itself. The policy defines accident injury to mean "any bodily injury caused to the insured solely and directly from an accident caused by external violent visible means". It is submitted that in the instant case injury caused to the deceased was not the outcome of sudden visible unforeseen event. The deceased was convicted of offence of murder under Sec.302 of IPC and sentenced to imprisonment for life. The High Court of Allahabad had released him on bail pending the hearing and final disposal of his appeal against his conviction and sentence as aforesaid. The deceased was under threat of murder by the relatives of the person for committing whose murder the deceased was convicted and sentenced as above. The deceased came to Mehsana after he was released on bail and he was murdered by persons belonging to his rival group. Therefore, according to the opponent, the death of the deceased was not outcome of an accidental injury but it was outcome of "invited injury". It is further submitted that the death was not caused by any sudden unforeseen event; but was caused by a certain calculated event. The deceased had not disclosed material and relevant facts in the proposal form and non-disclosure of such facts would render the contract of insurance null and void. On the above grounds, it is submitted that the opponent is not liable to pay any amount covered under the terms and conditions of the insurance policy.

(3.) It does appear that the deceased was tried for murder of one Akhileshwar Singh @ Bacha Singh and he alongwith others was convicted of offence punishable under Sec.302 r. w. Sec.34 of Indian Penal Code on April 30, 1992. Xerox copy of the certified copy of the judgment convicting the deceased is produced by the opponent. We fail to see why certified copy of the judgment was not produced before us. However, if we peruse the copy of the judgment which is produced before us, it would appear from the final order of conviction passed by learned Additional Sessions Judge, Varanasi in Sessions Trial No.279 of 1987 that the deceased and other accused were not in jail at the time of passing of the order convicting them. After they were convicted, they were taken into custody and later on sentence of imprisonment for life was passed against them. Therefore, even if we were to place reliance on the copy of the judgment produced before us, it would appear that the deceased was not in jail as under trial prisoner, in any case, at the time when the order convicting him was passed. We do not know whether he was on bail or parole at that time. The opponent also sought to rely on xerox copy of the order dated May 7, 1992 passed by Kundan Singh, J. of the Allahabad High Court admitting the Appeal filed by the deceased and releasing him on bail pending the hearing and final disposal of the Appeal. In the said order, the learned Judge has observed to the effect that the deceased had allegedly remained in jail for 5 years though he was released on parole for three months. Relying on this observation made by the learned Judge, it is sought to be argued that the deceased could not have been in Mehsana to make the proposal on January 3, 1992 for taking out the aforesaid personal accident policy. There is no explanation as to why the opponent has not produced certified copy of the aforesaid order passed by the learned Judge of the Allahabad High Court. In our opinion, there is no convincing evidence on record to hold that when the proposal in question was made, the deceased was in jail as under-trial prisoner. We are not inclined to place reliance on the xerox copies of the judgments and orders, which are not certified to be true, produced by the opponent. But, apart from that, as pointed out above, copy of the judgment of the Sessions Judge clearly indicates that when the order of conviction was passed, the deceased was not in custody. Under these circumstances, we do not see any reason to hold that the deceased was in jail at the time when proposal was submitted to the opponent. It is not the case of the opponent that the person in jail is not competent to make proposal for personal accident policy nor is it the case of the opponent that the deceased was required to remain personally present at Mehsana to sign and make the proposal. The opponent has not led any evidence to prove that signature which appears on the proposal form is not that of the deceased. It is significant to note that personal accident policy which is subject matter of this complaint was not first such policy taken out by the deceased. There were two such previous policies which were valid for the period from August 1, 1989 to August 3, 1990 and October 9, 1990 to October 8, 1991. The genuineness of the two earlier policies is not questioned by the opponent. It is pertinent to note that the Sessions case in which the deceased alongwith two others was tried for offence under Sec.302 of IPC was 279 of 1987. In other words, the Sessions case was filed in 1987 and if what is stated on behalf of the opponent is true, the deceased had remained in jail as under trial prisoner during his trial before the Sessions Court. If that be the case and if there is substance in the contention raised by the opponent, earlier two personal accident policies also could not have been taken out by the deceased. However, as stated above, no question has been raised in regard to the two earlier insurance policies. Considering all the facts of the case, in our opinion, the complainant has successfully proved that the deceased himself had made the proposal under his own signature and taken out personal accident policy for the period from January 3, 1992 to January 2, 1993.