UNITED INDIA INSURANCE COMPANY LIMITED Vs. BAIRI RAJAIAH

JUDGEMENT

(1.) We heard the learned Counsel for the appellant on 15.9.1999 and we perused the record of the District Forum in O. P. No.280/1996.

(2.) The order of the Karimnagar District Forum in that O. P. dated 31.7.1996 is sought to be questioned by the second opposite party i. e. , United India Insurance Company Ltd. , on the ground that the son of the complainant, Sri Bairi Srinivas who was the insured, was killed in an encounter with the police on 13.11.1994 and that, therefore, and even otherwise was covered by the Exception Clause his death was not accidental. That Bairi Srinivas was covered on that day by a Group Personal Accident Policy was not disputed by the appellant.

(3.) One reason for repudiating the claim of the complainant, who was the nominee under the policy, was that the insured was killed in an encounter and that an encounter death was not death in accident. The other ground was that the death was not intimated immediately after 13.11.1994, but belatedly. The first respondent/ complainant stated that he got the information about the death of his son from the second respondent only on 7.4.1995 and he informed the same immediately thereafter to the appellant on 7.4.1995 itself. The material before the District Forum could not establish that the assured was a member of the extremist group. Copy of the F. I. R. filed before the District Forum stated that the dead body of Bairi Srinivas was found near the place of encounter. The F. I. R. narrated how the encounter took place. It stated that when police party and CRPF were searching for naxalites on the way to Rangampet village, suddenly some naxalites opened fire on them with the guns with them and the police party opened fire in self defence. After 10 minutes the firing from naxalites stopped and after half an hour, the policy party searched the area and found three dead bodies - one of the bodies was identified as of the insured. The body was having a bomb in the pant pocket. No gun or tapancher was found with that body. Near the other two bodies there were a gun and tapancher. The inquest report recorded that the body of the insured had four bullet wounds and that he died due to fire arm injuries to the vital organs. The F. I. R. did not establish convincingly that the death of the insured arose or resulted "from the insured committed any breach of the law with criminal intent". Even according to the F. I. R. , the insured was not possessing any gun to open fire at the police party at the time of the encounter. His dead body had a bomb in the pocket. Moreover, the F. I. R. is not reliable evidence. No other material was placed by the appellant before the District Forum to establish satisfactorily that the death of the insured arose or resulted from any breach of the law committed by the insured. The burden was on the appellant to establish that the death of the insured occurred under Exception 5 (e) which reads as follows : "the Company shall not be liable under the policy for : xxx xxx xxx xxx xxx xxx 5. Payment of compensation in respect of death. . . (e) arising or resulting from the insured committing any breach of the law with criminal intent. " There can be no doubt that in the present case death of the insured resulted "solely and directly from accident caused by external violent and visible means" and not by natural causes. On this aspect we are supported by the decision of the National Commission in Smt. Manda Savarna V/s. LIC of India,1999 CONSUMER 3498 (NS ).