# Smt. Pushpa Agarwal v. Insurance Ombudsman U.P. And Uttaranchal and others

- **Citation:** (2012) 1 ILRA 499
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-25
- **Case number:** Civil Misc. Writ Petition No. 50352 of 2008
- **Bench:** Rajiv Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-pushpa-agarwal-v-insurance-ombudsman-u-p-and-uttaranchal-and-others-42224
- **Pages:** 12

## Headnote

Constitution of India, Article 226-claim
of Insurance Policy-insurer kidnapped
and murdered-denial on ground of death
not accidental but murder-even the
death of criminal background assuredtermed as accidental death due to-helddenial on ground but murdered-even the
death of criminal background assuredtermed as accidental death-held-denial
of claim arbitrary and illegal-necessary
direction to pay the benefits with cost
given.

Held: Para 34

Considering the matter in all pros and
cons, I am of the view that reasoning
given by the Ombudsman cannot be
justified by any standard. LIC policy
excludes death due to limited causes
mentioned in Exclusion Clause under
para 10(b) and, therefore, it is totally
irrelevant to find out the background of
the deceased. Further, even in case
where there is a criminal background of
the assured, it would be difficult to hold
that his murder was not accidental
unless he has taken up the quarrel and
that the immediate cause of injury was
500 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
deliberate and willful act of the insured
himself.
Case law discussed:
2000 ACC 291 SC; [1910] 2 KBD 689]; 1975 I
LLJ 394; 2000 (3) Supreme 698; AIR 1965 SC
1288; JT 2004 (8) SC 8; [AIR 1999 Gujarat
280]; (2000) 5 SCC 113

## Text

1 All] Smt. Pushpa Agarwal V. Insurance Ombudsman U.P. And Uttaranchal and others
499
of the nation. Their character and integrity
at all times should be above board
including at the threshold of their
appointments. It would certainly not be
wise to induct a person in a disciplined
force who has at the threshold of his
appointment sought induction on the basis
of falsehood or misleading information.
This would not be conducive for
maintaining peace and order in the nation.
On the other hand, it would be completely
contradictory and opposed to it.

17. Thus in my opinion, the
petitioner deserves no relief. It may also
be stated here that despite interim order
given by this Court, the petitioner was
never allowed to join and he did not file
any contempt petition within a period of
one year.

18. The judgments relied on by the
petitioner do not apply to the case in
hand. The judgment of the Hon'ble Apex
Court relied on by the learned counsel for
the petitioner is distinguisable on the
point that this is not the case of
termination but rather the petitioner was
not allowed to join duty from very
beginning.

19. The enforcement of law and
order in the nation cannot be left to the
hands of the persons who have the
propensity to perpetuate falsehood or are
inclined to give misleading information
for such propensity's would then no doubt
also extend in the carriage of their duties.

20. The writ petition is dismissed as
above. No costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2012

BEFORE
THE HON'BLE RAJIV SHARMA,J.

Civil Misc. Writ Petition No. 50352 of 2008

Smt. Pushpa Agrawal

 ...Petitioner
Versus
Insurance
Ombudsman
U.P.
And
Uttaranchal and others ...Respondents

Counsel for the Petitioner:
Sri S.D. Singh
Sri Diptiman Singh

Counsel for the Respondents:
Sri Prakash Padia

Constitution of India, Article 226-claim
of Insurance Policy-insurer kidnapped
and murdered-denial on ground of death
not accidental but murder-even the
death of criminal background assuredtermed as accidental death due to-helddenial on ground but murdered-even the
death of criminal background assuredtermed as accidental death-held-denial
of claim arbitrary and illegal-necessary
direction to pay the benefits with cost
given.

Held: Para 34

Considering the matter in all pros and
cons, I am of the view that reasoning
given by the Ombudsman cannot be
justified by any standard. LIC policy
excludes death due to limited causes
mentioned in Exclusion Clause under
para 10(b) and, therefore, it is totally
irrelevant to find out the background of
the deceased. Further, even in case
where there is a criminal background of
the assured, it would be difficult to hold
that his murder was not accidental
unless he has taken up the quarrel and
that the immediate cause of injury was
500 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
deliberate and willful act of the insured
himself.
Case law discussed:
2000 ACC 291 SC; [1910] 2 KBD 689]; 1975 I
LLJ 394; 2000 (3) Supreme 698; AIR 1965 SC
1288; JT 2004 (8) SC 8; [AIR 1999 Gujarat
280]; (2000) 5 SCC 113

(Delivered by Hon'ble Rajiv Sharma,J. )

1. Heard Sri S.D.Singh, learned
Counsel for the petitioner and Sri Prakash
Padia, learned Counsel for the opposite
parties.

2. Through the instant writ petition
under Article 226 of the Constitution of
India, the petitioner challenges the award
dated 30.6.2008 passed by the Insurance
Ombudsman, Uttar Pradesh & Uttarakhand,
Lucknow (opposite party No.1) [hereinafter
referrred to as the "Ombudsman" for the
sake of brevity], in complaint No. LP117/21/001/07-08 contained in Annexure 5
to
the
writ
petition,
whereby
the
Ombudsman disposed of the complaint by
confirming the orders of the authority of
Life
Insurance
Corporation
of
India
whereby the claim for Double Accident
benefit was denied as well as the accrued
bonus. However, the liberty was granted by
the
Ombudsman
to
the
complainant/petitioner to approach the
forum directly after the trial was concluded
with a certified copy of the judgment of the
session's court within two months from the
date of judgment and the forum was at
liberty to reopen the case, if so warrants.

3. Factual matrix of the case are that
the petitioner's son Sri Neeraj Kumar
Agarwal, aged about 26 years, who was
engaged in business, took two policies i.e.
Policy No. 3116783632 and 312042657, on
his own life under plan/term 14/49 from
Life Insurance Corporation of India with
Double Accident benefit. Unfortunately, her
son was murdered on 19.11.2006, as a
consequence of which, petitioner being
nominee and mother of the deceased
claimed the insured amount, to which Life
Insurance Corporation of India [hereinafter
referred to as "the Insurance Company"]
asked the petitioner to furnish the requisite
information in the prescribed claim forms.
In
pursuance
thereof,
the
petitioner
submitted her claim in the prescribed claim
forms. The In-house Investigating Officer
of the Insurance Company investigated the
claim and submitted report. On the basis of
the said report, the Senior Divisional
Manager, Allahabad of the Insurance
Company accepted the petitioner's claim for
Basic Sum Assured but repudiated/rejected
the claim for Double Accident Benefit vide
letter dated 28.12.2007 on the grounds that
death of the deceased is due to murder after
kidnapping and not by an accident and as
such, Double Accident Benefit is not
payable to her. However, petitioner received
the Basic Sum Assured amount, under
protest.

4. Against the letter dated 28.12.2007,
petitioner approached the Zonal Manager at
Kanpur by preferring a representation. The
Zonal Manager also rejected the petitioner's
representation and upheld the decision of
Senior Divisional Manager, Allahabad.
Feeling aggrieved, the petitioner preferred a
complaint, bearing No. LP/117/21/001/0708, before the Ombudsman, who, vide order
dated 30.6.2008, after perusing the material
on record and submissions made orally
before it and relying upon the judgment of
Hon'ble Supreme Court in the case of Smt.
Rita Devi Versus New India Assurance Co.
Ltd.;(2000) ACC 291 SC disposed of the
complaint with the following observations
and directions :
1 All] Smt. Pushpa Agarwal V. Insurance Ombudsman U.P. And Uttaranchal and others
501

"In the instant case, the culprits are
under trial, hence, it is difficult to say
anything conclusively regarding the motive
and intent of the persons accused. A lot will
depend upon the judgment of the session
court in this matter to determine the
admissibility of the claim. Under these
circumstances, I am disposing off the
complaint by confirming the order of
respondent company in denying the A.B.
However, the complainant by this order is
at liberty to approach this forum directly
with a certified copy of the judgment of the
session's court within two months from the
date of judgment. The forum shall be at
liberty to reopen the case if so warrants
depending on the judgment of the sessions
court and pass appropriate orders."

5. Feeling aggrieved, the petitioner
has preferred the instant writ petition inter
alia on the grounds that since the murder of
the insured was unlooked for or mishap or
untoward event which was not expected or
designed, as such, the Ombudsman erred in
not considering the claim of the petitioner in
right perspective.

6. Sri S.D. Singh, learned Counsel for
the petitioner has submitted that from bare
perusal of the word 'Accident' under the
Accident Benefit Clause of the policies of
the insured meant and included all or any
reason for death or injury, which is
unforeseen and not on account of any
natural, probable or foreseen cause, from
the point of view of the insured. Thus, the
term "Accident" under the Accident Benefit
clause of the policies has to be given the
widest and must not restricted meaning. He
submits that the business rivalry and/or
kidnapping of the insured on account of
such rivalry or his murder were not and
cannot be held to be foreseen or probable
causes of death of the insured when his life
was insured by the Insurance Company.

7. Elaborating his submission, Sri
Singh submits that intention of the
abductors of the insured was irrelevant and
extraneous for invoking the Accident
Benefit clause under the policies. Thus, the
murder of the insured was an accidental
happening so far as the insured was
concerned and as such, the opposite parties
erred in rejecting the claim of the petitioner
for Double Accident Benefit.

8. Refuting the submissions of learned
Counsel for the petitioner, Sri Prakash
Padia, learned Counsel for the opposite
parties did not dispute the facts of the case
but submits that on submission of claim in
the prescribed proforma, the said claim was
investigated and an order was passed to
accept the claim for the basic sum assured
and repudiated the claim for Double
Accidental
benefit,
vide
order
dated
28.12.2007 passed in respect of both the
policies, the Senior Divisional Manager
inter alia on the facts that there is sufficient
proof to show that the policy-holder was
kidnapped and death was caused due to
murder, which is not an accident. The said
order dated 28.12.2007 was confirmed by
the Zonal Manager of the Corporation in the
representation dated 16.2.2008 vide orders
dated 18.3.2008. Being dis-satisfied with
the
aforesaid
orders,
the
petitioner
approached the Insurance Ombudsman U.P.
and Uttaranchal at Lucknow, which was
registered
as
complaint
No.LP117/21/001/07-08
and
vide
award
30.6.2008, the Ombudsman disposed of the
complaint, which is under challenge in the
present writ petition.

9. Sri Padia, while defending the
impugned orders, submits that the findings
502 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
were recorded after perusing the material on
record as well as taking into account the
facts which came to knowledge of
Ombudsman during the course of personal
hearing on 27.6.08 that an FIR was lodged
on 11.11.2006 at Police Station Ghoorpur,
District Allahabad to the effect that the life
assured was abducted by some unknown
persons with an intent to kill the life
assured. The FIR was lodged by the uncle
of life assured, namely, Vijay Kumar
Agarawal. It was further stated by the
members of family of life assured that there
is a business rivalry in the family and as
such, certain members of the family had
hired the assailants and due to this rivalry,
the assailants killed the life assured. It was
also brought to the knowledge of the
Ombudsman during the course of hearing
that against the accused persons, trial is in
progress in the Sessions Court and the said
fact was also taken into consideration by the
Ombudsman in the order impugned.

10. Sri Padia further submits that the
Ombudsman had rightly relied upon the
judgment of Smt. Reeta Devi Versus New
India Assurance Co. Ltd. Reported in 2000
ACC 291 SC, whereby the Apex Court,
while distinguishing between a murder
which is not an accident and murder which
is an accident, held that if the dominant
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 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 and accordingly
Ombudsman was of the opinion that as the
trial is under progress, it is very difficult to
say anything conclusively regarding the
motive and intention of the persons accused
and lot will depend upon the judgment of
the Sessions Court in the matter in question.
Thus, after taking all these facts and
circumstances, the Ombudsman confirmed
the orders passed by the authorities of the
Insurance Corporation and a liberty was
given to the petitioner to approach the
forum directly again, as stated hereinabove.

11. Having heard learned Counsel for
the parties and perusing the records, I am of
the view that under the facts and
circumstances of the instant case, the only
question which requires consideration in
this petition is "whether the death caused
due to murder of the insured can be held
to be ''accidental death' ? "

12. The material on record reveals that
an FIR was lodged on 11.11.2006 at Thana
Ghhorpur, Allahabad by the uncle of life
insured (Vijay Kumar Agarwal), stating
therein that on 11.11.2006, at 6.45 P.M.,
while the life insured was returning home
from Hot Mix Plant situated at National
Highway No. 76 with Maruti Van No. UP
70 K-0505 driven by his driver Shekhar and
when they reached near Jasra Railway
Crossing, 7-8 persons aged about 25 to 32
years, who sat on a Marshal Jeep armed
with deadly weapons, abducted the life
insured but left his driver. Immediately
thereafter, his driver conveyed about the
said incident over telephone to the members
of family and on that basis, uncle of the life
insured lodged the F.I.R. Before the
Ombudsman,
the
insurance
company
contended that the death of the insured
occurred due to murder and, hence, the
insurance company was not bound to pay
the sum assured.

13. In order to answer the aforesaid
question in an equitable manner, terms of
the policy bond, which is under plan/term
14/49, is reproduced as under :
1 All] Smt. Pushpa Agarwal V. Insurance Ombudsman U.P. And Uttaranchal and others
503

"10-2. Accident Benefit : If at any
time when this Policy is in force for the full
sum assured, the Life Assured, before the
expiry of the period for which the premium
is payable or before the policy anniversary
on which the age nearer birthday of the Life
Assured is 70 whichever is earlier, involved
in an accident resulting in either permanent
disability as hereinafter defined or death and
the same is proved to the satisfaction of the
Corporation, the Corporation agrees in the
case of:-

(a) Disability to the Life Assured : (I)
to pay in monthly instalments spread over
10 years an additional sum equal to the Sum
Assured under the Policy, if the policy
becomes a claim before the expiry of the
said period of 10 years, the disability benefit
instalments which have not fallen due will
be paid along with the claim, (ii) to waive
the payment of future premiums.

The maximum aggregate limit of
assurance under all policies on the same life
to which benefits (i) and (ii) above apply
shall not in any event exceed Rs.10,00,000
if there be more policies than one and if the
total assurance exceeds Rs.10,00,000 the
benefit shall apply to the first Rs.10,00,000
sum assured in order of date of the Policies
issued.

The
waiver
of
premium
shall
extinguish all options under the policy and
also the benefits covered by para (b) of the
Clause except as to such assurance, if any as
exceeds the maximum aggregate limit of
Rs.10,00,000 and which have been kept in
force by continued payment of premiums.

10(b) Death of the life assured: To
pay an additional sum equal to the Death
Benefit under this policy, if the Life
Assured shall sustain any bodily injury
resulting solely and directly from the
accident caused by outward, violent and
visible means and such injury shall within
120 days of its occurrence solely, directly
and independently of all other causes result
in the death of the life assured. However,
such additional sum payable in respect of
this policy, together with any such
additional sums payable under other
policies on the life of the Life Assured shall
not exceed Rs.10,00,000.

The Corporation shall not be liable to
pay the additional sum referred in (a) or (b)
above, if the disability of the death of the
life assured shall -

i) be caused by intentional self injury,
attempted suicide, insanity or immoraly or
whilst the life assured in under the influence
of intoxicating liquor, drug or narcotic, or

(ii) take place as a result of accident
while the Life Assured engaged in aviation
or aeronautics in any capacity other than of
a fare-paying, part paying or non-paying
passenger in any air craft which is
authorized by the relevant regulation to
carry such passengers and flying between
established aerodromes, the Life Assured
having at that time no duties on board the
aircraft or requiring descent therefrom, or

(iii) be caused by injuries resulting
from riots, civil commotion, rebellion, war
(whether war be declared or not) invasion,
hunting, mountaineering, steeple chasing or
racing of any kind; or

iv) result from the life assured
committing breach of law, or

v) result from employment of the Life
Assured in the armed forces or military
service of any country at war (whether war
504 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
be declared or not) or from being engaged
in police duty in any military, naval or
police organization."

14. The policy bond specifically
provides that if the life assured sustains any
bodily injury resulting solely and directly
from the accident caused by outward violent
and visible means, which results in the
death of the life assured within the period of
120 days of its occurrence, heirs would be
entitled to get accidental benefit.

15. On further perusal of the terms of
policy bond, which includes Exclusion
Clauses it will be revealed that the
Corporation is not liable to pay additional
sum in case the death is caused under any of
the circumstances mentioned in Clauses (i)
to (v) but it does not exclude death due to
murder for any reason. Inspite of it, the
insurance company has repudiated the
Double Accident claim on the ground that
the death of the assured was due to murder.

16. Admittedly, the policy bond did
not define the word 'Accident' but qualified
that the accident must be accompanied by
qualities such outward, violent and visible
means. There is no dispute that in a Murder,
these three ingredients are existing. As the
word 'accident' is not defined in the Terms
and Conditions of the policy bond and as
such, in the alternative, the Court proceeded
with the dictionary meaning.

17. In England, law on the subject is
settled. In Halsbury's Laws of England Vol.
25 Pg.307 Para 569, 4th Edition (2003
reissue), as to the meaning of the word
''accident', it is stated as under :

"569. Meaning of ''accident'. The event
insured against may be indicated in the
policy solely by reference to the phrase
''injury by accident' or the equivalent phrase
''accidental injury', or it may be indicated as
''injury caused by or resulting from an
accident'. The word ''accident', or its
adjective ''accidental', is no doubt used with
the intention of excluding the operation of
natural causes such as old age, congenital or
insidious disease or the natural progression
of some constitutional physical or mental
defect; but the ambit of what is included by
the word is not entirely clear. It has been
said that what is postulated is the
intervention of some cause which is brought
into operation by chance so as to be fairly
describable as fortuitous. The idea of
something haphazard is not necessarily
inherent in the word; it covers any unlooked
for mishap or an untoward event which is
not expected or designed, or any unexpected
personal injury resulting from any unlooked
for mishap or occurrence. The test of what
is unexpected is whether the ordinary
reasonable man would not have expected
the occurrence, it being relevant that a
person with expert knowledge, for example
of medicine, would have regarded it as
inevitable. The stand point is that of the
victim, so that even willful murder may be
accidental as far as the victim is concerned."

18. As per Macmillan English
Dictionary
for
advanced
learners,
International Edition, the word "Accident"
and its related words along with illustrations
is as follows:

"ACCIDENT: 1. a crash involving a
car, train, plane, or other vehicle; a fatal
accident on the autoroute between Paris and
Lyons. He was tragically killed in a
motorcycle accident. The accident was
caused by ice on the road. 1a. a sudden
event, usually caused by someone making a
mistake that results in damage, injury, or
death; Seven men were killed in a serious
1 All] Smt. Pushpa Agarwal V. Insurance Ombudsman U.P. And Uttaranchal and others
505
mining
accident
yesterday.
A
riding/climbing/hunting accident. 1b. a
mistake that causes minor damage or harm:
Don't make such a fuss - it was an accident.

2.
Something
that
happens
unexpectedly, without being planned: To be
honest, my second pregnancy was an
accident. 2a. it is no accident used for
saying that something was planned, perhaps
for dishonest reasons: It is no accident that
every letter we send is delayed.

An accident of birth a situation caused
by who your family is rather than by
anything you do.

An accident waiting to happen 1. a
situation likely to cause an accident: An
ageing nuclear reactor is an accident waiting
to happen. 2. someone who behaves in a
way what is likely to cause trouble

By accident by chance, without being
planned or intended. Quite by accident, she
came up with a brilliantly simple solution.
Occasionally we would meet by accident in
the corridor."

19. It will be seen in the word
"Accident", the presence of intention, preplanning
or
expectations
removes
a
particular happening out of the definition of
word
Accident.
This
definition
has
universal application and the dictionary
does not make any distinction based on any
particular situation. In legal terms, absence
of mens rea is the criteria for calling any
incident an Accident.

20. The word "Murder" has also not
been defined in the policy bond and as such,
the definition of word "Murder" has also
been borrowed as "Murder" is defined in the
form of noun as THE CRIME OF KILLING
SOMEONE DELIBERATELY and in the
form of verb as TO COMMIT THE CRIME
OF
KILLING
SOMEONE
DELIBERATELY.

21. It is this word 'deliberate' that rules
out the possibility of an incident being
called an Accident. This exactly is the
reason that Accident has been made an
exception and a defence to a charge of
Murder and the Indian Penal Code describes
the various kinds of Culpable Homicide
amounting to Murder and not amounting to
the same as the reading of Sections 299,
300, 301 and 304-A along with Accident as
a defense or an exception. Sections 299,
300, 301 and 304-A reads as under :

"299. Culpable homicide:- Whoever
causes death by doing an act with the
intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide.

300. Murder:- Firstly, Except in the
cases
hereinafter
excepted,
culpable
homicide is murder, if the act by which the
death is caused is done with the intention of
causing death, or

Secondly:- If it is done with the
intention of causing such bodily injury as
the offender knows to be likely to cause the
death of the person to whom the harm is
caused, or

Thirdly:- If it is done with the intention
of causing bodily injury to any person and
the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to
cause death, or
506 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Fourthly:- If the person committing the
act knows that it is so imminently
dangerous that it must, in all probability,
cause death or such bodily injury as is likely
to cause death, and commits such act
without any excuse for incurring the risk of
causing death or such injury as aforesaid.

Exception 1:- When culpable homicide
is not murder:- Culpable homicide is not
murder if the offender, whilst deprived of
the power of self-control by grave and
sudden provocation, causes the death of the
person who gave the provocation or causes
the death of any other person by mistake or
accident.

301. Culpable homicide by causing
death of person other than person whose
death was intended:- If a person, by doing
anything which he intends or knows to be
likely to cause death, commits culpable
homicide by causing the death of any
person, whose death he neither intends nor
knows himself to be likely to case, the
culpable homicide committed by the
offender is of the description of which it
would have been if he had caused the death
of the person whose death he intended or
knew himself to be likely to cause.

304-A. Causing death by negligence:-
Whoever causes the death of any person by
doing any rash or negligent act not
amounting to culpable homicide, shall be
punished with imprisonment of either
description for a term which may extend to
two years, or with fine, or with both."

22. The question that under which
circumstances the "willful act" of the third
party can be held to be 'accidental' ?, is
discussed in Halsbury's Laws of England
Vol. 25 Pg.311 Para 575, 4th Edition (2003
reissue), as under:

575. Injury caused by a willful act. An
injury caused by the willful or even criminal
act of a third person, provided the insured is
not a party or privy to it, is to be regarded as
accidental for the purpose of the policy,
since from the insured's point of view it is
not expected or designed. Injuries sustained
by gamekeeper in a criminal attack upon
him by poachers, by a chashier who was
murdered by a robber, and by a master at an
industrial school who was murdered by the
boys, have been held to be accidental.
However, if the immediate cause of the
injury is the deliberate and willful act of the
insured himself, there would seem to be no
accident, and no claim will lie under the
policy, at any rate if the insured is not
mentally disordered at the time of his act.

23. Mere knowledge of hazard of an
occurrence will not take it away from the
category of accident in its general sense.
Albeit, the law may in a given context
define accident to restrict its wider meaning
and dilute it to what is called a 'pure
accident', but there is no warrant for such
restricted meaning in the context of the
above clause of the Insurance Policy.

24. It would not be out of place to
mention that Nisbet v. Rayne and Burn,
[1910] 2 KBD 689 is a leading case on this
subject. A cashier was traveling in a train
with a large sum of money intended for
payment to his employer's workmen. He
was robbed and murdered and the Court of
Appeal held the murder was an accident
from the point of view of the cashier and,
therefore, it was an accident within the
meaning of that term in the Workmen's
Compensation Act, 1906.

25. In Smt. Satiya vs. Sub Divisional
Officer, 1975 I LLJ 394 (Madhya Pradesh)
a
chowkidar
in
the
Public
Works
1 All] Smt. Pushpa Agarwal V. Insurance Ombudsman U.P. And Uttaranchal and others
507
Department was murdered while on duty.
One of the questions that arose was whether
his murder could be said to be an accident.
Relying upon Nisbet, it was held that the
murder was an unlooked for mishap or
untoward event which was not expected or
designed. The learned Judge held that word
"accident" excludes the idea of willful and
intentional act but as explained in Nisbet,
"the phrase ought to be held to include
murder as it was an accidental happening
so far as the workman was concerned."

26. The combined effect of reading
the aforesaid sections cannot be better
illustrated than mere reproduction of the
words of the Supreme Court in the case of
Smt. Rita Devi and others Vs New India
Assurance
Company
Limited
and
Another reported in 2000 (3) Supreme
698, as "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
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. In our opinion, if the
dominant 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 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.

27. Insofar as legal principle is
concerned, it is not the insured's point of
view that is the criteria but it is The Rule of
Contra Proferentem that is actually the
legal principle applicable to insurance
contracts.

28. Rule of Contra Proferentem is
generally made applicable to standard form
of contracts. Later, this rule was extended
to Terms and Conditions of insurance
policies. It is strictly a rule of interpretation
where, in case of an ambiguity, the
construction that is favourable to the
insured is adopted. This is purely a rule
invoked for interpretation of the terms of
contracts. This rule has no application to
anything when no particular term of
contract is under interpretation. Even this
interpretation is confined to cases where
there is existence of any ambiguity in any
particular term. In the absence of any word
being in ambiguity, it cannot be invoked.

29. As seen from the dictionary
meaning and as on exception on defense to
a charge of murder and further going by
the interpretation of the said term by the
Supreme Court in Rita Devi (Supra),
hardly any ambiguity exits. The Supreme
Court of India in Central Bank of India
Vs Hartford Fire Insurance Company
reported in AIR 1965 SC 1288 clearly held
"it is well known however that the rule (of
contra proferentum) has no application
where there is no ambiguity in the words in
the standard form of contract.

30. In the case of United India
Insurance
Company
Limited
Vs
Harchandrai Chandanlal reported in JT
2004 (8) SC 8, the Supreme Court
reiterated at para 14 that the terms of
contract has to be strictly read and
NATURAL meaning be given to it. No
outside aid should be sought unless the
meaning is ambiguous.
508 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

31. From the aforesaid reasonings, it
can safely be inferred that ''even the willful
murder' of the assured is accidental as far
as insured is concerned and such murder is
to be described as ''by chance' or
''fortuitous'.

32. At this juncture, it would be
useful to refer following observations
made by the Division Bench of Gujarat
High Court in the case of Ambalal
Lallubhai Panchal (Ranerwala) v. LIC
of India [AIR 1999 Gujarat 280], wherein
the question involved was whether a death
caused by dog bite can be said to be death
caused by an accident so as to make the
Life Insurance Corporation of India liable
to pay an additional sum equal to sum
assured under the extended benefit clause
of the Policy, may be referred:

"7. The word "accident" has a very
wide significance in its ordinary sense. In
the present case, we are not concerned with
the
philosophical
meaning
of
the
expression "accident". The word, though
easy to understand when used in any
particular context, is found to be difficult
to define in a manner that would
encompass all its shades of meanings. The
expression 'accident' generally means some
unexpected
event
happening
without
design, even though there may be
negligence and it is used, in a popular and
ordinary sense of the word, as denoting an
unlocked for mishap or an untoward event
which is not brought about by intention or
design. It is however, unnecessary to
attempt any uniform definition of a term
which has the utility of answering varied
situations.

This term has to be applied in law to
any occurrence or result that could not
have been foreseen by the agent (because
not necessarily involved in his action) or to
a result not designed (and therefore,
presumably not foreseen) or lastly to
anything unexpected. The question as to
what will and will not constitute an
accident under a given circumstance would
depend upon the facts of each particular
case and would be a mixed question of law
and facts. Accidents can broadly be
divided into two categories, viz. where
there is some external act, agency or
mishap and those where there is no such
external act, agency or mishap. In legal
contemplation, accident happens without
any designed, intentional or voluntary
causation such as an occurrence which
happens by reason of some violence,
casualty or vis. major without any design
or consent or voluntary co-operation. An
unexpected personal injury resulting from
an unlooked-for mishap or occurrence
would be an accident. The word "accident"
would get its colour from the context in
which it is used. The word has fallen for
our interpretation in context of the
following accident benefit clause in a Life
Insurance Policy and in context of the
question whether death due to dog bite is
an accident within the meaning of this
clause, so as to merit payment of additional
sum equal to the sum assured under this
clause.

10. Accident Benefit : If at any time
when this policy is in force for the full sum
assured, the Life Assured before the expiry
of the period for which the premium is
payable or before the policy anniversary on
which the age nearer birthday of the Life
Assured is 70, whichever is earlier, is
involved in an accident resulting in either
permanent disability as hereinafter defined
or death and the same is proved to the
1 All] Smt. Pushpa Agarwal V. Insurance Ombudsman U.P. And Uttaranchal and others
509
satisfaction
of
the
Corporation,
the
Corporation agrees in the case of

a) xxx xxx xxx

b) Death of the Life Assured : To pay
an additional sum equal to the Sum
Assured under this policy, if the Life
Assured shall sustain any bodily injury
resulting solely and directly from the
accident caused by outward violent and
visible means and such injury shall within
90 days of its occurrence solely, directly
and independently of all other causes result
in the death of the Life Assured. However,
such additional sum payable in respect of
this policy together with any such
additional sums payable under other
policies on the life of the Life Assured
shall not exceed Rs. 5,00,000/-.

xxx xxx xxx

It will be seen that the word
"accident" used in this clause is not
circumscribed to any narrow meaning.
What has been excepted from the liability
of the insurer has been specifically
mentioned in the said Clauses (i) to (v) of
Clause 10(b). All that is required for this
clause to operate is that the bodily injury
sustained by the Life Assured results solely
and directly from the accident caused by
"outward violent and visible means",
which injury has resulted in the death of
the Life Assured within the period as
contemplated by the clause."

33. So far as the reliance placed by
the Ombudsman in the case of Rita Devi
Vs. New India Assurance Co. Ltd; (2000)
5 SCC 113, is concerned, I am of view that
Rita Devi (supra) is not applicable in the
facts and circumstances of the case insofar
as in the case of Rita Devi (supra), the
Apex Court considered and interpreted a
phrase providing "death due to accident
arising out of the use of motor vehicle".
Thereafter, the Court referred to various
decisions and arrived at a conclusion that
they have no hesitation in coming to a
conclusion that the deceased, Dashrath
Singh, was employed to drive an auto
rickshaw for ferrying passengers on hire.
On the fateful day the auto-rickshaw was
parked
at
auto-rickshaw
stand
and
unknown passengers engaged the said
auto-rickshaw for their journey and during
that journey, it was alleged that the
passengers caused murder of Dashrath
Singh. The Apex Court held that death in
such case was due to accident. The Court
further observed that the difference
between ''murder which is not an accident'
and ''murder which is an accident' depends
on the proximity of the cause of such
murder. If the cause of murder or act of
murder was originally not intended and the
same was caused in furtherance of any
felonious act then such murder is an
accidental murder arising out of the use of
motor vehicle and held that the insurance
company was liable to reimburse the
claimant, whereas in the instant case, in a
clause of Insurance policy, which assures
accident benefits in respect of the loss
caused from any accident by "outward,
violent and visible means". There is no
warrant to qualify this clause by carving
out any exception on the grounds such as
carelessness, negligence, avoidability etc.
The only exceptions that apply are those
which have been specifically enumerated
and for all other eventualities, which can
be described as accident by its general and
non-technical sense, the liability to pay the
accident benefit arises when the accident is
caused by "outward, violent and visible
means". This qualification is meant to
provide for ascertainability of the event.
510 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

34. Considering the matter in all pros
and cons, I am of the view that reasoning
given by the Ombudsman cannot be
justified by any standard. LIC policy
excludes death due to limited causes
mentioned in Exclusion Clause under para
10(b) and, therefore, it is totally irrelevant
to find out the background of the deceased.
Further, even in case where there is a
criminal background of the assured, it
would be difficult to hold that his murder
was not accidental unless he has taken up
the quarrel and that the immediate cause of
injury was deliberate and willful act of the
insured himself.

35. For the reasons aforesaid, the
decision for repudiating the claim vide
letter dated 28.12.2007 by the Senior
Divisional
Manager,
Life
Insurance
Corporation, with regard to Double
Accident Claim benefit and the decision of
the Zonal Manager upholding the order
passed by the Senior Divisional Manager
as well as the award dated 30.6.2008,
which confirms the above orders in
denying the accrued bonus and the findings
recorded therein, are hereby quashed. The
Insurance Company shall disburse the
amount accrued towards the Double
Accident Claim benefit including bonus
and also pay an interest at the rate of 8%
per annum on the said amount from the
date the same has fallen due under Policy
Nos. 3116783632 and 312042657, within a
period of three months from the date of
receipt a certified copy of this order.

36. I pain to note that petitioner's son
died due to untoward incident and she is
running from pillar to post since 2008 for
her legitimate claim/right but the Insurance
Company, on one pretext or other, is
dragging the petitioner from one litigation
to
other
litigation,
therefore,
it
is
appropriate and just to impose cost upon
the Life Insurance Corporation of India.

37. The writ petition is allowed with
costs, which is quantified to Rs.25,000/-.
The Life Insurance Corporation of India
shall pay the cost of Rs.25,000/- within a
month from today before the Registry of
this Court. On receipt of the said cost,
Registry is directed to pay Rs.15,000/- to
the petitioner and balance of the amount
i.e. Rs.10,000/- shall be remitted to the
account of Mediation and Conciliation
Centre of this Court forthwith.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2012

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE ASHOK PAL SINGH, J.

Civil Misc.Writ Petition No.52687 of 2008

Krishna Nand Barnwal
 ...Petitioner
Versus
Union of India & others ...Respondents

Counsel for the Petitioner:
Sri Ashish Srivastava
Sri S.D. Tiwari

Counsel for the Respondents:
Sri J.P. Mishra
Sri Manoj Kumar
Sri Praveen Kumar Jaiswal (S.C.)
A.S.G.I.

Constitution
of
India,
Article
226Benefits of Assured Carrier Advance
Scheme-denial
on
ground
petitioner
being
appointed
as
valveman
was
granted up-gradation on post of "Pipe
Fitter"-while the Feeder as well as
Promotional Post remained same-held