# Smt. Saroj Jaiswal v. L.I.C. Of India Branch Sitapur

- **Citation:** (2024) 5 ILRA 767
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Second Appeal No. 66 of 1992
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-saroj-jaiswal-v-l-i-c-of-india-branch-sitapur-51977
- **Pages:** 6

## Headnote

P.K. Khare, Raj Kumar Singh

Insurance - Insurance Claim and Double
Accident Benefit - Accidental Death -
Drowning In the instant case, deceased
had a life insurance policy with a double
accident benefit. After his death, his legal
heir (the appellant) received ₹21,103.40 as
a full and final settlement of the policy
amount without protest. Subsequently, the
appellant filed a Regular Suit seeking
additional
double
accident
benefit,
claiming the death was due to accidental
drowning. Doctor stated in his evidence
that he had not examined the body of the
deceased to determine the cause of death.
Held :- Court held that death on account of
drowning cannot be determined merely by
observation and the external condition of
the body; it can only be ascertained by an
internal examination of the body. It could
not be proved that the deceased died on
account of drowning as an accidental
death. Therefore, the plaintiff-appellant
was not entitled for double amount of
policy in terms of insurance policy. (Para
16)

Dismissed. (E-5)

List of Cases cited:

Kodali Purnachandra Rao & anr. Vs The Public
Prosecutor, Andhra Pradesh; (1975) 2 SCC 570

## Text

5 All. Smt. Saroj Jaiswal Vs. L.I.C. Of India Branch Sitapur
767
permitted to lead evidence on the issue
emerging from their pleadings including the
issues noticed by this Court and after
affording full opportunity of hearing to the
parties, but without granting an unnecessary
adjournments, the Waqf Tribunal shall hear
the matter afresh and pass appropriate orders
in accordance with law by a reasoned and a
speaking order.

59. It is made clear that this Court has
only allowed the revision on question no. (i)
i.e. the revisionists were necessary and
proper parties and they have been deprived
of an opportunity to contest and the question
no. (ii) is left open to be decided on merits
after due contest, hence, any observation
made by this Court may not be taken as an
expression of opinion on merits of the
matter. The parties shall be at liberty of
raising all pleas open to them in law
including on the issue of admissibility and
relevancy of documents filed by the
respective parties which shall be decided by
the Tribunal in accordance with law.

60. Accordingly, the revision is
allowed in the aforesaid terms. Costs are
made easy.
----------
(2024) 5 ILRA 767
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 66 of 1992

Smt. Saroj Jaiswal ...Appellant
Versus
L.I.C. Of India Branch Sitapur
 ...Respondent

Counsel for the Appellant:
Avadhesh Kumar

Counsel for the Respondent:
P.K. Khare, Raj Kumar Singh

Insurance - Insurance Claim and Double
Accident Benefit - Accidental Death -
Drowning In the instant case, deceased
had a life insurance policy with a double
accident benefit. After his death, his legal
heir (the appellant) received ₹21,103.40 as
a full and final settlement of the policy
amount without protest. Subsequently, the
appellant filed a Regular Suit seeking
additional
double
accident
benefit,
claiming the death was due to accidental
drowning. Doctor stated in his evidence
that he had not examined the body of the
deceased to determine the cause of death.
Held :- Court held that death on account of
drowning cannot be determined merely by
observation and the external condition of
the body; it can only be ascertained by an
internal examination of the body. It could
not be proved that the deceased died on
account of drowning as an accidental
death. Therefore, the plaintiff-appellant
was not entitled for double amount of
policy in terms of insurance policy. (Para
16)

Dismissed. (E-5)

List of Cases cited:

Kodali Purnachandra Rao & anr. Vs The Public
Prosecutor, Andhra Pradesh; (1975) 2 SCC 570

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Shri Avadhesh Kumar,
learned counsel for the appellant. None
appeared on behalf of the respondent even in
the revised list.

2. This second appeal has been filed
under Section 100 of the Civil Procedure
Code against the judgment and decree dated
28.09.1991 passed by the District Judge,
Sitapur in Civil Appeal No.57 of 1991; Life
768 INDIAN LAW REPORTS ALLAHABAD SERIES
Insurance Corporation of India Vs. Smt.
Saroj Jaiswal by means of which the appeal
has been allowed and the judgment and
decree appealed against has been set-aside
and the suit of the plaintiff-appellant has
been dismissed with cost through out.

3. The facts, giving rise to this appeal,
are that the plaintiff-appellant filed a suit for
the recovery of Rs.20,000/- with interest at
the rate of eighteen per cent per annum
towards the amount of policy and Rs.548.60
paise towards the excess premium paid and
Rs.2500/- towards the accidental interest on
the ground that late Vijay Singh had taken a
policy on 28.12.1977 from the defendantrespondent, which was a policy for double
accident benefit. The plaintiff-appellant was
nominee in the said policy. Late Vijay Singh
accidentally died by drowning in the river at
Gopal Ghat on 14.05.1984, therefore the
plaintiff-appellant put a claim and she was
paid Rs.21,103.40 paise i.e. the amount of
policy but the double accident benefit has
not been given, whereas since the policy was
for double accident benefit, therefore the
appellant is liable to be paid a further sum of
Rs.20,000/-, which has not been paid despite
demands alongwith other claims.

4. The defendant-respondent contested
the suit. It was not denied that the policy was
not taken by the deceased Late Vijay Singh
on 28.12.1977 for Rs.20,000/-, which was a
double accident benefit policy i.e. in case of
death by accident, the double amount was to
be paid. However it was pleaded that late
Vijay Singh had not died on account of an
accident. The defendant-respondent had
demanded the documents in proof of death
by accident, which were not furnished,
therefore the amount of policy was paid
which was accepted by the plaintiffappellant towards full and final payment of
the final claim under the policy and for this
reason also the plaintiff-appellant is not
entitled to any further amount.

5. Learned trial court, after exchange of
pleadings, framing of necessary issues and
evidence adduced by the parties, allowed the
suit holding the plaintiff-appellant entitled the
double the amount according to the policy. It
was also held that the amount of Rs.21,103.40
paise has not been received towards full and
final settlement. Accordingly, the suit was
decreed by means of judgment and decree
dated 19.07.1991 for Rs.20,000/- with interest
at the rate of six per cent per annum. However,
the suit was dismissed for Rs.548.60 for the
excess premium paid and Rs.2500/- as
interest. Aggrieved by the part of the decree,
the defendant-respondent preferred Civil
Appeal No.57 of 1991, which was allowed by
the District Judge, Sitapur by means of the
judgment and order dated 28.09.1991 setting
aside the judgment and decree appealed
against and dismissed the suit of the plaintiffappellant. Hence this second appeal has been
filed.

6. The following substantial
questions of law have been formulated in
this appeal:-

"1. Whether on the basis of
medical attendant certificate issued by the
doctor and the evidence adduced before the
tribunal, the deceased can be held to be died
on account of drowning as an accidental
death and the appellants are entitled for
double amount of policy in terms of
insurance policy ?

2. Whether acceptance of the
original amount of policy with full and final
satisfaction will amount to relinquishment
of the double amount of policy.?"

7. Learned counsel for the appellant
submitted that late Vijay Singh had taken a
5 All. Smt. Saroj Jaiswal Vs. L.I.C. Of India Branch Sitapur
769
policy for double accident benefit. He had
died accidentally on account of drowning, a
certificate in regard to which was given by
the family doctor of the plaintiff-appellant,
who was also a panel doctor of the
defendant-respond
i.e.
Life
Insurance
Corporation of India, therefore the plaintiffappellant is entitled for the amount of
Rs.20,000/- towards the double benefit and
other claims as claimed by him in the suit filed
by him. However the same has wrongly and
illegally been denied to him. He further
submitted that the trial court, after considering
the pleadings of the parties and evidence
adduced before it, had rightly and in accordance
with law decreed the suit and directed to make
the payment of Rs.20,000/- alongwith interest
at the rate of six per cent per annum. However
the appellate court wrongly and illegally,
without considering that a panel doctor of the
defendant-respondent corporation has given a
certificate of accidental death of late Vijay
Singh by drowning, which was also proved by
him by oral evidence, allowed the appeal and
dismissed the suit, which could not have been
done.

8. He further submitted that merely
because the plaintiff-appellant had accepted
Rs.21,103.40 paise in full and final satisfaction
of claim, it could not be said that the claim for
double amount on the basis of double accident
policy is not maintainable because the said
amount was accepted as the plaintiff-appellant
was entitled for the same and it can not be said
that the appellant is not entitled for the double
amount on the basis of double accident policy.

9.

I
have
considered
the
submissions of learned counsel for the
appellant and perused the records.

10. Late Vijay Singh had taken a
policy of Rs.20,000/- on 28.12.1977, which
was a policy for double accident benefit. He
had died on 14.05.1984, therefore the claim
was put forth by the plaintiff-appellant and
she was paid the amount of policy i.e.
Rs.21,103.40 paise, which was accepted by
plaintiff-appellant towards full and final
payment without any protest. Thereafter the
appellant claimed the benefit of the double
accident policy and filed a Regular Suit
No.258 of 1987 claiming the same. After
exchange of pleadings, four issues were
framed by the trial court; (1) As to whether
the plaintiff is entitled to receive the amount
in dispute, (2) As to whether the plaintiffappellant is entitled for any interest, if so, on
what rate, (3) As to whether the plaintiff
would be stopped from receiving the claim
of double accident benefit, since she has
received towards the full and final
settlement as mentioned in paragraph- 18 of
the written statement and (4) The plaintiff is
entitled for which relief.

11. The trial court partly allowed the
suit and decreed for double accident benefit
of Rs.20,000/- but dismissed for rest of the
relief. Being aggrieved, the respondent filed
civil appeal, which has been allowed and the
judgment and decree passed by the trial
court has been set-aside and the suit of the
appellant has been dismissed. Hence the
instant second appeal has been filed, in
which the aforesaid substantial questions of
law have been formulated.

12. In view of above and the first
substantial question law formulated by this
Court, this Court has to consider as to
whether the appellant is entitled to double
amount of the accident benefit of the policy,
treating the death of late Vijay Singh as a
result of the accident. The plaintiff-appellant
preferred the claim alleging that the death
was caused due to drowning and it was
accidental death. On her application the
defendant-respondent demanded the inquest
770 INDIAN LAW REPORTS ALLAHABAD SERIES
report and postmortem report to prove the
accident, which was not submitted, therefore
the claim of the plaintiff-appellant for
double accident benefit was not accepted.
The plaintiff-appellant has claimed that the
death was result of drowning and therefore
she is entitled to double of the amount of the
policy, therefore she had to prove that the
insured late Vijay Singh had died by
accident
of
drowning.
The
plaintiffappellant to prove her claim got herself
examined as PW-1 and Dr. Laxmi Narain
Agarwal as PW-2, who after examining the
deceased had issued the medical attendant
certificate, which was filed before the trial
court to prove that the death was due to
drowning.

13. PW-2 had issued the medical
attendant certificate, which was placed on
record as paper no.15 Ga-1/7. He admitted
in his cross-examination that he is family
doctor of the plaintiff-appellant, therefore he
was called to examine the deceased after he
was taken out of water and he found him
dead. However no certificate was given by
him on that day i.e. 14.05.1984 and it was
given by him subsequently on 25.07.1984.
In the certificate he has not mentioned any
symptom or condition to show that the death
was on account of drowning. He also stated
in his cross-examination that certificate was
issued by him regarding the death and not
for the reason of the death. He also stated
that he did not examine the dead body with
a view to find the cause of death, therefore
admittedly he had not examined the cause of
death, therefore it can not be disputed that he
had mentioned the cause of death on the
information given by the appellant.

14. The medical attendant certificate
(paper no.15 Ga-1/7) is on a proforma of the
Life Insurance Corporation of India. Clause5-(a) of the certificate is 'what was the exact
cause of death? (Besides defining the
deceased or other cause or death in such
terms as you consider appropriate, kindly
add the distinotive technical name)'. Sub
clause (b) is 'was it ascertained by
examination after death or inferred from
symptom and appearance during life.' Sub
clause (g) is 'Did you attend him during the
whole of it's course? If not, state during what
period?' Against the sub clause (a), the PW2 has given the primary cause "Drowning"
and secondary cause 'nil', whereas as per
sub-clause (a) of clause-5 the distinotive
technical name was also to be added but the
same has not been given. It is obvious
because PW-2 had not examined the body of
deceased to know the reason of death,
therefore he has rightly not given. Against
the
sub-clause
(b),
PW-2
mentioned
'accidental drowning case' but it has not
been disclosed in terms of sub-clause (b) as
to whether it was ascertained by the
examination after death or inferred from
symptoms and appearance and what was
symptoms and appearance. Against subclause (g), PW-2 mentioned 'yes, just after
taking out of water, I was consulted',
therefore admittedly PW-2 was consulted
after the body was out of water. Therefore,
admittedly PW-2 was consulted and had
seen the dead body after taking out of the
water. When the evidence of PW-2 as
disclosed above is considered in the light of
the observations made in the medical
attendant certificate, this Court finds that the
PW-2 could not prove that the death of
insured person was as a result of the
drowning.

15. The first appellate court, after
considering the evidence of PW-2, has
recorded a finding that his statement does
not prove that the death of the insured
person was as a result of the drowning. The
appellate court has further recorded that the
5 All. Smt. Saroj Jaiswal Vs. L.I.C. Of India Branch Sitapur
771
respondent i.e. the plaintiff-appellant has not
produced any evidence to prove this fact, no
postmortem report was produced, no person
who might have seen the insured person
drowning has been examined and from the
circumstances it is not established that the
death was the result of drowning.

16. The death on account of drowning
can not be determined merely by observance
and the external condition of the body. The
doctor has also stated in his evidence that he
has not examined the body of the deceased
to know the reason of death. The reason of
death has also not been given by the doctor,
which could also not have been given
without internal examination of the body
which could reveal symptoms which may
indicate with certainty as to whether the
death was from drowning or from unlawful
violence or any other reason before the body
was immersed in water. If the body was
immersed in water after some violence with
the body or any other reason for the death it
can not be said that the death was accidental
on account of drowning.

17. The Hon'ble Supreme Court, in the
case of Kodali Purnachandra Rao and
Another Vs. The Public Prosecutor,
Andhra Pradesh; (1975) 2 SCC 570, has
held that medical jurists have warned that in
the case of a dead body found floating in
water, the medical man from a mere
observance of the external condition of the
body should not jump to the conclusion that
the death was from drowning and it can be
ascertained only by internal examination of
the body. The relevant paragraph- 42 is
extracted here-in-below:-

"42. Medical jurists have warned
that in the case of a deadbody found floating in
water, the medical man from a mere
observance of the external condition of the
body should not jump to the conclusion that the
death was from drowning. Only internal
examination of the body can reveal symptoms
which may indicate with certainty as to whether
the death was from drowning or from. unlawful
violence before the body was immersed in
water. That is what Taylor the renowned
medical jurist, has said on the point:

When a deadbody is thrown into the
water. and has remained there sometimes
water. fine particles of sand, mud. weeds etc.
may pass through the windpipe into the large
air-tubes. In these circumstances, however,
water rarely penetrates into the smaller
bronchi and alveoli as it may by aspiration, and
even the amount which passes through the
glottis is small. If immersed after death the
water is found only in the larger air-tubes and
is unaccompanied by mucous froth. Water with
suspended matters can penetrate even to the
distant air-tubes in the very smallest quantity
even when not actively inhaled by respiratory
efforts during life The quality, or nature of the
suspended
matter
may
be
of
critical
importance.
 When decomposition is advanced
the lungs may be so putrefied as to preclude any
opinion as to drowning but the demonstration
of diatoms in distant parts of the body
inaccessible except to circulatory blood,
provides strong evidence of immersion in life-if
not of death from drowning." (emphasis
supplied)

17. This Court does not find any
illegality or error in the findings recorded by
the appellate court and as discussed above it
could not be proved that the deceased died
on account of drowning as an accidental
death, therefore the plaintiff-appellant is not
entitled for double amount of policy in terms
of insurance policy.

18. The plaintiff-appellant received
Rs.21,103.40 paise and issued a receipt
772 INDIAN LAW REPORTS ALLAHABAD SERIES
towards the full and final payment and
discharged the claim and demands under the
above mentioned policy of the insured. It
has not been alleged that the receipt has been
signed without knowing the contents. The
plaintiff-appellant has signed the receipt in
English and it appears that she had signed
after fully knowing it. The plaintiffappellant has also received the amount
without reserving any right towards full and
final satisfaction of the claim under the
policy. The first appellate court, after
examining the pleadings, evidence and
receipt given by the plaintiff-appellant, has
recorded a finding that the respondent i.e.
the plaintiff-appellant has signed the receipt
in English and it appears that the respondent
new English and signed the receipt knowing
as to what is written in it. The appellate
court, considering the case laws relied by the
plaintiff-appellant also, has recorded a
finding that the respondent i.e. the plaintiffappellant without reserving any right has
accepted Rs.21,103.40 in full and final
satisfaction of the claim under the policy
therefore the claim for double of the amount
is not maintainable. This Court does not find
any illegality or error in the findings
recorded
by
the
appellate
court.
Accordingly, this Court is of the view that
the acceptance of the amount of policy with
full and final satisfaction will amount to
relinquishment of the double amount of
policy.

19. In view of above and considering
the over all facts and circumstances of the
case, this Court is of the view that on the
basis of medical attendant certificate issued
by the doctor and the evidence adduced
before the trial court, it could not be proved
that the death of the deceased was as a result
of drowning as an accidental death,
therefore the plaintiff-appellant is not
entitled for double amount of policy in terms
of insurance policy. The plaintiff-appellant
has also accepted the original amount of
policy i.e. Rs.21,103.40 paise towards full
and final satisfaction without reserving any
right, which will amount to relinquishment
of double amount of policy. The aforesaid
substantial questions of law formulated in
this appeal are answered accordingly. Thus,
this second appeal is misconceived and
devoid of any merit, which is liable to be
dismissed.

20. The second appeal is, accordingly,
dismissed. No order as to costs.
----------
(2024) 5 ILRA 772
APPELATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 352 of 2003

Hriday Ram & Ors. ...Appellants
Versus
Paras Nath & Anr. ...Respondents

Counsel for the Appellants:
Bajrang Bahadur Singh

Counsel for the Respondents:
Ved Prakash Yadav

U.P. Zamindari Abolition and Land Reforms
Act, 1950 - Section 9 - Private wells, trees
in abadi, and buildings are to be settled
with the existing owners or occupiers
thereof - Sahan - Sahan refers to land
appurtenant to a house that is beneficial to
it. If such land has been used by the owners
prior to the abolition of Zamindari, it would
be deemed to be settled with them under
Section 9 of the said Act - Suit for
Permanent Injunction - Appellants filed
suit for permanent injunction claiming that
the land in dispute is their Sahan and