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Ranjanibai Jamnadas Champsey Vs. New India Assurance Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectInsurance
CourtMumbai High Court
Decided On
Case NumberSuit No. 1246 of 1951
Judge
Reported inAIR1956Bom633
ActsEvidence Act, 1872 - Sections 45, 101, 102, 103, 104 and 114
AppellantRanjanibai Jamnadas Champsey
RespondentNew India Assurance Co. Ltd.
Appellant AdvocateJ.H. Vakeel and ;R.J. Joshi, Advs.
Respondent AdvocateN.A. Mody and ;Bhagwati, Advs.
Excerpt:
insurance - accidental death - indian evidence act, 1872 - deceased insured for life - policy provided that for claim assured should sustain any bodily injury resulting solely and directing from any accident caused by outward violent and visible means - assured found dead due to injury sustained by fall from fourth floor of his residence - nothing to show that anybody committed murder of deceased - heirs of deceased entitled to get insured amount. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no.....desai, j.1. this is an action on a combined policy of life insurance and accident insurance in case of death effected with the defendants, who are an insurance company, in favour of the deceased husband of the plaintiff, who, on 14-2-1950 died suddenly in consequence of a fall from a window on the fourth floor of a building in which he was residing.some years prior to his death, on 18-3-1947, jamnadas champsey, the deceased husband of the plaintiff, had insured his life with the defendants in a sum of rs. 50,000/- and in the event of the death of the deceased before the expiry of the stipulated term the defendants further guaranteed to pay the said sum of rs. 50,000/- plus a sum at the rate of rs. 30/- per thousand assured for each year's premium paid after the first year.by that policy.....
Judgment:

Desai, J.

1. This is an action on a combined policy of life insurance and accident insurance in case of death effected with the defendants, who are an insurance company, in favour of the deceased husband of the plaintiff, who, on 14-2-1950 died suddenly in consequence of a fall from a window on the fourth floor of a building in which he was residing.

Some years prior to his death, on 18-3-1947, Jamnadas Champsey, the deceased husband of the plaintiff, had insured his life with the defendants in a sum of Rs. 50,000/- and in the event of the death of the deceased before the expiry of the stipulated term the defendants further guaranteed to pay the said sum of Rs. 50,000/- plus a sum at the rate of Rs. 30/- per thousand assured for each year's premium paid after the first year.

By that policy of insurance the defendants further agreed to pay an additional sum of Rs. 50,000/- if at any time when the policy was in force the life assured should sustain any bodily injury resulting solely and directing from any accident caused by outward violent and visible means. By an endorsement made on the policy on 20-3-1947 the deceased nominated his wife, the plaintiff, as the person to whom the money secured under the policy should be paid in the event of his death.

On 14-2-1950 the assured, Jamnadas Champsey, died in consequence of multiple bodily injuries received as a result of a fall from the fourth floor of his residence. Champsey Building, situated at Princess Street in Bombay. The policy was in force at the time. It is the case of the plaintiff that the serious bodily injuries received by the plaintiff had resulted solely and directly from an accident caused by outward violent and visible means within the terms and meaning of the relevant clause in the policy of assurance. That clause is as under:

'Accident: If at any time when this policy is in full force and effect the life assured, before the expiry of the period during which the premium is payable or before attaining the age of 60 years, whichever is earlier, shall sustain any bodily injury resulting solely and directly from accident caused by outward violent and visible means and such injury shall, within three calendar months of its occurrence solely, directly and independently of all other causes, result in the death of the life assured, then the Company shall pay an additional sum equal to the sum assured as specified in the schedule to the within policy: Provided however that the Company shall not be liable hereunder if the death of the life assured shall be caused by suicide or attempted suicide or by the life assured committing any breach of the law.'

It is also the plaintiff's case that the deceased was in normal health and affluent, circumstances at the time of his death. She goes on to state in the plaint that she furnished to the defendants all available evidence and information asked for by them relating to the death of the deceased by accident but the defendants wrongfully failed to pay to the plaintiff the various sums due under the policy. In her plaint she also refers to certain correspondence which took place between the parties prior to the filing of the suit.

In that correspondence the defendants through their attorneys had stated that so far as their information went the case appeared to be one of pure and deliberate suicide and the amount claimed by the plaintiff would only be paid if she satisfied the defendants that it was not the case of suicide.

2. By their written statement the defendants, who are a leading and prominent insurance company in the country, denied that the deceased had died in consequence of bodily injuries sustained as a result of an accidental fall and stated that from inquiries made by them it appeared that the fall was not accidental but was suicidal; and they put the plaintiff to the strict proof of her allegations that the fall was accidental.

They further pointed out that the window from which the deceased was stated to have fallen out was three feet and eight inches high and the breadth of the parapet of the window including the sill was about one foot and ten inches, whilst the height of the deceased as noted down at the time of taking out insurance was five feet and three and a half inches. They further stated that they believed that in that state of affairs the story of a person of the height of the deceased falling out accidentally through the window was incredible and the circumstances plainly indicated that it was intentional suicide.

They also stated that in the course of further inquiries made by them they had obtained information which cast grave doubts on the fall of the deceased being accidental, but rather pointed and confirmed the belief of the defendants that the fall was an intentional suicide. They also denied that the deceased sustained any bodily injuries solely or directly from accident or that the alleged accident was caused by outward violent or visible means within the terms and meaning of the policy.

A further submission made by the defendants in their written statement was that in any event on a true and proper construction of the terms of the policy which I have already set out above the life assured did not sustain any bodily injury resulting solely and directly from an accident by outward violent and visible means and they were, therefore, not liable, under the policy for the additional payment of Rs. 50,000/-.

In their written statement the defendants admitted their liability to pay the sum of Rs. 50,000/-being the initial sum assured by the policy and the other benefits guaranteed by them aggregating to Rs. 54,500/-, which amount they brought into Court along with their written statement in full satisfaction of the plaintiff's claim. Therefore the plaintiff's claim to be now determined by me relates only to the additional amount of Rs. 50,000/- for which the deceased had effected insurance in respect of any accident resulting in death as mentioned in the policy.

3. The questions arise for my determination and they are crystallised in the following issues which were raised:

1. Whether the deceased died in consequence of bodily injuries sustained as a result of accidental fall from the fourth floor of his residence.

2. Whether -the deceased sustained any bodily injuries resulting solely and directly from an accident caused by outward violent and visible means.

The real question to my mind is whether the fall was accidental. The second question really turns on the construction of the clause set out above and arises as a result of a somewhat ingenuous contention sought to be raised by the insurers. The ingenuity as I shall have to point out is ill-founded.

4. The plaintiff was examined. She stated that she was married to the deceased in 1940 and after her marriage she began to live with her husband in the family house known as Champsey Building in Princess Street. In February 1950 she, her husband, their four children and her mother-in-law occupied the fourth floor of the building. Dwarkadas, the elder brother of her husband occupied the fifth floor.

All the members of the family had a common mess. She stated that the financial position of her husband was very good. She stated that Dwarkadas knew what properties were owned by her husband. She added that at no time her husband had monetary worries. At the time of his death in February 1950 the age of the deceased was 32 years. He was keeping good health at the time. Her married life was very happy. The deceased was not suffering from any disease except that at times he suffered from indigestion. He used to attend to his own affairs although everything in the family was done after consulting Dwarkadas.

In the afternoon of 14-2-1950 at about 5 P. M. and thereafter she, her husband, her mother-in-law and all the children were at home. There were six living rooms in the premises occupied by them three of which were facing the road. One of these rooms was used as the drawing room. That afternoon her husband was in the drawing room. She and the mother-in-law were mostly in the kitchen or in another room.

The last time she saw her husband that afternoon was about half an hour before she learnt that he had fall on the road. When she last saw him he was sitting in the drawing room. He was quite all right at the time and she did not see anything which was in any way unusual. After talking to him for some time she had gone to the next room.

At about 6-30 P. M. somebody came from the road to give the information that a person had fallen down on the road. She & Dwarkadas rushed down. Jamnadas was lying unconscious on the road and had received injuries. He was removed to the hospital by the plaintiff and Dwarkadas. He expired at the hospital after about two hours.

5. The cross-examination of the plaintiff was really formal. She stated in her cross-examination that two representatives of the defendants had come to see her place of residence after the death of Jamnadas. They had asked her to show them the place from which the deceased had fallen out and she had pointed out to them a window in the drawing room.

6. Dr. A. C. Das a leading practitioner in homeopathy in Bombay was examined on behalf of the plaintiff. He is practising in Bombay for the last 46 years and he knew the deceased Jamnadas as he had treated him in 1948-49. The deceased had gone to the consulting room of the witness when he was suffering from chronic diarrhoea. He was not suffering from any other disease.

In January 1951 the witness had issued a certificate about his haying treated the deceased in 1948-48. In that certificate the witness had stated that Jamnadas used to suffer from diarrhoea occasionally and has been treated by him during the years 1948-49. The witness went on to say that what he had stated in the certificate was true. There was no cross-examination of this witness.

7. Dwarkadas Champsey the elder brother of the assured was examined. He stated that he and the deceased were brothers and members of a joint Hindu Family. They were both carrying on business in partnership as share and stock brokers and exchange brokers. In February 1950 Jamnadas was in financially sound position.

Dwarkadas went on to state that after Jamnadas's death a suit by way of originating summons was filed for accounts of the partnership and a consent decree was taken in that suit and a sum of about twelve lacs of rupees came to the estate of Jamnadas. Jamnadas was ordinarily keeping good health and was not suffering from any disease at the time of his death. On the day of the incident both Jamnadas and the witness were at the pedhi which was on the third floor of the same building. At about a little before 6 P. M. Jamnadas went to his floor and so did the witness.

After sometime the witness had again gone to the pedhi. When he was there was a sudden uproar and people were shouting that a boy had fallen out of a window of the building. When he was about to go down he was joined by the plaintiff. Jamnadas was lying on the road and was unconscious. He had received injuries on his head and legs and was bleeding from his nose. He was removed to the Hospital. Some treatment was given but he died at about 9 P. M.

The witness was present at the hospital all the time. He went on to state in his evidence-in-chief that Jamnadas had no reason or occasion for committing suicide in his cross-examination he was asked to produce the correspondence prior to the filing of the partnership suit. He had not brought the correspondence with him in Court but the same was shown to the learned counsel for the defendants a little later during the course of his cross-examination.

In his further cross-examination he stated that there had been no correspondence between him and Jamnadas about any partnership dispute at any time. He added that there was no dispute whatever between him and Jamnadas at any time. This was all the cross-examination of the witness directed on behalf of the defendants.

8. In answer to me Dwarkadas stated that the partnership between Jamnadas and the witness was subsisting at the time of Jamnadas's death. Till the last day of his life Jamnadas was attending to the business. Jamnadas was on very good terms with his wife. On 14th February and prior to that Jamnadas did not appear at any time worried or upset. He was quite all right and was normal and cheerful.

9. Before Mr. Vakeel, learned counsel for the plaintiff closed his case the parties agreed that the injuries received by the plaintiff's husband on 14-2-1950 were:

'Crushed compound fracture of both bones of right leg was noted. A simple fracture of right thigh-bone and right upper arm bone were also found. There was blood coming out of nose. A contused lacerated wound 3/4 inch long 1/4 inch wide bone deep was found just outside the right eyebrow.'

10. Before closing his case learned counsel for the plaintiff applied for an adjournment of the hearing on the ground that Dr. Shah who could give evidence about the injuries received by the de-ceased was not in Bombay. The learned counsel for the defendants thereupon stated that the defendants admitted that the multiple injuries and deep Shock received by the deceased on 14-2-1950 had resulted in and caused the death of Jamnadas. Mr. Mody further stated that he was making the admission because Dr. Shah had given his evidence before the coronor & had stated that the multiple injuries and deep shock had resulted in and was the cause of the death of Jamnadas.

11. The parties were also agreed that the height of the deceased was live feet three and a half inches.

12. The defendants examined Dr. Jamshed Contractor an officer in their employment. He had taken certain measurements of the window in the drawing room on the fourth floor of Champsey Building. Both the windows in the drawing rooms were of the same dimensions. The height of the right-side window from the flooring of the room was three feet and four and a half inches; the height included the sill of the window. The window was three feet eight inches wide and two feet eleven and half inches high. Witness stated that outside the window there was a parapet running level with the sill of the window, the combined breadth of the sill and the parapet being about one foot and ten inches.

13. Dr. Keki Sorabji Masalawalla was examined oil behalf of the defendants. He is a surgeon practising in Bombay. He is an M. S. of the University of Bombay and an P. R. C. S. of the Edingburgh University. He is a specialist in orthopoedic surgery. In his evidence he stated that the centre of gravity of a human body lies at the level of the second sacral vertebra. This centre of gravity roughly works out as being at about H inches to 2 inches above the mid-point of the vertical height of the body. He was then asked in his evidence-in-chief the following question:

'Supposing an individual 5ft. 3 1/2 inches tall was standing near a window the height of the sill whereof was 3 ft. 4 1/2 inches from the floor level and there was a parapet and the combined width of the sill and the parapet was one foot ten inches, what arc the chances of the man falling out of the window?'

The question was disallowed by me because it was not for an expert to tell the Court what would be the chances of a man falling out of the window from which the assured was said to have fallen out. This was fill the evidence led on behalf of the defendants.

14. On behalf of the plaintiff it was argued by Mr. J. H. Vakeel that this must necessarily be presumed to be a case of accident. It was stated that although in the written statement the defendants had stated that the circumstances of the case plainly indicated that it was a case of suicide and that they had certain information which cast grave doubts on the fall of the deceased being accidental and rather pointed and confirmed the belief of the defendants that the fall was suicidal no evidence whatever was led on behalf of the defendants nor was any cross-examination of the witness examined on behalf of the plaintiff directed to establish or even to suggest the possibility of any such circumstance except the Height of the window and the breadth of the window sill and parapet.

It was further stated that the evidence led on behalf of the plaintiff truthfulness of which had not been questioned in cross-examination established that the deceased at the time of his death was a wealthy person in good health and one who had no occasion or reason to commit suicide. Reliance was placed by learned counsel on certain general observations made by the Court in 'Harvey v. Ocean Accident and Guarantee Corporation' (1905) 2 Ir. R. 1 (A), a case decided by the Court of Appeal in Ireland.

In that case H insured his life with the defendants by a policy which became a claim if the insured sustained any bodily injury by an accident from violent, external and visible means or cause and died solely from the effects of such accident. The policy contained a condition that it would not extend to death by suicide end a condition that in the event of any dispute arising between the Company and the claimant it should be referred to arbitration. The insured was last seen alive in Cork about 7 P.M. on 1-4-1902.

On 20-4-1802 his body was found in the River Lee without any marks of violence. At the Coroner's inquest very little evidence was led and the jury returned a verdict 'found drowned'. The Company refused to pay and the matter was referred to arbitration. The arbitrator found that the death was caused solely by drowning, but he found some difficulty in determining certain questions of law which arose for his determination.

There was a Case Stated to the Court for determination of certain question formulated by the arbitrator. It is not necessary to summarise the facts which came up for consideration before the Court since learned counsel for the plaintiff has merely relied on certain general observations made in the case. The matter was carried to the Court of Appeal from the decision given by the Court of the first Instance.

The view was expressed by Holmes L. J. Cat page 37' of the Report) that where death can only reasonably be accounted for in one of two ways, by accident or design, the innocent cause ought to be presumed as against what would be prima facie a crime and that this presumption against crime is applicable in all civil actions. On the same page of the Report the learned Lord Justice cited with approval a statement from Taylor on Evidence which is as follows:

'It has been held in all civil actions (e.g. in an action on a policy of assurance) that where there is no evidence as to its cause a death must be presumed to have been natural, and not to have been suicide, since suicide is a felony.'

Stated very briefly the case as presented on behalf of the plaintiff is that in view of the fact that the assured had no cause or occasion whatever to commit suicide and the fact that there is no positive evidence at all as to the cause of death the Court must act on the presumption that in such a case death must have been accidental and not by design.

15. On behalf of the Insurance Company it was firstly argued by Mr. N. Mody that as the defendants had not raised any issue about the death of the assured having been suicidal the real issue was whether death was accidental within the meaning of the relevant clause in the policy of insurance. It was urged that the onus of establishing that death was accidental was on the plaintiff and the plaintiff had failed to discharge that onus.

Learned counsel, in answer to me accepted the position that the evidence on record established that Jamnadas had fallen out of a window on the fourth floor of Champsey Building where he was residing and had received serious injuries and met his death as a result of the injuries so received by him. The argument firstly pressed for my acceptance, however, was that the Accident Clause in the policy did not apply to any and every case of accidental death but was restricted only to a case where the assured had sustained 'any bodily injury resulting solely and directly from an accident caused by outward violent and visible means. ......

The argument proceeded that bodily injury caused by a fall from a fourth floor window resulting in death cannot on a proper construction of these words in the policy be regarded as bodily injury solely and directly from an accident caused by outward violent and visible means. This contention as I have already stated was raised by the defendants in their written statement. I must confess that it was not without some difficulty that I could follow this contention raised by the defendants in their pleadings and which was sought to be founded on construction of the relevant words used in the policy which I have quoted above.

The argument as presented by learned counsel was that properly read the clause can apply only if the accident -- which it was said in the present case was the fall -- was caused by any outward violent and visible means. It was urged that there was no evidence to show that the fall was caused by any outward violent and visible means. In answer to a question put by me during his argument learned counsel stated that if the fall was caused by sudden giddiness or by the assured for any cause foolish or otherwise suddenly losing his balance, e.g., by rashly leaning out of the window that would not be an accident covered by the policy.

It was said that in such a case the fall cannot be said to have been caused by any outward violent and visible means. It was further said that the words 'caused by any outward violent and visible means' have to be read only with the word 'accident' immediately preceding them and not with the words 'bodily injuries' contained in the clause and that if the fall was not caused by any outward violent and visible means the risk did not attach.

16. Now in the first place as I shall presently point out this is not a correct meaning of the clause and even if it were one of two or more possible ways of reading it I would very much hesitate before acquiescing in any such strained construction of the clause because such a construction would exempt the insurers on many occasions of likely occurrence, some of which I put to learned counsel in the course of the argument.

Illustrations of this nature can readily be multiplied but I shall mention only one more. A person walking on the side of the railway line for some ' unaccountable reason falls on the line and is run over by a train. Can it be said in such a case that although he received fatal injuries no risk could attach under a policy of the nature before me and that in every case of accidental fall resulting in death it must be established by those claiming under the policy that the fall was caused by any outward violent and visible means?

17. The clear fallacy underlying the present contention is that it assumes that in such a case the fall alone is the accident. The accident in the above illustration in my judgment is not solely the fall but also the fatal bodily injuries that may be received by being run over by the train.

In the case before me the accident was not merely the fall but the fall and the consequential fatal serious bodily injuries and these were indisputably caused by outward violent and visible means. The fall again is not merely dropping out of the window but the whole happening of dropping down from the window. The injuries in such a case are not independent of the fall but a concomitance of the same. Of course if the clear meaning of the clause were as strongly urged before me on behalf of the insurers I should have given effect to the same even though it might have been very hard upon those claiming under the policy.

If I had found myself compelled to accept the construction and meaning urged on behalf of the insurers I should not have hesitated to use the oft-quoted words of Lord Esher in 'Cole v. Accident Insurance Co.' (1899) 5 T. L. R. 736 (B), where it was said: 'I hold that this is a policy not to be praised and people ought to be warned against insuring under policies in that form'. And even if I had felt that there was ambiguity in the policy I should have followed the rule that words ought to be construed 'contra proferentes' and held that the insurers should be held liable because they had not clearly exempted themselves.

18. But I am unable to read the clause as Mr. Mody would want me to do. The way I read the clause is that death of the assured must be caused by bodily injury solely and directly accidental and this must be caused by outward violent and visible means. Indubitably in this clause there is an attempt to define the event assumed against by a form of words common in insurance policies of this nature.

But the words, in my judgment, aim only to emphasize that the death must not only be accidental; it must be caused by violent, external and visible means. These expressions 'violent', 'external' and 'visible' have come up for consideration before the Courts in England and it has there been held that the word 'violent' is used in this connection to express antithesis to 'without any violence at all'. The word 'external' expressed antithesis to 'internal'. Any cause which is not internal must be external. The injury need not be external There may be nothing on the surface of the body to disclose its existence. The word is intended to make it clear that causes such as disease which may arise within the body of the assured are excluded from the scope of the policy.

The decisions of Courts in England are to be found quoted and summarised in Halsbury's Laws of England, (2nd Edition) Vol. 18, at page 535, para 849, to which my attention was drawn by learned counsel on either side. It is there stated that where the actual cause of the injury is external the fact that it is brought into operation by some internal cause has to be disregarded. Thus, if the assured is seized by a fit and is drowned or falls in front of a train and killed death is due to external cause.

As to 'visible' it has been held in England that any cause which is external is visible within the meaning of the policy. The statement of law referred to above clearly goes to support the view that injuries received from a fall must be regarded as external injuries. It also appears that the words 'external, violent and visible' have been given wide meaning by Courts in England and have been regarded practically as co-extensive with the word 'accidental'.

It is also clear that in most of the cases cited in support of the above statement of law from Halsbury's Laws of England the decisions were mainly on the question whether or not the particular injury was caused by accidental means.

19. For all these reasons I fail to see any substance in the present contention of the insurers which, in my opinion, was ill-founded and rested on a strange and strained construction of the words under consideration. I do not question the right of the insurers to insist on a strict enforcement of the stipulation contained in this clause but I am not aware of any principle or authority which lends support to the present contention.

My attention has not been drawn to any authority which may support or even encourage any such contention. The contention is not supported by any principle or authority or any rule of grammar or canon of construction and must be negatived.

20. The real question to be determined in this case, however, is whether the fall which resulted in the death of the assured was accidental or not. I may at the outset observe that there is no suggestion that the fall was caused by the wilful or criminal act of any third party. I may incidentally permit myself to add that there is authority of the Courts in England that an injury caused by the wilful or even criminal act of a third person is to be regarded as accidental for the purpose of the policy provided the assured is not a party or privy to the act. Therefore, the fall was either accidental or suicidal.

That is the crucial point that arises for my determination. It was argued by Mr. Mody that on the facts and circumstances of this case no presumption at all not even an initial presumption, can be raised that the death was accidental. It was said that before any initial presumption of accident can arise or be raised the Court must consider and weigh all the facts and circumstances of the case.

Learned counsel relied on Section 114, Evidence Act and argued that before any initial presumption can be raised as allowed by that section the Court must consider all the facts of the particular case. As I read the section it does not lay down any such rule. Even some facts relating to a particular case may be sufficient to induce the Court to presume the existence of certain other facts. Any presumption under Section 114, Evidence Act is rebuttable and the presumption can always be rebutted by reference to certain other facts.

But if the initial presumption as permitted under Section 114 can be raised only after consideration of all the facts of the case I do not see how there can be any question or scope for rebutting that presumption. The section deals both with presumptions on which the Court may decide to act after consideration of the whole of the evidence as well as initial presumptions.

The argument proceeded that if no initial presumption can be raised in this case there was no evidence to show that the fall was accidental and the plaintiff must, therefore, be held to have failed to discharge the onus that rested on her.

21. Under our law presumption is a generic term which includes presumptions juris et de jure, whose very nature is to exclude all proof against, what they assume as true as well as every sort of rebuttable presumption such as rebuttable presumptions of law, strong or violent presumptions of fact, mixed presumptions of law and fact, as well as those arising from evidence direct or presumptive which shift the burden of proof to the other party.

22. The rule regarded as well established in English law is that no person shall in the absence of criminative proof be supposed to have committed any violation of criminal law whether malum in se or malum prohibitum; and this presumption holds good in all civil and other proceedings for whatever purposes originated.

It is true that suicide is regarded as felony under the criminal law of England, whereas under our criminal law only attempt to commit suicide is an offence. This difference to my mind is unimportant and I am not aware of any reason why a presumption should not be raised against death by design, and in favour of an innocent cause where death can only reasonably be accounted for in one of the two Ways.

23. There is no prescriptions juris relative to accidental death in the abstract but where it is established that a person died of a cause such as drowning or a fall from great height presumption against violence or suicide must be raised and in the absence of any evidence in rebuttal would be allowed to prevail. A case of this nature may or may not present a mass of facts and circumstances.

Although not prepared to subscribe to any rigid or unbending rule when dealing with the question of permissive presumptions I do take the view that where the question for determination is whether death was caused by accident or design the initial presumption must be in favour of death by innocent cause.

In the absence of coercive reasons to the contrary or any binding authority I have reached the conclusion that in the case before me such a presumption can and ought to be raised. Of course such a presumption like all other rebuttable presumptions may be dislodged by showing facts and circumstances which may be sufficient to nullify the probative value of the presumption, a presumption may be rebutted by presumptive as well as direct evidence.

The strength of the presumption must obviously vary with the facts and circumstances which give rise to the same since presumptive reasoning extends over a vast field. It is hardly necessary to add that presumption of the nature under consideration, when it arises, is entitled to great weight, and, when there is no other evidence, is decisive in a civil case.

To go to the purely practical, the ultimate decisive question that remains for my consideration is whether the defendants are able to point out the requisite evidence that may have the effect of encountering the initial presumption of the death of the assured being accidental or are able to rely on some presumptive evidence which may be sufficient once again to shift the onus of proof which the initial presumption had the effect of shifting on to them.

24. On this determinant aspect of the case it was urged on behalf of the insurers that the relative heights of the deceased and the window and the breadth of the parapet were facts so important that the only inference possible was that the deceased must have deliberately jumped out of the window to put an end to his life. It was said that these facts were by themselves sufficient to rebut any presumption of accidental death,

I put it to learned counsel that even in case of window-sills of safe heights accidents could occur and that it was not unknown that at times persons impulsively rashly or foolishly leaned out of windows disregarding or forgetting all considerations of danger or personal safety. Persons standing near windows are known to have done, out of curiosity or cupidity things which any prudent man would characterize as crazy.

Springs of human action do not always flow from sources influenced by prudence & caution. When I put some instances of this nature to learned counsel for the defendants the answer was that there was no evidence led by the plaintiff as to the nature of the alleged accident and the Court would not rely on what may at the highest be matters of conjecture.

Now conjecture or suspicion are not modes of proof and I would certainly refrain from founding any conclusion on a matter of conjecture or suspicion. But I am dealing here with a presumption and considering whether there is evidence that may be sufficient to dislodge that presumption. Therefore in such a case when a fact or circumstance is relied upon as of sufficient presumptive value I have to test it in all its phases and aspects.

After giving careful consideration and giving utmost weight to the same I am unable to regard the relative heights of the deceased and the window and the breadth of the parapet as sufficient to dislodge the presumption of innocent death. This presumption is one which the policy of law and the ends of justice require to be made and it is not possible for me to regard it as rebutted by the mere-naked facts of the relative heights of the assured and the window and the breadth of the parapet.

I would net minimize the value of this evidence and were these facts coupled with some evidence indicating motive or preparation for suicide the position might well have been different. These bare facts about dimensions and height by themselves are in my judgment not sufficient to tilt the scales in favour of the insurers and particularly so when the evidence before me demonstrates that the assured when he met his death was a young married man with four children and domestically quite happy, and that he was a wealthy businessman in very affluent circumstances and in good health and had no known reason or occasion to put an end to his life.

25. For all these reasons, I have finally reached the conclusion that on a consideration of all the facts and circumstances of this case it must be presumed that the death of the assured was accidental. I have also reached the conclusion that the plaintiff has succeeded in discharging the onus that rested on her.

26. My answers to the issues are :

Issue No. 1 in the affirmative.

Issue No. 2 in the affirmative.

27. In the result there will be a decree in favour of the plaintiff for Rs. 50,000/- with interest thereon at six per cent per annum from 1-11-1951 costs of the suit and interest on judgment at four per cent.

28. Suit decreed.


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