J U D G E M E N T

This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service, as well as, unfair trade practice on behalf of the Ops, specially, against the OP-1&2 as the Insurance Company being the OP-1&2 have repudiated her legitimate insurance claim illegally and on flimsy pretext.

The brief fact of the case of the complainant is that her husband, since deceased, was covered under a policy issued by the Insurance Company through the OP-4. The

1

policy was commenced during the lifetime of her husband i.e. on and from 01.02.2001; the policy was covered under loss of limbs due to accident and/or accidental death. Policy sum assured was of Rs. 1, 00,000=00 and the date of expiry of the policy is on 31.01.2016. The complainant being the wife of the insured was declared as nominee in the said policy. Unfortunately the husband of the complainant died due to train accident on 25.4.2013 at 9.45 am at the place between Gangatikuri and Siblone. Thereafter the Katwa Railway Police lodged an FIR against the unnatural death of the husband of the complainant and Katwa Police Station issued a final report which was registered as Katwa GRP UD Case no. 12/2013 dated 25.4.2013. Thereafter the Post Mortem report of the complainant’s husband was issued by the Medical Officer of Katwa S.D. Hospital, Burdwan. The complainant and her family members got much shock due to sudden death of her husband. The complainant was totally unaware about the existence of the policy in the name of her husband issued by the Insurance Company. All on a sudden when the complainant found the same came to learn about the policy and she found that her name was declared as nominee in respect of the said policy. Without any delay the complainant intimated the Insurance Company about the death of her husband by issuing letter dated 14.11.2013 requesting to make arrangement for settlement of the claim lodged by her as early as possible. The Ops have received the claim form along with all the documents from the complainant on 19.11.2013. The OP-3 sent a letter to the complainant on 21.11.2013 requesting to return the original claim form duly completed and signed by her along with some other documents stated in the said letter to process the settlement of the claim of the complainant and the said copy was also forwarded to the OP-4. Thereafter the OP-1 sent a letter to the complainant dated 30.12.2013 stating that they referred to the claim docket which has been received by them through the GTFS and regretted to note unexpected sad demise of the insured. The OP-1 had also stated in the said letter that they have scrutinized the papers submitted and requested the complainant to arrange for sending them some papers for further action towards processing of the claim. Thereafter the OP-1 upon receipt of all the documents from the complainant appointed an Investigator to investigate the matter and to submit a report before the Insurance Company. The Investigator sent a letter to the complainant on 02.5.2014 stating that he has been appointed by the Insurance Company for investigation in connection with the death claim lodged by the complainant and requested her to co-operate with him for proper investigation. Thereafter the Investigator visited the address

2

of the complainant and the complainant all along extended her co-operation for investigation. But unfortunately the OP-1 repudiated the claim on 08.9.2014 by issuing repudiation letter on the ground that on perusal of the claim file it was found that the age of the insured was declared as 52 years at the time of taking out the policy in year 2001, which appears to be a wrong declaration on the part of the insured. The OP-1 has also stated in the said letter that the insured was working in the Eastern Railway as P Man/Abgm and his date of birth was 06.8.1940. Then in the year 2001 he might not be 52 years of age. He was in the age group of 61 years at the time of taking out the policy. The group of JPA policy was restricted to be issued to the person between the age group of 5 to 52 years. Hence the age of the husband of the complainant was declared wrongly to take the policy and in view of the aforesaid violation and suppression of material fact, as well as, wrong declaration of the age in the proposal form, the claim stands repudiated. According to the complainant the Op-1 had repudiated the claim on 08.9.2014 illegally an arbitrarily because as per PPO No. 0201254105 it has been categorically stated that the date of the birth of the husband of the complainant was 06.8.1948 but the Ops according to their own way and suppressing the actual date of birth repudiated the claim of the complainant by misrepresenting the date of birth of the husband of the complainant mentioning that the date of birth of the insured was 06.8.1940, but the actual date of birth of the insured was 06.8.1948, which clearly indicates deficiency in service, as well as, unfair  trade  practice on the part of the Insurance Company. Thereafter the complainant requested the Insurance Company on several occasions to consider the claim of the complainant stating that there was something wrong on the part of the Ops regarding the date of birth of the husband of the complainant, but the Ops did not pay any heed to the request of the complainant and till date they did not reconsider the claim of the complainant, which amounts to deficiency in service and unfair trade practice on behalf of the Insurance Company. Therefore having no alternative to get relief, the complainant being compelled has filed this complaint before this ld. Forum praying for direction upon the Ops for making payment of Rs. 1,00,000=00 towards the death accidental benefit as per policy condition, Rs. 50,000=00 as compensation due to mental pain, agony and harassment and Rs. 20,000=00 as litigation cost.

The POC have been contested by the OP-1&2 by filing written version wherein it is stated that the husband of the complainant being the insured died due to alleged train

3

accident on 25.4.2013 while he was on the way to his home at Ambalgram from Siblun railway station side. He was walking alone inside of the railway line. It was a single broad gauge railway track from Katwa towards Azimganj. When the insured was on his way just at that time he was run over by a running train i.e. Intercity Express and expired on the spot, which is appeared from the investigation report submitted by the Investigator on 24.6.2014 appointed by the Insurance Company. It is also appeared from the police final report that the deceased insured was suffering from mental problem due to old age and somehow he reached at railway track in front of running train and run over. Be it mentioned as per railway traffic regulation nobody is entitled to enter in the restricted area, which is punishable offence and for which the railway authority was not liable if any accident or damage occurs. Willful negligence, intentional injury is not admissible as per policy condition. As per policy provision the Insurance Company shall not be liable for making payment of compensation under the policy in question in respect of death, injury or disablement of the insured from the intentional self-injury, suicide or attempt to suicide, whilst under the influence of intoxicating liquor or drug directly or indirectly caused insanity, arising or resulting from the insured committing any breach of law with criminal intent. Moreover in this particular case the alleged accident took place due to train accident, which is under the jurisdiction of railway authority and the insured was under obligation to abide by the railway rules and regulations. In this particular case the alleged accident was occurred over the railway track by running train which will come  under the liability of the railway authority as per the norms and for this reason the Insurance Company has no liability to pay any amount towards compensation to the complainant for the alleged death of the insured. It is further submitted by the OP-1 the claim of the complainant repudiated due to suppression of material fact as the deceased submitted wrong declaration of his age in the proposal form. On perusal of the claim file it was found that the age of the insured was declared by the insured as 52 years at the time of taking out the policy in the year 2001, which appeared to be a wrong declaration on his part. The insured was working in the Eastern Railway as P Man and his date of birth was 06.8.1940 and as such in the year 2001 it might not be of 52 years of age. He was in the age group of 61 years at the time of taking out the policy. The JPA policy was restricted to be issued to the persons between the age group of 5 to 58 years. Be it further mentioned that as per voter identity card of the deceased the date of birth is 1944. As per the death certificate and police final report the age of the deceased at the

4

time of death was 65 years. Hence the actual age of the deceased insured was declared wrongly at the time of taking the policy the year 2001 and as such there was suppression of material fact, the claim was repudiated due to such wrong declaration of his age in the proposal form. As the insured had violated the terms and conditions of the policy, repudiation was properly made by these Ops and the same was duly intimated to the complainant accordingly. Moreover, the alleged accident was occurred over the railway track by running train which will come under the liability of railway authority as per the norms and for this reason the  Insurance Company is not liable to pay any amount as compensation to the claimant. The Ops have further stated that the accident took place on 25.4.2013, but the complainant intimated about the incident by issuing letter dated 14.11.2013 i.e. long after the alleged accident without assigning any sufficient and reasonable cause for such delay. In this way also the complainant has violated the important condition of the policy in question because it is clearly mentioned ‘in the policy condition no. 1 that upon happening of any event which may give rise to a claim, under this policy, the insured forthwith give notice thereof to the Company, unless reasonable cause is shown, the insured should within one calendar month after the event which may give rise to the claim under this policy, give written notice to the company with full particulars of the claim’. In this particular case the complainant has utterly failed to intimate or give notice within one calendar month after the alleged accident and the incident was intimated after lapse of about 7 months but without assigning any sufficient cause. So, as there is violation of policy condition the complainant is not entitled to get any compensation. The Insurance Company cannot entertain any claim beyond the terms, conditions, definitions and exclusions of the policy and so the Insurance Company is not liable under the policy for payment of the claim in question. Therefore, the claim of the complainant is untenable, misconceived and vexatious and the complaint is not at all genuine one. As there was no deficiency in service, as well as, unfair trade practice on behalf of these Ops, the instant POC is liable to be summarily dismissed with cost of Rs. 10, 000=00 as per provision of the C.P. Act, 1986.

The Op-3&4 have also contested the complaint by filing written version wherein it is stated that upon getting the unfortunate death of the insured the GTFS accordingly supplied the claim form to the Complainant and the GTFS has duly submitted the claim

5

form to the Insurance Company. The duty of the GTFS is to collect premium from the approved category and remit the same to the Insurance Company and the GTFS has no liability to settle or decide any claim of the insured. The GTFS has another duty to provide the claim form to the claimant, if arises and the send the filled up form to the Insurance Company. In this case also as the GTFS has discharged its liability to the full satisfaction and as per the MOU, there was no deficiency in service on its behalf. Accordingly the OP-3&4 have prayed for dismissal of the complaint.

The complainant has filed evidence on affidavit with several documents, the OP-1&2 also filed several documents by way of firisti, the OP1&2 also filed written notes of argument.

We have carefully perused the entire record, several papers and documents filed by the contesting parties in support of their respective contentions. It is seen by us that the husband of the complainant, since deceased, obtained one JPA policy from the OP-1&2 through the OP-3&4 on 01.02.2001 during his lifetime, the said policy was covered under the loss of limbs due to accident and/or accidental death, sum assured was of Rs. 1, 00,000=00, the policy was valid till 31.01.2016, the complainant was declared as nominee of the said policy being the wife of the insured. During validity of the policy the complainant died due to train accident on 25.4.2013, FIR lodged with Katwa Railway Police, UD Case started, final report placed, post mortem done, insurance claim was lodged by the complainant before the Insurance Company on 14.11.2013 i.e. after lapse of about 7 months from the date of death of the insured, the complainant submitted all the relevant documents along with the claim form to the OP-3&4, the OP-3&4 have duly remitted the same to the OP-1&2 for settlement of the claim, upon receipt of the claim form one Investigator was appointed by the Insurance Company, the Investigator

6

submitted a report. The allegation of the complainant is that her insurance claim was repudiated by the Insurance Company arbitrarily and illegally stating that during taking out of the policy the insured declared his age wrongly in the proposal form. The contention of the Insurance Company is that as the insurance policy and contract is based on utmost good faith, so as there was intentional misrepresentation was made by the insured about his age in the proposal form, hence, the Insurance Company has authority to repudiate any claim on that ground. It is stated by the Insurance Company is that during taking out the policy the insured declared his age as 52 years in 2001 but at that point of time he was actually about 61 years of his age and the JPA policy can be issued to the persons between the age group of 5 to 58 years only, not over the said age. The contention of the OP-3&4 is that after submission of the claim form along with relevant documents the GTFS has duly been remitted to the Insurance Company for settlement of the claim and in this respect GTFS has no role. So there was no deficiency in service on the part of OP-3&4. During hearing the ld. Counsel for the complainant has filed the copy of PPO of the deceased insured being no. 02012541105 from where it is evident that the date of birth of the insured is mentioned as 06.8.1948. Therefore, it is very difficult to hold along with the Insurance Company that the date of birth of the insured was 06.8.1940. As this is a government document based on which the family of the insured is getting family pension, we have no way to disbelieve the same. Therefore, it can safely be said that the insured during taking out of the policy did not provide any misrepresentation about his age. If the date of birth of the insured is 06.8.1948 hence in the years 2001 his age was 52 years. As there was no violation of the policy terms and conditions made by the insured at the time of obtaining the same, but the Insurance Company falsely and intentionally harassed the instant complainant for a long period. From which document the Insurance Company got the knowledge that the date of birth

7

of the insured was 06.8.1940, the same has not been placed before us. Without placing the same along with the repudiation letter, the Insurance Company had illegally and arbitrarily, as well as, whimsically has repudiated the genuine claim of the complainant. Therefore, such action on the part of the Insurance Company can be termed as deficiency in service, as well as, unfair trade practice. Be it mentioned that henceforth the Insurance Company should be more cautious and careful before any repudiation.

Though in the written version the Insurance Company have mentioned some other grounds i.e. as the alleged death took place within the jurisdiction of the railway authority, the Insurance Company has no liability, the complainant intimated the incident after lapse of 7 months and the insured was suffering from mental problem, but on those score the insurance claim of the complainant has not been repudiated, now the Insurance Company cannot travel beyond the cause as assigned in the repudiation letter in view of the doctrine of estoppels. It is an admitted fact that due to such action or inaction on behalf of the Insurance Company the complainant had to suffer long period and ultimately being compelled had filed this complaint before the court of law and in this way she incurred some expenses. So the complainant is very much entitled to get litigation cost, as well as, compensation due to unnecessary harassment from the Insurance Company.

Going by the foregoing discussion, hence, it is

O r d e r e d

 that the complaint is allowed on contest with cost against the OP-1&2 and dismissed on contest without any cost against the OP-3&4. The OP-1&2 are directed either jointly or severally for making payment of the policy sum assured of Rs. 1, 00,000=00 (Rs. One lack)

8

only to the complainant within 45 (forty five) days from the date of passing of this judgment, in default, the said amount shall carry interest @9% per annum for the default period. The OP-1&2 are further directed for making payment of Rs. 5,000=00 (Rs. Five thousand) only as compensation due to unnecessary harassment, mental agony and pain and litigation cost of Rs. 2,000=00 (Rs. Two thousand) only to the complainant within 45 (forty five)  days from the date of passing of this judgment, in default the complainant will be at liberty to put the entire order into execution as per provisions of law. With the above-mentioned observation the complaint is thus disposed of accordingly.

                              (Asoke Kr. Mandal)        

             Dictated and corrected by me.                                                                   President       

                                                                                                                      D.C.D.R.F., Burdwan

                     (Silpi Majumder)

                      Member

                 D.C.D.R.F., Burdwan

                                                                                (Silpi Majumder)

                                                                                         Member   

                                                                            D.C.D.R.F., Burdwan