CONSUMER DISPUTES REDRESSAL FORUM – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110 016

Case No. 70/2005

SHYAMBIR SINGH (DECEASED)

Through

CHANDER BHAN SINGH (Father)

SVR STD PCO,

STALL NO. 4, BASRURKAR MARKET

MOTI BAGH-1, NEW DELHI-110021

…………. COMPLAINANT                                                                                     

                                    VS.

NATIONAL INSURANCE CO. LTD.

Branch Office: Sahyog Building,

58, Nehru Place,

New Delhi-110019

Through its

Sr. Br. Manager.

      …………..OPPOSITE PARTY

Date of Order : 23.09.2016

O R D E R

A.S. Yadav – President

This complaint is filed by father of the deceased Shyamvir Singh. On 14.05.2001, deceased was run over by North East Express train at railway crossing Khurja Jn. Station (UP). It is not in dispute that the aforesaid scooter was duly insured with OP for the period 03.01.2001 to 02.01.2002 for IDB of Rs. 31,600/-. The scooter was totally damaged. The complainant alleged the compliant in respect of aforesaid scooter. It is stated that OP assessed the claim amount as Rs. 28,500/- and paid Rs. 8000/- by way of sale proceeds of salvage of the insured vehicle. This complaint is filed for get compensation of Rs. 20,500/-

Claim is decided by OP on the ground that there was no deficiency of service on the part of OP in fact the accident was caused due to the negligence of the insured and he caused the railway crossing while the gates of the crossing were closed by the gateman as such the OP was not liable to pay compensation.

It is further stated that in fact the complainant was duly informed about that repudiation of claim on this very ground vide order dated 22.05.2002  and finally vide order dated 07.1.2003. The complainant was informed about the repudiation of the claim.

We have heard the learned counsel for the OP and carefully gone through the submission of the parties.

We have only point of consideration is that where OP was justified in repudiation claim on the ground that accident was caused due to negligence of the insured as he was trying to cross the railway crossing while the same was closed in the written submissions. OP has specifically stated that in fact after receiving information about the claim, the surveyor was appointed. The surveyor pointed that since railway crossing was closed by the gateman at that time when deceased was trying to cross the railway crossing and at that time, his scooter collided with the express train. Hence, it is evident and accident was caused due to the negligence of insured. It is significant note that OP has not tried the report of the surveyor on record. OP has stated that opinion in the matter from Ms. Shantha Devi Raman, Advocate i.e. report is dated 31.08.2002. It is usefully to refer to his report wherein it is stated that “while going through the police papers, it appears that the Railway level crossing which the deceased was trying to cross at the time of accident is manned by gateman. Secondly, it also appears that the level crossing was closed at the time of the accident. The photocopies of the police papers are not clear and as they are all handwritten ones, they are not fully readable. I tried to read to the extent possible and have found out these two facts. However, I request you to go through the police papers from your end and confirm these two aspects of the accident. If you are also unable to read it yourself, you may call for the original from the insured and get the same translated and may forward it to me. I will reconfirm my opinion or amend my opinion accordingly if necessary.”

The entire report is hearsay as he has referred to police report and according to him and same is not original. We have also gone through police report place on record which nowhere provides that the deceased was crossing closed railway crossing what the report says is that the investigating officer reached at the site, the gate was closed, obviously the gate had to be closed. The dead body and damaged scooter were lying on the railway track. Even, investigating officer has not recorded the statement of the gateman to show that the gate was closed and the insured was trying to cross the railway crossing with the scooter while the railway gate was closed. No photographs were place on record to show that the railway crossing gate was closed even, if the gate was closed there was occasion for a scooterist to cross through railway track.

The entire case of OP is based on hearsay. There is no justification the repudiation the claim. It is clear cut case of deficiency in service.

OP is directed to pay sum of Rs. 20,500/- along with interest @ 9% p.a. from July, 2001 and he further directed to pay sum of Rs. 5000/- for compensation and Rs. 5,000/- towards litigation expenses.

Let the order be complied with within one month of the receipt thereof.  The complaint stands disposed of accordingly.

Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.

             (D.R. TAMTA)                                                         (A.S. YADAV)

                 MEMBER                                                               PRESIDENT