DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.204/31.12.2007 Decided on : 05.11.2008 1.Sukhwinder Kaur w/o Lt.Sh.Bhartha Singh S/o Sh. Sita Ram, Ward No.8, Near I.T.I., Budhlada, District Mansa. 2.Maninder Kaur 3.Akashdeep minor son of Bhartha Singh S/o Sh. Sita Ram, Ward No.8, Near I.T.I., Budhlada, District Mansa under the guardianship of Sukhwinder Kaur w/o Lt.Sh.Bhartha Singh S/o Sh. Sita Ram, Ward No.8, Near I.T.I., Budhlada, District Mansa. ..... Complainants. VERSUS The Oriental Insurance Company Limited through its Branch Manager, Feroze Gandhi Market, Ludhiana. ..... Opposite Party. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.Varinder Kumar Singla, counsel for the complainants. Sh.P.K.Arora, counsel for the opposite party. Before: Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER: Sukhwinder Kaur, Maninder Kaur and Akashdeep (hereinafter called as the complainants) have filed the present complaint against the Oriental Insurance Company Limited, Ludhiana, through its Branch Manager, The (hereinafter called as the opposite party) for issuance of a direction to the opposite party to pay the insurance claim of Rs.1,00,000/- along with interest and Rs.20,000/- as compensation and Rs.5,000/- as litigation costs. Brief facts of the case are that Bhartha Singh (No.1077/PAP) Contd........2 : 2 : husband of complainant No.1 was employed as S.I. in the 1st Indian Reserve Battalion at Patiala. He had obtained a Group Insurance Policy bearing No.126623 dated 8.3.2006 in the sum of Rs.1,00,000/- from the opposite party and during his life time he had been paying the insurance premiums regularly. He unfortunately died on 13.04.2006 at the railway crossing No.18, Patiala. All the complainants are the legal heirs of the insured. The OP did not pay the insurance claim to the complainants, as such, they had sent legal notice dated 1.10.2007 and 17.11.2007 to them. But neither any reply nor any payments were made by the OP . The complainants No.2 and 3 are being looked after by complainant No.1(Sukhwinder Kaur) and as such the present complaint has been filed by her as a guardian of Complainants No.2 & 3. Due to the act of the OP, the complainants alleges to have suffered mental, as well as physical harassment. Hence this complaint. Opposite party filed its version taking the legal objections that complainant has no cause of action, no locus standi, the complaint involves voluminous evidence, the complainant had not come to the Forum with clean hands and the complaint has been filed on frivolous and vicious grounds. On merits the fact regarding the obtaining of group personal accident policy by Bhartha Singh and his death was admitted. It was contended that after the death of Bhartha Singh, the claim was lodged which was duly registered, entertained and processed. M/s Calyx Enterprises Ludhiana was appointed as investigator to investigate the fact of the death of life assured Bharta Singh. After thorough investigation by the investigator, he prepared his report confirming that the life assured had died due to railway accident when he was crossing the railway line near Gate No.17 on 13.4.2006 at 10.20 am. The crossing of the railway line is prohibited by law. The claim was also got investigated by National Insurance Co. through Mr.D.S.Chada, Ex.Add.Dy.Inspector General (vigilance) who has reported that there is no railway signal wire in the gate Contd........3 : 3 : area on both sides of the rail track and the wires towards the bus stand have been put in a 20' pipe to take it away and the pipe is fitted underground along the rail line. It has also been reported that Gate No.18 has been closed due to construction of over bridge and the unmanned gate has been closed by putting iron rods on both the sides. As per record Bhartha Singh met with the railway accident between gate No.17 and 18 while crossing the railway track. He was committing offence of trespassing when he met with the accident. Crossing of railway line from prohibited area is prohibited by law. It was denied that the claim of the complainant was wrongly repudiated. It rather reiterated its stand and contended that the complainant was not entitled to any reimbursement as per investigation report and on the basis of record. The OP has further contended that reply was duly given to the notice of the complainant. All other allegations were denied and a prayer for dismissal of the complaint was accordingly made. Both the parties have led their respective evidence in the shape of affidavits and documents. We have considered the arguments advanced by the learned counsel for the parties and carefully scrutinized the entire evidence placed on record by them. Exhibit OP-7 is the copy of the insurance policy obtained by Bhartha Singh, deceased husband of the complainant from the opposite party. Ex.OP-3 is the report of the Surveyor/loss assessors through which he has conformed from the document submitted to the insurer as well as from the statement of the wife of the deceased and from the railway police station, Patiala, that the deceased died due to railway accident when he was crossing the rail line near gate No.17 on 13.4.2006 at 10.20 am. He had further concluded that crossing of rail line is prohibited by the railway. If a person voluntarily consents to run a risk he has no right of action against anyone for injuries suffered as result of his action . In accordance with Contd........4 : 4 : the report of the surveyor and also that the claim falls under the exclusions of the policy, the claim of the complainant was repudiated vide letter dated 13.11.2006 (Ex.OP1). The insured person died in his own involving in crossing the railway line from the prohibited area. The counsel for the OP has further contended that under the exception clause of the insurance policy (Ext.OP7) the claim of the complainant was rightly repudiated. To rebut this stand of the OP, the complainant has placed reliance upon Exhibit C-2, Report No.28 dated 13.4.2006 u/s 174 in which in the column of opinion of SHO it has been mentioned that, In my opinion the cause of death is due to railway accident. Further there are Exts.C-3 & C-4, legal notices dated 1.10.2007 and 17.11.2007 served upon the OP by the complainant. The complainant has stated that Bhartha Singh had met with a railway accident which took place on Railway Crossing No.18 at Patiala. In Ext.C-8, affidavit of Sukhwinder Kaur, she has again deposed that his husband died due to railway accident on the railway crossing at Patiala. The complainant has further brought on record Ext.C-9 affidavit of Piara Singh, paternal uncle of deceased life assured, who has also deposed that on 13.4.2006, Bhartha Singh died due to railway accident on Railway Crossing at Patiala. We have given our thoughtful consideration to the respective arguments. The OP in its repudiation letter Ext.OP1 has conveyed that the insured person died in his own involving in crossing the railway line from prohibited area. In our considered opinion, the OP has failed to prove on record any evidence, more so cogent one, to show that the life assured was crossing the railway line when he met with the accident. From the documents placed on record by the complainant, as well as OP, it cannot be ascertained as to whether life assured was actually crossing the railway line when he met with the accident or got struck in the signal lines near the railway lines and was hit by the passing train. . Even no evidence from the Contd........5 : 5 : railway authorities in this regard has been produced and proved by the OP to support his stand. It is well settled law that in the absence of any cogent and convincing evidence, benefit of doubt is to be given to the complainant. As such, we have no hesitation in giving the benefit of doubt to the complainants. The OP is thus held to be deficient in rendering service and the complainants are entitled for the insurance claim. As a consequence of the foregoing reasons, the complaint is allowed with a direction to the opposite party to pay the insurance claim of Rs.1,00,000/- to the complainants. The OP is also burdened with Rs.2000/- as compensation and Rs.1000/- as costs of litigation. Compliance of the order be made within two months from the date of receipt of the copy of the order which shall be supplied to the parties free of charges under the rules and file be arranged, indexed and consigned to record. Pronounced: 5.11.2008 Neena Rani Gupta, Sarat Chander, Member. Member.
