Complaint under section 11, 12 and 13 of Consumer Protection Act, 1986.

Present:

For the complainant: Sh.J.L.Sood, Advocate.

For the Opposite Party No.1 : Sh.B.S.Gill, Advocate.

For the Opposite Party No.2: Sh.B.S.Gill, Advocate.

For the Opposite Party No.3: Exparte on 21.07.2015.

For the Opposite Party No.4: Sh.R.R.Arora/ Sh.M.P.Arora, Advocates.

For the Opposite Party  No.5: Sh.Ajay Mehta, Advocate.

Quorum:     Sh.J.S.Khushdil, President

                     Sh.R.D.Sharma, Member

                     Smt.Jaswinder Kaur, Member

(Sh.R.D.Sharma, Member)

          Complainant Lakha Singh has filed a complaint under section 11, 12 and 13 of the provisions of Consumer Protection Act, 1986 (herein-after referred to ‘the Act’)  against (i) Union of India, through its Secretary, Indian Railway, New Delhi (here-in-after referred to as ‘Indian Railways’)-Opposite Parties No.1 and 2, (ii)Liberty Videocon General Insurance Company Limited, 10^th Floor, Tower A, Peninsula Business Park, Ganpatrao Kadam Marg, Lower Parel, Mumbai-400013 (here-in-after referred to as ‘Insurance Company’)-Opposite Parties No.3 and 4, and (iii) District Manager, The Tarn Taran Central Co-operative Bank Limited, Tarn Taran Sirhali Road, Tarn Taran, District Tarn Taran (herein-after referred to as ‘Bank’)-Opposite Party  No.5 supported by various documents leveling allegations of deficiency of service on the part of the Opposite Parties.

2. As per the version of the complainant,  he alongwith his family members are residing in the Behak of village Lalpur, Tehsil & District Tarn Taran and the father of the complainant namely Charan Singh son of Tara Singh as per routine early in the morning was going for village from his Behak and coming back in the evening to his Behak. Complainant alleges that on 31.5.2014 while crossing the unmanned (fatik), Railway Track/ Lines, father of the complainant died in a train accident. Father of the complainant was crossing the line for going the village, then train No. 74607 from Goindwal Sahib to Tarn Train came and near K.M.No.38/6, the father of the complainant was hit with train resulting in serious injuries inflected on him and after some time, died in the way when he was taken for medical treatment. A complaint was also moved to the Railway Police as well as SHO, P.S.Sadar, Tarn Taran vide diary No.11 of 1.6.2014. Post mortem was also conducted vide PMR No. 74/CHTT/CH/2014 dated 1.6.2014. The death of Charan Singh has been caused due to the negligent acts and defaults on the part of Railway Department because of no signals in the unmanned railway crossing and as such, the Opposite Parties are liable for the payment of compensation in respect of the untimely and unnatural death of Charan Singh. Deceased Charan Singh was 70 years old and was doing agricultural work and having a milk dairy and was earning more than Rs.40,000/- per month and he was hale and hearty and he could survive upto the age of at least 90 years. Said irreparable loss and injury on account of death of Charan Singh father of the complainant can not be compensated in any manner or in terms of money, but the complainant and other family members moderately claim compensation to the tune of Rs.10 lacs from Opposite Parties No.1 and 2. Father of the complainant had also taken policy bearing No.4112-200201-13-5000004-00-000 of Sehkari Bank Bima Yozna (SBBY Claim) bearing No.193234028141653 dated 3.1.2014 and Opposite Parties No. 3 and 4 are dealing in the life insurance policies and for that purpose, they had spread out number of agents in the field for covering the life risks of common man and the Opposite Parties i.e. company in order to secure the business and for having monetary gains, usually allures and gives attractive offers to the common man and on the allurement of the Opposite Parties, the complainant and his father agreed to insure the life of Charan Singh father of the complainant through Opposite Party  No.5 vide aforementioned policy and paid the instalment of policy i.e. Rs.5000/- on 3.1.2014. The complainant also gave information to the Opposite Parties No. 3 to 5 regarding the death of his father Charan Singh, but they declined the genuine claim of the complainant.  The complainant has, therefore, prayed this Forum  to accept the complaint and to direct the Opposite Parties No.1 and 2-Railways to pay the amount of compensation of Rs.10 lacs alongwith interest and the Opposite Parties No. 3 to 5 be also directed to pay the total sum insured in the name of deceased Charan Singh. Costs of litigation amounting of Rs.22,000/-  may also be awarded to the complainant.
3. Notice of the complaint was issued to the opposite parties. Opposite Parties No.1 and 2 filed written version through its counsel, wherein preliminary objections were taken that the complaint is not maintainable because this Forum has no jurisdiction to try and decide the present complaint against the answering Opposite Parties. There exists no relationship of complainant and Opposite Parties No.1 and 2 and the complainant is not a consumer. The complainant has not come to this Forum with clean hands. The train is running on its own track and no accident could be occurred on the track. The railway track is not a passage for public. It is a personal property of Union Government of India as well as Railways Department and no one has a right to cross the railway line and to trespass.  It is also mentioned here that even a man has to cross the railway track from unmanned fatak, it is the first and formal duty of every person to check the coming of rail and cautions are displayed near every unmanned fatak. It is wrong that the father of the complainant met with an accident with train No. 74607. It is also wrong that on 31.5.2014 the father of the complainant was going to his village and hit by the train. There is no negligent act and default of the railway department as required signals/ cautions are available in the premises of railway property and there is no responsibility of answering Opposite Parties for the death of the father of the complainant.   Other allegations have been denied and it was specifically pleaded that there was no deficiency of service on the part of the Opposite Parties No.1 and 2  and the dismissal of the complaint was prayed for.
4. Opposite Parties No.3 and 4 in its separate written version also took preliminary objections that the complaint is not maintainable and the present complaint has been filed by the complainant with malafide intention and with ulterior motive to harass the answering Opposite Parties. Charan Singh father of the complainant died due to his own negligence as it is admitted fact that the deceased died while crossing railway line at the point which was not meant for railway crossing. The terms of the policy are in the nature of a contract and their interpretation has to be made in accordance with the strict construction of the contract. Thus, the words in an insurance contract must be given paramount importance and interpreted as expressed without any addition, deletion or substitute. Answering Opposite Parties further submitted that the proposal received from  The Tran Taran Central Cooperative Bank Limited i.e. Opposite Party  No.5, the answering Opposite Parties issued unnamed group personal accident policy in question thereby covering the risk of its saving bank account holders for the period from 1.5.2013 to 31.5.2014, subject to the terms and conditions incorporated and to the extent of limits mentioned therein. As per the policy, capital sum insured per person was limited to INR 1,00,000/- in case of accidental death. As there was violation of specific condition of the policy, the answering Opposite Parties had rightly repudiated the claim of the complainant. Other allegations have been denied and it was specifically pleaded that there was no deficiency of service on the part of the Opposite Parties No.3 and 4  and the dismissal of the complaint was prayed for.
5. Opposite Party  No.5 in its separate written version also took preliminary objections that the complaint is not maintainable. The answering Opposite Party  had already submitted the claim of the complainant to the insurance company which was the only duty of the answering Opposite Party  and the claim has been repudiated by the Opposite Parties No.3 and 4, there is no cause of action against the answering Opposite Party. Even otherwise, the present claim is not legally maintainable as Charan Singh died  due to his own negligence or due to the negligence on the part of the Opposite Parties No.1 and 2. It is not mentioned that the phatak when the deceased struck with the train was opened or closed. If the phatak as closed, then there is negligence of the deceased. If the phatak was opened or not in existence, then the Opposite Parties No.1 and 2 is responsible and negligence. So, the present complaint is not legally maintainable against the answering Opposite Party and Opposite Parties No.3 and 4 have rightly repudiated claim as it is not accidental death.  It is further submitted that deceased was having account in Opposite Party  No.5 bank and policy was taken under the SBBY scheme and as such, the Opposite Party  immediately forwarded the claim without any delay after its receipt. Obtaining the policy under the said scheme is admitted, but the policy was taken by the deceased himself with his own sweet desire for his own benefits.   Other allegations have been denied and it was specifically pleaded that there was no deficiency of service on the part of the answering Opposite Party  and the dismissal of the complaint was prayed for.
6. In order to prove his case. the complainant has tendered in to evidence his affidavit Ex. C.1 alongwith documents i.e. copy of repudiation letter dated 25.8.2014 Ex.C2, letter sent by Cooperative Bank dated 30.6.2014 Ex.C3, copy of death certificate of Charan Singh Ex.C4, copy of report dated 31.5.2014 Ex.C5, copy of rapat rojnamcha dated 1.6.2014 Ex.C6, copy of post mortem dated 1.6.2014 Ex.C7, copy of legal notice Ex.C8, postal receipt Ex.C9, copy of death report given by Railway authority Ex.C10  and closed his evidence.
7. To rebut the case of the complainant, the Opposite Parties No.1 and 2 tendered into evidence affidavit of Sh.Pawan Kumar, Office Superintendent Ex.OP1,2/1. Similarly, Opposite Parties No.3 and 4 tendered into evidence the affidavit of Sh. Jatinder Jain Ex.OP3,4/1 alongwith documents i.e. copy of policy Ex.OP3,4/2 and closed the evidence on behalf of Opposite Parties No.3 and 4. Similarly, Sh.Bachittar Singh, Senior Manager of Opposite Party  No.5 tendered into evidence his affidavit Ex.OP5/1 and closed the evidence on behalf of Opposite Party  No.5.
8. We have heard the ld counsel for the complainant as well as Opposite Parties and also gone through the written arguments filed by the complainant and Opposite Party  No.5 and also perused the evidence produced on record by the parties with the assistance of ld. counsel for the parties. However, written submissions by Opposite Parties No.1 to 4 have not filed despite directions issued by this Forum.
9. From the pleadings as well as documents placed on record by the parties, it is clear that Charan Singh father of the complainant had  taken policy bearing No.4112-200201-13-5000004-00-000 of Sehkari Bank Bima Yozna (SBBY Claim) bearing No.193234028141653 dated 3.1.2014 from  Opposite Parties No. 3 and 4 through Opposite Party  No.5. It is also not denied by the Opposite Parties that  on 31.5.2014 while crossing the unmanned (fatik), Railway Track/ Lines, Charan Singh father of the complainant died in a train accident. Father of the complainant was crossing the line for going to the village then train No. 74607 from Goindwal Sahib to Tarn Train came and near K.M.No.38/6, the father of the complainant was hit with train resulting in serious injuries inflected on him and after some time, died in the way when he was taken for medical treatment. A complaint was also moved to the Railway Police as well as SHO, P.S.Sadar, Tarn Taran vide diary No.11 of 1.6.2014. Post mortem was also conducted vide PMR No. 74/CHTT/CH/2014 dated 1.6.2014.

10      The first point is whether the complainant is consumer of the opposite parties or not and is covered under the insurance scheme. The opposite parties No. 3 and 4 in their written version have submitted that basis the proposal received from The Tarn Taran Central Cooperative Bank Limited i.e. opposite party NO. 5, this opposite party had issued unnamed Group Personal Accident Policy No. 4112-200201-13-5000004-00-000 thereby covering the risk of its Saving Bank Account holders for the period from 1.5.2013 to 31.5.2014 subject to the terms and conditions incorporated and to the extent of limits mentioned herein.  Further more, the opposite party No. 5 in its written version has pleaded and admitted that the complainant was having the account with the opposite party No. 5 bank and policy was taken under the Sehkari Bank Bima Yojna Scheme and as such the opposite party No. 5 immediately forwarded the claim without any delay after its receipt to the opposite party No. 3 and 4. It is also admitted fact by the opposite party No. 5 in Para No. 14 of the written version that the opposite party No. 5 dealing with the business of banking only. However, Opposite Party No.5-Bank has contended that as per the version of the complainant, Rs.5000/- as premium was not paid to the bank on 3.1.2014, but this amount was not as premium, rather this amount was deposited in his saving bank account and Rs.74.30 paisa  was deducted from the account of the complainant on 25.2.2014 for SBBY and Rs.181/- was deducted from the same purpose on 2.6.2014 and this fact has been mentioned in the statement of account which was produced by Opposite Party  No.5-Bank alongwith their written arguments. Obtaining of policy under the said scheme is admitted but the policy was taken by deceased himself with his own sweet desire for his own benefits. Hence, from the pleadings and admission of the oppose the opposite parties No. 3 to 5, the complainant is account holder of the opposite party No. 5 and policy holder of the opposite parties No. 3 and 4, therefore, the complainant is consumer of the opposite parties No. 3 to 5.  Hence this point is answered in favour of the complainant. 

11      Second point is whether the complainant gave any information about the accident and whether he deposited the documents or not. In this respect, the opposite party No. 5 submitted in its reply that the complainant had given information and submitted documents about the accident. They have further submitted that the documents were forwarded to the opposite party No. 3 and 4 for settlement of the claim. Hence this point is answered in favour of complainant.

12.     Further now we come on the main crux of the dispute.  Policy issued namely unnamed Group Personal Accident Policy No. 4112-200201-13-5000004-00-000 covering the risk of its Saving Bank Account holders (including Charan Singh father of the complainant) for the period from 1.5.2013 to 31.5.2014 subject to the terms and conditions incorporated and to the extent of limits mentioned therein, is not denied. However, the Opposite Parties No. 3 & 4 have specifically mentioned in their written version as well as in duly sworn affidavit Ex.OP3,4/1 of Sh.Jitendra Jain that the policy capital sum insured per person was upto the extent of Rs.1 lac in case of accidental death. However, accidental death of Charan Singh father of the complainant not denied by the parties. Copy of post mortem report dated 1.6.2014 Ex.C7 fully proves that Charan Singh father of the complainant died due to rail accident. So, the Opposite Parties No.3 and 4 can not wriggle out from its responsibility from making the payment of insured amount i.e. Rs.1 lac as per their own version. However, this Forum do not find any lapse on the part of the Opposite Parties No.1 and 2-Railways  because  even a man has to cross the railway track from unmanned fatak, it is the first and formal duty of every person to check the coming of rail and cautions displayed near every unmanned fatak. So, we find no negligent act and default of the railway department as required signals/ cautions are available in the premises of railway property and there is no responsibility of the Railways for the death of Charan Singh father of the complainant. 

13.     In view of the aforesaid facts and circumstances, we are of the view that there is deficiency of service on the part of Opposite Parties No.3 and 4 and despite repeated requests and correspondence, they failed to settle the claim and to make the payment of insured amount to the complainant.

14.     Consequently, we accept the complaint against Opposite Parties No.3 and 4 with costs. Opposite Parties No.3 and 4 are directed to pay the insured amount of Rs.1 lac to the complainant alongwith interest @ 9% per annum from the date of filing of this complaint, till the payment is made to the complainant. Opposite Parties No.3 and 4 are also directed to pay the costs of litigation to the complainant to the tune of Rs.10,000/-. However, the complaint against Opposite Party No.1, 2 and 5 stands dismissed.  Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room. 

Announced in open Forum                                             

Dated:11.01.2016.