SHANU JAIN Vs. GOLDEN FOREST INDIA LTD

JUDGEMENT

(1.) This appeal is directed against the order dated 1.11.2001 passed in Case No.38/2001 by the District Consumer Disputes Redressal Forum, Vidisha (for short the "district Forum") whereby the complaint for deficiency in service was dismissed.

(2.) Admittedly, Smt. Kiran Jain purchased a bond of the Golden Forest by deposit of the amount of Rs.18,000/- of which maturity amount of Rs.19,800/- was payable on 5.3.1998. The New India Assurance Company covered the risk of such purchaser of the bond by Personal Accident Insurance Policy No.42/525-43. Smt. Kiran while passing through level-crossing in spite of closure of the level crossing gate met with an accident from the train coming, where she died instantaneously. The appellant submitted the claim which was repudiated by the Insurance Company holding that the deceased committed a breach of law i. e. of Sections 147 and 160 of the Railways Act, 1989 , therefore, the claim under exclusion clause "committing any breach of law with criminal intent" was not payable. The complaint filed was resisted. The District Forum dismissed the complaint holding that the life assured had died while committing an offence under Sections 147 and 160 of the Railways Act, 1989 , therefore, the Insurance Company was justified in not making the payment of the claim.

(3.) After hearing learned Counsels for the parties, in our opinion, non-payment of the claim was not justified. This Commission in similar circumstances, has considered the question in case of Life Insurance Corporation of India and Anr. V/s. Smt. Usha Jain, 2003 1 CPJ 100, the life assured Kailash Chandra Jain had a Twenty Years Money Back Policy with Profit (With Accident Benefit) for the sum assured of Rs.1,00,000/- on the fateful day while crossing the level-crossing gate met with an accident with the goods train, the LIC did not make the payment as the life assured committed a breach of law. After referring to Condition No.10 and Exclusion Clause (iv) that is "result from the life assured committing any breach of law" and relevant provisions of the Railways Act observed in paras 5 to 7 thus : "5. As to Exclusion (iv)-it would be appropriate to refer relevant provisions of the Railways Act, 1989 (for short the 'railways Act' ). Sec.2 (22) defines "level crossing" means an inter-section of a road with lines of rails at the same level. Chapter xv of the Railways Act deals with an offence of opening or breaking a level-crossing gate and Sec.161 deals with Negligently crossing unmanned level-crossing which we quote : 160. Opening or breaking a level crossing gate.- (1) If any person, other than a railway servant or a person authorised in this behalf, opens any gate or chain or barrier set up on either side of a level-crossing which is closed to road traffic, he shall be punishable with imprisonment for a term which may extend to three years. (2) If any person breaks any gate or claim or barrier set up on either side of a level-crossing which is closed to road traffic, he shall be punishable with imprisonment for a term which may extend to five years.161. Negligently crossing unmanned level-crossing-If any person driving or leading a vehicle is negligent in crossing an unmanned level-crossing, he shall be punishable with imprisonment which may extend to one year. Explanation.-For the purposes of this section, "negligence" in relation to any person driving or leading a vehicle in crossing an unmanned level-crossing means the crossing of such level-crossing by such person- (a) without stopping or caring to stop the vehicle near such level-crossing to observe whether any approaching rolling stock is in sight, or (b) even while an approaching rolling stock is in sight. " 6. Admittedly, the level-crossing is manned having a gate and a signal of stop when it is closed which is evident from photographs. The act or commission of the deceased life assured does not fall within the purview of Sec.160 if the Railway Act i. e. opening or breaking a level-crossing gate. The act of the deceased life assured also does not fall under Sec.161 of the Railways Act. In such circumstances, the submissions of the learned Counsel for the LIC placing reliance on P. Ramanatha Aiyar's The Law Lexicon, IInd Edition 1997, Page 240 which defines breach of law i. e. . The breaking or violation of a law, right, or duty, either by commission or omission, cannot be accepted. On the other hand, the evidence has come on record that the Railway Administration itself has constructed a mini gate from where the pedestrians and the riders of the two wheelers or cyclists use to cross the railway track inspite of closure of level-crossing prior to arrival and passing of the train from the rails line of the level-crossing.7. True, from a reasonable prudent man, it is expected that when the gate of level-crossing is closed he will not cross the lines of rails till the approaching train passes, and level-crossing gate is not opened to permit the road traffic to go from one side to the other. However, it is generally seen that the pedestrians, cyclists or riders of two wheelers have no patience and they cross the railway lines inspite of the close of railway gates and at occasions such unfortunate incident occurs. A strict action against the persons who cross the railway crossing, deserves to be taken. Besides the persons should be educated not to cross the gate when it is closed and to maintain discipline. Railways Administration should also make proper arrangements so that no pedestrians, cyclists or rider of the two wheelers may pass through the rail lines to the inter-section of the roads when the gate is closed.