Life Insurance Corporation of India vs USHA JAIN

THIS appeal is directed against the order dated 26.3.2002 passed in Case No. 91/2001 by the District Consumer Disputes Redressal Forum, Mandsaur (for short the ''District Forum'').

FACTS giving rise to this appeal are thus: the life assured Kailash Chandra Jain obtained a Twenty Years Money Back Policy with Profit (With Accident Benefit) No. 340732279 dated 23.8.1995 of the Table and Terms 75-20 for a sum of Rs. 1,00,000/- of the date of commencement as 1.7.1995. On the fateful day i.e. on 29.5.2000 the life assured met with an accident with Goods train while he was crossing the closed Railway Level Crossing at Railway Gate No. 65B as a result of which he died instantaneously. A first information of the incident was lodged and a Marg was registered at No. 25/2000 under Section 174 of the Code of Criminal Procedure by the G.R.P. Shyamgarh. On the claim made by the nominee, the Life Insurance Corporation (LIC) communicated that only an amount of Rs. 40,990/- deposited is payable under the said policy and not the amount of accident benefits of which the claim was repudiated vide letter dated 14.3.2001 on the ground that at the time of occurrence, the life assured committed breach of law by crossing the Level Crossing with his motorcycle when the gate was closed. The respondent filed a complaint which was resisted. The District Forum after appreciation of evidence adduced on record, held that the LIC has failed to establish that the death of the life assured was caused by intentional self-injury or attempted suicide. From the five photographs 1434/23, 1435/14 and 1435/19, 1435/21 and from the evidence adduced it is established that the Railway Level Crossing, Railway Gate No. 65B is on a busy railway track where gate remains closed for 17 to 18 hours out of 24 hours due to heavy railway traffic, therefore, the Railway Administration has constructed a mini gate at the side of the main gate near the sign of Stop and a space is also left over near the main gate for crossing the Railway lines by pedestrians, two-wheelers and cyclists. In the circumstances, it cannot be said that the life assured committed a breach of law, hence, ordered the LIC to pay the amount of Rs. 1,00,000/- with interest thereon at the rate of 12% p.a. from 30.11.2000 and Rs. 500/- as costs of the proceedings. After hearing learned Counsels for the parties and on reappraisal of evidence on record, in the facts and circumstances of the case, the question for our consideration is whether the LIC was justified in not making the payment of additional amount of Rs. 1,00,000/- of accident benefit in terms of Exclusion Nos. (i) and (iv) of Clause (b) of Condition No. 10, which we quote : "10. Accident Benefit : If at any time when this policy is in force for the full sum assured the Life Assured, before the expiry of the period for which the premium is payable or before the policy anniversary on which the age nearer birthday of Life Assured is 70, whichever is earlier is involved in an accident resulting in either permanent disability as hereinafter defined or death and the same is proved to the satisfaction of the Corporation, the Corporation agrees in the case of : (a) Diability to the Assured : (i) .... (b) Death of the Life Assured-To pay an additional sum equal to the Sum Assured under this Policy, if the Life Assured shall sustain any bodily injury resulting solely and directly from the accident caused by outward, violent and visible means and such injury shall within 120 days of its occurrence solely, directly and independently of all other causes results in the death of the Life Assured. However, such additional sums payable in respect of this policy, together with any such additional sums payable under other policies on the life of the Life Assured shall not exceed Rs. 5,00,000/-. The Corporation shall not be liable to pay the additional sum referred in (a) or (b) above if the disability or the death of the Life Assured shall- (i) be caused by intentional self-injury attempted suicide, insanity or immorality or whilst the Life Assured is under the influence of intoxicating liquor, drug or narcotic, or (ii)xxx xxx xxx (iii)xxx xxx xxx (iv) result from the Life Assured committing any breach of law."

True, on the death of the life assured a case registered as Marg under Section 174 of Code of Criminal Procedure. From the report it is evident that it was not a case of death caused by intentional self-injury or attempted suicide, therefore, Sub-clause (i) of Clause (b) of Condition No. 10 is not applicable.

AS to Exclusion (iv)-it would be appropriate to refer relevant provisions of the Railways Act, 1989 (for short the ''Railways Act''). Section 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 penalties and offences. Section 160 of the Railways Act deals with an offence of opening or breaking a level crossing gate and Section 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 chain or barrier set up on either side of a level crossing which is closed to road traffic, he shall be punishable with impriosment 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."

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 Section 160 of the Railways Act i.e. opening or breaking a level crossing gate. The act of the deceased life assured also does not fall under Section 161 of the Railways Act. In such circumstances, the submission 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 violating of a law, right, or duty, either by commission or omission, cannot be accepted. On the other had, the evidence has come on record that the Railways Administration itself has constructed a mini gate from where the pedestrians and the rinders 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.

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. Railway Administration should also make proper arrangements so that no pedestrian, 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. However, in the present facts which have come on record, it cannot be said that the act of the deceased falls within the scope of Section 160 of the Railways Act or within the purview of breach of law. In such circumstances, in our opinion denial of the claim of the accident benefits by the LIC on the ground of breach of law was not justified. Hence, the order of payment of Rs. 1,00,000/- by the District Forum cannot be said to be illegal. However, the award of interest at the rate of 12% p.a. is not justified in view of the change in economy and policy of the Reserve Bank of India, the interest rate is lowered. See, the decision of S. Kaushnuma Begum & Ors. v. New India Assurance Co. Ltd. & Ors., I (2001) SLT 300=I (2001) ACC 151 (SC)=AIR 2001 SC 485. We, therefore, direct the LIC to pay the amount of Rs. 1,00,000/- with interest at the rate of 9% p.a. from 30.11.2000 alongwith Rs. 500/- as costs of the proceedings as awarded by the District Forum within a period of two months from the date of receipt of the certified copy of the order failing which the interest would be payable at the rate of 12 percent per annum.

IN the result, appeal is partly allowed. The order of the District Forum shall stand modified as indicated hereinabove. IN the circumstances, parties to bear their own costs of this appeal. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith record of the case. Appeal partly allowed.