This appeal is directed against the Final Order dated 25.06.2019 in CC No 48 of 2018 delivered by Ld. D.C.D.R.F., Jalpaiguri. The fact of the case in nutshell is that one Manindra Nath Roy since deceased during his life time purchased a personal accidental insurance policy having insured value of Rs. 2 Lakh for the period from 08.05.2002 to 07.05.2017 through the market agent New India Assurance Co. Ltd. Covering risk of accidental death loss of limbs etc. On 01.09.2016 at about 10 AM while M.N. Roy was discharging his official duty in platform Number 1 at New Maynaguri Railway Station, repairing a light of the lamp post. Suddenly, failed down from the radar and sustained injuries on his parts. He was immediately shifted to block hospital and thereafter to district hospital and ultimately, he was shifted to Anandalok Hospital, Siliguri but on that day at about sixteen hours he was declared death and U.D case was registered for the death of Manindra Nath Roy. His heirs after his death raised the claim for getting the insurance money from the New India Insurance Co. Ltd. Which was repudiated the claim and for that reason the instant Consumer Complaint was registered before the Ld. D.C.D.R.F., Jalpaiguri on 17.09.2018. The Insurance Company Opposite Party Nos. 1&2 has contested the case by filing a joint Written Version and submitted that the company entered into an agreement with Golden Trust Financial Ltd., in order to, protect the interest of GTFS field workers. GTFS have entered into that agreement with the New India Assurance Co. Ltd., for insurance coverage of field workers under two heads Mediclaim and personal risk insurance policy. For which two memo of understanding were executed and two such group insurance policy was issued in favour of the Golden Trust by the New India Assurance Co. Ltd.; The further case of the Opposite Party No. 1 and 2 is that the deceased Manindra Nath Roy was not a bonafide certificate holder as because at the time of death he was no longer the field worker of Golden Trust and he was working as a Railway employee. The field workers are supposed to process Identity Card and supposed to be enlisted to GTFS. And at the time of incident that Manindra Nath Roy was not the certificate holder as was not supposed to be the field worker of GTFS and for that reason the Insurance Company after investigation has repudiated the claim.

The Golden Trust has also contested the case by filing the W.V. and their case is that under the understanding of MOU and insurance coverage GTFS has no burden to pay any compensation on account of death of Manindra Nath Roy.

 Ld. Forum after hearing the case came into conclusion that the Insurance Company was failed to prove that Manindra Nath Roy was a Railway Employee at the point of time of the accidental death where as the deceased Manindra Nath Roy was a certificate holder having coverage of insurance policy as field worker of GTFS and for that reason the repudiation of claim on the part of the Insurance Company was bad in law and as such the Consumer Complaint was allowed and award in favour of the complainants was passed.

Being aggrieved with the order this appeal follows on the ground that the ld. Forum has acted illegally with a material irregularity by passing the order and exercised power beyond the jurisdiction vested to it by the law. The further case of the appellant is that the Ld. Forum has erred in law since the validity of insurance policy of its holder who sustain injuries and succumbed to injuries on 01.09.2016 as railway employee and not workings as field worker of GTFS was already lapsed. As it should be presumed that Insurance Company has considered status of deceased person Manindra N. Roy not as field worker of GTFS. The further case is that the Complainant side has admitted the fact that Manindra Nath Roy at the time of his death was working as a Railway Employee and in the course of his duty he sustained the injury and succumbed to the said injury and as per service rule no public servant can be directly or indirectly involved in any profitable business. The assertion of Ld. Forum that he was a filed worker under GTFS was purely wrong perception.

The appeal was admitted in due course and notice was sent to the Complainants as well as GTFS. The respondent Nos. 1 to 5 after receiving the notice has contested the appeal through Ld. Legal Counsel Mr. Dalmia who files the W.N.A. The respondent No. 6 GTFS in spite of receiving notice did not contest the appeal. The hearing of appeal on behalf of the appellant was conducted by Ld. Advocate Miss. S. Sanyal. Ld. Advocate Mr. Dalmia has conducted the hearing of respondent No. 1 to 5.

                                                   Decision with reasons

Admitted position is that Manindra Nath Roy was a field worker of GTFS who obtained an accidental insurance policy through GTFS that is the Janata personal Accidental Insurance Policy issued by the New India Assurance Co. Ltd., in the name of Golden Trust Financial Services for the period from 08.05.2002 to 07.05.2017 and the sum assured was fixed at Rs. 2 Lakh and his nominee was selected his wife Aparna Roy. It is also not disputed that Manindra Nath Roy was an employee of Railway Department attached to New Maynaguri Railway Station as Line Man number 3 in the Department of SSE and it is clear admission on the part of the Complainant in their Consumer Complaint in Para 2. It is also not disputed that while he was working in railway on 01.09.2016 at about 10 AM discharging his official duty in the platform No. 1 at New Maynaguri Railway Station and was repairing light of a lamp post suddenly, fell down from the radar and sustained injuries and ultimately breath his last on that very day at Anandalok Hospital at Siliguri. And UD case was initiated on account of his death and post-mortem was held over his dead body. Now, the main point of dispute is had the Insurance Authority rightly repudiate the claim of the heirs of the insured on the ground that at the point of time he was not the field worker of GTFS rather than he was an employee of Indian Railway and for that reason his heirs or nominee cannot sustain any claim of insurance coverage.

Ld. Advocate of the respondent Nos. 1 to 5 during the course of argument submitted that on the date of proposal and issuance of policy on 08.04.2022 no document has been placed by the Insurance Company about the employment of deceased Manindra Nath Roy with Railway. Once, the policy premium has been accepted by the appellant through respondent No. 6 and issued policy then the appellant cannot deny the policy benifit claim arising from such policy. He, further mentioned that the proposal form and declaration was submitted to the insurer by the deceased and the same has not produced before the Ld. Forum and before this Commission. And the said policy document was issued subject to terms and conditions, exclusion, definition of group Janata Personal Accidental Insurance Policy. No terms and condition exclusion, definitions has been mentioned in the said document nor the same was made available along with proposal form. So, those cannot be part and parcel of the policy and those unilateral terms and conditions are in no way binding upon the deceased and his heirs. He, further argued that respondent No. 6 GTFS in their W.V never mentioned that at the relevant point of time the deceased Manindra Nath Roy was not a field worker. So, the Insurance Company was liable to pay the reasonable claim of the heirs of the deceased Manindra Nath Roy and the order of Ld. Forum has no mistake in the Eye of Law. He, further argued that on examination of proposal form and declaration and at the time of receipt of due premium there was no terms and conditions of the appellant insurer that the policy holder must act as field worker during the full period of policy. He referred a judicial decision of New India Assurance Co. Ltd., Vs Shabitri Devi where Hon’ble Supreme Court has opined that 100% amount of insurance must be paid by the New India Assurance Co. Ltd., to the heirs of the deceased and the matter of dispute between New India Assurance Co. Ltd., and its agent GTFS as to who was liable to pay the insurance money would be decided by the Hon’ble Court in due course. In support of his argument, he referred various judicial decisions as follows:

 Judgment of Hon’ble Calcutta High Court dated 14.03.2005 Bimal Chand Vs New India Assurance Co. Ltd.

Hon’ble Supreme Court Judgement dated 22.02.2000 in M/S *** Vs. Oriental Insurance Company.

The Judgement of Hon’ble N.C. D.R.C. in FA No 383 of 2021 dated 17.09.2021.

The Judgement of Hon’ble N.C.D.R.C in New India Assurance Co. Ltd. Vs. Shabitri Devi.

Ld. Advocate of the appellant Mrs. Sanyal at the time of his of her turn mentioned that Ld. Forum has erred in law by not appreciating the basic condition with the onus of the GTFS to prove by way of evidence that the certificate holder was working its filed worker at the time of accidental death of Manindra Roy. A field worker of GTFS is employed to procure business from the market and earns remuneration from the GTFS worker. The filed workers are supposed to possess ID Card and supposed to be enlisted to GTFS. But Manindra Nath Roy was no longer the field worker of GTFS and for that reason, no ID Card or certificate was produced to prove that at the point of time of accident he was the filed worker under GTFS. She, further argued that sufficient documents was produced before the Ld. D.C.D.R.F., Jalpaiguri to hold that the deceased was a Railway Employee at the material point of time and it was admitted on the part of the Complainant in their pleading but in spite of that Ld. Forum has erroneously held that the appellants could not produce any paper to show that Manindra Nath Roy since deceased was a Railway Employee at the point of time. She, referred some judicial decisions in connection with this case which is very much relevant in the context of the present case like she furnished copy of judicial decisions in CC case No. 135 of 213 disposed of by Ld. D.C.D.R.C., Burdawan. The copy of the Judgement of Hon’ble State Commission Calcutta Bench in FA No A432/2016 arising against the Final order of CC No 71 of 2014 of District Coochbehar. The copy of Judgement of Hon’ble S.C.D.R.C., Calcutta Bench in FA No 311 of 2012 in reference to Final Order of CC No 29 of 2011 delivered by Ld. D.C.D.R.F., Malda.

 After, going through all the Judgements it appears to us that in all this cases the deceased had obtained the Janata Personal Accidental Insurance Policy as field workers of GTFS but at the time of their death they were working in other Govt. establishments and were getting salary from the Government exchequer and after their death their heirs raised claim for getting Insurance money which was refused by the Insurance Company and subsequently the complaint case was registered and ultimately the result of the case was order of dismissal on the ground that the deceased was no longer a field worker of GTFS rather than was working in an another establishment under the Government and was taking salary and wage from the Government exchequer. Now, in our particular case in hand it is established beyond any doubt that the deceased Manindra Nath Roy was working as a Railway Employee and he was drawing the salary from the Railway Pay role and for that reason his heirs cannot substantiate the claim of getting insurance amount as because status of Manindra Nath Roy was changed as soon he entered into the Government service and after his death and certainly his widow and other heirs have received sufficient compensation from the Railway Authority. The Legal maxim one cannot aprobate or reprobate at the same time is applicable here in this case and the observation of Ld. Forum appears to be wrong and erroneous as because the contention of the appellant that the deceased Manindra Nath Roy was a Railway Employee at the time of accident and death was proved. Ld. Forum has opined that when the Insurance Company had accepted the money and insured the life, the O.P New India Assurance Co. Ltd., under boundent duty to provide the insurance amount is not correct one as because as soon the deceased Manindra Nath Roy ceased to be field worker of GTFS the condition of policy stands violated and discontinued. Here in this particular case policy claim submitted by the Complainant side also indicated in view of such categorical and assertion towards the deceased being a Railway Employee and he could not at all be deemed by any perception to be a field worker of the GTFS at the material point of time. And Ld. D.C.D.R.F., Jalpaiguri was wrong in not considering such factum in the matter and for this reason the decision of Ld. Forum suffers from anomaly, misconception and irregularities. Accordingly, the appeal succeeds.

                                           Hence, it’s ordered

That the appeal be and the same is hereby allowed on contest against respondent Nos. 1 to 5 and Ex-parte against respondent No. 6  without cost. The Final Order of Ld. D.C.D.R.F., Jalpaiguri dated 25.06.2019 in CC No 48 of 2018 stands set aside.

Let a copy of this order be communicated to the Ld. D.C.D.R.F., Jalpaiguri.