(Delivered on 6/9/2016)

Per Mr. S.B. Sawarkar, Hon’ble Member

1. The instant appeal is filed against  the order of the Forum, Amravati  passed in complaint No. 46/2009, dated 3/11/2009 granting the complaint with expenditure and directing opposite party ( for short OP)  the Sahara India Parivar to pay Rs. 20,000/- with a simple interest of 10 percent p.a. from 1/3/2007 and to pay a compensation of Rs. 2,000/- + Rs. 5,000/-+ Rs. 1,000/- in the span of one month from the date of the order to the complainant  and in case of  failure to pay interest at the above rate  over all the aforesaid amounts.  
2. The complainant, a minor son through his father alleged that his mother Smt. Shalini Shrirao started and an account with OPs Sahara Parivar in Sahara  4-DS Scheme from 31/12/2004. Along with the account there was a death help facility. It was denoted to deposit Rs. 20/- per day in the account and if the account holder dies  his nominee was to get Rs. 20,000/-.
3. After opening of the account, after a span of one and half yea, the account holder mother fell ill and was taken to the hospital on 21/6/2006. She was declared to be suffering from blood cancer on 28/6/2006 and died on 12/10/2006. The complainant thereafter requested for the death facility. But the OP vide letter dated 18/9/2008 repudiated the claim on the ground that the account holder was suffering from acute myeloid Leukemia (Blood Cancer). The complainant claimed that the repudiation being false filed a complaint on 9/3/2009 with a prayer to provide the complainant the death claim of Rs. 20,000/- with interest at the rate of 10 percent from the death of the complainant’s wife and to provide Rs. 3,500/- as notice expenditure, Rs. 50,000/- for physical and mental harassment and cost of Rs. 10,000/- total of Rs. 83,500/-.
4. On notice the OP Nos. 1 and 2 appeared before the learned Forum and countered the complaint on the following grounds.
   1. The death help is a interest free loan to nominee after submitting proper papers to be repaid in 16 years.
   2. The complaint did not array the company of which the deceased had become the account holder. The name of the company was Sahara India Financial Corporation which was not impleaded as OP.
   3. There was a clause of arbitration in the contract of account which was signed by the deceased. Hence the OP appointed the Arbitrator on 4/4/2009 whose information and notice was given to complainant on 11/4/2009. The OP claimed by relying on the Supreme Court judgment passed in Hindustan Petroleum Corporation Vs. Pink City Midway Petroleum published at AIR 2003 SC 2881 that  when the clause of arbitration is included in the contract, the Court must refer the parties to the Arbitrator to resolve that dispute. He3nce claimed the dispute beyond the jurisdiction of the Forum.  
   4. The complainant’s wife died on 12/10/2006 and was suffering from blood cancer prior to the opening of account and hence could not be given the death help facility.
   5. The complainant did not file satisfactory documents to get the death help.
5. The OP claimed that the deceased opened an account on 31/12/2004 and died on 12/10/2006 after which her deposited amount along with the Bonus at the rate of 15 percent p.a.  totaling to Rs. 15,169/- was given to complainant on 5/1/2007 which he accepted.
6. The scheme of death help is of providing  interest free loan under the specific condition of the policy of the account for which the complainant is supposed to submit the truthful and the satisfying documents to the OP.
7. The account holder as per the rule should be free of any disease for three years prior to opening of account. However in the present case the deceased had taken the treatment prior to the opening of account and also complaint did not submit the proper papers to get the loan. He is  hiding the information from the OP. Hence such death help could not be given to the nominee of the deceased.
8. The deceased was suffering from blood cancer which is a cronic disease and it  remains active for a long time and hence deceased  and the nominee were not elligible for the interest free loan and the OP is not bound to provide the loan. The providing of loan is not a service and a deficiency cannot be attributed to it. Hence the OP is not responsible for the deficiency and therefore requested to dismiss the complaint.
9. The learned Forum heard both the parties and holding that the arbitration clause is not a binding on the jurisdication of the consumer Forum declined to consider it. Also held that there was no evidence  to accept the information collected by the OP from the internet about the cronic quality of the disease by which the account holder died. The learned Forum held that the OP caused deficiency in service and therefore passed the order as above.
10. Aggrieved against the order, the OP Nos. 1 and 2 filed the present appeal. Hence are referred as appellants. They are represented by advocate Mr. Rushi. The original complainant now referred as respondent remained absent but filed his say.
11. The advocate for the appellant submitted that the deceased had opened the account which was supposed to receive death help in form of interest free loan  to the nominee as per Clause  9 of the scheme. The advocate of the appellants submitted that the scheme was introduced by the Sahara India Financial Corporation Ltd an independent company which was not  impleaded  in the complaint. The OP Sahara India Parivar is a Social nomenclature used to refer all companies in the group but each company has a independent existence. However the learned Forum did not consider it and passed an erroneous order.
12. The advocate for the appellant further submitted that the deceased opened the account on 31/12/2004. She died on 12/10/2006. But the complaint was filed on 9/3/2009 after the limitation of two years as is stipulated vide Section 24 A of the Consumer Protection Act. Hence the complaint was barred for taking cognizance. The advocate for the appellant also submitted that the amount deposited by the deceased was paid to the respondent with interest and bonus on 5/1/2007 which he accepted with full satisfaction. Hence now the respondent is not a consumer  of the appellant, after receiving the full and final settlement. The advocate for the appellant further submitted that the death help facility is not ex-gracia payment but the nominee is liable to get interest free loan if the account holder after regularly paying the installments of more than one year dies. The nominee can get the loan  which he is supposed to repay in the span of 16 years by starting the repayment after 5 years. The loan is admissible after the submission of proper documents as per the conditions laid down in clause 8 and 9 of the contract only. However  the deceased had taken a treatment on 7/6/2000 for her disease. The treatment documents were placed on record by the appellant showing that the deceased was under treatment from the year 2000 quite prior  to her becoming account holder. The appellants submitted massive literature  giving information of the cronic condition of the  decease suffered by the account holder.
13. The appellant’s advocate further submitted that the death help facility to the account holder is an interest free loan and the District Forum has no jurisdiction to entertain the complaint regarding payment of loan.
14. The advocate for the appellant based his contentions on the various judgments and cited them as below.

1. National Commission judgment passed in Pawan Ahuja Vs. Hariyana Urban Development Authority, published at 2012 (2) CPR 210 (NC) holding no jurisdiction to entertain a complaint not filed within two years.
2.  National Commission judgment passed in Jyoti Sharma Vs. Hariyana Urban Development Authority, published at 2012 (2) CPR 273 (NC), declaring time barred complaint cannot be entertained.
3. National Commission judgment passed in Nitinkumar Vs. Hariyana Urban Development Authority published at 2011 (4) CPR 197 (NC) declaring  bar on delayed complaint.
4. National Commission Judgment passed in Longowal Spinning Meal Pvt. Ltd. Vs. New India Assurance Company published at 2012 (4) CPR 601 (NC)  and held that once the amount due is accepted unconditionally the privity  of consumer contract comes to an end.
5. Supreme Court Judgment passed in S. Gopal Reddy Vs. State of AP 1996 (4) SCC 596  and held that adverse presumption be drawn from non production of vital letter by the prosecution.
6. National Commission Judgment passed in Shri  Kanak Durga Hatchries Prv. Ltd. Vs. State Bank of India, published at 2002 (3)CPR 5 (NC) and  held that there will be no deficiency in service if loan  sanctioned by the bank  is subject to certain conditions which remained unfulfilled.

15. Thus, the advocate for the appellant submitted that the learned Forum passed the order on conjectures and sermices. Hence needs to be  dismissed.
16. The respondent filed an application stating that the deceased account holder was depositing an amount properly and did not suffer any disease prior to starting the account. However the appellant failed to provide the death facility. Hence the learned Forum passed appropriate order which needs to be confirmed.
17. We considered the contentions of both the parties and the evidence on record. We find that the death help as is assured by the company is in the inform of an interest free loan which can be acquired by a nominee in the event of death of account holder after paying the installments for different durations. In the present case, the complainant in the impression of getting some ex-gratia payment after the death filed the complaint. We also find that the learned Forum also failed to appreciate the conditions of the account and held that it is the condition of payment of amount and passed the order. Complainant is not entitled to any such exgratia payment as per scheme discussed above.
18. We also find that the complaint is filed after two years from the death of the account holder. The cause of action i.e. from the death of the deceased. Hence was time barred. It was filed after  the arbitration award in which the respondent did not participate in spite of receiving the notices.
19. The respondent as per scheme did not submit the required documents to get the facility of the loan on behalf of the nominee, whose age is not given by the father of the nominee.
20. Under these circumstances we find that the order of the learned Forum does not stand on any base to confirm it and deserves its setting aside. We therefore proceed to set aside the order and allow the appeal.  Hence the order below.

ORDER

1. The appeal is allowed.
2. The order of the Forum is set aside. The complaint stands dismissed.
3. The stay if any stands vacated.
4. Parties to bear their own cost.
5. Copy of the order be sent to both the parties, free of cost.