Consumer Complaint No. 220 of 2015

Date of filing: 05.11.2015                                                                     Date of disposal: 24.01.2017

Complainant:               Sabitri Rai (Roy), W/o. Late Kripa Sankar Rai (Roy), resident of Amrasota More, G. T. Road, Roy Engg. Works, PO: Searsole Rajbari, PS: Raniganj, District: Burdwan, PIN – 713 347.

-V E R S U S-

Opposite Party:    1.     Sahara India Pariwar, having its Branch Office at NSB Road, Near School More Bus Stop, Raniganj, PS: Raniganj, District: Burdwan, PIN – 713 347, represented by its Branch Manager.       

2.      Sahara India Pariwar, having its Regional Office at Durgapur, Subhas Pally, Opposite of Chamber of Commerce, Durgapur, District: Burdwan, PIN – 713 213, represented by its Regional Manager.

3.      Sahara India Pariwar, having its Registered Office at Sahara India Bhawan, 1, Kapoorthala Complex, Aliganj, Lucknow – 226 024, represented by its Chairman.

Present:      Hon’ble President: Sri Asoke Kumar Mandal.

                        Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:           Ld. Advocate, Debdas Rudra.

Appeared for the Opposite Party (s):  Ld. Advocate, Krishna Nanda De & Sougata dey.

J U D G E M E N T

This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs did not pay her legitimate claim in pursuance of the terms and conditions of the policy obtained from their end.

The brief fact of the case of the  Complainant is that her husband, since deceased, invested Rs. 10,000=00 under the scheme of Sahara Rajat Yojana (scheme Option-C ) on 27.12.2004 bearing A/c. no. 24479204000 at the office of the OP-1. The husband of the Complainant also invested Rs. 10,000=00 under the scheme Sahara-D bearing A/c. no. 10221325879 on 06.03.2006 at the office of the OP-1. The Complainant was declared as nominee in respect of the two accounts. The OP-1 issued a passbook in connection with the A/c. no. 244779204000 to the husband of the Complainant. All on a sudden the husband of the Complainant died on 24.05.2013 due to road accident. The Complainant intimated about the death of her husband to the OPs and lodged the claim for accidental death benefit. The OPs were requested by the Complainant on several occasions to settle the claim lodged by her but the OPs did not pay any heed to her request. The Complainant sent a legal notice on 05.05.2014 through her Ld. Advocate stating therein that the Complainant submitted all the documents in support of her claim on 15.07.2013 i.e. within 60 days from the date of death of her husband, but the OPs have denied for making payment of the accidental benefit to the Complainant. It was also stated by her that according to the norms no. 18 of the policy the Complainant being the widow and nominee of the said policy, she is entitled to get accidental benefit for Rs.2, 00,000=00 in respect of the said policy. The OPs were requested by her for making payment of the accidental benefit within 15 days from the date of receipt of notice, failing which the Complainant shall have no other alternative but to take shelter before the proper Court of Law. On 06.11.2014 the Complainant sent another legal notice to the OPs stating the same statement and also visited on several occasions at the office of the OP-1, but to no effect. More than 15 months have already elapsed but till date the Complainant did not receive the claim amount which indicates deficiency in service and unfair trade practice on the part of the OPs. Due to such deficient service of the OPs the Complainant has been suffering from great mental pain, agony and harassment and being compelled she has filed this complaint before this Ld. Forum praying for direction upon the OPs to pay her a sum of Rs.2,00,000=00 towards the accidental death benefit in respect of Sahara Rajat Yojana Scheme Option- C bearing A/c. no. 244779204000 along with interest thereon, to pay compensation of Rs.1,50,000=00 due to mental pain agony and harassment and litigation cost of Rs.25,000=00 to her.

The petition of complaint have been contested by the OPs by filing written version contending that the present complaint hits by the law of Arbitration and Conciliation Act, 1996 and is liable to be dismissed on that ground alone. It is mentioned by the OPs that under the provision of Section 40 of Arbitration and Conciliation Act, 1996, if any party of Arbitration agreement dies, the Arbitration agreement shall be binding upon the legal heirs of the deceased. As such the Complainant is bound by the Arbitration agreement. Regarding Arbitration agreement the law is well settled by the Hon’ble Supreme Court wherein it is mentioned that if any agreement is executed between the parties for settlement of dispute through arbitration, the parties cannot ignore the arbitration proceedings and same shall be decided by the Arbitrator. In this connection the OPs have relied on some judgments i.e. M/s. SBP and Company. Vs. Patel Engineering Limited, (2005) 8 SCC (618) and Hindustan Petroleum Corporation Limited Vs. M/s. Pink City Midway Petroleum, AIR 2003 (Supreme Court) 2881. According to the OPs in view of the above-mentioned Rulings of the Hon’ble Supreme Court the complaint is not maintainable and is liable to be dismissed with cost. In respect of merit of the complaint it stated by the OPs that for providing accidental death claim facility the company had neither taken any charge nor premium from the deceased, no consideration has been given and taken by and between the parties for accidental death claim facility. At the time of taking out the policy the deceased husband of the Complainant was explained that the nominee can get accidental death claim under the terms and conditions and he was explained that in the event of accidental death, the information of death along with application and related documents has to be provided to the OPs within 30 days from the date of accidental death. So he was well aware that this facility can be availed of by submitting claim form within 30 days from the date of occurrence. Being a nominee of the depositor the Complainant was also aware about the terms and condition of the scheme and hence the same is also binding upon the Complainant. A copy of the said terms and conditions was handed over to the deceased husband of the Complainant and also pasted on the notice board of each Branch of the Company for general information. The same was also given to the agents of the Company to explain the same to the intending consumers. It is alleged by the Complainant that her husband died on 24.05.2013 due to road accident but the Complainant did not intimate the accidental death of her husband within 30 days as per the terms and conditions. Moreover the Complainant had never submitted application or any documents demanding the accidental death claim benefit. If the complainant submitted the claim within 30 days the OPs would have entertained the same as per the applicable terms and conditions. The liability of submitting of claim within the specified period is casted upon the Complainant, but she has failed to submit the claim within the stipulated period. Not only that the Complainant did not submit any application for accidental death claim till date. For this reason the claim of the Complainant now time barred and cannot be entertained. The Complainant is entitled to get Rs.2, 00,000=00 towards accidental death claim benefit subject to compliance of the terms and conditions of the policy. As she has violated the terms and conditions of the policy, now she cannot get any relief towards the death claim benefit or otherwise from these OPs through this complaint. According to the OPs as this complaint has no merit at all the same is liable to be dismissed with exemplary cost.

The Complainant has adduced evidence on affidavit. The OPs have also adduced evidence on affidavit. The evidence of the Complainant was challenged by the OPs through questionnaire and the Complainant has filed reply to the questionnaire accordingly.

We have carefully perused the record, papers and documents as submitted by the contesting parties. Heard argument at length advanced by the Ld. Counsel for the Complainant only because on the date of argument adjournment was sought for by the OPs by making an application. The Complainant had raised vehement objection against such application. It is seen by us that on earlier date i.e. on 01.12.2016 in view of the prayer of the OPs adjournment was given, so on 16.01.2017 we were reluctant to allow the application for adjournment made by the OPs and the same has been rejected. The Complainant was directed to get ready at once for argument and accordingly we have heard argument from the ld. Counsel for the Complainant and perused the papers, documents, written version and evidence filed by the OPs.

The OPs in their written version have mentioned that in view of the existence of the Arbitration Clause in the questioned policy, hence the complaint is not maintainable before this Ld. Forum and the dispute and grievance of the Complainant should be redressed as per the Arbitration & Conciliation Act, 1996. Accordingly the Ops have prayed for dismissal of the complaint on this score. In support of their contention the OPs have relied on some judgments, but as the copy of the said Rulings have not been filed, we are not in a position to peruse the same. From the written version it is seen by us that the OPs have relied on the judgments of 2003 & 2005 passed by the Hon’ble Supreme Court. But we are to mention to the judgment of Kishore Lal vs. Chairman, Employees’ State Insurance Corporation (2007) 4 (SCC) 579, where the Hon’ble Supreme Court has held that-

‘The trend of the decisions of this court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.’

In the case of Fair Air Engineers (P) Ltd vs. N.K. Modi (1996) 6 (SCC) 385 The Hon’ble Supreme court after taking into consideration the provisions of the Consumer Protection Act, 1986, the Arbitration Act of 1996 and the Arbitration Act, 1940 held as under:

“The provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true that the words ‘in derogation of the provisions of any other law for the time being in force’ would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure i.e. to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.

It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitartion Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.”

In Skypak Couriers Limited vs. Tata Chemicals limited (2000) 5 (SCC) 294 the Hon’ble Supreme Court has again in the context Arbitration Act, 1940 observed as under:-

“Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal agency, constituted under the Consumer Protection act, since the remedy provided under the act is in addition to the provisions of any other law for the time being in force.”

In the paragraph no-66 of the Madhusudhan Reddy’s case (supra) the Hon’ble Supreme Court has held that-

66. “The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996. Moreover, the plain language of Section 3 of the Consumer act makes it clear that the remedy available in that act is in addition to and not in derogation of the provisions of any other law for the time being in force.”

Very recently the Hon’ble National Commission has passed one judgment on 13.05.2013 in the Revision Petition no. 412/2011 in a case of DLF Limited vs. Mridul Estate Private Limited, based on the abovementioned judgment, wherein it has been held that Consumer Forums constituted under the C.P. Act are not bound to refer the dispute to the arbitrator in view of the arbitration clause mentioned in any document of the OP. In the said judgment it has been further mentioned that complaint filed by a consumer before the Consumer Fora would be maintainable despite there being arbitration clause in the agreement to refer the dispute to the Arbitrator. Remedy provided under the C.P. Act is a special remedy with objective of redressal of grievances of affected consumers in an expeditious and non-expensive manner. If small consumers are relegated to Alternative Dispute Resolution mechanism of arbitration, remedy provided under the C.P. Act would become illusionary.

            In view of the abovementioned judgments of the Hon’ble Supreme Court, as well as, the National Commission we are of the view that in the case in hand though there exits one Arbitration Clause in the terms and the conditions of the questioned policy, this case is very well maintainable before the Consumer Forum in view of the Section 3 of the Consumer Protection Act, 1986.

Now we are to adjudicate as to whether the Complainant is entitled to get the accidental death benefit under the terms and conditions of the Sahara Rajat Yojana Scheme Option-C or not. Admittedly the husband of the Complainant, since deceased purchased the said policy from the OP-1 upon making payment of Rs.10,000=00 on 27.12.2014, the OPs issued a pass book in connection with the said option and account number in favour of the husband of the Complainant, the account number relating to the said scheme is as 24479204000, on 24.05.2013 the husband of the Complainant died due to road accident, the Complainant was declared as nominee in the said account, it was scheduled in the terms and conditions of the said scheme that in case of accidental death of the depositor within 4 years to 10 years from the date of taking out the scheme the nominee will be entitled to get a sum of Rs.2,00,000=00, the depositor died on 24.05.2013, he died within 09 years  from the date of inception of the scheme, the Complainant being the nominee of the deceased had intimated the OPs about the accidental death of her husband, she lodged claim for accidental death benefit, several written correspondences were made with the OPs, legal notices were issued, to no effect, hence by filing this complaint being aggrieved with such inaction of the OPs the Complainant has prayed for certain reliefs. The contention of the OPs is that as the Complainant lodged the claim form and intimated the incident after lapse of 30 days from the date of death of the depositor, hence in view of the terms and conditions of the questioned scheme the Complainant is not entitled to get any relief. From the petition of complaint and related documents it is revealed that admittedly the Complainant intimated the incident of accidental death of her husband and lodged the claim form before the OPs for getting accidental death benefit after 60 days from the date of death of the depositor. From the papers and documents as submitted by the Complainant it is evident that though the terms and conditions of the accidental death benefit is existing, but after perusal of the same we could not find that nowhere it is written within the four corners of the said terms and conditions that claim and intimation should be lodged and given to the OPs mandatorily within 30 days from the date of accidental death of the depositor. In respect of the specific question put by the OPs challenging the evidence of the Complainant, the Complainant has replied on affidavit that no such terms and conditions were provided by the OPs wherein it is written that the nominee should intimate and lodge the claim before the OPs positively within 30 days from the date of accidental death of the depositor. Though the OPs have mentioned the said terms and the conditions of the concerned scheme in their written version filed on affidavit, but no such document is forthcoming from the end of the OPs to corroborate the same. As the OPs have failed to adduce cogent documentary evidence in this connection, hence the contention of the OPs does not stand at all.

Admittedly, the Complainant lodged claim for accidental death benefit in respect of the scheme before the OPs and thereafter several written correspondences were made, legal notices issued, but the OPs were reluctant to mitigate and grievance of the Complainant by making payment of Rs.2,00,000=00 towards accidental death benefit in connection of the questioned scheme to her. Such inaction on behalf of the OPs can be termed as deficiency in service, for which the Complainant is entitled to get compensation from the OPs. As for redressal of her grievance the Complainant had to approach before the Court of Law by filing this complaint for which she has to incur some expenses, hence in our view the Complainant is also entitled to get litigation cost from the OPs.

Going by the foregoing discussion hence, it is

O r d e r e d

 that the complaint is allowed on contest with cost. The OPs either jointly or severally shall pay a sum of Rs.2, 00,000=00 (Rs. Two lacs) only to the Complainant towards accidental death benefit in terms of the policy/scheme within 45 (forty five) days from the date of passing of this judgment, in default, the said amount shall carry penal interest @8% p.a. for the default period. The OPs are further directed to pay either jointly or severally a sum of Rs.5, 000=00 (Rs. Five thousand) only as compensation due to mental agony, harassment and pecuniary loss and Rs.2, 000=00 (Rs. Two thousand) only as litigation cost to the Complainant within 45 (forty five) days from the date of passing of this judgment, in default, the Complainant will be at liberty to put the entire order in execution as per provision of law.  

Let plain copies of this order be supplied to the parties free of cost as per provisions of law.

                              (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                                President       

                                                                                                                     DCDRF, Burdwan

                      (Silpi Majumder)                            

                     Member                                           

                    DCDRF, Burdwan

                                                   (Pankaj Kumar Sinha)                          (Silpi Majumder)

                                                                      Member                                  Member    

                                                      DCDRF, Burdwan                               DCDRF, Burdwan