BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
WEST GODAVARI AT ELURU
Between
1. Sahara India
Rep. by the Branch Manager,
Opp.RTC Complex, Tadepalligudem
2. The Regional Manager,
Sahara India, Opp. Khandari Hotel
Vijayawada
Both are rep. by Shri Zia Qadree
Asst. Director Worker, Sahara India Pariwar
Sahara Manzil Opp. Secretariat, Hyderabad
Appellants/opposite parties
A N D
Shri Alapati Subba Rao S/o late Venkayya
Aged 30 yrs, Occ: Business,
R/o Tadepalligudem, W.G.Dist.
Respondent/complainant
Between
1. The Branch Manager,
Sahara India
Opp.RTC Complex, Tadepalligudem
2. The Regional Manager,
Sahara India, Opp. Khandari Hotel
Vijayawada
Both are rep. by Shri Zia Qadree
Asst. Director Worker, Sahara India Pariwar
Sahara Manzil Opp.Secretariat, Hyderabad
Appellants/opposite parties
A N D
1. Shri Alapati Subba Rao S/o late Venkayya
Aged 30 yrs, Occ: Business,
R/o Tadepalligudem, W.G.Dist.
Respondent/complainant
Counsel for the Appellants Smt Vijaya Sagi
Counsel for the Respondents Sri N.V.Anantha Krishna
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
WEDNESDAY THE TWELVEFTH DAY OF MAY
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Membe
***
The two appeals have been filed by the opposite parties who are the same opposite parties in both the complaints C.C.No.46 of 2006 and C.C.No.96 of 2007 and the cause of action is the same for filing of both the complaints. Hence, it is proposed to dispose of the two appeals by way of a common order.
The facts of the case as represented by the complainant are that his father during his life time joined Golden 7 Scheme offered by the opposite parties and opened on 8.7.1995 an account bearing No.18295000050 and another account bearing No.18295003741 on 31.8.1996. The father of the complainant paid a sum of Rs.12,300/- at the rate of Rs.300/- per month under the first mentioned account and an amount of Rs.4,200/- @ Rs.150/- per month in respect of the second account. The complainant’s father appointed him as his nominee for the benefits conferred under the two accounts. The complainant’s father died on 25.5.1999 and after the death of his father the complainant claimed an amount of Rs.43,200/- besides the amount paid by his father, Rs.12,300/- plus Rs.4,200/- under the two accounts. The signature of the complainant’s father was obtained by the opposite parties on blank papers which included the age, date of birth and all the other particulars were later filled up by the official of the opposite parties. The opposite parties paid an mount of Rs.16,500/- on 6.9.2000 which was deposited by his father and the opposite parties failed to pay any interest accrued on the amount. The opposite parties had also not paid the amount payable under Death Health Scheme. The opposite parties issued letter dated 18.11.2004 informing the complainant that there was discrepancy in counterfoil and birth certificate. The complainant replied that he had furnished the particulars of date of birth of his father as was provided by the LIC of India. The opposite parties are estopped from taking the plea of discrepancy in regard to the age as they had already paid amount of Rs.16,500/- to the complainant. Failure of the opposite parties to pay the Death Help Benefit to the complainant, according to the complainant amounts to deficiency in service on the part of the opposite parties. Hence, prayed for a direction for payment of rs.43,000/- with interest.
The opposite parties resisted the claim contending that the consumer forum has no jurisdiction to adjudicate upon the dispute in view of the arbitration clause specified as a term in the scheme and agreed upon by the father of the complainant at the time of signing the agreement.
The claim of the complainant is barred by limitation. The complainant’s father died on 25.9.1999. the complainant has made the claim on 23.6.2004, after two years from the date of death of his father. The complainant’s father deposited Rs.12,300/- under A/c No.18295000050 from 8.7.1995 to 30.4.1999 and an amount of Rs.4,200/- under A/c No.18295003741 from 31.8.1996 till 30.4.1999. The clause 7 of the Agreement is subject to the control exercised by the clause 6 of the agreement. The nature of death help facility is that of interest free loan; it is recoverable within a period of 16 years for which the nominee has to furnish personal guarantee. The complainant has not proved the age of his father at the time of the death of the deceased by filing authentic document that the deceased has not suffered from any chronic or fatal disease within past three years at the time of opening the account. As per the terms of the scheme the maturity amount benefits are available after the period of 72 years. The complainant’s father died before completion of 72 months. No interest/bonus was payable on the deposit. The complainant has not submitted the required proof to satisfy the terms and conditions laid down in the scheme. As such he could not be provided death help facility. There was no deficiency in service on the part of the opposite parties. The Golden 7 scheme is not insurance linked death help scheme. The purpose of the scheme is to provide financial help to the dependents of the deceased account holders at the time of distress. No premium was collected under the scheme and as such no insurance cover was provided. The nominee of the deceased account holder can avail facility of death help bygiving personal guarantee. He has to repay the amount within a period of 16 years. No interest is charged on the amount offered under the scheme.
The repayment period starts after five years from the date of receiving the death help. The Master Opening Form contains the contractual terms wherein the death help clause prescribes that the age of the deceased account holder was between 15 to 65 years at the time of death. The account has continued for minimum 365 days from the date of opening the account and 12 months instalmetns have been deposited and at the time of death a minimum of 50% instalments of the total period of payment have been made. The account holder was not suffering from any chronic/fatal disease within past 3 years at the time of opening the account. The death of the account holder did not occur due to suicide or death punishment by the court of law or due to communal violence.
The complainant had submitted as age proof of the deceased, a copy of the policy issued by the LIC of India. There was discrepancy in the age mentioned in the insurance policy submitted by the complainant and the Master Opening Form. The age of the deceased varied by two years by the contents of the two documents. Therefore, the complainant was asked to submit other authentic age proof such as certificate issued by the Municipality or Grampanchyat or school certificate disclosing the age of deceased account holder or any other document issued by any public authority. The complainant did not submit any such document. The complainant has also not submitted the document certifying the fact that his deceased father was not suffering from any chronic or fatal disease within past 3 years at the time of the opening account. The doctor who had issued the letter has not treated the deceased father of the complainant. The complainant addressed letter dated 23.6.2004 to the opposite parties admitting that there was delay caused in submitting the documents. The death help application of the complainant can be entertained by the opposite parties only if the complainant submits authentic age proof certificate and documents to the effect that the deceased had not suffered from any chronic or fatal disease for the past three years from the date of opening the account and also a personal guarantee that he would repay the death help amount as per the terms of the scheme.
The complainant has filed his affidavit and documents marked as Exs.A1 to A5.
On behalf of the opposite parties Exs.B1 to B3 have been marked.
The District forum has allowed the complaint CC No.46 of 2006 and C.C.No.96 of 2006 against the opposite parties to pay an amount of Rs.43,200/- with interest @ 6% per annum and Rs.21,600/- with interest @ 9% per annum respectively.
Feeling aggrieved by the order of the District Forum, the opposite parties have filed the appeals contending that the death help is not insurance claim. The death help is payable in monthly instalments only and it can be repaid in monthly instalments. There is no fixed period from which the advancement of death help facility may commence. The facility is extended only after the formalities were completed by the nominee as per the terms of the scheme. The interest can be awarded only against any deposit not paid in due time but not in case of death help facility. No interest can be awarded against a proposed loan even if the payment has been delayed. The Death Help facility itself is an interest free loan. The forum cannot travel beyond the scope of the contract. The complainant has not filed the required documents to facilitate the extension of the death help facility. As per the arbitration clause the forum has no jurisdiction to entertain the complaint. The complaint was barred by limitation.
The points for consideration are:
1) Whether the forum has jurisdiction to entertain the complaint in
view of the arbitration clause in the agreement?
2) Whether the complainant has not submitted the documents for processing the death help loan facility?
3) Whether there was any deficiency in service on the part of the opposite parties?
4) Whether the complaint was filed within the period of limitation?
5) To what relief?
POINT NO.1 the learned counsel for the appellant has contended that the District Forum lacks jurisdiction in view of the arbitration clause in the agreement. She has relied upon the judgement of the Hon’ble Supreme Court in M/s S.B.P. & Co., Vs. M/s Patel Engineering Ltd., (2005) 8 SCC 618. In that case the Supreme Court held “ where there is an arbitration agreement between the parties and one of the parties ignoring it, files an action before a judicial authority and the other party raises the objection that there is an arbitration clause, the judicial authority has to consider that objection and if the objection is found sustainable to refer the parties to arbitration”.
The question of arbitration clause and the jurisdiction of consumer forum in that regard had come up for consideration before the High Court of A.P. in W.P.No.4205 of 2008 which was decided on 13.3.2008 wherein the High Court dealt with Sec.3 of the C.P.Act conferring additional jurisdiction on the Consumer Fora as against the civil courts. The High Court has referred to the decisions of Supreme Court in Fair Air Engineers Pvt. Ltd., Vs N.K.Modi, Orissa Lift Irrigation Corporation Ltd., Vs Birra Kishore Raut, National Insurance Company Ltd., Vs Satbhushan Jain and M/s S.B.P. & Co. Vs M/s Patel Engineering Ltd. The High Court held that the law laid down by the Supreme Court in M/s SBP & Co. Vs M/s Patel Engineering Ltd., is applicable to be traditional courts but not to the Consumer Fora which are also conferred with the power flowing from Sec.3 of the C.P.Act in addition to the inherent power conferred onthem by the statute. Therefore in that view of the matter the consumer forum can proceed with the matter not initiated by the arbitration clause in the agreement and its invocation by the opposite party. This point is answered against the appellants/opposite parties.
POINT NO.2 The parties are not at dispute in regard to the operation of the accounts in Golden 7 Scheme by the complainant’s father with the opposite parties. He had opened on 8.7.1995 an account bearing No.18295000050 and another account bearing No.18295003741 on 31.8.1996. The father of the complainant paid a sum of Rs.12,300/- at the rate of Rs.300/- per month under the first mentioned account and an amount of Rs.4,200/- @ Rs.150/- per month in respect of the second account. The complainant’s father died on 25.5.1999 and after the death of his father the complainant claimed an amount of Rs.43,200/- and Rs.21,600/- towards the benefits of the Death Help facility. After the death of his father the complainant has lodged claim for the benefits due under the both the accounts held by his deceased father. The opposite party paid the amount deposited by the father of the complainant, a sum of Rs.16,500/- on 6.9.2000.
The case of the opposite parties is that the complainant had not submitted the relevant documents as also that he had submitted the documents belatedly. The complainant has addressed letter dated 23.6.2004 to the opposite party no1. informing them that his father died on 25.5.1999 as he was away from the village he could not submit the documents, medical certificate and date of birth certificate in time. The father of the complainant died on 25.5.1999. The complainant has submitted the aforementioned two documents on 23.6.2004. We are of the considered view that the contention of the opposite parties that the complainant has submitted the documents beyond the stipulated period is of no consequence as the opposite parties proceeded with the documents submitted by the complainant. The opposite parties had proceeded to consider the documents and found some discrepancy in regard to the date of birth of their deceased account holder. The opposite parties requested the complainant to submit any other documents issued by an authority in regards to the age of his deceased father. Therefore, having a taken a decision to consider the documents submitted by the complainant and requesting him thereon to submit some other documents, the opposite parties have waived to the stipulation of the time as to the requirement of submission of the documents. The opposite parties have not pointed out the clause governing the period of limitation for submission of the documents by the nominee of deceased account holder. In any case, in the circumstances, the opposite parties are estopped from raising the plea of limitation relating to the submission of the documents by the complainant. The point is answered in favour of the complainant.
POINT NO.3 The opposite parties have paid the amount that was deposited by the complainant’s father. In regard to the payment of the death benefit facilty, the opposite parties had invoked Clause IV of the agreement and sought for the documents which however, the complainant had not submitted . Clause VI of the terms and conditions of the scheme Golden 7 deals with the death help. Clause VI of the agreement reads as under:
Death Help: The nominee (S) of the deceased account holder shall be entitled to this facility subject to the following condition
a) age of the deceased account holder was between 15 and 65 years at the time of death.
b) The account has continued for minimum 365 days from the of opening the account and 12 months instalments have been deposited and at the time of death a minimum of 50% instalments of the total period of payment have been made, in case monthly instalments, at least one month instalment should have been deposited within three months prior fo the death in case of yearly, halfyearly, quarterly instalments, last payment should have been made within three months of the due date.
c) The account holder was not suffering from any chronic/fatal disease within past 3 years at the time of opening the account. The nominee(s) shall produce authentic convincing documentary proof in this regard along with proof of eath to the satisfaction of the company.
d) The death of the account holder did not occur due to suicide or death punishment by the court of law.
e) The death of the account holder did not occur due to communal violence .
Sec.7 of the Agreement provides for the amount of death help and computation of the amount thereof. There is no dispute between the parties regarding the quantum of amount to be sanctioned to the complainant as death help. The opposite parties had pointed out the discrepancy in age in the documents, the copy of insurance policy submitted by the complainant and the Master Opening Form submitted by the father of the complainant. The opposite party had not expressly sought for the document required to be submitted as per the terms laid down under clause 6 of the agreement. The oppose party could have informed the complainant that the documents required to be filed for sanction and payment of death help are those that are specifically mentioned in clause 6 of the agreement. Therefore, we are of the opinion that there was deficiency in service on the part of the opposite party. However, the complainant was at fault in submitting the documents for facilitating the opposite parties to process his claim for the death help benefit. In that view of the matter, the order passed by the District Forum is not tenable and liable to be dismissed. The District Forum has not taken into consideration of the requirement of clause 6 of the agreement contemplating the submission of the death certificate, the document to show the age of the deceased and the medical certificate that the deceased had not suffered from any chronic disease three years prior to the date of the agreement except that the complainant has submitted a copy of the insurance policy and the copy of the death certificate issued by the
Department of Medical and Health Services, West Godavari. The appellants have stated in their appeal grounds at page no.8 that “ Actually this facility extended only after observing the formalities by the nominee as laid down in the scheme and after due enquiry made by the appellant. Until this procedure is completed, no entitlement of this facility can be claimed by the respondent nor can it be said that the above facility has been denied by the appellant company”. The complainant has to comply with the requirement laid down by clause 6 of the agreement in regard to the submission of the required documents. Hence, the impugned order is set aside insofar as the interest component is concerned and the order is liable to be modified in regard to the payment of death help facility as subject to submission of the relevant by the complainant.
In the result the appeals F.A.No.94 of 2007 and F.A.No.12 of 2008 have been partly allowed. The orders dated 8.11.2006 and 3.10.2007 passed by the District Forum are modified. The opposite parties directed to extend the death help facility under A/c Nos. 18295000050 and 18295004741 in terms of clause 6 of the agreement on submission of documents relating to the age proof and medical history of the deceased Alapati Venkayya by the complainant. On receipt of the amount, the complainant shall repay the amount in accordance with the terms of the agreement There shall be no order as to costs.
Sd/-
MEMBER
Sd/-
MEMBER
DT.12.05.2010
Kmk*
