JUSTICE R.N.BISWAL, PRESIDENT

          This appeal has been preferred against the order dated 12.1.2016 passed by the District Forum, Cuttack in C.C.no. 299 of 2013 directing the appellant to pay   the death help loan amounting to Rs.27,000/- to the respondent and directing the latter to repay the said loan to the appellant within 16 years of receiving the loan amount and the repayment of loan shall be started after 5 years of availing the death help loan.

          Appellant was opposite party and the respondents were  complainants before the District Forum.

          Complainant no. 1 is the husband and complainant no. 2 is the son of late Kaberi Polley. As per their case, during her life time said Kaberi Polley had opened an account  with  the opposite party – Company under Sahara 4 Scheme on 15.7.2003 vide Account no. 11809888770 of Rs.300/- denomination per month, wherein the complainants were the nominees. Kaberi Polley expired on 14.2.2008 and after maturity of the aforesaid account, complainants applied for maturity amount and death help as per the terms and conditions of the aforesaid Scheme. Though the opposite party paid the maturity amount denied to pay the death help benefit vide letter dated 14.9.2013 despite submission of necessary undertaking and affidavit   by the complainant. As such there was deficiency of service on the part of opposite party. So they filed the aforesaid case with prayer to direct the opposite party to pay the death help benefit to them and Rs.65,000/- towards mental agony and Rs.8,000/- towards litigation expenses.

          On being noticed, opposite party entered appearance before the District Forum and filed written version contending that there is an arbitration clause in Sahara 4 Scheme. As per the said clause, in case of any dispute arises between the parties regarding the account, then such dispute shall be resolved by the Sole Arbitrator to be appointed by them. So, the Consumer Complaint is not maintainable. The Consumer Complaint was also barred by limitation. Moreover, account holder died on 14.2.2008 allegedly due to Cardio respiratory failure, cancer and diabetes which are chronic diseases, so the complainant are not entitled to get death help loan. Admittedly, there is provision of death help loan in Sahara 4 Scheme, but the same is payable only after satisfying the conditions laid down under Clause 8 of the application form, but the complainants have not complied with the same.  So, they are not  entitled to get the death help loan. Furthermore, the death help benefit being a loan, the opposite party cannot be compelled to grant the same in favour of the complainants. Accordingly, the opposite party prayed to dismiss the Consumer Complaint.

          The District Forum, after hearing the counsel of both  sides held that there was no material on record placed by either of the parties showing the account holder was having any disease prior to 3 years of opening of the account. In absence of such material, it cannot be said that she was having any disease prior to 3 years of opening of the account and accordingly, passed the impugned order.

          Bering aggrieved with the said order, the opposite party has preferred the present appeal as stated earlier.

          Heard learned counsel for the parties.

          Learned counsel for the appellant submits that the account holder opened the account on 15.7.2003. The Consumer Complaint having been filed in the year 2013, it is barred by limitation. The next submission of the learned counsel for the appellant is that since there is an arbitration clause in Sahara 4 Scheme, the Consumer Complaint filed before the District Forum is not maintainable under law. In support of his submission, he relies upon some decisions. His third submission is that the death help benefit being a loan, the appellant cannot be compelled  to sanction it in favour of respondents. According to the learned counsel for the appellant, the deceased was suffering from cancer/diabetic and heart ailments for which she died. All these diseases being chronic in nature, it can  be presumed that the account holder was suffering from such diseases within three years  prior to opening of the account. As per Clause (d) of the terms and conditions of the Scheme, the nominee of account holder can only be entitled to get the death help facility, if he  can produce authentic, convincing documentary prove to the effect that the account holder was not suffering from any chronic/fatal disease within 3 years prior to the time of opening the account. In the present case the respondents could not produce such certificate. So they are not entitled to get the benefits. Accordingly, learned counsel for the appellant prays to allow the appeal and set aside the impugned order.

          Learned counsel for the respondents supports the finding of the District Forum.

          It is found from the record that the respondents were intimated on 14.9.2013 by the appellant – Company that they are not entitled to get the death help benefit. The Consumer Complaint having been filed in the year 2013, it is within time. There is nothing in the pleading to show that the appellant – Company referred the dispute to the arbitrator. Only because there is an arbitration clause in the Scheme, the respondents cannot be debarred from approaching the District Forum to ventilate their grievance in view of Section 3 of  Consumer Protection Act, 1986 which lays down as follows:-

3.“Act not in derogation of any other law – The   provisions   of  this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

So the decisions filed by the appellant are not applicable to the present case. There is no document to show that the deceased account holder was suffering from any disease. So it cannot be said that she was suffering from cancer/diabetic/ heart ailment as argued by the learned counsel for the  appellant. The death help benefit in term of loan being a benefit under the Scheme, it cannot be said that the respondents cannot get the said benefit because it is a loan and loan cannot be directed to be advanced by the District Forum. As per the Scheme, after the required conditions are complied with by the nominees of the deceased account holder, they can get the death benefit, even if it is a loan. No doubt as per Clause 8(d) of the Scheme, the nominees of the deceased account holder are required to produce authentic and convincing documentary proof that the decease account holder was not suffering  from any chronic/fatal disease within 3 years  prior to the time of opening of the account. The deceased died 5 years after she opened the account. So it is difficult for the respondents to obtain authenticated and convincing proof that she was not suffering from any chronic/fatal disease within 3 years  prior to the date of opening of the account. It is very difficult for the nominees of any such account holder who expires during the currency of the Scheme to obtain such a certificate. If at all such document is filed, it can be treated as a manufactured one. The condition contained under clause 8(d) of the Scheme cannot be fulfilled by adopting fair means. So in our view, when the appellant failed to produce any document that the deceased account holder was suffering from any chronic/fatal disease, the appeal should be dismissed.

          Under such premises, the appeal is dismissed and the impugned order is hereby confirmed.

          Records received from the District Forum be sent back forthwith.