SHRI A.P.MUND, PRESIDENT: Complainant Ganpat Rai Agrawal has filed this case against the O.P. alleging deficiency in service and unfair trade practice. Case of the complainant in brief is that his wife Late Sulochana Agrawal had opened one account with Sahara India (Pariwar) Ltd. ,O.P. by depositing Rs.10,000/- vide Receipt No.38360112515 under Sahara Scheme opting option A in the aforesaid  application on dt.11.1.1999 vide an application No.208. In the said account her son Rabi Kumar Agrawal was the nominee. 
    2. The terms and options of the Bond are as follows :
    Sl.No.              Option                        A            BB        EE          OO
    6.      Death help to Nominee:        An amount equivalent to face
            Value of Bond would be payable every month
            For a period of 10 years i.e. 120 months.                                        
    As per the Bonds provision - Death help
    The nominee of the deceased Bond holder shall be entitled for death help facility subject to following conditions
(a) The death of the Bond holder occurs after 12 months (365 days) from the date of purchasing the Bond and before completion of tenure    
(b) Age of the Bond holder was between 16 to 60 years
( c ) The deceased bond holder was not suffering from any chronic fatal disease within 3 years from the time of purchasing the bond. The nominee of the deceased bond holder shall produce authentic, convincing documentary proof in the regard along with both certificate and proof of death of the bond holder to the satisfaction of the company.
(d) The death of the bond holder did not occur due to suicide or death punishment of the court of law
    (e ) The death of bond holder did not occur due to communal violence or war.    
    3. The bond holder Sulochana Agrawal expired on 24/25.5.2006 at K.D.Jalan Hospiutal, Khetrajpur, Sambalpur. The nominee i.e. the son was pre- deceased the bond holder and he expired on 25.3.2002. According to the complainant the death of the bond holder occurred after 12 months from the date of purchasing the bond and before completion of tenure of 10 years, which comply the condition 6(b) of the bond. According to complainant the bond holder was not suffering from any chronic/fatal disease which is enumerated in condition 6 (c) . The death of the bond holder complied with condition 6(d) and 6 (e) of the bond.
    4. Complainant complied with all the demands made by the O.P. and submitted relevant and connected documents before it and requested for sanction of death help amount as laid down in clause-6 of the terms and conditions in the bond. The O.P. defied the request of the complainant time and again and asked him to come next time. In this way complainant was debarred from getting the death help amount from the O.P. Lastly, O.P. advised  the complainant to receive only the deposited amount of Rs.10,000/-. As this is against the condition-6 of the bond, complainant refused  the same. 
    5. Complainant claims that he is entitled to receive Rs.10,000/- face value of the bond every month for 10 years from the death of the bond holder, which has not been paid and in the time the period of 10 years has already over, So, complainant claims that he is entitled to get Rs.12,00,000/-from the O.P. on this score. According to the complainant, the inaction of the O.P. in denying the benefit under the scheme is a deficiency in rendering service towards him. The O.P. has caused mental agony and harassment to the complainant for which it is liable to be compensated for the sufferings.                                             
    6. On the basis of the above, complainant has filed this case and prayed that the O.P be directed to pay him Rs.12,00,000/- towards death help benefit along with bank interest accrues there on , Rs.50,000/- towards compensation for mental agony and harassment and any other relief he is entitled to. Complainant has filed Xerox copies of following documents along with the complaint petition in order to support his case.
(1) Death certificate of Rabi Kumar Agrawal (2) Death certificate of Sulochana Agrawal (3) Receipt No.38360112515 showing deposit of Rs.10,000/-by deceased bond holder (4) Bond application form under Option A. 
    7. O.P. appeared through its Advocate and filed a petition to refer the matter for arbitration. This was disposed of by this Forum vide order dated.6.9.2012 rejected the petition. O.P. also raised preliminary issue regarding limitation. According to the O.P. the cause of action arose on the death of the depositor on 25.5.2006 and the case was filed in the year. This petition was disposed of by this Forum vide order dt.17.8.2013 rejecting the objection. 
    8. After disposal of the above two petitions, O.P. filed its written version. In the preliminary objection of the version at para-13 O.P. has taken the stand that the present complaint is not maintainable as the complainant has not complied/fulfilled the formalities of terms and conditions of Sahara-10 clause-6. So, O.P. has not committed any deficiency in service. 
    9. In para-17 O.P. has stated that the death help facility is an interest free loan which it provided to the nominee of the deceased bond holder after fulfilling the conditions under clause-6. O.P. further alleges that complainant has not arrayed Sahara India Commercial Corporation Ltd., as a party in this case, hence the case is bad due to mis-joinder and non-joinder of necessary party.
    10. O.P. has made some parawise comments in the version. In para-3 it has denied that complainant had submitted all relevant documents before the O.P. claiming death help amount as provided under the scheme. In para-6 of the O.P. has stated that though the death maturity of the depositor is lying with the O.P. complainant has never come to their office to take back the same. He may take the said amount after giving proper document and identification as per rule of the company.
    11. In para-7 it has averred that O.P. has not committed any deficiency in service. The death help facility is an additional benefit provided to the nominee of the deceased bond holder provided he/she fulfills the conditions laid down in clause-6 of the scheme. The death help facility is a discretionary facility as mentioned in the scheme, which is an interest free loan and same may be provided only after fulfilling certain conditions. O.P. states that death help cannot be claimed as a matter of right. As the bond holder died due to heart attack and heart attack is a chronic disease, the claimant is not entitled to any benefit from the O.P. Accordingly, O.P. prayed for dismissal of the complaint petition with costs.                                         
    12. O.P. has taken some additional pleas from para-6 to para-25 and cites many medical journals showing what Atherosclerosis is. In para-22 O.P. states that the researches are proving that Atherosclerosis and High Blood Pressure are chronic diseases. It clearly proves that Late Sulochana Agrawal was suffering with CVA, High Blood Pressure and Atherosclerosis chronic diseases prior to purchasing the bonds. But she did not disclose her ailment to the O.P. and purchased the bond. The complainant was also well aware with her ailment but he also did not disclose and has concealed the information with ill motive only to get the death help loan.
    13. In para-25 O.P. has averred that as the complainant has not provided required documents to fulfill the conditions, presumption under section 114(g) of Evidence  Act can be drawn against the complainant i.e. as the complainant has not filed any proper documents, it will go against the interest of the complainant  and it may be presumed that the bond holder at the time of purchasing the bond was suffering with chronic/fatal diseases and as per citation mentioned in the same para, the case may be dismissed. 
    Reiterating the stand of discretion to grant death help by O.P. in para-30 and accordingly, O.P. has claimed for dismissal of the case. 
    14. O.P. has  filed an arbitration award showing Arbitration Case No.1 of 2012 and order passed on dt.11.1.2013. 
Complainant has filed further documents in order to support his case, which are Xerox copies of:  (1) School certificate (2) Sahara death help (3) Affidavit (4) Indemnity bond (5) Again two affidavits and another indemnify bond (6) One letter dt.16.8.2010 addressed to Sahara India, Lucknow branch (7) One survey report (8) Another survey report in Hindi.
    15. Advocates for both sides filed their written arguments and citations. Citations filed by the O.P. are 
    (1) 2002(3) CPR-103(SC)
    (2) 2011(4) CPR-104(NC)
    (3) 2011(4) CPR-107(NC)
    (4) 2000(1) CPR-296 (U.P.State Commission)
    Citations filed by complainant are
    (1) 2005(2) CPR-1 (NC)
    (2) 2010(2) CPR-280 (NC)
    (3) Order passed by this Forum in Case No.432 of 2007 dt.9.9.2008                                    
    16. Heard the learned counsels for both the parties and perused the complaint petition, written version, written arguments, documents and citations filed by the parties and placed on record. Both parties advanced their arguments and defended their case. 
    17. We appreciate the written argument filed by the O.P. This is a brilliant piece of research made by the O.P. to bring to our notice regarding limitation and what is chronic disease. O.P. has gone in length and to explain and put forth its view as to what is a chronic disease. After hearing the parties and going through the documents on record, following five issues are framed to decide the case:
    (1) Whether the case is hit by limitation under section 24(a) of the Consumer Protection Act?
    (2) Whether arbitration award filed by O.P. has any bearing in this case?
    (3) What is a chronic disease?
    (4) Whether death help is a loan and O.P. has discretion to deny the death help?
    (5) Whether O.P.. is liable to pay the death help benefit to the complainant?
    18. The O.P. has filed four citations as mentioned above and the complainant also files one citation on limitation. According to us O.P. has not denied till the filing of this complaint case whether it has repudiated the death help claim and also it has not intimated the complainant that the documents filed by him are not satisfactory to grant or reject the death help. Hence according to us this is a continuous cause of action persists as there was no formal denial by the O.P. and it has not communicated to the complainant regarding denial of death help. The letter dt.16.8.2010 gives us idea that complainant was pressurized to agree to claim only the deposited money, which the advocate for the complainant argued that complainant never agreed , so this can be taken to be the bench mark and starting point of the cause of action and within two years of this letter the complainant has filed this case. In the decision relied upon and copy filed by the complainant in 2005(2) CPR-1(NC), the Honble National Commission has held:
Since possession had not been given till date, District Forum rightly held that cause of action continued and complaint could not be said to be barred by limitation.
Applying the ratio of above judgement to this case, we hold that the case is not barred by 
limitation and accordingly, issue No.1 is decided in favour of the complainant.
    19. Regarding issue No.2, O.P. has filed one arbitration award. After filing of this complaint petition in 2011, O.P. was activated in referring the dispute to arbitrator in 2012. In an application filed before this Forum O.P. has prayed to refer the matter to arbitration, which was rejected by this Forum. Ignoring the order of this Forum, O.P. went for arbitration in Arbitration Case No.1 of 2012 and the Arbitrator passed his award on 11th January, 2013. The award has gone in favour of the O.P. Complainant has filed a citation reported in 2010(2) CPR-280(NC), where in the Honble National Commission has held
Since consumer complaint had been filed in 2004 and proceedings before sole arbitrator were initiated by petitioner on 30.1.2006 and arbitrator gave his award on 3.11.2006 award will not render complaint infructuous .
The this decision is similar to the facts of the present case and as such applicable to this 
Case .Accordingly, we hold that the arbitration award filed by the O.P. has no bearing in this case and accordingly issue No.2 is decided in ratio of favour of the complainant.
    20. Regarding issue No.3, O.P. has gone in great details in finding out various opinions published in different internet and journals to show that the uncontrolled Hyper Tension is a chronic/fatal disease. It further clarifies.
Atherosclerosis may be present for years without causing symptoms. This slow disease process can begin in childhood.
All the opinions are from leading journals made by some eminent doctors. In this case, the 
deceased bond holder applied for the scheme and obtained the bond in the year 1999 and died in the year 2006, admittedly out of heart attack. The O.P. has insisted on the complainant to produce certificate that deceased was not suffering from any chronic diseases. As this is a negative way to ascertaining the fact, the O.P. cannot shift its burden of proof. Section 114(g) of Evidence Act is of no help to the O.P. The burden of proof lies squarely on the shoulder of the O.P. and it has to prove that the deceased was suffering from chronic/fatal disease and she was under treatment for chronic disease. The opinions cited by the O.P. only points to the fact that Atherosclerosis lead to fatal disease/consequences. These are only opinions and cannot be said to be proved facts. We have gone thoroughly with the form and nowhere the O.P. has defined what a chronic disease is. As normally done by Insurance Companies, it has only mentioned the deceased bond holder/policy holder should not have suffered from chronic disease.
    Most insurance companies use one of two definitions to identify such conditions. Under the objective standard definition, a pre-existing condition is any condition for which the patient has already received medical advice or treatment prior to enrollment in a new medical insurance plan. Under the broader, “prudent person” definition, a pre-existing condition is anything for which symptoms were present and a prudent person would have sought treatment.
    21. The O.P. has not provided any evidence/document to prove that the deceased was suffering from a pre-existing disease for which she was under medical treatment from any doctor. Our Honble Supreme Court has defined what a pre-existing disease, which states that Pre-existing disease is one for which the insured should have undergone hospitalization or undergone long treatment or operation.
    We sincerely feel that this is the correct definition of chronic/pre-existing disease and we are also bound by the above observation made by the Honble Supreme Court. Hence we hold that various opinions do not further the case of the O.P. The observation made by the Honble Supreme Court is very much appropriate to this case. Accordingly, we hold that deceased Sulochana Agrawal was not suffering from any chronic disease prior to taking of the Sahara-10 scheme. Only filing opinions cannot take the place of proof. O.P. has failed to discharge the proof that deceased was not suffering from any chronic disease and accordingly issue No.3 is decided in favour of the complainant.
    22. Regarding issue No.4, O.P. has argued that the death help is a discretionary one as it is a loan and has given many citations showing that loan cannot be demanded rather it is under discretion of the persons giving the loan, whether he can disburse the loan or reject the same. In this case, we have gone through clause-6. Clause-6 runs as follows:
    6. DEATH HELP
    The nominee(s) of the deceased Bond Holder shall be entitled for death help facility subject to the following conditions
(a)    The death of the Bond Holder occur s after 12 months (365 days) from the date of purchasing the Bond(s) and before completion of tenure.
(b)    Age of the deceased Bond Holder was between 16 and 60 years at the time of death.
(c )     The deceased Bond Holder was not suffering from any chronic/fatal disease within 3 years from the time of purchasing the Bond(s). the nominee(s)  of the deceased Bond Holder shall produce authentic, convincing  documentary proof  in this regard, along with birth certificate and proof of death of the Bond Holder to the satisfaction of the company.
(d)     The death of the Bond Holder did not occur due to suicide or death punishment by the Court of Law.
(e)     The death of the Bond Holder did not occur due to communal violence or war.
(f)    In case Bond Holder exercises his option for premature redemption, the nominee(s) of the Bond Holder shall seized to be entitled for the death help facility
    Note: Death help will, be given on one type of option only. 
    23. As per the language mentioned in clause-6, we feel that it is mandatory and not 
discretionary. Only the nominee has to fulfill certain conditions. Once it is made, there is no discretion left with the O.P. and it cannot deny the benefit to the nominee of the deceased bond holder. It is bound to carry out the mandate as envisaged in clause-6. It has to pay Rs.10,000/- every month for 10 years. The nominee has to receive the death help amount subject to conditions imposed in clause-7 of the bond, wherein the nominee has to return the money received as death help after certain period. But first of all the O.P. has to pay the death help amount for the full period of ten years and thereafter it can proceed to recover the money as per clause-7. In this case, O.P. has failed to disburse the death help amount to the complainant. Hence issue No.4 is decided against the O.P. and in favour of the complainant. 
    24. Regarding the last issue No.5, whether the O.P. has to pay the death help benefit and for what amount and whether the death help benefit amount will be paid in lump sum or to be paid as per clause-6. Admittedly, the deceased bond holder died in the year 2006, the complainant was asked to produce documents, which he did. But the O.P. neither rejected the claim nor released the death help amount to the complainant. In the meantime long period of 10 years  elapsed. Law of equity demands that O.P. is bound to pay the lump sum amount of Rs.12,00.000/- to the complainant on his personal guarantee as envisaged in clause 7 of the bond. At present O.P. cannot exercise the benefit under clause-6 to pay Rs.10,000/- every month for ten years. O.P. is at fault in not providing the death help benefit to the complainant at the earlier point of time, rather gone for arbitration and delayed the matter knowingly causing harassment to the complainant. Hence O.P. is liable to pay to the complainant the total death help amount for 10 years  which comes to Rs.12,00,000/-, in one  go.
    25. Taking into consideration the facts and circumstances discussed above, we allow the case of the complainant against the O.P. on contest and direct the O.P. to pay to the complainant Rs.12,00,000/-(Rupees Twelve Lakhs) towards death help benefit for 10 years as per clause-6 of the bond within 30 days from the date of order. Thereafter, O.P. may take steps for recovery of the amount without interest as per clause-7 of the bond.