Orissa

Debagarh

CC/7/2018

Sri Ramakanta Guru, S/O-Late Bholanath Guru, aged about 70 years - Complainant(s)

Versus

The Manager, Sahara India, Deogarh - Opp.Party(s)

Sri D.K. Guru & S. Guru

05 Nov 2021

ORDER

 IN THE COURT OF DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, DEOGARH

C.C NO- 07/2018

              Present-Sri Dipak Kumar Mahapatra, President, Smt. Arati Das, Member).

 

Sri Ramakanta Guru,

S/O-Late Bholanath Guru,

Aged about 70 years,

R/O-Barapali sahi, PO/PS/Dist-Deogarh.                                                           ….        Complainant.

 

                                                                        -Versus-

1.         The Branch Manager,

            Sahara India, Deogarh Branch,

            At/PO/Dist-Deogarh.

 

2.         Sanjay Patra, Agent,

            Sahara India, Deogarh Branch,

            Khapar Sahi, At/PO/Dist-Deogarh.                                                     ….        O.Ps.  

 

            Counsels:-

1. For the Complainant             :- Sri. D.K. Guru & Associate, Advocate, Deogarh.
2. For the O.P-1                        :- Sri R.K.Pradhan, Advocate, Deogarh.
3. For the O.P-2                        :-None.

 

DATE OF HEARING: 30.10.2021, DATE OF ORDER: 05.11.2021.

Sri Dipak Kumar Mahapatra, President- Brief facts of the case is that, the Complainant has deposited Rs.19,000/-each  in the Sahara Bank, Deogarh Branch vide receipt no-71016216809/certificate no-502021723987 and receipt no-71016221031/certificate no-562021723999 on dtd. 28.05.2012 which have the maturity date on 24.05.2018 and 28.05.2018 respectively.  On dtd. 11.01.2018, the O.P-2 working as an agent of the O.P-1 came to the complainant and asked to give the above two certificates to submit in the bank of the O.P-1 to avoid levy of unwanted GST to escape from heavy deduction and also asked for 2 passport size photograph, Adhaar Card xerox and Electric Bill and took signatures on some papers and told that the same are required by the O.P-1 for payment. But on dtd. 27.01.2018 the Complainant received 4 nos. certificates from “Saharyn Universal Multipurpose Soceity Ltd.” sent by the O.P-1, where the maturity amount of the existing certificate were reinvested on dtd.22.01.2018, on the maturity dates of the certificates.  The date of maturity of the new policy is dtd. 22.01.2024 and the value is Rs.1,07,000/- in one certificate  and maturity value is Rs. 1,06,750/- in the other certificate. Except the date and maturity value the other particulars are written in printed form which creates a doubt on the genuineness of the documents.  The Complainant confused and wanted to know the matter from the O.Ps and met O.P-1. The O.P-1 claims that the Complainant have opted to reinvest the money on the day of maturity and put signature on the paper after a thorough understanding of the contents of the form of policy.  As he has put his signature on the policy it is presumed that he has consent for it. The Complainant has put his signature relying on the oral version of the O.P-2 and without going through the form he put his signature of the proposal papers. But after several requests to return the certificates for which the Complainant can withdraw the amount to meet his requirement but the O.P-1 ignored him and suggested him to wait till maturity in the year 2024. As the Complainant is pension holder he is going through severe financial setback and hopes to keep some cash in hand by drawing the maturity value, which will meet his needs time to time.

As per the O.P-1, the Complaint petition is false, baseless and the Forum has no jurisdiction to try this case. As it has an Arbitration clause and the case should be decided as per Arbitration and Reconciliation Act-1996, hence this case is liable to be dismissed. He cited a decision from Hon’ble Supreme Court, M/S SBP & Com.  Vrs. Patel Engineering Ltd.(2005)8 SCC 618 where it was decided that any agreement is executed between the parties for settlement of disputes through arbitration then either of the parties cannot ignore the arbitration clause. He added that the O.P-1 has not instructed any agent to collect the certificates, Adhaar Card, Voter Card, photos, electric bill and signed documents from the Complainant. If anything has been done then the Complainant is solely responsible for all the above. As the Complainant has put the signature in the proposal form it is presumed that he has entered in to the agreement and declared that he is abide by all the terms and conditions of the scheme of the society. As the Complainant has failed to establish the allegations made against the O.Ps the petition may be dismissed at Cost.

The O.P-2, despite of service of notice he did not bother to appear before this Commission thus challenging the allegations made by the Complainant. So taking it in to consideration as “IT IS A YEAR OLD CASE”, this Commission has rightly decided to dispose the case as well setting the O.P-2 as ex-parte in this case. Hence hearing conducted exparte under Rule-6 of Order-9 of Civil Procedure Code.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has made two fixed deposit at the bank of the O.P-1 by investing some money. The O.P-1 through his agent O.P-2 has misrepresented the Complainant and reinvested the maturity amount against the fixed deposit in to new policies without knowledge and consent of the Complainant as alleged. The OPs could able to produce the proposal form where they have taken the signature of the Complainant for reinvestment of the money of the existing policy to strengthen their defence but merely denied the allegations.

On consideration of the matter of jurisdiction of the Consumer Commission to interfere in the cases relating to Arbitration and Conciliation, it is observed that the Hon’ble Supreme Court of India in the matter of M/S Emaar Mgf Land Limited vs Aftab Singh on 10 December, 2018 has given a verdict that “Arbitration Clause Cannot Oust The Jurisdiction Of Consumer Courts”. Again the Court added that "......Not only the proceedings of Consumer Protection Act, 1986 are special proceedings which were required to be continued under the Act despite an arbitration agreement, there are large number of other fields where an arbitration agreement can neither stop or stultify the proceedings." "......The complaints filed under the Consumer Protection Act can also be proceeded with despite there being any arbitration agreement between the parties which have been well settled by the catena of decisions as noticed above." Again it is claimed by the Complainant that the proposal form was not filled in by the proposer/policy holder/Complainant himself and the agent of the O.P-1 had obtained the policy holder's signatures on the proposal form and the various entries of the proposal form were filled in by the said agent, in his own handwriting. So the Complainant cannot be held responsible for concealing any facts as the proposal from was filled in the agent. This aspect is well covered by judgment in “LIC vs. Bina Joshi” where the entries filled by agents, the policy holders were not blamed for concealing information. The O.P-2 has misrepresented the terms and conditions, sum assured and other aspects of Scheme thus suppress the material facts to fetch the policy anyhow. Again in the case of  United Insurance Co. Ltd. vs. Harchand Rai Chandan Lal, AIR 2004 SC 4974,Hon’ble Supreme Court also observed that, “it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous.”

 As per the above discussion it is clear that the O.P-1 & 2 have knowingly sold the policy to the customers to amass a huge amount of money. Again it is seen from the money receipt issued to the complainant where the date of maturity and maturity value are hand written which creates a doubt in the mind of this commission. Hence we feel that both of the O.Ps are liable for deficiency in service as well as Unfair Trade Practice as per Consumer Protection Act-2019. Hence we order as under:-

ORDER

The Complaint petition is allowed. Firstly the O.P-1 is directed to return the maturity amount of Rs.38,000(Rs. 19,000 each)to the Complainant which was originally deposited as fixed deposit with the O.P-1. Secondly the O.P-1 is further directed to pay an interest @ 9% interest per annum on the maturity value of the fixed deposit from dtd. 01.07.2021 till its realisation along with a Compensation of Rs. 10,000/- (Rupees Three Thousand) for metal agony and pain to the Complainant. The O.P-2 is directed to pay Rs. 10,000/-(Rupees Twelve Thousand) as compensation and Rs.3,000/- (Rupees Three Thousand) towards the cost of litigation to the Complainant. All the above orders are to be carried out within 30 (Thirty) days of receiving of this order, failing which, the complainant is at liberty to proceed in due process of law.     

Order pronounced in the open court today i.e, on 5th day of November 2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

 

I agree,                                                                                             

 

MEMBER.                                                                                          PRESIDENT.

                                                 

     Dictated and Corrected

                                                       By me.

                                                 PRESIDENT.