Sahara India & Anr vs Basmati Devi & Anr

The case was listed for final hearing vide the previous Order dated 04.09.2019.

At the first call in the forenoon session, learned counsel for the petitioner company was present. The learned arguing counsel was not present.

The learned counsel for the petitioner company could not submit details of compliance or otherwise of the directions contained in the previous Order dated 04.09.2019.

The case was passed over to 2.00 p.m. in the afternoon session, with a request to the learned counsel to submit details of compliance or otherwise of the directions contained in the previous Order dated 04.09.2019.

In the second call in the afternoon session at 2.00 p.m., learned counsel for the petitioner company is present.

Learned arguing counsel for the petitioner company is not present.

The previous Order dated 04.09.2019 reads as below:

Learned proxy counsel for the petitioner company (M/s. Sahara India Limited) submits that the learned counsel is not available for arguments and seeks a pass-over.

Learned counsel for the complainant-wife-nominee-respondent no. 1 is present.

Learned counsel for the insurance company (National Insurance Company Limited) - respondent no. 2 is present.

It is 1.20 p.m. in the forenoon session.

In the afternoon session we have to take up original petition no. 210 of 2000, which is a case of alleged medical negligence, and is listed at 2.00 p.m. today for final hearing.

We are constrained to adjourn this case.

We have, but, perused the entire material on record.

The District Forum vide its Order dated 11.05.2012 had allowed the complaint:

We have heard the arguments of the parties and gone through the record carefully.

There is no dispute that Late Sh. Ram Lakhan, husband of the complainant had invested Rs. 10,000/- on 06.12.05 in OP1's Rajat Yojna and complainant is the nominee under the scheme. There is also no dispute that Sh. Ram Lakhan had an accidental death on 21.02.08 and OP refunded the deposit along with interest to the complainant (nominee) in April, 09. The dispute is regarding payment of accidental death benefit to the clause 18 of the term and conditions of OPs Rajat Yojma scheme inter alia provided as under:-

If accidental occurs

Insurance compensation amount

After 1 yr. & upto 2 year

Rs. 50,000/-

After 2 yrs. & upto 3 years

Rs. 1,00,000/-

After 3 yrs. & upto 4 years

Rs. 1,00,000/-

After 4 yrs. & upto 10 years

Rs. 2,00,000/-

It is noted that OP had taken a group general insurance policy from National Insurance Company Ltd. to cover the above risk on payment of premium from their end and OP1 had furnished to OP3 the claim duly recommended for payment to the complainant. However, the claim was repudiated by OP3 on account of delay in lodging the claim. On a pointed query from this forum, it is admitted by OP1 that het terms and conditions of the insurance policy were not communicated to the investors. Therefore, we find that there is no privity of contract between the complainant a d OP 3 and insurance was by-partite arrangement between OP1 and OP 3. It is also noted that terms and conditions of the OP1's Rajat Yojna scheme it was mentioned that the nominee has to submit the death claim within any time limit. In the instant case complainant had submitted the death claim in normal course which has been received, processed and recommended by OP1 for payment and forwarded the same to OP3. In these circumstances, we find that it is the liability of OP1 to pay the death claim of Rs. 1 lac to the complainant and they may or may not get reimbursed from OP3 and complainant cannot be made to suffer due to any terms unknown to complainant but agreed between OP1 and OP3.

OP1 have raised a preliminary objection that this forum has no jurisdiction to adjudicate the present complaint in view of the provisions of arbitration clause in the terms and conditions of the scheme. In this connection it is noted by this forum that Hon'ble Supreme court in the matter of Secretary, Thirumurugan Co-operative Agricultural credit society v/s ML lalitha 1 (2004) CPJ1 (SC) decided on 11.12.03 It was upheld that Section 3 of Consumer Protection Act shall be in addition to and not to derogation of the provisions of any other law. As such objection raised by OP in this regard is also not tenable.

OP has also raised a preliminary objection that the present case is barred by limitation as investor has expired on 21.02.08 and the present complaint is after expiry of two years limitation period as prescribed under the Consumer Protection Act. It is noted by this forum that OP2 forwarded to OP1 accident claim of the complainant duly recommended vide their letter dt. 17.04.09. As such the claim was subsist on 17.04.09 and therefore the present complaint filed before this Forum on 07.10.10 is well within the limitation period provided under the Consumer Protection Act.

In the above, we direct OP1 to pay to complainant the death claim benefit of Rs. 1 lac in question within 30 days from the receipt of this order. OP1 is also directed to pay to complainant to amount of Rs. 5000/- as compensation for the harassment caused to the complainant as well as Rs. 3000/- as litigation charges.

OP1 will comply with the orders within 30 days from the date of this order.

(extracts from the District Forum's Order)

(as per the translated copy supplied by the petitioner)

The State Commission vide its Order dated 21.07.2017 had dismissed the appeal:

8) I have heard the arguments addressed by the counsel for the Appellant/Sahara India Sh. Simranjeet Singh Advocate, Counsel for the Respondent-1/complainant Sh. Vipin Kumar Mishra Advocate and the Counsel for the Respondent-2/National Insurance Company Ltd. Sh. Ankur Jately Advocate, at length.

9) Appellant has placed reliance upon the case of National Insurance Co. Ltd. v. Smt. Shimla Sharma and Ors. (Revision Petition No. 527/2012 decided by the Hon'ble National Commission vide orders dated 15.04.2013). On the contrary, Counsel for the Respondent-1/complainant has relied upon the case of Branch Manager Sahara India Commercial Corporation Ltd. & Ors. v. Satya Narayan Yadav & Anr. (Revision Petition No. 73/2017 decided on 24.01.2017).

10) The case of Branch Manager Sahara India Commercial Corporation Ltd. & Ors. (supra) pertains to the same scheme called Rajat Yojna which was joined by the complainant in the present case. In the said case Sahara India had settled the claim by paying Rs. 50,000/- to the complainant therein. Sahara India had requested National Insurance Company Ltd. to pay the balance amount to the complainant therein. Stand taken by the National Insurance Company Ltd. was that it had nothing to do with the complainant and was not liable to indemnify him. Ld. District Forum in the said case directed Sahara India to pay to the complainant therein an amount of Rs. 1,50,000/- alongwith interest @ 7% p.a. Compensation and costs of litigation was quantified @ Rs. 25,000/-. An appeal preferred against the said orders was dismissed by the State Commission. Sahara India filed a revision petition in the Hon'ble National Commission.

Relevant portion of the orders dated 24.01.2017 is reproduced below:

"The learned counsel for the petitioner company submits that since they had taken an insurance policy from the National Insurance Company, the balance amount of Rs. 1,50,000/- was payable by the said insurance company and not by the petitioner company. I however, find no merit in this contention. Clause-18 of the terms and conditions, governing the scheme in which the investment was made by the deceased, clearly shows that in the event of the death of the investor in an accident, his nominee was entitled to the amount specified in the said clause. Admittedly, the amount payable in terms of the option exercised by the deceased came to Rs. 2,00,000/-. The aforesaid clause does not provide for payment of the accidental benefit by National Insurance Company or any other insurer of the petitioner. The said clause is an agreement between the petitioner and the deceased where-under in the event of his death in an accident his nominee was entitled to a sum of Rs. 2,00,000/-. If the petitioner company had an arrangement with National Insurance Company or any other insurer for making the whole or a part of the said payment, it is for the petitioner company to pursue its remedy against such an insurer. Admittedly, the deceased was not in a party to the alleged agreement/arrangement/policy between the Petitioner Company and National Insurance Company. Therefore, the complainant cannot be asked to recover the balance amount of Rs. 1,50,000/- from the insurance company. The deceased having made investment in the scheme of the petitioner company taking into consideration accidental benefit payable to his nominee in the event of his death in an accident, the petitioner company cannot be allowed to back out of the promise made by it and the failure of the petitioner company to pay the balance amount of Rs. 1,50,000/- to the complainant amounts to deficiency in the services."

11) Now coming to the case cited by the appellant i.e. the case of Smt. Shimla Sharma and Ors. (supra), the Hon'ble National Commission had disposed of two appeals bearing nos. 1451/2010 and 1488/2010. In appeal no. 1451/2010 State Commission had held that the insurance company was liable to pay the insured amount under the policy. Since the National Insurance Company Ltd. had not filed any appeal, liability to pay the amount remained intact. Issue that arose in appeal no. 1488/2010 was whether the National Insurance Company was required to pay a consolidated amount of Rs. 1,00,000/- towards the insured amount of six investments made by the husband of the complainant therein. State Commission had directed the National Insurance Company Ltd. to pay an amount of Rs. 1,00,000/- on each investment. The Hon'ble National Commission had opined that the amount of Rs. 1,00,000/- was to be paid on each investment made by the insured. Perusal of the case thus relied upon shows that the issues adjudicated upon have no relevance to the case in hand.

12) In the case of Branch Manager Sahara India Commercial Corporation Ltd. (supra), the issue squarely covers the case in hand. Hon'ble National Commission had observed that the (deceased) predecessor-in-interest of the complainant therein was not a party to the agreement/arrangement between him and the National Insurance Company. By this logic complainant could not be asked to recover any amount from the National Insurance Company Ltd. In the present case too there is no agreement between the husband of the complainant and the insurance company. Bipartite agreement exists only between the husband of the complainant on the one hand and the respondent Sahara India on the other side.

13) National Insurance Company Ltd. in the present case was proceeded against ex-parte in the District Forum. During the course of arguments Ld. Counsel for the appellant/Sahara India has referred to the 'guidelines on group insurance policies' in support of his contention that it was the liability of the insurance company to pay to the complainant the amount of Rs. 1,00,000/-. Perusal of the said guidelines shows the duty and liability of a group/organization in respect of a group insurance policy. It does not deal with a situation when no agreement between the insurer and a complainant exists. Clearly the said guideline does not help the appellant in any manner. Before parting it may be mentioned here that the Ld. Counsel for the appellant Sahara India and the insurance company took a plea that the District Forum did not have territorial jurisdiction as the complainant belonged to Faridabad and Sahara India had its regional office in NIT Faridabad. As discussed above, complainant in the present case had made her correspondence with Sahara India Kalyanpuri Delhi i.e. OP-2. Factum of death of the husband of the complainant was informed to OP-2 only by the complainant. OP-2 had informed her that her application would be processed later. Now it does not lie in the mouth of Sahara India to take a plea that the District Forum in Delhi did not have the jurisdiction. The case of Sonic Surgical relied upon by the appellant is hence of no avail.

14) In view of the discussion above, I am of the considered opinion that the appeal is devoid of merits. The same is hence dismissed with costs of Rs. 20,000/-.

(paras 8, 9, 10, 11, 12, 13 and 14 of the State Commission's Order)

This revision petition has been filed by the petitioner company under section 21(b) of the Act 1986 against the said Order dated 21.07.2017 of the State Commission.

The two fora below have arrived at concurrent findings, and fixed the liability on the petitioner company (M/s Sahara India Ltd.).

It is admitted that the deceased-investor-insured expired in a road accident. It is also admitted that as an investor he was covered under the 'accidental death claim' policy.

The short limited point raised in this revision petition is whether the liability to pay the complainant i.e. the wife-nominee of the deceased-investor-insured is of the petitioner company or of the insurance company or of both (joint and several).

It is not the petitioner company's case that the complainant-wife-nominee of the deceased-investor-insured has not to be paid the assured amount.

The case professed by the petitioner company is that the liability qua the complainant-wife-nominee of the deceased-investor-insured is only of the insurance company and not of the petitioner company.

The death of the deceased-investor-insured occurred in 2008. The complaint was filed before the District Forum in 2010. The District Forum decided the case in 2012. The appeal was filed before the State Commission in 2012. The State Commission decided the appeal in 2017. The revision petition has been filed before this Commission in 2017. About 11 years have elapsed from the death of the deceased-investor-insured.

We fail to understand as to why the complainant-wife-nominee of the deceased-investor-insured has to wait, further, even after 11 years of the death of the deceased-investor-insured, for the dispute between the petitioner company and the insurance company to be resolved, as to which of the two or both are liable to pay the complainant-wife-nominee of the deceased-investor-insured, moreso when it is admitted by the petitioner company that it does not dispute that the payment to the complainant-wife-nominee has to be duly made.

We are of the considered view that it would albeit be a travesty of justice if the ordinary common consumer i.e. the complainant-wife-nominee of the deceased-investor-insured has to, now, after 11 years of the death of the deceased-investor-insured, and after agitating (successfully) in two consumer protection fora, stand arrayed in a third consumer protection forum as respondent no. 1 and wait and watch for the petitioner company and the respondent no. 2-insurance company to settle their dispute apropos their respective liability towards her.

We fail to readily understand what prevents the petitioner company to settle the amount due to the wife-nominee of its deceased investor-insured, without prejudice to its right to agitate its dispute with the insurance company and to raise all its issues and contentions against the insurance company.

We also fail to readily understand what prevents the petitioner company to independently and separately agitate its case with its insurance company, without troubling and prejudicing the wife-nominee of its deceased investor-insured.

In the facts and unusual specificities of the case, we deem it appropriate and necessary that, in the first instance, the entire decretal amount shall be deposited by the petitioner company with the District Forum within six weeks from today.

We would also require a responsible authorized functionary of the petitioner company to be present on the next date to conclude the final hearing.

We also take note of Regulation 11 of the Regulations 2005 which speaks of 'Adjournment'.

For being constrained to adjourn the case and not being able to conduct the final hearing today (refer para 1 above), a cost of Rs. 25,000/- is imposed on the petitioner company (M/s Sahara India Limited), to be paid by the petitioner company (M/s Sahara India Limited) to the respondent no. 1-complainant-wife-nominee through 'payee's a/c only' demand draft directly in her favour within four weeks from today.

List on 14.11.2019 for final hearing.

It is made clear that the absence of any learned counsel or party will not be a ground for any further adjournment and the case will be heard in the presence of the learned counsel and party present and on the basis of record.

'Dasti', in addition, to facilitate timely compliance.

Compliance of the directions contained in paras 12 and 15 of the above-quoted Order dated 04.09.2019 has not been reported on the case-file.

Learned counsel for the petitioner company submits, on instructions, that the compliance has not been made.

In disregard of the direction contained in para 13 of the said Order dated 04.09.2019, no authorized functionary of the petitioner company is present.

The bench re-emphasizes and takes particular note of paras 3 to 11 of the Order dated 04.09.2019.

The bench also notes that essentially the dispute is between the petitioner company and the insurance company. The learned arguing counsel of the petitioner company is not present. An authorized representative of the petitioner company is not present.

Invoking the revisional jurisdiction of this Commission has concomitant responsibility of professional conduct of its case, and moreso when the revision petition has been filed against concurrent findings of the two fora below, and even moreso when the facts and specificities of the case, as succinctly summed-up in paras 3 to 11 of the Order dated 04.09.2019, are as they are, and even moreso still when the complainant is being put to continuous prejudice in a dispute that is essentially between the petitioner company and the insurance company.

Professional conduct of its case by the petitioner company is patently lacking.

The petition is dismissed for failure and omission to comply with the directions of this Commission and for unprofessional conduct of its case before this Commission.

'Dasti', in addition.