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Judgment
Dinesh Singh, Member
This Revision Petition has been filed under Section 21(b) of The Consumer Protection Act, 1986, hereinafter referred to as the 'Act', challenging the Order dated 07.01.2019 passed by The State Consumer Disputes Redressal Commission, Uttar Pradesh, hereinafter referred to as the 'State Commission', in Appeal No. 1721 of 2016 arising from the Order dated 27.07.2016 in Consumer Complaint No. 142 of 2010 passed by The District Consumer Disputes Redressal Forum, Bahraich, hereinafter referred to as the 'District Forum'.
The Revision Petitioners herein, Sahara India Commercial Corporation Ltd. & Ors., were the Opposite Parties No. 1 to 3 before the District Forum and the Appellants before the State Commission, and are hereinafter being referred to as the 'Finance Company'.
The Respondent No. 1 herein, Mr. Vijay Kumar Agarwal, was the Complainant before the District Forum and the Respondent No. 1 before the State Commission, and is hereinafter being referred to as the 'Complainant'.
The deceased Investor, Late Nitesh Agarwal, was the son of the Complainant, and is hereinafter being referred to as the 'Investor'.
The Respondent No. 2 herein, National Insurance Company Ltd., was the Opposite Party No. 4 before the District Forum and the Respondent No. 2 before the State Commission, and is hereinafter being referred to as the 'Insurance Company'.
We heard learned Counsel for the Finance Company on admission, and perused the entire material on record including inter alia specifically the Orders dated 27.07.2016 of the District Forum and dated 07.01.2019 of the State Commission, the Order dated 19.11.2019 of Hon'ble High Court in CM (M) 1646/2019 and CM APPL. 49853/2019, 49854/2019 and the Memorandum of Petition.
On 20.11.2019, after concluding arguments on admission, we passed the following Order, inter alia dismissing the Revision Petition with cost of Rs. 2 lakh:
Dated: 20.11.2019
ORDER
In reference to the previous Order dated 29.08.2019, learned counsel for the petitioner company (Sahara India Commercial Corporation Ltd.) has handed over a copy of the Order dated 19.11.2019 passed by Hon'ble High Court in CM (M) 1646/2019 and CM APPL. 49853/2019, 49854/2019.
Para 8 of the said Order dated 19.11.2019 of Hon'ble High Court reads as below:
Accordingly, the following directions are issued:-
(1) The Petitioner shall appear before the NCDRC tomorrow i.e. 20 th November, 2019 and shall undertake to deposit the money before the NCDRC within a period of one week, as the time fixed by NCDRC for deposit of the amount has already lapsed.
(2) The NCDRC would take a decision as to whether or not it is admitting the revision petition.
(3) The NCDRC shall also pass appropriate orders in respect of release of the amount to the Complainant and if so on what terms;
In respect of sub-para (1) of para 8 of the Order dated 19.11.2019 of Hon'ble High Court, learned counsel for the petitioner company undertakes to deposit the entire decretal amount (with clear and cogent calculation sheet) with the Registry of this Commission i.e. the National Commission within one week from today.
It is directed that the petitioner company shall accordingly comply with the direction of Hon'ble High Court contained in sub-para (1) of para 8 of its Order dated 19.11.2019.
In respect of the direction contained in sub-para (2) of para 8 of the said Order dated 19.11.2019 of Hon'ble High Court, we heard learned counsel for the petitioner company on admission and perused the entire material on record including inter alia specifically the Orders dated 27.07.2016 of the District Forum and dated 07.01.2019 of the State Commission and the Memorandum of Petition.
The revision petition is dismissed with cost of Rs. 2 lakh, out of which Rs. 1 lakh shall be paid to the complainant and Rs. 1 lakh shall be deposited with the Consumer Legal Aid Account of the District Forum within four weeks of the pronouncement of the reasoned judgement.
The reasoned judgement will be pronounced on 29.11.2019 at 10.30 am.
We are giving our reasons hereinafter, and firming-up our findings and Award.
The following was inter alia averred in the Complaint:
That the opposite parties used to get deposited money of general public in different - different schemes in nature of banking services and used to open account of depositor to it. The opposite party used to circulate and notify different - different schemes from time to time in general public and get deposited the money of general public to it.
That the opposite party No. 1 circulated and notified Sahara Labh Yojna and Sahara Swarn Year Labh Yojna in general public in which the opposite parties got deposited money of applicant to it .
That the opposite party No. 1 started Silver Year labh Yojna and Swarn Year labh Yojna in area Risia of applicant / complainant. Opposite party NO. 2 works under opposite party No. 1 to
The liability of giving / taking of due amount relating to business and of other works is of opposite parties jointly and severally.
That son of complainant Nitesh Agarwal son of Vijay Kumar Agarwal aged 23 years R/o Mohalla Indira Nagar, Risia Bazar Bahraich opened account No. 07799202075 branch No. 010067425229 in Silver Year Labh Yojna being run by the opposite parties and deposited Rs. 7000/- in it and became beneficiary . In this scheme the beneficiary / purchaser can appoint nominee / successor during his lifetime. Under this rule the son of complainant had appointed complainant to be his nominee / successor under above mentioned scheme , therefore in case of not being alive son of complainant, the complainant is entitled to get benefit of deposited amount and also has right to file complaint and the complainant is consumer of opposite parties .
That son of complainant Nitesh Kumar Agarwal son of Vijay Kumar Aggarwal depositor as mentioned in complaint has died on 19.12.2007 in motor accident and after his death the complainant is entitled to get benefits to be received.
That under the scheme being run by opposite parties year has completed for the deposited amount of Rs. 7000/- from dated 31.12.2003 till happening of death therefore the complainant is entitled to get all benefits from the opposite parties. In Silver Year Labh Yojna Rs. 9800/- was to be received to complainant on deposited amount of Rs. 7000/-, payment whereof has been made by opposite parties on 25.03.2008. By not making cash payment of same on 25.03.2008 its FDR has been done in name of Vijay Kumar Agarwal on account No. 177923007689. Under the same scheme amount of Rs. 1,50,000/- (one lakh fifty thousand) is to be received to complainant as insurance compensation from opposite parties under Silver Year Labh Yojna and amount of death help 5% of deposited amount is to be received to complainant being nominee per month regularly for upto 82 months to which the opposite parties are not paying despite repeated demand , in this regard the complainant in separate-separate offices of Sahara India Pariwar had sent registry , one reply of which was received on 12.12.2008, after that no reply was received, then complainant sent notices on 28.03.2009 to Mumbai Corporate Office, Delhi Corporate Office and Calcutta Corporate Office, 3 acknowledgement of which also was received to complainant and in reply to this registry one reply was also received from duty council on 04.06.2009, despite same no action was taken by the opposite parties then complainant sent to Director Sahara India Office Lucknow Office on 18.03.2010 but to till date no proceeding was done .
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That the complainant is entitled to get following relief , let the same be granted:-
A. That let Insurance amount of Rs. 1,50,000/- be awarded to complainant against the opposite parties and interest at the rate of 18% per annum be also awarded on said amount till the date of payment;
B. that amount of 5% equal to advance deposit amount Rs. 7000/- be got paid regularly to complainant till 82 months;
C. that let Rs.20,000/- be awarded as compensation for mental and physical pain and Rs.10,000/- be awarded for expenses to be incurred in taking rounds etc.from the opposite parties.
D. that let costs of litigation be awarded to complainant form the opposite parties;
E. that any other appropriate relief which may be awarded to complainant from the opposite parties.
(emphasis supplied)
(as per the translated copy furnished by the Finance Company with its Revision Petition)
The District Forum vide its Order dated 27.07.2016 had partly allowed the Complaint:
Admittedly death of deceased had happened on 19.12.2007 in motor accident . According to para 18 of relevant Sahara Rajat Labh Yojna the appropriate amount has not been paid to complainant despite demand . The proposal for receiving amount of Rs.25,000/- was sent on behalf of opposite parties to complainant on 12.07.2011 . In letter dated 04.06.2009 of opposite parties also assurance has been given to complainant that he will be intimated when his claim would be settled . This complaint has been filed on 07.07.2010 , hence it is obvious that the complaint is not time bared . The complainant has not received above proposed amount without condition , therefore the maintainability of complaint does not adversely affects. Thus, there is no force in arguments advanced on behalf of opposite parties on this point.
In para 18 of Sahara Silver Labh Yojna there was provision to make payment of accidental insurance amount to nominee of deceased in case of being death of depositor in accident , therefore the complainant under above scheme had demanded insurance amount , therefore there is no legal error in demand of complainant , in such situation denial on the part of opposite party No. 1 to 3 from liability to pay is not in accordance with law . The complainant was regularly demanding insurance amount and claim of complainant remained pending at the level of opposite party No.1 to 3 .
In the present case during arguments the learned counsel for the complainant has accepted that the opposite party No.1 to 3 have made payment of Rs. 9800/- to him in regard to deposited amount, which has been got deposited as fix deposit. During argument the learned counsel for the complainant has stated that according to para 17 of complaint, he does not want to press the point of getting done payment of death help which is payable like loan. Learned counsel for the complainant has also contended that now the complainant only stress for awarding insurance amount Rs. 1,50,000/- , in such situation there is no need to consider on averments and facts relating to ailment of deceased.
It is admitted fact in case that the deceased on 31.12.2003 had deposited Rs. 7000/- in opposite parties in Silver Year Labh Yojna . It is not disputed that death of deceased had happened on 19.12.2007 in motor accident . Thus, it is clear that the deceased remained alive for about 3 years 11 months after deposit of above amount .
The complainant has stated about being death of deceased in motor accident. The opposite party No.1 to 3 has informed to opposite party No. 4 about the fact of being death of deceased in motor accident in continuation of which the opposite party No. 4 has sent cheque of Rs. 25,000/- for payment of Rs. 25,000/- to complainant . The copy of rules and conditions of scheme forum of Sahara Rajat Labh Yojna is available on record as paper No. 85. In para 18 of above scheme there is provision of accidental death benefit . According to which Rs. 1,50,000/- is payable as Insurance compensation amount on being death after three years from deposit of amount but till 4 years . In letter sent on behalf of opposite party No.1 to 3 to opposite party No. 4 also there is mentioned provision of payment of Rs. 150000/-. Considering above facts the complainant is entitled to get Rs. 1,50,000/- as insurance compensation .
The deceased had deposited Rs. 7000/- on 31.12.2003. According to para 18 of Sahara Rajat Labh Yojna Rs. 1,50,000/- was proposed to be given as insurance compensation to nominee of the depositor in case of being his death in an accident after three years from the date of deposit but before 4 years , accepting which the deceased had deposited amount . In such situation the liability to pay insurance compensation is mainly on opposite party No. 1 to 3 . The alleged comprehensive insurance was taken on behalf of opposite party No. 1 to 3 from opposite party No. 4, in such situation the opposite party No. 1 to 3 is at liberty to do appropriate proceeding in accordance with law against the opposite party NO. 4 .
From the perusal of above over all analysis and perusal of evidence it is clear that the complainant is entitled to get recovered Rs. 1,50,000/- as insurance compensation jointly and severally from the opposite party No. 1 to 3 and also he is entitled to get recovered simple interest @ 6% per annum from the date of filing complaint till the date of actual payment. Awarding Rs. 1500/- to complainant from opposite party No. 1 to 3 as costs of litigation is just and proper. Due to not press the complainant is not entitled to get any amount as death help.
ORDER
The complaint of complainant is partly accepted . The opposite party No. 1 and 3 are directed that they shall pay Rs. 1,50,000/- (one lakh fifty thousand only) within one month to complainant with simple interest at the rate of 6% per annum from the date of filing complaint i.e. 07.07.2010 till the date of actual payment together with Rs. 1500/- (one thousand five hundred) as costs of litigation . The opposite parties NO. 1 to 3 are at liberty to do appropriate proceeding against the opposite party No. 1 regarding insurance compensation amount . Let one-one copy of this judgment be supplied to parties free of costs.
(emphasis supplied)
(as per the translated copy furnished by the Finance Company with its Revision Petition)
The State Commission vide its Order dated 07.01.2019 had dismissed the Appeal of the Finance Company:
The learned district forum considering the pleadings of both parties and available evidence has concluded that respondent / complainant is entitled to get Rs. 1,50,000/- as compensation jointly and severally from the opposite party No.1 to 3 and on this amount he shall also get interest at the rate of 6% per annum, hence by accepting complaint the district forum has passed impugned order as aforesaid.
At the time of hearing of appeal none has appeared on behalf of appellant to press appeal but from the submissions made in memo of appeal it is clear that appellant has stated that respondent / complainant is not consumer under Consumer Protection Act and complaint filed by it is not admissible and also it has been stated by appellant / opposite parties that impugned judgment and order passed by district forum is contrary to evidence and condition of deposit scheme , hence the impugned judgment and order passed by the district forum is liable to be set aside. According to memo of appeal the respondent NO. 4 insurance company is liable to pay the insurance amount .
Learned counsel for the respondent / complainant has contended that the impugned judgment and order passed by the learned district forum is in accordance with evidence and law, same calls for no interference.
Learned counsel for respondent / opposite party No. 2 who is opposite party No. 4 of complaint has contended that amount of Rs. 25,000/- payable under insurance policy it had sent to appellants through cheque and more to that there is no liability on the part of respondent no. 2 to pay insurance amount . Learned counsel for the respondent no. 2 has contended that the impugned judgment and order passed by learned district forum is just and proper .
I have considered arguments of both parties.
In para 18 of Sahara Silver Year Labh Yogna that after accidental death the nominee (heir) of deceased coupon holder in case of accidental death will be entitled to get insurance compensation amount of help after death in accident according to following chart (according to rules and conditions)-
Insurance compensation amount
If death happens by accident
Sahara Swarn Yojna
Sahara Rajat Yojna
After 01 year but upto 2 years
Rs. 2,00,000/-
Rs.50,000/-
After 2 years but upto 4 years
Rs.3,00,000/-
Rs. 1,00,000/-
After 3 years but upto 4 years
Rs. 4,00,000/-
Rs. 1,50,000/-
After 4 years upto 10 year
Rs. 5,00,000/
Rs. 2,00,000/
From para 18 of Sahara Silver Year Labh Yojna it is clear that in case of happening of death of depositor in accident after 3 years from accident but before 4 years then to its nominee insurance amount would be payable to be Rs. 1,50,000/- as compensation .
Respondent no. 2 insurance company has clearly mentioned in its written statement that on getting information about death of son of respondent / complainant through opposite party No.1 to 3 and on forwarding necessary documents the insurance company opposite party no. 4 according to rules and conditions of insurance policy has done payment of Rs. 25,000/- to Sahara India appellant on 10.11.2009 through cheque No. 298283 dated 06.11.2009 . In written statement it has been stated on behalf of opposite party No. 2 that deposited amount of depositor was Rs. 7000/-, and only on this ground the liability to pay Rs. 25,000/- was on the part of insurance company according to condition of policy, payment whereof has been made by the insurance company. The insurance company has no relation with any other promises made by opposite party No.1 Sahara India to its customers through advertisement .
From written statement of respondent NO. 2 insurance company it is clear that on getting information about death of Nitesh Kumar Agarwal son of respondent / complainant in accident by respondent no.2 through appellant / opposite party No.1 to 3 , it has sent insurance amount to appellant / opposite parties and which policy was obtained by appellant / opposite parties from respondent no. 2, under same the insurance amount payable to depositor in question was Rs.25,000/- whereas , according to para 18 of Sahara Silver year Labh Yojna , promise has been given for payment of Rs. 1,50,000/- to nominee of deceased on being death of depositor after 3 years from the date of deposit of amount in scheme in question but before 4 years , hence which the district forum has directed appellant / opposite parties for payment of Rs. 1,50,000/- for accidental death of insured deceased Nitesh Kumar, the same is just and in accordance with law . On the date of death of depositor Nitesh Kumar Agarwal, (illegible) the assured amount has not been paid to its nominee on being death in accident , in such situation the appellant / opposite parties has caused deficiency in service , hence which order has been passed against appellant / opposite parties by district forum the same is just and proper .
Undisputedly the depositor Nitesh Kumar Agarwal has deposited Rs. 7000/- in Sahara Silver Labh Yojna of appellant/opposite parties, hence he is consumer of appellant/opposite parties . From written statement filed by appellant/opposite parties and respondent no. 1 before district forum it is clear that respondent no. 2 who is opposite party No. 4 in complaint by settling the claim of respondent/complainant on 10.11.2009 has sent cheque of Rs. 25,000/- to appellants through cheque but this amount has not been paid by appellant/ opposite parties to respondent/ complainant and nor has done payment of assured insured amount as mentioned in para 18 of Sahara Silver Labh Yojna , in such situation the complaint filed by respondent/ complainant in the year 2010 can never be said to be time barred because the cause of action in favour of complainant has arose only when assured amount was not paid to respondent/complainant even after receipt of amount of Rs. 25,000/- regarding claim of respondent/complainant from insurance company of respondent /opposite party No. 4.
After above over all analysis and considering total facts and evidence I am of the view that the impugned order passed by the learned district forum is just and in accordance with law , which calls for no interference , hence the appeal stands dismissed .
Both parties shall bear their own costs.
(emphasis supplied)
(as per the translated copy furnished by the Finance Company with its Revision Petition)
The District Forum has fixed the liability on the Finance Company for paying the "insurance compensation amount" as "Accident Death Benefit" to the Complainant, the father, the nominee / heir of its deceased Investor, along with liberty to the Finance Company to independently and separately agitate its case against the Insurance Company.
The State Commission has concurred with the District Forum.
We find the impugned Order dated 07.01.2019 of the State Commission as well as the Order dated 27.07.2016 of the District Forum to be well-appraised and well-reasoned.
We note in particular the extracts of the respective appraisals made by the two fora, quoted, verbatim (as per the translated copies furnished by the Finance Company), in para 7 and para 8 above.
On the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice.
Within the ambit and purview of section 21(b) of the Act, we find no grave error in appreciating the evidence by the two fora below as may cause to require de novo re-appreciation of the evidence in revision.
We, but, note that the facts of the case, albeit simple, are decidedly unsavoury.
Clause (18) of the Terms and Conditions of the "Sahara Rajat Yojna" of the Finance Company is as below:
(18) Accident Death Benefit
If accidental death occurs
Insurance compensation amount
In Sahara Swarn Yojna
In Sahara Rajat Yojna
After 1 year & upto 2 years
Rs. 2,00,000
Rs.50,000
After 2 years & upto 3 years
Rs.3,00,000
Rs. 1,00,000
After 3 years & upto 4 years
Rs. 4,00,000
Rs. 1,50,000
After 4 years & upto 10 year
Rs. 5,00,000
Rs. 2,00,000
The deceased Investor was covered by the highlighted portion above, i.e. "insurance compensation amount" of "Rs.1,50,000" as "Accident Death Benefit" if "accidental death occurs" .
It is admitted by the Finance Company that its Investor expired in a road accident. It is also admitted that as an Investor he was eligible for "Accidental Death Benefit" as contained in Clause (18) of the Terms and Conditions of its "Sahara Rajat Yojna".
It is not the Finance Company's case that the Complainant, the father, the nominee / heir of the its deceased Investor, has not to be paid the "insurance compensation amount" as assured under the "Accident Death Benefit" contained in the Terms and Conditions of its "Sahara Rajat Yojna".
The case professed by the Finance Company is that the liability qua the Complainant is only of its Insurance Company and not of the Finance Company.
The short limited issue in this Revision Petition is whether the liability to pay the Complainant is of the Finance Company or of its Insurance Company or of both (joint and several).
The Terms and Conditions of the "Sahara Rajat Yojna" were agreed to between the Finance Company and its deceased Investor. The Insurance Company was not a party thereto.
The Terms and Conditions of the insurance contract were agreed to between the Finance Company and its Insurance Company. The deceased Investor was not a party thereto.
The Finance Company included "Accident Death Benefit" in the Terms and Conditions of its "Sahara Rajat Yojna". It is a contractual obligation of the Finance Company towards the nominee / heir of its deceased Investor.
The insurance contract between the Finance Company and its Insurance Company is governed by its own independent and separate Terms and Conditions.
The two, the Terms and Conditions of the "Sahara Rajat Yojna", and the Terms and Conditions of the insurance contract, are distinct and separate from each other.
It is not as if the insurance contract was in any manner a tripartite arrangement etc. of any kind between the Finance Company and its Investor and the Insurance Company.
The Investor was assured of "Accident Death Benefit" by the Finance Company as contained in Clause (18) of the Terms and Conditions of its "Sahara Rajat Yojna". He was not concerned in any way with the insurance contract between the Finance Company and its Insurance Company. He was not concerned with the particular insurance company from which the Finance Company took or was to take or was to renew etc. its insurance contract(s). He was not a party to the contract(s). He did not pay any premium to any insurance company.
There was no mention in the Terms and Conditions of the Finance Company's "Sahara Rajat Yojna" that the "Accident Death Benefit" would in any manner be contingent to or subsequent to a dispute if any being resolved between the Finance Company and its insurance company (whichever it may be).
The death of the Investor occurred in 2007. The Complaint was filed before the District Forum in 2010. The District Forum decided the case in 2016. The Appeal was filed before the State Commission in 2016. The State Commission decided the Appeal in 2019. The Revision petition has been filed before this Commission in 2019. About 12 years have elapsed from the death of the Investor.
During arguments on admission, no answer was provided as to why the Respondent No. 1, the Complainant, the father, the nominee / heir of the deceased Investor, has to wait, further, even after 12 years of the death of the Investor, for the dispute between the Finance Company and its Insurance Company to be resolved, as to which of the two or both are liable to pay the Complainant, moreso when it is admitted by the Finance Company that it does not dispute that the payment to the Complainant has to be duly made.
Learned Counsel for the Finance Company submitted, on instructions, that, even without prejudice to its right to agitate its dispute with its Insurance Company, the Finance Company is not ready and willing to pay the "insurance compensation amount" to the Complainant as per the "Accident Death Benefit" contained in the Terms and Conditions of its "Sahara Rajat Yojna".
We are, but, of the considered view that it would be a travesty of justice if the ordinary common consumer i.e. the Complainant has to, now, after 12 years of the death of the Investor, and after agitating successfully in two Consumer Protection Fora, stand arrayed in a third Consumer Protection Forum i.e. this Commission as Respondent No. 1 and wait and watch for the Petitioner, the Finance Company, and the Respondent No. 2, the Insurance Company, to resolve their dispute, a dispute with which he has no concern.
We fail to understand what prevents the Finance Company to settle the amount due to the Complainant, without prejudice to its right to agitate its case against its Insurance Company.
We also fail to understand what prevents the Finance Company to independently and separately agitate its case with its Insurance Company, without troubling and prejudicing the Complainant, when its own Terms and Conditions provided for "Accident Death Benefit", and when there was no mention therein that such benefit would be contingent to and subsequent to dispute if any with its insurance company (whichever it may be) being resolved.
The "Accident Death Benefit" was an integral part of the incentives assured by the Finance Company to its investors. Its investors invested with the Finance Company, and not with the Insurance Company. The relationship between the Finance Company and its investors was distinct and separate from the relationship of the Finance Company with its Insurance Company.
The Complainant is a 'Consumer' of the Finance Company, and not of the Insurance Company.
The Finance Company was duty bound to forthwith honour the "Accident Death Benefit" contained in the Terms and Conditions of its "Sahara Rajat Yojna" and pay the assured "insurance compensation amount" to the Complainant, who was decidedly, and admittedly, eligible for the same.
And the Finance Company has the right to agitate its case as per the law against its Insurance Company, in relation to the independent and separate Terms and Conditions of its distinct and separate insurance contract with its Insurance Company, without troubling and prejudicing the Complainant.
We find nothing wrong with the District Forum and the State Commission arriving at the finding that the Finance Company shall settle with the Complainant and have liberty to independently and separately agitate its case with its Insurance Company, without prejudicing or troubling the Complainant, the father, the nominee / heir of its deceased Investor.
We also note that the Award made by the District Forum in favour of the Complainant, that is, payment of the assured amount of Rs.1,50,000/- under the "Accident Death Benefit" contained in the Terms and Conditions of its "Sahara Rajat Yojana", along with simple interest @ 6% per annum from the date of filing of the Complaint, to be just and equitable.
We may note here that 'unfair trade practice' is a specific provision unique to The Consumer Protection Act, 1986.
Section 2(1)(r) of the Act says of "a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-".
The list provided in Section 2(1)(r) is illustrative and not comprehensive.
That is to say, an unfair method or unfair or deceptive practice, as is judiciously determined, on facts and reasons, on fair and objective appraisal of the evidence and material on record, would qualify as 'unfair trade practice' within the meaning of Section 2(1)(r).
In the instant case, the Investor was allured by the Finance Company to its "Sahara Rajat Yojna" by inter alia the incentive of "Accident Death Benefit" in its Terms and Conditions. On the death of its Investor, the assured "Accident Death Benefit" was not honoured dutifully and promptly, even though it is admitted that the Investor died in a road accident and that his nominee / heir is eligible for the said "Accident Death Benefit". In the stead, the dispute with its Insurance Company was brought to the fore. It is in effect being contended that the payment of the "insurance compensation amount" will be contingent to and subsequent to the dispute with its Insurance Company being resolved, when its own Terms and Conditions provided for "Accident Death Benefit", and when there was no mention therein that such benefit would be contingent to and subsequent to dispute if any with its insurance company (whichever it may be), and with which the Investor had no concern, being resolved. These are decidedly unfair and deceptive acts, which qualify as 'unfair trade practice' under the Act.
The Complainant has been wrongly and unwarrantedly put to trouble and prejudice.
We, thus, find both 'deficiency in service' within the meaning of Section 2(1)(g) and (o) and 'unfair trade practice' within the meaning of Section 2(1)(r) of the Act to be well and truly evident on the part of the Finance Company.
The Act is for "better protection of the interests of consumers", in recognizedly a fight amongst unequals.
This is a plain and simple case of a company, with wherewithal, on the one side, and an ordinary common consumer, without wherewithal, on the other side, with the company first indulging in deficiency in service and unfair trade practice, causing loss and injury to the consumer, and then indulging in litigation in one, and then, two, and now, three, Consumer Protection Fora. We also find that, before the third Forum, i.e. this Commission, also, its case fails at the admission stage itself.
The Complainant, the father, the nominee / heir of the deceased Investor, has been put to continuous trouble and prejudice for a protracted period of 12 years in respect of a dispute between the Finance Company and its Insurance Company, a dispute with which he has no concern.
We may also note that this is one particular instance that has come to notice before the Consumer Protection Fora. The eventuality of other such instances, with other Consumers, as an intermittent or regular practice, cannot be ruled out.
All this is not viewed favourably.
In the light of the above examination, we firm-up our findings and Award as below:
[a] The Award made by the District Forum vide its Order dated 27.07.2016, as upheld by the State Commission vide its Order dated 07.01.2019, is confirmed. The impugned Order dated 07.01.2019 of the State Commission is sustained.
[b] The Finance Company is at liberty to independently and separately agitate its case as per the law with its Insurance Company, without (further) troubling and prejudicing the Complainant.
We may add that we have not in any manner entered into the Terms and Conditions of the insurance contract between the Finance Company and its Insurance Company.
Nothing contained in this Order shall in any manner affect the independent and separate adjudication of dispute(s) between the Finance Company and its Insurance Company / insurance companies, on merit, as per the law.
[c] (i) In addition, for unfair trade practice per se , the Finance Company through its Chief Executive is put to stern advice of caution with imposition of cost of Rs. 2 lakh, out of which Rs. 1 lakh shall be paid to the Complainant and Rs. 1 lakh shall be deposited with the Consumer Legal Aid Account of the District Forum within four weeks of the pronouncement of this Order.
(ii) The Finance Company through its Chief Executive is ordered under Section 14(1)(f) of the Act to forthwith discontinue its unfair trade practice and to most immediately pass appropriate directions to all its concerned employees / offices to discontinue such unfair and deceptive acts, and to dutifully and promptly pay the "insurance compensation amount" to the nominees / heirs of its deceased investors, as are eligible for "Accident Death Benefit" under the Terms and Conditions of its "Sahara Rajat Yojna", and to agitate its dispute if any with its insurance company(ies) independently and separately, without troubling and prejudicing the nominees / heirs of its deceased investors.
The Chief Executive shall furnish a report-in-compliance to the District Forum within four weeks of the pronouncement of this Order.
[d] The amount, if any, deposited with the Registry of this Commission in compliance of the direction of Hon'ble High Court contained in sub-para (1) of para 8 of its Order dated 19.11.2019, and as also accordingly directed by this Commission vide para 4 its Order dated 20.11.2019, shall be forthwith sent by the Registry of this Commission to the District Forum. The District Forum shall utilize the said amount towards immediate satisfaction of the Award, as firmed-up herein.
Needless to say, the District Forum shall undertake execution as per the law for failure or omission in timely compliance.
We may add that the liability qua the Complainant initiated the day the death of the Investor occurred, and it continues, as a continuing wrong.
The duties / responsibilities of Director are laid-down in The Companies Act, 2013.
We also refer to the substantive principles of law as contained in Section 47 ('Questions to be determined by the Court executing decree') under Part II, Execution , of the CPC.
The Director(s) of the Finance Company shall have to discharge the onus to show that they are not liable, along with the Finance Company, jointly and severally, on the question being raised in the executing Forum in execution proceedings.
We are making this observation in reference to ' Enforcement ' under Section 25(3) and ' Penalties ' under Section 27 of the Act.
A copy each of this Order be sent by the Registry to [a] the District Forum and [b] the Chief Executive of the Finance Company within three days of its pronouncement, in specific reference to paras 32, 33 and 34 above.
A copy of this Order also be sent by the Registry to the Complainant within three days of its pronouncement.