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2001 DIGILAW 231 (HP)

ARMY GROUP INSURANCE FUND v. NAIK SOHAN LAL

2001-09-11

ONKAR CHAND THAKUR, PREM CHAUHAN, SURINDER SARUP

body2001
ORDER Justice Surinder Sarup (Retd.), President 1. This appeal is directed against the order of the District Forum, Shimla, dated 23.12.1999 whereby the following order has been passed in favour of the respondent :- "In the aforesaid light of the observations, we order the OP No. 3 to send all the service record pertaining to Nk Sohan Lal (retired) having Army No. 5341523 to OP No. 2 i.e. M.D., Army Group Insurance for ascertaining and calculating AGI disability benefits at 20% of the disability within 15 days from today. After receipt of the record from OP No. 3 aforesaid the OP No. 2 i.e. M.D. Army Group Insurance would proceed to calculate the said benefits available at 20% of the disability to the Army Personnels in accordance with the Rules and Procedure established thereunder and would ensure the payment of the amount so ascertained with interest at the rate of 18% per annum from 1.4.1993 till final payment is made. This payment of the AGI disability benefit at 20% of the disability alongwith interest at the aforesaid rate be made within 15 days from the receipt of the record from OP No. 3 by OP No. 2 i.e. M.D. Army Group Insurance to the complainant Nk Sohan Lal (retired) positively failing which both these OPs No. 2 & 3 shall render themselves liable for the penal provision as envisaged under Section 27 of the Consumer Protection Act, 1986". In addition, litigation cost of Rs. 2000/- has also been awarded. 2. We have heard the learned Counsel for the parties and we have examined the record. At the outset, learned Counsel for the appellant has raised a preliminary point to the effect that the disputes arisen between the parties, resulting in filing of the complaint by the respondent, did not fall within the purview of the Consumer Protection Act, 1986, hereinafter to be called the Act, and was, thus, not maintainable before the District Forum, Shimla, which passed the impugned order. On the other hand, learned Counsel for the respondent laid great stress on the fact that the appellant being Army group Insurance Fund and on its showing, being a Society registered under the Societies Registration Act, would definitely be rendering service within the meaning of that expression defined in the Act. On the other hand, learned Counsel for the respondent laid great stress on the fact that the appellant being Army group Insurance Fund and on its showing, being a Society registered under the Societies Registration Act, would definitely be rendering service within the meaning of that expression defined in the Act. Thus, any deficiency in service on its part, as in the present case, would definitely fall within the jurisdiction of the Consumer Courts. 3. In support of the preliminary submission, referred to above, the learned Counsel for the appellant has placed strong reliance on a decision of the Haryana State Consumer Commission in the case of The Director (Through the representative) Army Group Insurance Scheme v. Naik Hans Raj Yadav (First Appeal No. 770 of 1998, decided on 18.1.2001), a zerox copy of which has been placed on the record on his behalf. We have proceed to consider the said decision of the Haryana State Commission, with the consent of the learned Counsel for the respondent, who admits that such a decision has been rendered by the neighbouring State Commission, though according to him, the same does not apply to the instant case. That was a case in which the facts were somewhat similar to the facts of the instant case. There also, the complainant moved the District Consumer Forum, Gurgaon with the claim that he was entitled to the extent of benefit of length of service upto 20 years as against 17 years granted to him by the Army authority and the Said Consumer Court accepted his plea and extended the benefit of length of service upto 20 years to him, thereby directing the Army group Insurance Scheme to pay him the amount of Rs. 41,250/-. In the present case also, the respondent moved the learned Forum below for benefit of length of service upto 22 years, instead of 20 years allowed to him by the Army authorities reverting back to the decision of the Haryana State Commission, we find that it has been held therein on more or less similar facts that in view of the Army order No. 5.5.78, a service dispute arises between the parties as it has direct nexus with the service rendered in the Indian Army. There is no element of any profit and loss to the Army Group Insurance Scheme which is functioning under the over-all control of the Ministry of Defence only for the Welfare of the ex-servicemen, and such a service cannot be said to be covered under Section 2(1)(o) of the Act. According to the said decision of the Haryana State Commission, the expression "service" does not include service rendered free of charge or under a contract of personal service. So the type of service provided by the Army Group Insurance Scheme cannot be said to be a service in terms of the said provision of the Act. 4. Applying the ratio of the said decision of the Haryana Consumer Commission to the instant case, we find that in para-2 of the grounds of appeal, a specific objection has been taken to the effect as to whether a service rendered without consideration on humanitarian grounds in order to provide for the socio economic needs of the Army personnel like that being rendered by the appellant herein, can come within the purview of the Act. In this context, he has also referred to the reply filed to the complaint before the learned Forum below. Preliminary submissions have been made in the same on behalf of the appellant i.e. Army group Insurance Fund to the effect; (i) that it is a Society registered under the Societies Registration Act, 1860; (ii) that it carries on the activities for social benefits of Army personnel and is governed by rules and regulations framed by the Society; and lastly (iii) that the complaint is not maintainable against the Army Group Insurance Fund. It is, thus, manifest that the case of the appellant right from inception has been that the complaint is not maintainable against it, for the simple reason that it is not rendering any service within the scope and jurisdiction of the Consumer Courts constituted under the Act. Therefore, the impugned order suffers on account of this grave error, as this aspect of the case has not been adverted to at all in the impugned order. 5. To further strengthen his case, learned Counsel for the appellant has drawn our attention to Annexure-B alongwith the Memorandum of Appeal. Therefore, the impugned order suffers on account of this grave error, as this aspect of the case has not been adverted to at all in the impugned order. 5. To further strengthen his case, learned Counsel for the appellant has drawn our attention to Annexure-B alongwith the Memorandum of Appeal. This is a copy of Special Army Order dated May 1978 and as per the Column with the heading - Introduction - Contained in the same, it has been stated that the Army Group Insurance for Army personnel was introduced with effect from 1.1.1976 under the authority of Government of India, Ministry of Defence letter dated 15.12.1975. It has further been stated that to cater for the socio economic needs of the personnel and their families further improvements have been made by enhancing insurance cover and benefits on retirement. The Scheme is totally departmental and is run by the Army Group Insurance Directorate at Army Headquarters. The main objects of the Scheme are :- (a) Provide speedy financial assistance to the families of those Army personnel who may die while fn service. (b) Provide lump sum terminal benefit at the time of retirement, (c) To provide any other benefit/assistance as may be decided by the Board of trustees from time to time. 6. It is clear from this Special Army Order of May 1978 also that the appellant is not rendering any such service to the Army personnel which may bring it within the net of the Consumer Courts. Therefore, we find force in the preliminary submission of the learned Counsel for the appellant and hold that the complaint of the respondent was not maintainable under the Act and the impugned order is consequently without jurisdiction. 7. In fairness to the learned Counsel for the respondent, he has placed reliance on a decision of the Supreme Court in Regional Provident Fund Commissioner v. Shiv Kumar Joshi. 2000 (1) CPC 250. That was a case involving the Regional Provident Fund Commissioner under the EPF Scheme. It was held that the EPF Scheme is a service1 and employee member of the Scheme is a consumer under the Act as service is availed for consideration1. It has also been laid down that services of Provident Fund Commissioner are rendered not free of charge. That was a case involving the Regional Provident Fund Commissioner under the EPF Scheme. It was held that the EPF Scheme is a service1 and employee member of the Scheme is a consumer under the Act as service is availed for consideration1. It has also been laid down that services of Provident Fund Commissioner are rendered not free of charge. It was in these circumstances that it was held by the Supreme Court in that case that the EPF Scheme falls within the ambit of the Act. It is obvious that the said decision is of no avail to the respondent as in the present case the appellant is not rendering any service or assistance to the Army personnel including the respondent for consideration. 8. It is only a welfare Scheme for providing speedy financial assistance and lumpsum terminal benefit etc. to the Army personnel in case they die while in service or at the time of retirement. In other words, the service, if at all any, rendered by the appellant to the respondent, is on humanitarian grounds and not for consideration. For the aforesaid reasons, this appeal is accepted and the impugned order is set aside as being without jurisdiction. In the interest of justice, however, liberty is reserved to the respondent to avail of his remedy before the appropriate Forum or Court as available to him under the Law, and the time spent by him in respect of his complaint before the learned Forum below, as well as the time taken in the pendency and decision of the present appeal, shall not act as a bar of limitation in any such proceedings which may be undertaken by him. The appeal is disposed of accordingly.