Assistant Engineer, Tamil Nadu Electricity Board vs N. LALITHA

JURISDICTIONAL facts as culled out from the materials placed on record may in brevity be related in order to understand the crux of the issue arising for consideration in this action.

ONE M. Natarajan, since deceased, was employed as a "Helper" in Tamil Nadu Electricity Board, M.E.S., M.E.D.C. South, Adyar, Chennai-600 020 of which the 2nd opposite party is its Assistant Engineer. His wife is one Smt. N. Lalitha (complainant). The said Natarajan, whilst alive and in service of the Tamil Nadu Electricity Board (for short, "TNEB"), took an insurance cover for a sum of Rs. 15,000/- with the Life Insurance Corporation of India, Madras Division, City Branch XVIII, 27/1, Thiruvenkatam Street, Perambur, Chennai - 600 011 (1st opposite party) under the Salary Savings Scheme. He, it is said, complied with all the formalities before ever the policy of insurance was taken. He submitted a proposal with the 1st opposite party, Life Insurance Corporation of India (for short, "LIC of India"). The proposal so submitted was accepted by the 1st opposite party, LIC of India and a policy had been issued under the Salary Savings Scheme covering the risk to the extent of Rs. 15,000/- after receiving the two months premium of Rs. 192/-. After the issuance of the policy, the 1st opposite party, LIC of India sent an authorisation letter to the 2nd opposite party, Assistant Engineer, TNEB, MES, M.E.D.C. South, Adyar, Chennai-20. The authorisation letter so issued clearly mentioned the policy number, plan and term, premium payable per month, month and year of last instalment of premium and the deduction to commence from the salary on and from a specified month, P.A. Code Number, Agency Code Number, etc. According to the authorisation letter so sent, the 2nd opposite party Assistant Engineer, TNEB, ought to have deducted the monthly premium at the rate of Rs. 96/- on and from March, 1994 and render the same to the 1st opposite party, LIC of India.

The insured M. Natarajan, as quirk of fate would have it, met with an accident of electrocution whilst on duty and died on 23.1.1995. Subsequent to his death, his wife, the complainant Smt. N. Lalitha, the nominee under the policy, submitted a claim to the 1st opposite party, LIC of India for the payment of the amount due under the policy to her. The claim so made was however rejected. The rationale for the rejection was that the 2nd opposite party Assistant Engineer, TNEB, did not deduct the monthly premium from the salary of her husband, the deceased and remit the same to the 1st opposite party, LIC of India as he was required to do so by means of the authorisation letter and consequently the policy got lapsed.

IN such a backdrop and setting, the complainant knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint alleging deficiency in service on the part of the opposite parties 1 and 2. The 1st opposite party, LIC of India in pith and substance would contend that there was no deficiency in service on their part. The 2nd opposite party on whom a duty is cast to deduct the premium from the monthly salary of the deceased and remit the same to them failed to deduct the premium on and from March, 1994 and send the same to the LIC of India. Consequently, the policy got lapsed. It is only due to the deficiency in service on the part of the 2nd opposite party, the policy got lapsed and the 2nd opposite party alone is liable to compensate the complainant/nominee of the deceased/assured. The 1st opposite party is not at all liable to pay the claim as a consequence of the policy having been lapsed on account of the necessary and requisite premium not having been paid by the 2nd opposite party. The complaint as such is liable to be dismissed.

THE 2nd opposite party, despite service of process, did not appear before the Forum below and remained ex-parte. On consideration of the materials placed on record, the District Consumer Disputes Redressal Forum, Chennai (North) recorded a finding that there was deficiency in service on the part of the 2nd opposite party alone and as such they are liable to compensate the complainant/nominee of the deceased/assured. It was further held that the 1st opposite party, LIC of India is not liable to pay the claim since the policy was allowed to be lapsed by not paying the premium due on the policy. Ultimately, the 2nd opposite party was directed to pay to the complainant a sum of Rs. 15,000/- with bonus of Rs. 1,700/- with compensation of Rs. 5,000/- and cost of Rs. 500/- within two months from the date of its order failing which the complainant would be at liberty to invoke Section 27 of the Consumer Protection Act, 1986 (for short, "the Act"). The order so passed is dated 11.10.1996. Aggrieved by the order so passed, the 2nd opposite party resorted to file an appeal in A.P. No. 144/1998 by a learned Counsel of their choice namely learned Counsel Mr. D. Nelliappan, challenging the award so passed against them of course impleading the complainant and the LIC of India respectively as respondents 1 and 2.

ON service of process, the 1st respondent/complainant did not choose to enter appearance by a learned Counsel of her choice and virtually remained absent. The 2nd respondent/1st opposite party, LIC of India, however chose to enter appearance through a Counsel of their choice, namely learned Counsel Mr. V. Jambunathan.

THE matter came up for hearing before us yesterday (4.2.2002). Learned Counsel appearing for the appellant/2nd opposite party was however called absent and no representation was made on his behalf. We were inclined to dispose of the appeal on merits on consideration of the materials placed on record even in the absence of the said learned Counsel appearing for the appellant. When we perused the materials, our conscience was jolted and choked when we found that the order passed by the Forum below mulcting liability on the part of the 2nd opposite party for the payment of the policy amount due by the 1st opposite party, LIC of India finding deficiency in service on the part of the 2nd opposite party alone and not on the part of the 1st opposite party. The decision so rendered by the Forum below is contrary to the law declared by the Supreme Court of India in the case of Delhi Electric Supply Undertaking v. Basanti Devi & Anr., III (1999) Consumer Protection Judgments 15 (SC)=VIII (1999) Supreme Laws Today 279=1999 (3) CPR 91 (SC). The dictum laid down by the Supreme Court was that in a Salary Savings Scheme Policy the employer collecting the premium by deducting from salary and paying it to LIC must have to be construed as an agent of LIC to collect premium on its behalf by way of implied authority and in case of any default committed by the employer to deduct the premium from the salary of the employee resulting in the lapse of the policy, LIC is bound to pay to the employee the sum assured. On the face of the dictum as evolved by the Supreme Court as above, the appeal filed by the 2nd opposite party Assistant Engineer, TNEB, has to be necessarily allowed on the question of law, pure and simple although the Assistant Engineer, TNEB, remained ex parte in the Forum below and the facade of a fight he had undertaken in filing an appeal before us by engaging a learned Counsel Mr. D. Nelliappan, is explicit on the face of the said Counsel remaining absent on the day of hearing of this appeal before us. The very purpose of filing such an appeal is for the obvious purpose of avoiding any audit objections from the Department. This sort of an attitude on the part of the 2nd opposite party is the resultant product of his being oblivious of the legal position. The resultant position is that the hapless complainant who is the widow of the insured will be left in the lurch although as per the dictum of the Supreme Court in the case of Delhi Electric Supply Undertaking (supra), she is entitled to the policy amount to be paid to her by the 1st opposite party, LIC of India for the simple reason of her not filing any appeal or revision before us agitating that the award passed by the Forum below is not in accord with the law of the land. Despite the law declared by the Supreme Court in the case of Delhi Electric Supply Undertaking (supra), mulcting liability on the Insurance Company for the payment of the policy amount to the nominee of the deceased/assured in case of default committed by the employer in deducting the monthly premium and paying the same to the Insurance Company, we are unable to pass an order directing the 1st opposite party, LIC of India to pay the policy amount and other incidental benefits thereto to the complainant/nominee of the deceased/assured in this appeal inasmuch as she had not filed any cross-appeal or revision before us.

Simply allowing the present action/appeal exonerating even the liability of the Assistant Engineer of TNEB, 2nd opposite party and leaving the complainant/nominee of the deceased/assured in the lurch would result in incalculable prejudice being caused to the cause of justice and, therefore, it is we thought fit to entertain a suo motu revision for and behalf of the complainant/nominee of the deceased/assured impleading the 1st and the 2nd opposite parties as respondents 1 and 2 in rather a bid to render a just decision. We directed the Registry to allocate a number for the suo motu revision and the Registry as per our direction allocated R.P. No. 20/2002. In the revision so taken, learned Counsel Mr. V. Jambunathan who was appearing for the 2nd respondent/1st opposite party in the appeal was required to take notice for and on behalf of the 1st respondent/1st opposite party, LIC of India in the revision petition and he willingly accepted the direction so issued by this Commission.

LEARNED Counsel for the appellant/2nd opposite party is absent. Consequently, we are unable to give notice to the 2nd respondent/2nd opposite party in this revision through their Counsel engaged by them. We are also not inclined to issue any notice to the 2nd opposite party and adjourn the hearing to any other date. Non-issuance of any notice to the 2nd respondent/2nd opposite party in this revision is of no consequence, on the facts and in the circumstances of the case, inasmuch as the order that we are going to pass is not in any way to be detrimental to their interest on the face of the dictum of the Supreme Court in Delhi Electric Supply Undertaking (supra). Therefore, we are desirous of deciding the revision even without issuance of a notice to the 2nd opposite party, of course, after hearing the arguments of learned Counsel Mr. V. Jambunathan, appearing for the 1st respondent/1st opposite party, LIC of India in this revision. When we entertained the suo motu revision yesterday (4.2.2002) and required learned Counsel appearing for the 1st opposite party, LIC of India to take notice of the revision so entertained, we initially thought that the said learned Counsel might not have any sort of an objection to the entertainment of the suo motu revision and that apart, we also felt that on the face of the decision emerging from the Apex Court of the country in the case of Delhi Electric Supply Undertaking (supra), he would meekly submit his views in tune or line with the dictum of the Supreme Court. Our expectations however got belied when the said learned Counsel expressed to us that he was having every sort of an objection to the entertainment of the suo motu revision and he further expressed that the dictum laid down by the Supreme Court in Delhi Electric Supply Undertaking (supra), must be understood in the light of the fact situation of the case. He further submitted that the facts of the instant case are distinguishable from the facts of the Supreme Court and, therefore, the dictum laid down by the Supreme Court in that case is not applicable to the facts of the instant case. So saying, he prayed for time to investigate the matter further and consequently we complied with the prayer of the said learned Counsel in adjourning the matter for further arguments to today ( ). The submissions of the said learned Counsel Mr. V. Jambunathan, are noticed as below : (1) Resortment to filing of appeal and revision simultaneously is impermissible in law. (2) Entertainment of suo motu revision is impermissible in law especially when there is a provision for the entertainment of an appeal. In other words, what he would say is that the entertainment of a suo motu revision is permissible in law only when there is no statutory provision for an appeal. (3) The dictum laid down by the Supreme Court in the case of Delhi Electric Supply Undertaking (supra), cannot at all be construed as of universal application in all situations. The dictum laid down therein by the Supreme Court must be restricted to the facts of the case decided by the Supreme Court. The facts of the instant case are altogether different and, therefore, it is that the dictum laid down by the Supreme Court in the case of Delhi Electric Supply Undertaking (supra), cannot at all be stated to be applicable to the facts of the instant case. (4) The subsequent development of law as laid down by the Supreme Court in the case of Delhi Electric Supply Undertaking (supra), should not at all be taken into consideration in giving a legal fitment to the facts of the instant case.

IN support of such submissions, the said learned Counsel drew our attention to certain precedents emerging from the various State Commissions and High Court of Judicature at Madras. We will refer to those precedents of decisions at the appropriate juncture. We may now advert to the submission of the said learned Counsel that resortment to filing of an appeal and revision simultaneously is impermissible in law. Under the Scheme of the Act, a person aggrieved by an order of the District Consumer Disputes Redressal Forum is given the right of appeal under Section 15 of the Act besides a right to prefer a revision under Section 17(b) of the Act. The appeal as contemplated under Section 15 is to be availed of by the aggrieved party within a period of 30 days from the date of the order, in such form and manner as may be prescribed. The revisional jurisdiction under Section 17(b) of the Act is not available to the aggrieved party as a matter of right. Such a remedy can be availed of by such a person only when he is able to come within the parameters prescribed by the said section. The parameters prescribed therein are that the District Forum, (1) has exercised a jurisdiction not vested in it by law; or (2) has failed to exercise a jurisdiction so vested; or (3) has acted in exercise of its jurisdiction illegally or with material irregularity. It is not as if the jurisdiction of the State Commission for the entertainment of a revision is without any other fetters other than the fetters of prescription of parameters in Sub-section (b) of Section 17. There is one more fetter for the entertainment of revision which is expressed by the phraseology "Subject to the other provisions of this Act". This phraseology would indicate that the revision to be entertainable under the said section is to be decided by the salient provisions adumbrated under this section and also the other provisions of the Act. The other provisions referred to therein can''t be anyone other than the Section 15 of the Act which prescribes the preferring of an appeal therein by the party aggrieved by the decision of the District Consumer Disputes Redressal Forum. That means, once the appeal is entertained, the revision also cannot at all be simultaneously be entertained. If the appeal is disposed of on merits and if there are existence of parameters as prescribed by Section 17(b) of the Act for a revision to be preferred thereto after the disposal of the appeal, it is quite permissible. Otherwise not.

SIMULTANEOUS preferring of an appeal and revision by one and the same aggrieved party is impermissible in law. Such an aggrieved party may prefer an appeal under Section 15 of the Act and after the disposal of the appeal so preferred, it is legitimately open to him to prefer the revision under Section 17(b) of the Act if he is able the satisfy the parameters prescribed therein. SIMULTANEOUS resortment to the preferring of an appeal and the revision by one and the same party is likely to result in incongruous or conflicting decisions.

SOMETIMES, it may happen that an aggrieved party might not have preferred any appeal under Section 15 of the Act within the time limited therein. There may be factors or situations in that case on hand warranting for the preferring of a revision under Section 17(b) of the Act. He may, in such an eventuality, prefer a revision although he had not preferred an appeal. We may now advert to the second submission that the entertainment of a suo motu revision is impermissible in law when there is a statutory provision by the filing of an appeal. In support of such submission, the said learned Counsel drew our attention to the decision emerging from the High Court of Judicature at Madras in the case of Annapoorani v. Janaki, 1995-1 LW 141. For understanding the crux of the decision of the said case, better it is to refer to in an incise fashion, the facts. The plaintiff sought declaration of her title to the suit property, on the death of her husband and sought recovery of possession from the defendant who was none else from the mother of the plaintiff''s deceased husband. The lower Court decreed the suit after recording evidence, the defendant having remained ex-parte, for a second time. In execution proceedings the defendant filed an application for dismissing the E.P. on the ground that the decree was ineffective due to the result in another suit. The same having been dismissed, the defendant preferred the civil revision petition. At the hearing of the C.R.P. it was contended for the petitioner that the plaintiff was claiming only under the Hindu Succession Act as Class I heir of her deceased husband and the defendant would naturally be another Class I heir of the plaintiff''s husband, she being his mother, that the decree in the suit declaring the exclusive title of the plaintiff and directing the defendant to deliver possession was unsustainable in law and such a decree could not be executed.

In such a situation, the High Court expressed the opinion that the decree in the suit was really per incuriam and exercising its powers under Section 115, Civil Procedure Code, 1908 (for short, "C.P.C."), suo motu ordered issuance of notice to show cause why the decree should not be set aside on the ground that the lower Court had completely ignored the provisions of the Hindu Succession Act and had failed to note that the plaintiff would be entitled to only one-half share in the property even on the basis of the facts set out in the plaint.

TO the suo motu revision so entertained, serious objections arose. One of the objections was that the suo motu revision is impermissible on the face of the salient provisions adumbrated under Sub-section (1) of Section 115 of the C.P.C. which prescribes that "the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto. In such a context, the High Court of Judicature at Madras expressed its view in para 25 which gets reflected as under : "In my opinion, the section should be construed in such a manner that Sub-section (2) would not apply to cases where this Court chooses to exercise its power suo motu, and not on any application by a party. When this Court decides to exercise its power suo motu, it means that there is a flagrant violation of justice, and this Court wants to prevent the perpetuation thereof by exercising its suo motu powers. In such case, it would be unreasonable to say that if an appeal lies to any Court against the decree or order, which has caused the miscarriage of justice, this Court is not entitled to vary or reverse the same. Hence Sub-section (2) should be limited in its application to petitions filed by parties under Section 115, C.P.C. invoking the power of revision of this Court. That sub-section cannot, in the nature of things, apply to the suo motu exercise of power of revision and restrict the same in any manner. When it is found that the revisional power of this Court is necessarily to be exercise suo motu, even if any party has not moved this Court therefor, the procedural fetters cannot stop this Court from exercising the same."

The dictum as above had been laid down by the High Court of Judicature at Madras in exercise of its powers of revision under Section 115 of the C.P.C. and Article 227 of the Constitution of India. If we carefully peruse Sub-section (1) of Section 115 of the C.P.C., the parameter prescribed for exercising the powers of revision by the High Court is that the case ought to have been decided by any Court subordinate to such High Court and in which no appeal lies thereto. Even on the face of such express and explicit provision, the High Court of Judicature, Madras, took the view that when there was miscarriage of justice, there can''t be any fetters for the suo motu exercise of revision under Section 115 of the C.P.C. for rendering justice to the parties concerned.

THE provisions of Section 115 of the C.P.C. and Article 227 of the Constitution of India are not at all applicable for deciding the question of permissibility of filing of a revision by the aggrieved party before this Commission. THE one and only provision applicable for the filing of revision before this Commission is the provision as adumbrated under Section 17(b) of the Act. THE said section reflects as under : "17. Jurisdiction of the State Commission.-Subject to the other provisions of this Act, the State Commission shall have jurisdiction,- (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity."

From the provisions as extracted above, it is rather crystal clear that it is permissible for the entertainment of a revision in any consumer dispute which is pending before or has been decided by the District Forum within the State provided the other parameters prescribed therein are satisfied. This section is differently worded from Sub-section (1) of Section 115 of C.P.C. We may recapitulate herein that the High Court may entertain a revision under Sub-section (1) of Section 115, C.P.C. "in any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto". (Emphasis supplied). In Section 17(b) of the Act, there is no such parameter as has been prescribed in Section 115, C.P.C. What is required is the simplicitor pending of the consumer dispute before the District Forum or such a dispute has been decided by the District Forum and nothing further. In the case on hand, the consumer dispute as initiated by the complainant was once and for all decided by the Forum below. Aggrieved by the order of the Forum below, the 2nd opposite party alone preferred the appeal in A.P. No. 144/1998. The complainant being aggrieved by the order of the Forum below did not prefer an appeal within the time limited. In such an eventuality, there is no prohibition for the entertainment of a suo motu revision for and on behalf of the aggrieved complainant. The only prohibition is that the one and the same party cannot resort to the filing of the appeal and revision simultaneously. We may now revert our attention to the third submission of the said learned Counsel regarding the inapplicability of the dictum of the Supreme Court as laid down in the case of Delhi Electric Supply Undertaking (supra), to the facts of the instant case. The said learned Counsel took a Himalayan effort in distinguishing the facts of the case decided by the Supreme Court in the case of Delhi Electric Supply Undertaking (supra), with the facts of the instant case. In the case before the Supreme Court, one Bhim Singh was an employee of the Delhi Electric Supply Undertaking (DESU). He took an insurance policy for an amount of Rs. 50,000/- with the LIC of India under the Salary Savings Scheme. The insurance policy was to commence on January 28, 1992. The said employee Bhim Singh had paid Rs. 636/- as premium for two months to the LIC of India. Premium for the third month was payable by March 29, 1992. The amount of the premium was deducted by DESU from the salary of Bhim Singh and remitted by it to the LIC of India. It appears that the premium for the subsequent months was deducted by DESU from the salary of Bhim Singh but was not remitted to LIC of India.

IN the case on hand, of course, the first two premiums had been paid by the insured/deceased Natarajan, the husband of the complainant Lalitha and the next premium has to be paid from March, 1994. The premium from March, 1994 onwards was not at all deducted by the 2nd opposite party Assistant Engineer, TNEB, MES, M.E.D.C. South, Adyar, Chennai-20 till upto his death which event happened on 23.1.1995.

THE said learned Counsel would state that in the case before the Supreme Court that the premium for the subsequent months was deducted by DESU from the salary of Bhim Singh but was not remitted to the LIC of India. But, in the instant case, we are having the 2nd opposite party Assistant Engineer, TNEB, and he did not at all deduct the premium on and from March, 1994. He would say that as the distinguishing feature. On the face of such a distinguishing feature, the said learned Counsel would state that the dictum of the Supreme Court as laid down in Delhi Electric Supply Undertaking (supra), is not at all applicable to the facts of the instant case. To such a submission, we are unable to affix our seal of approval. THE rationale or reasoning are rather obvious. THE Supreme Court of India in that case evolved a principle or dictum to the effect that in a Salary Savings Scheme if the employer fails to deduct and remit the premium to the LIC of India and consequently the policy got lapsed, the LIC of India is bound to pay the assured sum to the nominee of the deceased/assured on the basis of the salutary principle of law that the employer whose duty is to deduct the premium from the salary of the employee and pay to the LIC of India must be construed as an agent of the LIC of India and if there is any default committed by the employer/agent of the LIC of India, the principal LIC of India is bound to pay the sum assured to the nominee. That means the deficiency of the agent is deemed to be the deficiency of the principal, LIC of India. THE duty of the employer is twin-fold. THE first duty is to deduct the premium from the salary of the employee. THE second duty is to remit the premium deducted to the LIC of India. Non-doing of either of those two things by the employer/agent would definitely tantamount to deficiency in service. In the case before the Supreme Court, the first duty of deduction of the premium from the salary had been done by the employer and the second duty of remitting the premium alone was not done. In the case on hand, both the duties of deduction of the premium and remittance of the premium to the LIC of India were not performed. Such being the case, we are of the view that it is of no consequence. THE principle or dictum evolved by the Supreme Court is squarely applicable to the facts of the instant case when the 2nd opposite party Assistant Engineer, TNEB, employer fails to deduct the premium from his salary and remit the same to the 1st opposite party LIC of India. That deficiency of the 2nd opposite party agent must be construed to be the deficiency on the part of the principal, the 1st opposite party LIC of India. We may now proceed to discuss the last but not the least submission of the said learned Counsel. The submission is relatable to the inapplicability of the subsequent development of law as evolved by the Supreme Court to the facts of the instant case. In support of such a submission, learned Counsel relied upon the decision in the case of T. Periasamy Nadar & 5 Ors. v. T.D. Ramasubramaniam, 1997-1 LW 200. The short facts in that case may be adverted to for better appreciation of the evolution of the principle therein. The defendant in the suits applied for permission to alienate the properties concerned in the 4 agreements under the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1976. The application filed for permission was refused by the Authority under the Act. Therefore, the defendant sent a notice dated 19.10.1977 to the plaintiffs stating that as the application for permission to sell had been rejected, it was not possible to perform (sic) agreement, hence he cancelled the agreement and also returned the cheque for Rs. 1,600/- in each case received as advance under the agreements. However, the plaintiffs did not accept the cheques and returned them to the defendant. It was contended for the plaintiffs that having regard to the provisions contained in Act 24 of 1978, the decree of the Courts below refusing to grant specific performance is not valid in law and the Appellate Court can take into consideration the subsequent development in law and on the basis of the provisions contained in Act 24 of 1978 and in view of the fact that the execution of the agreement and receipt of the advance have not been denied, the decrees passed by the Courts below be reversed and the decrees for specific performance be passed. In that context, the High Court held as follows : "As per the agreements, the defendant was required to obtain permission for executing the sale deeds and the 1976 Act did provide for such a permission in the case of the land having the construction over it. As per the provisions contained in Section 26 of 1976 Act, the permission was required to be obtained. Accordingly, the defendant did apply for permission, but, the same was refused. Pursuant to that, before the 1978 Act came into force, the agreements were cancelled by the notice, dated 19.10.1977, whereas the 1978 Act came into force on 17th May, 1978, long after the cancellation of the agreements. It may be pointed out here that though it is open to the Appellate Court to take into consideration the subsequent development in law, but the Court cannot reverse the situation that had taken place before the subsequent development of the law. When once an agreement is cancelled, Court cannot reconstruct the agreement, nor it can make the parties to enter into agreement. Court can only enforce the agreement, which is existing or the cancellation of the same is found to be bad in law. However, in the instant case, cancellation of the agreements cannot be held to be illegal because as the law stood on the date that the agreements were cancelled, the agreements could not have been performed, without the permission to sell as per Section 26 of the 1976 Act. In this view of the matter, it is not possible to hold that the discretion exercised by the Courts below refusing to grant a decree for specific performance suffers from any illegality or arbitrariness."

From what has been extracted above, it is rather crystal clear that under Section 26 of the 1976 Act, the permission was required to be obtained. The permission so applied was refused and as a consequence, the agreements were cancelled. The Act was subsequently amended and 1978 Act came into force after the cancellation of the agreement. Under the provisions of the Amended Act, no permission was required to be obtained. Before the subsequent development of law, the agreements were cancelled. Once the agreements were cancelled, it is not permissible for the Court to make the parties to enter into a new agreement in accordance with the development of law. Such being the case, the High Court held that once the agreement is cancelled, Court cannot reconstruct the agreement, nor it can make the parties to enter into agreement. Court can only enforce the agreement, which is existing or the cancellation of the same is found to be bad in law.

THE decision as above is not at all applicable to the facts of the instant case. In the case on hand, the Forum below in passing the order impugned in the appeal has exercised a jurisdiction not vested in it by law in the sense of passing an order against the 2nd opposite party mulcting liability upon them to pay the amount due under the policy. That apart, the Forum below committed a very grievous error in its failure to exercise a jurisdiction so vested in it or acted in exercise of jurisdiction illegally in the sense of not applying the relevant existing provisions of the Contract Act, 1872, namely Sections 182, 183 etc., as had been done by the Supreme Court in the case of Delhi Electric Supply Undertaking (supra). It is not as if the dictum evolved by the Supreme Court arose as a consequence of the amendments effected in the relevant provisions of the Contract Act, 1872. When the Forum below, namely the District Forum, the State Commission and the National Commission failed to apply the relevant provisions of law to the factual matrix of the case on hand, the Supreme Court stepped in and rendered the dictum in that case in applying the correct provision of law in giving a legal fitment to that case. Such being the case, it cannot at all be stated that there was a change in the statutory provision of law subsequent to the decision rendered by the Forum below in the case on hand. We will be failing in our duty if we do not refer to the two other decisions, one emerging from the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad and the other from Bihar State Consumer Disputes Redressal Commission, Patna.

THE decision emerging from the State Commission of Andhra Pradesh is an unreported decision in F.A. No. 706/1997 against O.P. No. 483/1995, District Forum, Guntur. THE State Commission of Andhra Pradesh, took into consideration a decision emerging from the State Commission of Tamil Nadu in the case of Life Insurance Corporation of India v. Gowri Ammal & Ors., II (1998) CPJ 547, and also the decision of the Supreme Court in Delhi Electric Supply Undertaking (supra), and ultimately exonerated the Insurance Company in the sense that they are not being liable to pay the sum assured to the nominee of the assured/deceased. We respectfully agree to disagree with the view taken by the State Commission of Andhra Pradesh. We are of the view that the State Commission of Andhra Pradesh was unable to understand in the proper perspective the dictum or the principle evolved by the Supreme Court in the case of Delhi Electric Supply Undertaking (supra), and that perhaps was the reason for such a decision rendered by it. The other decision emerging from the State Commission of Bihar is the case of Smt. Indu Sinha v. Life Insurance Corporation of India & Ors., II (2000) CPJ 239. The said decision distinguished the facts of the case presented before it from the facts of the Supreme Court decision just like the manner the said learned Counsel Mr. V. Jambunathan, distinguished the facts of the case of the Supreme Court from the facts of the instant case. The distinguishing feature so made, we rather feel, is rather a mis-conception and we are unable to agree with the view taken by the State Commission of Bihar. The said learned Counsel also drew our attention to another decision of the High Court of Judicature at Madras in the case of G. Kumarasamy v. (1) The Corporation of Madras rep. by its Commissioner; (2) Mr. Marimuthu, the Commissioner of Police, 1997-1 LW 68. The dictum laid down in the said decision is traceable to paragraph 13 and the relevant portion of the said paragraph reads as below : "13. ...the exercise of suo motu jurisdiction either under Article 226 or 227 of the Constitution or under Section 115 of the Civil Procedure Code would depend upon the facts and circumstances of each case, conduct of the parties, the fact situation obtaining on the date the Court is called upon to exercise the jurisdiction suo motu the extent or nature of injustice going to be perpetuate if this Court were to decline to exercise the jurisdiction suo motu."

TO the principle or dictum so evolved, we bow our head in reverence. The dictum so laid down cannot at all be expected to lend a helping hand in advancing or projecting the case of the 1st opposite party LIC of India in the sense that the suo motu revision cannot at all be entertained, on the facts and in the circumstances of the case. We entertained the suo motu revision run the case on hand when there is travesty of justice being done to the complainant/nominee by the order passed by the Forum below when exonerated the opposite party Insurance Company from its liability to pay the sum assured to the complainant/nominee, the wife of the deceased/assured.

THE authoritative pronouncement of dictum as laid down by the Supreme Court in the case of Delhi Electric Supply Undertaking (supra), is binding on us under Article 141 of the Constitution of India. We bow our head in reverence to the decision emerging from the Apex Court of the Country in that case. THE dictum laid down by the Supreme Court in that case is applicable in all fours to the facts of the instant case. Such being the case, the order of the Forum below in O.P. No. 293/1995 cannot at all be allowed to stand as it is. The same deserves to be set aside and we accordingly do so. The 1st opposite party LIC of India is liable to pay the amount due under the policy to the complainant who is none else than the nominee of the deceased/assured. The claim preferred by the complainant/nominee of the deceased/assured had been repudiated by the 1st opposite party LIC of India. No material had been placed on record to point out the date on which the claim had been made by the complainant/nominee of the deceased/assured. But, one thing is specific. The deceased/assured died on 23.1.1995. The 1st opposite party LIC of India must have to either allow or reject the claim within a reasonable time from the date of intimation of the death of the deceased/assured. It is a matter of regret that no material had been placed on record as to the date on which the intimation of the death of the deceased had been sent to the 1st opposite party LIC of India. Only a circumstance we can safely take it for granted that the intimation of the death of the deceased/assured had been given to the 1st opposite party LIC of India within a reasonable time, say within a period of two weeks from the date of his death, which will take us to 7.2.1995. The 1st opposite party LIC of India ought to have settled the claim within a reasonable time of say 4 months after the receipt of the death intimation which will take us to 7.6.1995. Admittedly, the amount due under the policy is Rs. 15,000/- with profits. The amount due under the policy with profits if paid on 7.6.1995, the complainant/nominee of the deceased/assured would have been in a position to invest the same in some Bank and earn interest on such amounts. Such being the case, the 1st opposite party LIC of India is liable to pay interest at a reasonable rate on the amount due to the complainant/nominee on and from 7.6.1995. The Apex Court of this country in decisions more than one said that in respect of amounts due by the Insurance Companies, they cannot at all be mulcted with the liability for payment of interest at a rate higher than 12% p.a. Such being the case, we direct the 1st opposite party LIC of India to pay to the complainant/nominee of the deceased/assured the amount due under the policy with profits with interest @ 12% p.a. on and from 7.6.1995 till realisation.

In fine, the appeal A.P. No. 144/1998 and R.P. No. 20/2002 are allowed; the order of the Forum below is set aside and the 2nd opposite party is exonerated. The 1st opposite party LIC of India is directed to pay to the complainant/nominee of the deceased/assured, the sum due under the policy with profits with interest @ 12% p.a. on and from 7.6.1995 till realisation. We however make no order as to costs on the facts and in the circumstances of the case. We however make it crystal clear that the order of ours as above is to be complied with by the 1st opposite party LIC of India within a month from the date of the order or otherwise it would be perfectly open to the complainant to invoke the provisions of Section 27 of the Act. Ordered accordingly.