BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL

COMMISSION, NEW DELHI

MISC. APPLICATION NO. OF 2018

IN

FIRST APPEAL NO. 1249 OF 2016

IN THE MATTER OF:

THE CUSTOMER SERVICE OFFICER

BIRLA SUNLIFE INSURANCE CO. LTD.
CLAIMS DEPARTMENT
G.CORP TECH PARK
5TH& 6TH FLOOR, KASAR VADAVALI
GHODBUNDER ROAD
THANE 400061
….Appellant

Versus

MRS. JAYSHREE SURESH GAMBHIR

R.NO. 8, 5RH FLOOR
KRISHANA SARASWATI SADAN
OPP. KOKAN NAGAR, DILIP GUPTE MARG
MUMBAI - 400016

….Respondent

REPLY TO APPLICATION ON BEHALF OF APPELLANT

MOST RESPECTFULLY SHOWETH:

The humble Appellant above named, most respectfully beg to submit as

under:-

That the Appellant has full respect/regard and full honour for the learned

State Commission and has no ill intention to be discourteous//disrespectful

but if this Hon’ble Commission is of the view that the use of word ‘like

Kangaroo Court’ is discourteous and contemptuous then the humble

Appellant tenders it’s unconditional apology for the same.

That the name of the Appellant Company has changed from BIRLA SUN LIFE

INSURANCE COMPANY LIMITED to ADITYA BIRLA SUN LIFE INSURANCE

COMPANY LIMITED with effect from the date of certificate dated 11.08.2017

issued by Ministry of Corporate Affairs. Here to Annexed and Marked as

Annexure A is the copy of the Certificate of Name Change dated 11.08.2017.

Parawise Reply

1. That the contents of Para No. 1 of the application need no reply.

2. That the contents of Para No. 2 of the application need no reply.

3. That the contents of Para No. 3 are not disputed.

4. That the contents of Para No. 4 are denied as stated. It is factually /

materially incorrect that the matter was adjourned to 06.09.2018 for

conclusion of hearing. It is stated that the above titled Appeal was heard

on merits as well as on the issue of limitation on 23.10.2017 and the order

was reserved. That thereafter, this Hon’ble Commission vide its order

dated 07.12.2017 had directed the humble Appellant to produce policy

documents and medical record of the Life Assured within eight weeks and

the matter was kept for directions on 23.05.2018. That in light of the

direction, the humble Appellant filed the documents and advance copy of

the same was also served to the Respondent. On 23.05.2018 the matter

was simply adjourned to 06.09.2018 for directions. That from the bare

perusal of the causelist dated 06.09.2018, it is crystal clear that the matter

was listed only for directions and not for conclusion of hearing. Since the

Appeal was heard on merits on 23.10.2017 and thereafter the matter was

listed only for directions.

5. That the contents of Para No. 5 of the application need no reply. It is

stated that the advance copy of the Application was supplied only on

14.11.2018 whereas the direction was given on 06.09.2018 and the matter

was listed on 19.11.2018.

6. That the grounds as mentioned under sub-para (A) to (K) of the Para No.

6 of the Application are vehemently denied.

A. That the contents of Para A of the grounds needs no reply being matter of

record.

B. That the contents of Para B of the grounds are vehemently denied. It is

stated that the Respondent/Applicant has already filed the Reply to the

Appeal alongwith the grounds and thereafter the matter was heard at

length by this Hon’ble commission and now belatedly with an afterthought

the respondents has raised the issue and filed the instant application with

is nothing but sheer abuse of process of law. It is pertinent to mention that

the humble Appellant has no intention to be disrespectful to an authority

created under the statute but at the same time the term was used with a

prefix LIKE before the word kangaroo court and the very reason for

capturing the word inasmuch as the term also applies to a court held by a

legitimate judicial authority who intentionally disregards the courts’ legal or

ethical obligations. The bare perusal of the impugned order would reveal

that the learned state Commission clearly disregarded the judicial

precedents which it was legally and ethically bound to follow. It is not

disputed, rather the admitted fact that the Respondent/Complainant being

nominee under the issued policies, had filed consumer case before

Hon’ble State Commission, Maharashtra, stating the fact under Para No. 4

that “Husband of the Complainant is EX-MLA in the State Assembly of

Maharashtra and is a respected and reputed person”. It would be pertinent

to mention here that the Respondent/Complainant just to influence the

mind of the Hon’ble Commission narrated those facts which were not

necessary to disclose under the Consumer Complaint. As per settled

doctrine of law pronounced by the Hon’ble Supreme court itself is

numerous cases and on the cardinal principles on which our Constitution

is formed is that creation or presence of actual biasness is not necessary

rather even if there is a possibility that there may be some kind of bias

present the aggrieved party has the right to object it. It is that phrase

which says “that justice must only be done but it should also be seen to be

done” and if such mentioning of facts will create a doubt in the minds of

one of the party it cannot be said that justice was seen to be done. And it

is undisputed that mentioning facts which relates to the Stature of the

Husband of the Policy holder were completely irrelevant and other were

only mentioned to created biasness in the minds of the State Commission.

Further, when such circumstances are coupled with an irrational and

irregular judgement of the court as in this case it is natural to create doubt

in the minds of the aggrieved party. Further, it would be pertinent to

mention here that under the Policy Contracts of all the policies, it was not

asked about the position of the Life Assured’s father. The Hon’ble State

Commission without going into the roots of the suppression of the material

facts and without considering the landmark judgements given by the Apex

Court and Hon’ble National Commission in various cases, allowed the

consumer complaint in favour of the Respondent against which the Appeal

was preferred on certain grounds. The language in the ground G is clear

and term is not at all used to insult/malign/dishonour/vilify/belittle dignity of

learned state Commission. The Appellant has no intention to disrespect or

be discourteous to the state commission. Therefore the same cannot be

construed that there has been a contemptuous act on the part of the

appellant.

C. That the contents of Para C of the grounds are vehemently denied. It is

denied that averments under Para No. 4 of the Complaint was mere

description of the parties. It is reiterated again that neither the husband of

the Respondent was nominee under the issued policy nor he was
proposer or life assured. The Respondent intentionally had stated position

of his husband just to influence the Commission. It would be pertinent to

mentioned here that as per Code of Civil Procedure, 1908 – “every

pleading shall contain, and contain only a statement in a concise form of

the material facts on which the party pleading relies for his claim”. Under

the matter in dispute the claim was repudiated by the Appellant Company

since the policy was obtained on the basis of suppression of material

facts. The core issue (material issue) was whether the insurance was right

in repudiating the claim or not. The Respondent/Complainant had to

mention only those facts which are related to her claim and related to the

policy contract. Therefore, the description of the husband of Respondent

was intentional and with an intent to influence the mind of the commission.

It is pertinent to mention here that as mentioned under the answering reply

that the Respondent had no other intention in describing the husband of

Complaint being EX-MLA similarly the Appellant has no intention to

disregard the authority/position of the Learned State Commission.

D. That the contents of Para D of the grounds are vehemently denied. It is

stated that the assertion about the EX-MLA of Maharashtra Assembly was

intentional just to influence the mind of the Hon’ble Commission. The

Hon’ble Commission while deciding the core issue of the suppression of

material fact disregarded the judgements/rulings delivered by Hon’ble

Apex Court and Hon’ble National Commission. The Hon’ble Commission

in arbitrary manner compared the disease mentioned under

judgement/rulings given by the Hon’ble Apex Court and Hon’ble National

Commission with the disease from which the Life Assured was diagnosed

and treated in Hinduja Hospital, Mumbai i.e. prior to issuance of the policy.

The reasoning and finding of the Hon’ble Commission itself states that the

Hon’ble Commission intentionally disregarded the court’s legal or ethical

obligations while passing the order therefore the term like ‘Kangaroo

Court’ was used not straightforwardly declared it as “Kangaroo Court”.

The interpretation by the Respondent is vague and not tenable in

whatsoever manner. The term was used in normal parlance since the

legitimate judicial authority intentionally disregarded the legal or ethical

obligations of stare decisis. Therefore, it cannot be termed as

contemptuous or disrespectful in the eyes of law. The

Respondent/Complainant just to divert this Hon’ble Commission from the

core issue has preferred the instant application which has no spine to

stand rather the same deserves to be dismissed.

E. That the contents of Para E, F & G of the grounds are vehemently denied.

The Respondent/Complainant has mis-interpreted the definitions of term

‘Kangaroo Court’ just to achieve the success in its ulterior motive and to

divert from the core issue involved into the subjected consumer case. The

term like ‘Kangaroo Court’ was used just to emphasize that the Hon’ble

State Commission while deciding the core issue completely ignored the

recognized standards of law and justice and intentionally disregarded the

court’s legal or ethical obligations. The Hon’ble Commission completely

disregarded the judgments given by the Hon’ble Apex Court and Hon’ble

National Commission under various judgements. The definition as

mentioned in the answering paras would itself make it clear that the terms

Kangaroo court also applies to a court held by a legitimate judicial

authority who intentionally disregards the courts legal or ethical

obligations. The interpretation by the Respondent is vague and misleading

just to distract this Hon’ble Commission from the core issue of

suppression of material facts.

F. That the contents of Para H of the grounds are not admitted as stated by

the Respondent/Complainant. While giving the definition of ‘Kangaroo

Court’, the Respondent has emphasized only on an un-authorized court or

irregular court whereas the word ‘Kangaroo Court’ has its another

meaning which states/defines as "An irresponsible, unauthorized, or

irregular tribunal, OR one in which, although conducted under some

authorization, the principles of law and justice are disregarded or

perverted."The cited rulings are nowhere related to the subjected matter

rather the same are not applicable in whatsoever manner. It is stated that

the detailed reason using the word “like ‘Kangaroo Court’” has already

been given in supra para therefore needs not to reiterate again. The

reliance placed over few citations does not constitute any contempt of

court on part of the Appellant.

G. That the contents of Para I of the grounds are not admitted as stated. The

detailed reply has already been given in supra paras that the term “like

‘Kangaroo Court’” was used just to emphasize that the Hon’ble State

Commission while deciding the core issue completely ignored the

recognized standards of law and justice and intentionally disregarded the

court’s legal or ethical obligations. The Hon’ble Commission completely

disregarded the judgments given by the Hon’ble Apex Court and Hon’ble

National Commission under various judgements. The Hon’ble Supreme

Court and Hon’ble High Court has used the word ‘Kangaroo Court’ for

Khaap Panchayat considering the wider definition of word ‘Kangaroo

Court’. The term ‘Kangaroo Court’ has its different meanings as has been

defined in various dictionaries. The definition of ‘Kangaroo Court’ is "An

irresponsible, unauthorized, or irregular tribunal, OR one in which,

although conducted under some authorization, the principles of law

and justice are disregarded or perverted." The meaning is ‘an

irresponsible, unauthorized, or irregular tribunal’, the same has been used

by the Indian judiciary declaring it as ‘KhaapPanchayat’, whereas the

meaning also denotes about the principles of law and justice disregarded

by the courts. Therefore, it is crystal clear that the word ‘like ‘Kangaroo

Court’ was not used to disrespect the dignity of the Hon’ble State

Commission.

H. That the contents of Para J of the grounds are vehemently denied. The

Respondent/Complainant has emphasized upon the provisions of

Contempt of Court Act, 1971 to the extent of the definition part of the Act

and did not bother to go into the each and every provision as enumerated

therein. The using the word “like Kangaroo Court” does not constitute

scandalises or tends to scandalise the dignity of the court since the same

was not used to disrespect the dignity of the Hon’ble State Commission.

The detailed reply has already been given in supra paras. That in the

matter of Roshan S. Boyce v.B.R. Cotton Mills Ltd., AIR 1990 SC 1881,

the Hon’ble Apex Court has held that the law of contempt must be strictly

interpreted an complied with before any person can be committed for

contempt. It is stated that exceptions has also been defined under the Act

of 1971 which states that a person shall not be guilty of contempt of court

for publishing any fair comment on the merits of any case which has been

heard and finally decided.The Respondent/Complainant just to cause

delay in adjudication of Appeal or divert from the core issue has preferred

the instant application on false ground. That under the Appeal the notices

were issued to the Respondent on 26.10.2016. The matter was finally

argued on 02.10.2017 and the order was reserved by this Hon’ble

Commission. Thereafter, the Respondent after lapse of almost two years

levelled allegation of contempt of court by way of instant application which

is not sustainable in terms of the Act, 1971. The Act of 1971 also states

about the limitation period of contempt proceedings. The Respondent after

two years has alleged contempt, the whole proceedings are barred by
Section 20 of the contempt of Courts Act, 1971 which has prescribed the

period of limitation of one year for initiating any proceedings of contempt,

be it suomotu or otherwise. Section 20 of the Act reads as follows:

20. Limitation for actions for contempt.- No court shall initiate any
proceedings of contempt, either on its own motion or otherwise, after the
expiry of a period of one year from the date on which the contempt is
alleged to have been committed.

In the case of Pallav Seth v. Custodian and Others [(2001) 7 SCC 549],
the Hon'ble Supreme Court held as follows:-

Firstly, a contempt proceedings can be initiated by two modes, either the

Court can initiate the contempt proceedings on its own (suomoto), or

otherwise. The word otherwise has been interpreted to mean that the

initiation would have to be done by a party by filing an application.

Therefore, the Supreme Court was of the opinion that the proper

construction to be placed on Section 20 of the Act must be that action

must be initiated, either by filing of an application, or by a Court issuing

notice suomoto within a period of one year from the date on which the

contempt is alleged to have been committed.

In the case of RuksanaBegum,Km v. B.P.Varma, 1990 AII L.J.341, which

is held that the contempt proceedings having been initiated after a lapse of
more than one year from that date were held as barred under Section
20 where suomotu contempt was registered after nearly 4-1/2 years, after
violation of undertaking given to Court, held not maintainable even in the
case of O.P.Sreedhara Menon v. K.Amarnath Shetty, 2013 Cr.L.J.1684.

In the case of Dineshbhai A. Parekh v. Kripalu Co-operative Housing

Society, Nagarvel Ahmedabad, AIR 1980 Guj. 19 at p.199, the Court
held that the pendency of a contempt petition for more than one year after
the alleged act of contempt and no notice having been issued even
thereafter would not enable this Court to continue to keep the petition
pending indefinitely. The jurisdiction of the Court is that the Court shall not
initiate any proceedings for contempt either on its own motion or
otherwise, after the expiration of a period of one year from the date on
which contempt is alleged to have been committed.

Therefore, in light of the Section 20 of the Act of 1971, considering the

period of the limitation by application or suomoto, cannot be initiated after

lapse of one year. It is stated that the firstly no contempt of court has been

committed by the Appellant; secondly, without admitting the allegation of

contempt, the same can be filed within one year from the date on which

contempt is alleged to have been committed. The Respondent kept silent

for more than two year and when the order was reserved under the

Appeal, the Respondent without any rhyme and reason raised the issue of

contempt of court. Therefore, considering above the instant application

should be dismissed in limine being frivolous and being initiated with

malice.

The Respondent has failed to give any reasonable / sustainable

explanation regarding mentioning of EX-MLA IN GOVERNMENT OF

MAHARASHTRA. The entire medical record are against the Respondent

which clearly proves that the policy was obtained on the basis of

Suppression of material facts, since the Respondent has nothing to

controvert the admitted medical record therefore the Respondent after

lapse of two years raised the issue of contempt of court with ulterior

motive just to divert this Hon’ble Commission. The same also reveals from

the prayer made under the instant application whereby the Respondent

has emphasized upon dismissal of Appeal in light of the instant

Application.

I. That the contents of para K of the grounds are vehemently denied. It is

stated that the Respondent has failed to give any reasonable/sustainable

explanation regarding mentioning of EX-MLA IN GOVERNMENT OF

MAHARASHTRA. The entire medical records are against the Respondent

which clearly proves that the policy was obtained on the basis of

Suppression of material facts, since the Respondent has nothing to

controvert the admitted medical record therefore the Respondent after

lapse of two years raised the issue of contempt of court with ulterior

motive just to distract this Hon’ble Commission.

7. That the contents of Para No. 7 of the Application are vehemently denied.

The Respondent under the garb of instant application is praying for

dismissal of Appeal No. 1249/2016 whereas the appeal has not relevancy

with the instant application.That no contemptuous act has been committed

by the Appellant and there has been no intention to

insult/malign/dishonour/vilify/belittle dignity of learned state Commission.

The instant application is an abuse of process of law and is being filed to

just to cause delay with deliberate intention on part of the Respondent.

Therefore, it is numbly prayed, the reply to the application be taken

on record and the instant application filed by the Respondent/Complainant

be dismissed with heavy cost.

FOR BIRLA SUNLIFE INSURANCE CO. LTD.

MUMBAI
DATED

[ KSHAMA PRIYADARSHINI ]
SENIOR CHIEF MANAGER - LEGAL

THROUGH COUNSEL

THE LAW DESK, Advocates

PRATEEK KASLIWAL/RAKESH K. RAJWANIA
PRAKASH SHARMA/NAVEEN AGARWAL
Advocates
C-230, Gyan Marg, Tilak Nagar, Jaipur-302004
+91-9829050610
BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION, NEW DELHI

MISC. APPLICATION NO. OF 2018

IN

FIRST APPEAL NO. 1249 OF 2016

IN THE MATTER OF:

THE CUSTOMER SERVICE OFFICER, BIRLA SUNLIFE INSURANCE CO. LTD.
CLAIMS DEPARTMENT, G.CORP TECH PARK, 5 TH& 6TH FLOOR, KASAR
VADAVALI, GHODBUNDER ROAD, THANE 400061

….Appellant

Versus

MRS. JAYSHREE SURESH GAMBHIR, R.NO. 8, 5RH FLOOR, KRISHANA

SARASWATI SADAN, OPP. KOKAN NAGAR, DILIP GUPTE MARG, MUMBAI -
400016
….Respondent

AFFIDAVIT IN SUPPORT OF REPLY TO APPLICATION

I, Kshama Priyadarshini, Senior Chief Manager- Legal, Authorized

Representative of Aditya Birla Sun life Insurance Company Limited having its
Registered Office at Tower 1, 16 th Floor, Jupiter Mill Compound, 841 Senapati
Bapat Marg, Elphinstone Road, Mumbai-400013, do hereby solemnly affirm on
oath and state as under:

1. That I am the Senior Chief Manager-Legal and authorized representative

of the Birla Sun Life Insurance Co. Ltd. and I am therefore well conversant
with the facts and circumstances of the present case and competent to
swear this affidavit.

2. That the accompanying reply to Application have been drafted under my

instructions, I have read and understood the contents thereof and affirm
the same to be true and correct to my knowledge and based on records
maintained by the company.

DEPONENT
VERIFICATION

I, Kshama Priyadarshini, the above named deponent do hereby verify that the
contents of the above affidavit are true and correct, no part of it is false and
nothing material has been concealed there from.

DEPONENT