1.     This revision petition under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Disputes Redressal Commission, Chhattisgarh, Raipur (in short, ‘State Commission’) in First Appeal No. 450 of 2015 dated 06.06.2016 arising out of order dated 07.08.2015 of the District Consumer Disputes Redressal Forum, Bilaspur (in short, ‘District Forum’) in Complaint No. 233 of 2014.

2.      Briefly stated, the facts of the case, as stated by the petitioner, are that it had provided policy no. 50012446003 to late Sri Lakhan Lal,  for a sum of Rs 2,50,000/- commencing from 07.03.2014 based upon a proposal dated 20.02.2014 for a SBI Life Saral Maha Anand policy. The insured expired on 13.04.2014.The respondent is the wife of the Deceased Life Assured (‘DLA’). It is stated by the petitioner that the said policy had been provided based upon the proposal form which had categorically stated that the DLA did not have diabetes or had been advised to undergo investigation for diabetes. According to the petitioner, the DLA concealed the fact that he was suffering from diabetes mellitus and the policy, which would otherwise not have been approved, was accepted. The DLA expired within one month and 6 days of the policy being approved and during investigations, as required, it was discovered that the DLA had not disclosed in the proposal form that he was suffering from diabetes. The petitioner states that as per a prescription dated 20.01.2014 by one Dr (Col) YS Dubey the DLA was a case of uncontrolled diabetes with post prandial blood sugar 428.50 mg and was prescribed insulin injections. The biochemistry report dated 20.01.2014 mentioned that blood sugar post prandial was 428.50 mg/DL against the normal of 130 and on 24.03.2014 it was 276.90 mg/DL. This, according to the petitioner, is proof of a pre-existing illness, prior to the commencement of risk on 07.03.2014. Non disclosure of these facts by the DLA was a breach of the doctrine of ‘utmost good faith’ and as per clause 16.6 of the policy, the contractual benefits were liable to be cancelled for withholding material information. Accordingly, the fund value of Rs 23,670/- was credited to the respondent’s bank account with State Bank of India since the claim was not payable.

3.      Aggrieved, the respondent filed a complaint before the District Forum which allowed the complaint vide order dated 07.08.2015 directing payment of Rs 2,50,000/- together with compensation of Rs 25,000/- and litigation cost of Rs 2,000/-. The petitioner herein appealed before the State Commission which upheld the order of the District Forum vide its order dated 06.06.2016. This order is impugned before us in this revision petition on the grounds that the fora below erred on facts and law as the petitioner did not prove that the DLA was suffering from diabetes at the time of the policy. The action of the fora below in rejecting the records produced by the petitioner on the ground that they were Xeroxed copies was erroneous according to the petitioner. It also erred in not considering it necessary to examine the doctor who treated the DLA and the author of the laboratory reports. Reliance is placed on the order of this Commission in  Divisional Manager LIC Vs. Alapati Vasanta Kumari RP no. 435 of 1994 which held that “The ground stated in the letter of repudiation may not be legally or factually correct but that is a matter of determination by the civil court and not by the consumer forum when ex facie there is nothing to show that the grounds are wholly untenable.” It is stated that it is settled law that an assured is under a solemn obligation to make a true and full disclosure of the information which is within his knowledge without determining whether the information is material or not.  It is further averred that the Hon’ble Apex Court has held in General Assurance Society Ltd. Vs. Chandumull Jain & Anr. AIR 1966 SC pg. 1644 that “in interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable.” The petitioner has also relied upon this Commission’s order in IND Swift Ltd. Vs. New India Assurance Co. Ltd. in order dated 17.09.2012 in First Appeal No. 157 of 2006 which held that “an insurance policy is to be construed strictly as per the terms and conditions of the policy document which is a binding contract between the parties and nothing can be added or subtracted by giving a different meaning to the words mentioned therein”. In view of suppression of material fact by the DLA, proving the same by the petitioner is adequate as the claim was repudiated within 2 years. It is contended that the conclusion of the State Commission that merely because the sugar level of the DLA was found to be 428.50 is not sufficient to either prove that he was suffering from diabetes or that he had prior knowledge of it which he suppressed and therefore the repudiation is erroneous amounting to deficiency in service is erroneous. It is, therefore, prayed that the order of the State Commission be set aside along with any other order deemed fit.

4.      On behalf of the respondent, it was submitted by the amicus curiae that the DLA had not withheld disclosure of any material facts. It is argued that the DLA was a government servant who had not absented himself from work on account of any illness while in service as per certificate of the employer dated 30.08.2014. Reliance is placed on this Commission’s order in Life Insurance Corporation of India & Anr. Vs. Naseem Bano III (2012) CPJ 208 NC wherein it was held that repudiation of claim was not justified if there was no evidence to show that prior to filling up of the policy form there was any record of any hospital, slips of doctors or prescriptions showing medicines since heart attack had no nexus with diabetes. Reliance has also been placed on Life Insurance Corporation of India & Ors. Vs. Kunari Devi IV (2008) CPJ 89 NC as per which it was held that history recorded in the hospital’s bed head cannot be treated as evidence as doctor’s evidence was not recorded and hence suppression of disease was not proved. 

5.     I have heard both the parties and perused the material on record.  

6.      The District Forum’s order held as follows:

9.       It is the contention on behalf of respondent no. 2 that when deceased life assured obtained the policy on 20.3.2014 he was already suffering from diabetes and has deliberately hidden this fact and claim has been rightly repudiated. In support of its contention the insurer has filed doctor VS Dube’s prescription dated 20.01.2014 and Om Pathology’s test report but no affidavit of doctor or pathologist has been filed. Hence it is not clear whether the prescription and test report belonged to the deceased life assured. Applicant has failed to prove that deceased life assured was suffering from diabetes and has deliberately hidden this fact.

10.     Insurer firstly ensures a person without conducting any medical examination and when time to honour the claim comes they try to evade the liability by making some excuse. A person takes medical policy with expectation that after his death his family will not suffer loss and claim amount will help them in sustaining life. As complainant belongs to middle class it is duty of the insurer officials to think in terms of helping the complainant and not to find loopholes.

11.     We are of the view that claim has been repudiated without due application of mind and without any reasoning which amounts to deficiency of service hence we pass the following order:

1. Respondent no. 2 will pay a sum of Rs 2,50,000/- to the complainant including the amount already paid to the complainant
2. Rs 25,000 compensation
3. Rs 2000 as cost of litigation
4. Respondent no. 1 will bear its own cost of litigation.

7.      The order of the State Commission impugned before this Commission reads as below:

13.     The burden to prove that the insured had taken medical treatment within period of preceding 12 months and he fraudulently suppressed the same is on the insurer and mere production of medical prescription and Biochemistry Report is not sufficient to prove illness of the Deceased Life Assured and suppression of material facts by him. The burden of proof of establishing pre-existing disease and the deceased insured was having knowledge regarding the disease, is on insurer. The documents filed by the complainant (OP No. 2) is not sufficient to prove the pre-existing disease of the insured deceased.

14.     In document Annexure C which is prescription, it is mentioned that the deceased insured was advised by Dr (Col) YS Dubey for taking insulin. In document Annexure 4 which is Biochemistry Report of Om Patho Clinic it is mentioned that Post Prand Blood Sugar (2 Hr) of Mr Lakhan Kaushik is 428.50 mcg/DL. The prescription Annexure C of Dr (Col) YS Dubey and Biochemistry Report of Om Patho Clinic have been issued on 20.01.2014. Merely all of sudden sugar level of the deceased insured was found 428.50 is not sufficient to prove that the deceased insured was suffering from Diabetes Mellitus and it is also not sufficient to prove that the insured was having knowledge regarding the Diabetes Mellitus and he mala fidely suppressed the above facts to the appellant (OP No 2) at the time of making proposal for the insurance policy, therefore, repudiation of the claim of the respondent No. 1 (complainant) by the appellant (OP No 2) on the ground of non-disclosure of material information is erroneous and thus the appellant (OP No 2) committed deficiency in service by repudiating claim of the respondent No. 1 (complainant) on the ground of suppression of material facts which is not justified.

15.     Thus, in the light of aforesaid discussions, we are of the view that the learned District Forum has not committed any irregularity or illegality and the impugned order dated 07.08.2015 passed by the District Forum does not call for any interference by this Commission.

16.     Hence, the appeal filed by the appellant (OP No 2) being devoid of any merits deserves to be and is hereby dismissed. No order as to the cost of this appeal.

8.      From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidences led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.       

9.      The foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. It is seen that the orders of these fora are based on evidence on record.  In view of the settled proposition of law that where two interpretation of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.

10.    This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.

11.   The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269, has held that:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”

12.   Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors  (2016) 8 Supreme Court Case 286 held:

“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

13.   Again, the Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

14.   I, therefore, find no illegality or infirmity or perversity in the impugned order. The present revision petition is, therefore, found to be without merits and is accordingly dismissed. Order of the State Commission is affirmed with no order as to costs.