PER MR SUBHASH CHANDRA, PRESIDING MEMBER

        This revision petition filed under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Dispute Redressal Commission, Punjab (in short, ‘State Commission’) in First Appeal No. 582 of 2018 dated ­­­­10.05.2017 dismissing the appeal against the order of the District Forum, Ropar (in short, ‘District Forum’) dated 28.04.2015. The said order directs the petitioner to pay the respondent Rs 2,00,000/-  each under two policies  along with  9% interest on these sums till realization apart from Rs 3000/- as compensation and Rs 2000/- as cost of litigation on account of the death of the respondent’s husband who was a policy holder of the two life policies.

2.     The brief facts of the case are that on 27.03.2006, the petitioner’s husband Faqir Chand purchased a life insurance policy (No. 163096217) from the respondent for a sum of Rs 50,000/-. Subsequently, on 08.12.2010 and 29.10.2010 purchased two more policies under the respondent’s Jeevan Saral scheme (Nos. 164558088 and 164558264 respectively) for Rs 2,00,000/- each and paid the requisite premium regularly. On 21.05.2012 the respondent informed the petitioner that her husband had expired due to a heart attack and raised a claim for insurance cover. Policy number 163096217 was settled by the petitioner for Rs 50,000/-. However, the other two policies were not settled on the ground that there was a bar under section 45 of the Insurance Act, 1938 as two years had not elapsed and on grounds of misstatement by the insured regarding his pre-existing heart ailment. It is averred by the petitioner that the deceased Faqir Chand had been admitted in NFL Hospital, Nangal between 05.03.2012 to 10.03.2012 and thereafter at DMC Hospital, Ludhiana from 10.03.2012 to 15.03.2012 where he had undergone Coronary Artery By-pass Graft surgery in 2006, which fact was not disclosed while purchasing the two insurance policies. He was again admitted in this hospital on 30.03.2012 where he expired due to a heart attack.

3.     The petitioner has submitted that as per his enquiry, the late policy holder had been admitted to BBC Heart Care, Pruthi Hospital, Jallandhar on 19.12.2002 where he was diagnosed with CAD Triple Vessel Disease and an off pump Coronary Artery By-pass x 3 was performed on him for which purpose he was admitted till 15.01.2003. The claim of the respondent was therefore repudiated by the petitioner vide letters dated 23.11.2012 on the ground of having withheld correct information at the time of obtaining the life policies. 

4.     The District Forum, Ropar allowed the complaint of the respondent on 28.04.2015 in Consumer Complaint No. 118 of 2014 and ordered as under:

7.     It is pertinent to mention here that in order to prove their stand that the DLA prior to the inception of the policy, was suffering from Corornary Artery Disease, Triple Vessel Disease and Off Pump Corornary Bypass x 3 was done on 04.01.2003, the OP have placed on record certain documents issued by BBC Heart Care/ Pruthi Hospital, Jallandhar City and even on 02.02.2015, the learned counsel for the OP nos.1 and 2 had filed miscellaneous application for summoning the record keeper along with the record of the above said hospital and the said application was allowed vide order dated 13.02.2015. Accordingly, on 07.04.2015, Shri Gian Chand, Medical Record Incharge of Paruthi Hospital, Jalandhar had appeared and suffered a statement to the effect that the summoned record relating to the documents exhibit OP 7 to OP 9 has been destroyed by the hospital after elapse of six years, but the said documents seem to be of the said hospital. In his cross examination, by the learned counsel for the complainant, he stated that he had not brought any record on that day and could not produce the original record, as the records of the above said cases, is not available, the same being more than six years old. In paragraph 8 of the written statement filed by the OPs, it is categorically mentioned that at the time of medical examination, the DLA had given wrong answers to the questions mentioned in the proposal form/ personal statement. It means before issuance of the insurance policies in question to the DLA, the OPs had got conducted his medical examination. Once the OPs had got conducted the medical examination of the DLA from the Doctor on their panel, then this fact that the DLA had suffered from coronary artery disease, triple vessel disease and off pump coronary prior to inception of the said policies, should have brought to their knowledge by the said doctor and now the OPs cannot plead that the policies were issued by ignoring the said medical examination conducted by their own doctor, merely on the basis of the wrong answers given by the DLA. It may be stated that the OPs have neither produced on record the medical examination report of the DLA, got conducted by them from their own doctor, before the inception of the policies in question nor the record of Paruthi Hospital, on the basis of which they have alleged that prior to the issuance of the insurance policies in question, the DLA was suffering from coronary artery disease, triple vessal disease and off pump coronary bypass was done in the year 2003, has been proved. Thus, in the absence of any cogent and convincing evidence, we are of the considered opinion that the OPS were not justified in repudiating the claim of the complainant on the ground that the DLA had withheld the material information from them. In the case of Life Insurance Corporation of India vs Smt G M Channabasamma – I (1991) ACC 411 (SC) the Hon’ble Apex Court held that the burden of proving that the insured had made false representation and suppressed material facts is undoubtedly, on LIC of India. Furthermore, mere concealment of some facts will not amount to concealment of material facts and if there is fraudulent suppression of material facts in the proposal, the policy could be vitiated otherwise not. Further in the case of National Insurance Co. Ltd., vs Bipul Kundu – II (20050 CPJ 12 (NC) the Hon’ble National Commission has held that for repudiating a claim of an insured, it is for the insurer to show that a statement on a fact, which was material for the policy had been suppressed by the insured and that statement was fraudulently made by him / her with the knowledge of the falsity of that statement. In ‘the Divisional Manager, LIC and Anr., vs Smt Savitri Devi – 1999 JRC (HP) 175, it has been held that it is incumbent upon the LIC to produce evidence that deceased insured was told that answers are intended to be comprehensive and his slightest misstatement would be fatal to the policy. It was further held that LIC cannot repudiate the claim merely on so called inaccurate statement in the proposal form.

Since the repudiation of the claims made by the OPs in the instant case has been held to be unjustified, consequently, they have committed deficiency in rendering service, due to which they are also liable to pay compensation on account of mental agony and physical harassment suffered by the complainant and the litigation expenses incurred by her to get the relief to which she was otherwise entitled to, in addition to payment of the claim amounts along with benefits due under both the insurance policies along with interest.

8.     In view of the above discussion, the MA no.23 of 2015 filed by the complainant for issuance of directions to the OPs to produce on record the report/ record regarding medical examination done by the medical examiner of the OPs before issuance of the insurance policies in question in favour of the DLA, having become infructuous, is dismissed, and the complaint is allowed, directing the OPs in the following manner:

(i)     To pay the sums assured along with benefits, due under both the impugned policies, along with interest @ 9% per annum with effect from the date of repudiation, i.e., 23.11.2012 till realization;

        (ii)    To pay Rs.3000/- as compensation;

        (iii)    To pay Rs.2000/- as litigation expenses.

5.     Aggrieved by this order, the petitioner herein approached the State Commission in First Appeal No. 582 of 2015 seeking to set aside the order of the District Forum. The State Commission vide its order dated 10.05.2017 affirmed the order of the State Commission and ordered as under:

7.     The OPs have not produced on record the medical record of DLA with regard to their paneled doctor, who examined the DLA before issuing the policy. So far as the point of suffering from coronary artery disease and triple vessel disease and off pump coronary artery bypass x 3 was done on 04.01.2003, no such original medical record has been produced on the record. Even the doctor, who conducted the above surgery, has not been examined on record in this case. If the record was destroyed by the said hospital, then how the OPs got the photostat copies of Ex.OP-7 to OP-9 in this case. Statement of Gian Chand, Medical Record Incharge, of Pruthi Hospital has been examined by us. He stated that record of the hospital has been destroyed. In the absence of primary documents; this witness could not have proved Ex.OP-7 to Ex.OP-9 without seeking permission by way of secondary evidence of the First Appeal No.582 of 2015 7 Forum to prove them. He is only record keeper and he gave his vague opinion evidence only that they seemed to be of their hospital, but is not definite that they have been issued by their hospital. It is the evidence which must be sufficient and not only inferential proof, which has to be relied upon by the Forum. We, thus, observe that neither the record of the hospital has been produced nor the doctor, who actually carried out the surgery has been examined by the OPs to prove the fact of previous diseases of DLA. The onus is to be discharged by the insurer that insured made false representation knowingly by suppressing the material facts. One of the policy, has been honored by the OPs, but they repudiated the claim of other two policies in this case. If, it was so then by OPs accepted one policy and released its amount to complainant. The OPs are blowing hot and cold in the same breath in our opinion.

8.     As a corollary of our above discussion, had it been a fact that DLA suffered from heart ailment and was operated therefor, there is no question of releasing the amount of one of the policy bearing no. 163096217 and to cancel the other policies. Consequently, we are in agreement with the findings of the District Forum recorded in the order under challenge in this appeal.

 9.    In view of our above discussion and observation recorded by the National Consumer Commission in Revision Petition No.991 of 201 titled as “LIC of India Vs. Chhaya Hanmayya Ghante” decided on 15.10.2014; we hold that it is not proved on record that DLA deliberately concealed any material information, as First Appeal No.582 of 2015 8 this fact remained unproved on the record, we find no merit in the appeal and the same stands dismissed.

10.    The appellants had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited the amount of Rs.2,73,800/- in compliance with order of this Commission. These amounts along with interest, which accrued thereon, if any, be remitted by the registry to the respondent of this appeal, being complainant by way of crossed cheque/demand draft after expiry of period of 45 days. Remaining amount shall be paid by the OPs to the complainant within 45 days from the date of receipt of certified copy of the order.

6.     The petitioner is now before this Commission by way of a revision petitioner with a prayer to set aside this order of the State Commission as being wrong, erroneous and unsustainable on the grounds that the fora below failed to appreciate the fact that the insured had deliberately provided incorrect statements regarding his pre-existing heart ailments and that the repudiation was also based upon a thorough investigation of the claim filed. It has also been contended that the evidence led by the petitioner before the lower fora has been ignored and that in view of the original records having been destroyed, photocopies produced should have been accepted as secondary evidences in view of the judgements of the Hon’ble Supreme Court in Satwant Kaur Sandhu Vs. New India Assurance Company Limited (2009) 8 SCC 316 and P.C. Chacko Vs. LIC (2008) 1 SCC 321 as per which the insured was obliged to give correct information while taking the policy. His prayer is to set aside the impugned order dated 10.05.2017 of the State Commission in FA 582 of 2015 and consequently that of the District Forum dated 28.04.2015 in CC No. 118 of 2014.

7.     Heard the learned counsels for the revisionist and perused the records carefully. The respondent remained absent. In the instant case there are concurrent findings on facts by the District Forum and the State Commission in favour of the respondent/complainant. The revision petitioner has urged the same grounds that he had urged in the lower fora and relied upon the evidence led by him before the District Forum as well as the State Commission in producing photocopies of the medical treatment obtained by the deceased life assured and the evidence of the record keeper of the Pruthi Hospital, Jallandhar. He has also relied upon section 45 of the Insurance Act, 1938 that the policies could not have been settled since the life assured expired within two years of the policy having been taken. While it is submitted that the policy of Rs 50,000/- dated 27.03.2006 was settled by the petitioner, it is not explained why it was done since it his case that there was deliberate concealment of a pre-existing heart condition by the deceased policy holder which prevents the petitioner from settling the other policies.

8.     This Commission in exercise of its revisional jurisdiction Commission is not required to re-assess and re-appreciate the evidence on record. The findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the foras below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded 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 26 (b) of the Consumer Protection Act, 1986 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.

9.     The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Co. Ltd., (2011) 11 SCC 269, has held as under:

“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.”

10.   The Hon’ble Supreme Court has reiterated this principle in the case of Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors – (2016) 8 SCC 286 and held as under:

“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.”

11.   The Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 has again 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.”

12.   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 the appeal. Concurrent findings of facts of these two foras are based on evidences lead 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.

13.   Foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. It is apparent that the fora below have based their findings on evidence on record. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse. 

14.   It is a 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 the revisional jurisdiction.

15.   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.