REKHA GUPTA

        The present revision petition has been filed against the judgment dated 05.05.2016 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (‘the State Commission’) in Appeal no. 601 of 2012.

2.     The facts of the case as per the petitioner/ complainant are that the husband of the complainant, i.e., Dashrath Mishra purchased an insurance policy bearing no. 291217200 under the Jeevan Surabhi Scheme on 10.03.2000 for an amount of Rs.50,000/- from the respondent, wherein the petitioner was made the nominee. The yearly premium of Rs.7189/- was deposited by insured and he died on 29.03.2002 with fever. Information was given to the respondent in writing. All the requisite formalities from the respondents in pursuance to the death claim was fulfilled on 01.06.2002, but the respondents rejected the death claim alleging that the insured was sick with paralysis and took the treatment from Dr Mohd Rais of Modern Acupuncture Centre, Deoria.

3.     The petitioner has submitted that her husband was well and active at the time of taking the insurance policy and he was never sick with paralysis and her husband was working as an Assistant teacher at Kisan Intermediate College, Sallahpur, Bhatni, Deoria. Before taking the insurance policy and after taking the insurance policy, he worked as an invigilator in the examination conducted by the Intermediate Education Board, UP, Allahabad from 25.03.2000 to 01.05.2000 on both sessions regularly.  Hence, the respondents have committed deficiency in service by not paying the death claim knowingly.

4.     The respondent nos. 1 and 2 in their written statement have denied the contention of the petitioner that contract of life insurance was based on principle of good faith and beliefs. Late insured Dashrath Mishra had made a proposal for the insurance for a sum assured of Rs.50,000/- on 10.03.2000 at an yearly premium of Rs.7189/- from the Branch of Salempur. The insurance proposal was accepted relying on the facts stated by insured in the insurance proposal on good faith and allotted the policy no. 29121717200. The proposer has made his wife Kalwati as nominee in the proposal letter. The insured was suffering from paralysis before making the proposal of insurance, but he did not mention this fact in the proposal form knowingly. The son of the insured deposed in his hand writing that he was sick for the last one year and got the treatment firstly from Dr Rais, Peekol, Deoria, Dr Ravindra Kumar Barnwal, Deoria, Sanjay Gandhi Memorial, Lucknow and he died during treatment at his house on 29.03.2002.

5.     The respondents got the treatment of insured with Dr Mohd Rais on 16.02.2000. It was affirmed by the doctor that the doctor had written in the slip note that the date of treatment was 16.02.2000 not 16.08.2000. The insured also got his treatment in Varanasi, Gorakhpur, Kushinagar, Lucknow.

6.     Respondent no. 3 in his written statement supporting the submissions made by respondent nos. 1 and 2 has stated that he was the agent of the Life Insurance Corporation and he works for the benefit of respondent nos. 1 and 2 and he has not made any deficiency in service and the complaint is liable to be rejected.

7.     The District Consumer Disputes Redressal Forum, Deoria (‘the District Forum’) vide its order dated 29.02.2012 while dismissing the complaint held as under:

“My predecessor presiding officer has passed the order dated 19.06.2006 in favour of complainant and against thereof the Life Insurance Corporation has filed an appeal before the State Commission, Lucknow bearing appeal no. 1846 of 2006 which was allowed and the State Commission allowed the appeal vide judgment dated 11.05.2009 and the case was remanded to the District Forum with direction to pass the fresh judgment after taking the opinion of expert and hearing the parties a fresh.

The parties appeared before the Forum and both the parties have filed the opinion of hand writing and Finger Print Expert.

The learned counsels of both the parties were heard and records were perused. There is no dispute between the parties and the case of the husband of the complainant, i.e., Dashrath Mishra has purchased an insured policy no. 291217200 under the Jeevan Surabhi Scheme of Rs.50,000/- on 10.03.2000 wherein the complainant was the nominee and the insured died on 29.03.2002. The submission of the respondent is that insured got treatment with Dr Mohd Rais, Peekol, Deoria, Dr Ravindra Kumar Barnwal, Deoria and Sanjay Gandhi Memorial, Lucknow at the last moment. The insured first of all got treated with Dr Mohd Rais on 16.02.2000 but date has been altered as 16.08.2000. This was affirmed by the Doctor on 03.12.2002. The Doctor wrote in the slip that correct date is 16.02.2000 in place of 16.08.2000. Thus, the respondent of sick with paralysis before the proposal of insurance and he concealed this fact hence, the claim is rejected.

The State Commission has formed the opinion in respect to photocopy of treatment slip of insured Dashrath Mishra by Mohd Rais, Modern Acupuncture Centre, Peekol, Deoria, which is present in file that overwriting is made in the date 16.02.2000 at upper part of prescription slip and therefore, it is expected from this forum to get conclusion in matter after the expert report.

As far as question of expert opinion, complainant has filed the opinion of expert dated 12.09.2009 of Shri Rakesh Ranjan Sahai, Hand Writing and finger print expert, Deoria and respondent has filed the opinion of expert dated 30.07.2009 of Shri R K Jaiswal, Hand Writing and finger print expert, Gorakhpur. Both the opinions have different view. The expert of complainant has formed opinion in favour of complainant and respondent’s expert formed the opinion in favour of respondent. But it appears from the perusal of prescription slip that insured Dashrath Mishra was sick with motor neuron and date mentioned at its column. The concerned doctor has written in that note dated 16.02.2000 is correct in place of 16.08.2000. The expert opinion on behalf of respondent appears to be correct in view of the above fact and this Forum comes to conclusion that complainant has tried to conceal the fact that he was not sick before 10.03.2000 and made overwriting (08) in place of (02). Over writing is explicit.

Hence, opinion of Forum is that complainant has not come to the court with clean hand and therefore, she is not entitled for any reliefs.

        The complaint is dismissed and parties will bear their costs”.

8.     Aggrieved by the order of the District Forum, the petitioner/ complainant filed an appeal before the State Commission. The State Commission while dismissing the appeal observed as under:

“We have scrutinized the prescription of Dr Mohd Rais and have perused the expert reports on the point of interpolation/ over writing. There is no doubt that there is an interpolation/ over writing on the digit of month February 2000. From bare eyes, the date mentioned on the top of the prescription appears to be tampered with. The prescription was in the custody of the patient and not of the doctor and therefore, the burden of proof was on the appellant/ complainant to establish beyond all reasonable doubts that the date of issue of prescription was 16.08.2000 and not 16.02.2000 and that the overwriting was done by someone else other than the patient or the beneficiary. In order to settle the dispute Dr Mohd Rais was examined. He informed in writing that the date of issuing the prescription was 16.02.2000 and not 16.08.2000. With this confirmation by the doctor who issued the prescription, the dispute relating to the actual date of prescription is settled beyond all reasonable doubts. It may be noted here that the insured was also treated by Dr Ravindra Kumar Bansal of Deoria and many other medical practitioners and also at SGPGI, Lucknow subsequently. Therefore, on the face of the endorsement of the doctor, it is difficult to agree the contention of the complainant that her husband was not suffering from Motor Neuron disease at the time of filing up the proposal. The parties were given opportunity to obtain Expert Opinion in this regard. The report dated 12.09.2000, submitted by Shri R R Sahai, Handwriting and Finger Prints Expert on behalf of the appellant/ complainant shows that “originally digit ‘8’ was written on the doctor’s prescription with some ulterior motive the same was corrected with the digit ‘2’. No technical explanation has been given by the Expert to establish his reasoning. The report dated 30.07.2009 submitted by Shri R K Jaiswal, Hand writing expert on behalf of LIC shows that the actual date in the disputed figures was 16.02.2000 but the figure ‘2’ was overwritten to resemble/ appear like the figure as ‘8’. This observation was made on the basis of photo-enlargement where the initial strokes were subsequently, overwritten which looked like figure ‘8’. The loops and curvatures were unnatural compared inter se with the original figure ‘2’. The forum below on the basis of strokes, curvatures, sizing, positioning, writing skills and alignment came to the conclusion that the original date of issuance of the prescription was 16.08.2000. The dispute relating to the date of issuance of the prescription came to an end with the Doctor’s explanation that the same was issued on 16.02.2000 and not on 16.08.2000.

It was argued on behalf of the Counsel for the appellant that the patient was directed by the doctor on 16.08.2000 to consult him again after 15 days and accordingly, at the bottom of the prescription, 30.08.2000 has been mentioned. Thus, it is established that the initial prescription was issued on 16.08.2000 and not on 16.02.2000. This argument has no force as there is again an interpolation on this date, as is clear from the naked eye. Besides this, there is no endorsement that this date was given by the doctor as next date of consultation. All disputes came to an end with the explanation of the doctor and thereafter nothing remains to discuss in this regard.

The Forum below has dealt with the matter in detail and on the basis of facts, circumstances, evidence and opinion of the experts came to the conclusion that the prescription was actually issued on 16.02.2000 and not on 16.08.2000. It also held that the insured was suffering from Motor Neuron disease on the date of filing the proposal but he concealed his previous ailment in the proposal form. There is no irregularity or illegality in the finding of the District Forum below; and therefore, we are not inclined to interfere in the same. Thus, in view of rulings laid down in Satwant Kaur Sandhu vs New India Assurance Co. Ltd., IV (2009) CPJ 8 (SC), Maya Devi vs LIC of India, III (2011) CPJ 43 (NC) and LIC of India vs Help Line Grahak Mandal, II (2014) CPJ 176 (NC), we are of the considered view that repudiation of the claim was justified on the ground of concealment of previous ailment in the proposal form. The judgment is well discussed and there is no scope for any interference in the same. Consequently, the appeal being meritless is liable to be dismissed.

        The appeal is dismissed. No order as to costs”.

9.     Hence, the present revision petition.

10.    We have heard the learned counsel for the petitioner. Learned counsel for the petitioner has contended that the District Forum and the State Commission committed manifest error by relying on the alleged note made by Dr Mohd Rais at the bottom of medical prescription dated 16.08.2000 and no affidavit in this regard has been filed by Dr Mohd Rais. Further, Dr Mohd Rais never appeared before the District Forum and he has not disclosed his source whereby he is stating the date of prescription as 16.02.2000.        The finding of the State Commission that manipulation in the medical prescription has been made by writing date 16.08.2000 in place of 16.02.2000 is also wrong and false.

11.    We have carefully gone through the record. The prescription of Dr Mohd Rais which is at page 41 which clearly indicates that there has been a tampering with the date. 16.02.2000 has been overwritten to indicate that the doctor was consulted on 16.08.2000. Even with a naked eye it is apparent that ‘8’ had been written after tampering the date ‘2’ written by the doctor. In other places in the same prescription, the number ‘8’ has been written differently by the Doctor. As per the State Commission the doctor has also confirmed that the patient was seen in the month of February and not in August.  Further, ongoing through the reports of the Handwriting and Finger Print Experts it is evidence that the date has been tampered with and the prescription in the custody of the petitioners/ complainants. The State Commission and the District Forum had given a detailed and well-reasons order while dismissing the appeal.  Hence, we find no reasons to interfere with the well-reasoned order of the Fora below.

12.    The Hon’ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 has observed:

“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.”  

13.   Thus, we find that no jurisdictional or legal error has been shown to us in the impugned order to call for our interference under Section 21 (b) of Act.  The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition as also the complaint is dismissed.