1.      This revision petition under sections 19 and 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 18.08.2017 in First Appeal No.  A/16/99 of the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai Circuit Bench, Nagpur (in short, the ‘State Commission’) dismissing the appeal of the petitioner against order dated 02.05.2018 of the District Consumer Disputes Redressal Forum, Nagpur (in short, the ‘District Forum’) in Consumer Complaint no. CC/472/2007.

2.      The brief facts of the case, according to the petitioner, are that he is the nominee of the deceased life assured (DLA), Sarjerao Kapse, who had paid a premium of Rs 25,000/- on 01.03.2006 to the respondent insurance company for a life insurance policy under its “Classic Life Premium Plan” for a life cover of Rs 10,00,000/-. The period of the policy was 30 years and the approval of the policy was accompanied by a medical examination on 27.03.2006 followed by a urine examination on 28.03.2006 by two doctors on the panel of the respondent following which policy no 000601590 was approved. On 07.04.2006 the respondent approached the DLA and suggested that the sum assured be reduced to Rs 5,00,000/- in view of his drinking habit which was not consented to. On 14.04.2006 the DLA was admitted in the hospital of Medical College, Nagpur where he expired on 04.05.2006 due to ‘Bilateral Aspiration with CRA (Cardio Respiratory Arrest)’. The petitioner submitted a claim on 29.05.2006 under the policy for Rs 10 lakhs which was repudiated by the respondent on 18.07.2006 on the grounds of the DLA being a chronic alcoholic who suffered from alcoholic diseases prior to his applying for the policy. The respondent states that this fact was disclosed in the application and that the policy was approved by the respondent after due medical examination after medical examination. The respondent complained to the Insurance Ombudsman who rejected the claim on 30.03.2007 but allowed withdrawal of 90% of the premium of Rs 25,000/- paid. The thumb impression on the letter dated 10.04.2007 relied upon by the respondent was examined and held by the handwriting expert to be different to the specimen thumb impression of the DLA. The petitioner approached the District Forum seeking payment of the insurance cover with 10% interest and litigation cost which dismissed the complaint on contest. The appeal against this order was also dismissed by the State Commission on the ground of suppression of material information regarding pre-existing alcoholism of the DLA. This appeal impugns this order. The State Commission had earlier remanded First Appeal A/08/451 filed by the petitioner against the dismissal of his complaint by the District Forum which finally came to be dismissed on 02.05.2016. The subsequent appeal no. A/16/99 was again dismissed against which this RP is filed.     

3.      I have heard the learned counsel for both the parties and given careful consideration to the material on record.

4.      On behalf of the petitioner it was argued that the fora below erred in not appreciating that the policy was issued after due medical examination and tests of the DLA through doctors empaneled by the respondent; that the said medical tests did not show any alcohol related diseases with regard to the liver; that the fora below did not consider  that the cause of death was not related to an alcohol related disease but was bilateral aspiration with CRA which did not establish any causal relationship with the cause of death of the DLA; that the occurrence of bedsores had no relation to alcoholism but were due to prolonged hospitalization of 21 days; that the DLA being illiterate affixed thumb impression but the same was not attested or witnessed as required and that the fora below failed to appreciate that the respondent tried to mislead the District Forum through a document in which the thumb impression was proved to be different by the concerned expert and that the medical records cannot be said to be proved since none from the hospital has been examined. Reliance is placed on this Commission’s decision in Birla Sun Life Insurance Co. Ltd. Vs. Arvind Kaur in RP No. 1257 of 2017 dated 13.07.2017 relating to death of the insured within 4 months of the policy and judgment of Punjab & Haryana High Court in Birla Sun Life Insurance Co. Ltd. Vs. Keshav Lal & Ors., MANU/PH/0540/2008 where insured died within 8 months of the policy of causes other than sought to be suppressed.

5.      Learned counsel for the respondent states that short synopsis has been filed. However, from the record it is seen that the respondent has not filed his short synopsis. Hence, arguments before the State Commission have been considered that the policy bearing no. 000601590 was issued by the respondent to the DLA on 28.03.2006 on the basis of the information provided by the DLA in the application form and the medical examination report. The face value of the policy was Rs.5.00 lakh with an extra premium for non-standard age proof.  The DLA was not ready and willing to pay the extra premium. A consent letter dated 07.04.2006 was sent to the respondent to reduce the sum assured from Rs.10.00 lakh to Rs.5.00 lakh to reduce the total extra premium under the policy.  Thereafter the respondent issued a fresh policy for a sum assured of Rs.5.00 lakh which was received by the DLA. Further, the DLA did not exercise the Free Look Option and did not communicate with the respondent that there was any discrepancy in the policy document. It is also stated that the DLA used to consume alcohol on a regular basis and he was a chronic alcoholic and had suffered various alcohol related diseases/ illnesses before applying for the policy. It was further stated that the DLA had a history of complications of alcoholism six months back, which was prior to taking of the policy. The hospital concerned has stated that the DLA was chronic alcoholic and was an old case of CVE left and was infected by bedsores. However, the DLA deliberately failed to disclose this vital information to the respondent at the time of obtaining the policy. Holding that a contract of insurance is based on utmost good faith, and the DLA had suppressed the aforesaid information in his application form, the respondent repudiated the claim vide letter dated 18.07.2007 on the ground of suppression of material facts on the basis of the health habits of the DLA.

6.      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.       

7.      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.

8.     The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Company (2011) 11 SCC 269 dated 18.03.2011 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.”

9.      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 SCC 286 dated 02.08.2016 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.”

10.   The Hon’ble Supreme Court in its judgment dated 05.04.2019 in the case of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 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.”

11.    The foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner which have been raised before me in this revision petition. It is also seen that the orders of these fora are based on evidence on record.  In view of the settled proposition of law that where two interpretations 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.

12.   I therefore, find no illegality or infirmity or perversity in the impugned order warranting any interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.