.

JUSTICE DEEPA SHARMA, PRESIDING MEMBER (ORAL) THROUGH VIDEO CONFERENCING

The present revision petition under Section 58 (1) (b) of the Consumer Protection Act, 2019 (for short “the Act”) has been filed challenging the order of the State Commission dated 22.10.2020 in Appeal No.231 of 2014 of the petitioner against the order of the District Forum dated 30.12.2013 in Complaint No.106 of 2013 whereby the complaint of the respondent i.e. the complainant, was allowed. 

2.      The admitted facts are that the son of the complainant had taken a life insurance policy for Rs.8,00,000/- by paying an yearly premium of Rs.6,756/- on 11.6.2011 and the date of maturity of the said policy was 11.6.2031.  On 12.1.2012, the insured had suffered a heart-attack and he died.   The complainant being the nominee, claimed the amount under the policy, which was denied by the petitioner on the ground that the insured had concealed the material fact at the time of buying the policy.  It is submitted that the insured was suffered from T.B. and he had intentionally not disclosed this fact and hence the repudiation of the claim was justified. Aggrieved, the complainant filed the complaint. 

3.      In the written version, the petitioner took the same plea.  The parties led their evidences.  On the basis of evidence led before the District Forum, the District Forum concluded that the documents on record showed that the deceased had taken the treatment of T.B. after furnishing the proposal form.  It is held as under:

“4.     Now considering the submissions made before us by both the parties, opposite party rejected the claim of the petitioner mainly based on the final report prepared on the basis of investigation of CRP Technologies India Ltd., Ahmedabad Branch and the treatment papers of Sir T. Hospital obtained by them.  The final report has been submitted through Ni.10/3 and the letter intimating rejection of claim through Ni.10/4.  But that fact is also undisputable that nothing has been mentioned about who made an investigation in the case before us and who obtained the treatment papers, at what point.  Similarly, whether the person investigating had only prepared the final report?  Nothing has been mentioned in that regard too.  And no affidavit of the above mentioned investigator / person who prepared the report has also been submitted.  Similarly, considering the treatment papers for the sake of argument, it is mentioned that the deceased had taken treatment as an in-patient from date 19.9.2011 to date 21.09.2011.  And he recovered after the negative report of Sputum for A F B on date 20.9.2011.  And it is clear that therefore he was discharged.  And it also becomes clear that the above mentioned treatment was taken by the deceased after submitting the proposal form on date 11.6.2011.  And on reading the above mentioned case papers the column of Past AKT mentions (2) mth AKT. Whereas the margin indicates date 26.4.2011.  But the opposite party has not made any explanation regarding who mentioned the above history before whom and who wrote it.  Also, no affidavit of any doctor from the doctors providing treatment in the above mentioned treatment papers have been submitted or no affidavit of the person obtaining or providing these treatment papers is submitted.  But only photocopies of treatment papers and final report has been submitted through Ni.10/3.

And the photocopies are not authenticated.  Whereas it a well established principle of law that just submitting an evidence is not adequate.  But it should also be proven.  And submitting documents and providing them are two separate matters.  Whereas, through a valid, accurate and acceptable evidence, it is the responsibility of the insurance company to prove the fact that the person taking life insurance had pre-existing disease at the time of taking the life insurance, treatment was taken and he was in knowledge of it.  Similarly the claim of the petitioner was rejected on the basis of final report prepared by a person and the record of the hospital.  But the submissions made by the insurance company cannot be made permissible as the other party has not been able to counter question in absence of affidavit in support of it and the above mentioned final report and treatment papers have also not been proven.  Whereas, from the outset the petitioner has submitted that the health of the deceased was very good and he did not suffer from any illness prior to death.  And this fact submitted by the petitioner has also been supported by the final report submitted and depended upon by the opposite party.  And by drawing attention of this forum to the final report, it has been submitted that there is a mention of Nileshbhai Chouhan, Dipeshbhai Jaydeep and Vasantbhai who have provided information that they knew the deceased and his health was very good and he did not suffer from any illness before death and thus the fact becomes clear even from the final report that if the deceased had any other illness, the opposite party could have taken such statements from the neighbours of the petitioner.  Even that makes it clear that the deceased had no illness as indicated by the opposite party.  And thus the opposite party has failed to prove the evidences on which they had relied and submitted.  Whereas, from the outset the petitioner has submitted that the deceased has not concealed any true fact about his health.  The deceased was healthy and she also submitted rejoinder affidavit in support of her submission.  And refutation of the evidence depended upon by the opposite party has also been made by the final report and documentary evidence submitted by the opposite party themselves.  And indirectly, the submission made by the petitioner is also getting supported by the final report submitted by the opposite party themselves.”

4.      The findings of the District Forum were impugned before the State Commission on the same ground of concealment of the material facts at the time of filling up of the proposal form.  The State Commission reassessed and re-appreciated the evidences, and has held as under:

“11.   On examination of records submitted for matter of this appeal it is observed that it is submission of the Appellant insurance company that the insured was afflicted with sickness of T.B. and withholding this in the proposal form had taken insurance.  Copy of the Proposal Form has been submitted from page 36 to 41 for this matter, it is observed on examination of this that this is in English and the insured has signed in Gujarati language and as responded in “No” in question on T.B. sickness.  Proposal Form was in English and he has signed in Gujarati as the insured did not know English.  In this manner, individual taking insurance had no information on what matters have been indicated in the Proposal Form – such has been submitted on behalf of the complainant but on examination of the Proposal Form it is observed that signature of Rajesh Mehta has been affixed stating that conditions of the Proposal Form had been explained to the insured; in this manner it cannot be believed that the insured had no knowledge as regards information written in the Proposal Form.

12.    An investigator had been appointed on behalf of the opponent insurance company; whose report in on page 56 to 60.  In which; the complainant had T.B. ailment and thus was under treatment for T.B. decease at Sir T. Hospital, Bhavnagar between the period of dates 19.9.11 to 21.9.11 but it is observed on examination of records that a copy of medical papers of the hospital has been submitted but affidavit of the doctor treating has not been submitted.  Moreover, these medical papers have also not been certified and affidavit of the investigator submitting has also not been presented.  Therefore, in opinion of this Commission these medical papers cannot be depended upon as evidence.

5.      Death of the insured has occurred due to heart attack and certificate of a doctor for this has been submitted on records, thus there is no reason to disbelieve this but the insurance company has submitted that the insured had sickness of T.B. but in opinion of this Commission there is no direct relationship between sickness of T.B. and heart attack and no such medical literature has been submitted that heart attack takes place due to sickness of T.B.  Facts of judgment revision petition no.864/2018 of the Hon’ble National Consumer Dispute Redressal Commission and facts of this case are similar and thus taking into consideration this judgment of Hon. National Commission; this Commission believes that sickness of T.B. has no direct relation with heart attack.

14.    Additionally, referring to Shri Nileshbhai Chauhan, Dipeshbhai, Jaydeepbhai and Vasantbhai in the final report of the insurance company it is stated that all of them are neighbors of the insured since last 15-20 years and as stated by them the insured was healthy and had not been admitted to a hospital for any major sickness.  Taking into consideration all these matters; based on opinion of this Commission, the opponent insurance company is unable to prove that the insured Late Shri Prakashbhai Kalubhai Waghela already ahd sickness of T.B. and thus the matter that the insured had withheld information in the Proposal Form is proved as incorrect and as per statement of the neighbors the insured was healthy and due to the reason that sickness of T.B. has no direct relation with heart attack, based on opinion of this Commission the insurance company has shown deficiency in services by disallowing insurance claim of the complainant.

15.    Based on the above discussion, as the L. District Consumer Dispute Redressal Commission, Bhavnagar has taken an appropriate and judicious order; as per opinion of this Commission there appears to be no reason to intervene in order of District consumer Disputes Redresssal Commission, Bhavnagar and therefore, final order as below is being passed.

5.     This order is impugned before me on the same ground of concealment of the material fact i.e. the fact that the insured underwent the treatment of T.B.  Reliance is placed on (2019) Vol.6 SCC 175 Reliance Life Insurance Company Limited & Anr. Vs. Rekhaben Nareshbhai Rathod.

6.     I have given the thoughtful consideration to the arguments of the learned counsel and have perused the file / record. 

7.     This Commission in exercise of its revisional jurisdiction cannot re-appreciate and re-assess the evidences and reach to its own conclusion or findings on the facts of the case, especially when the findings of the fora below are concurrent findings.  It is only permitted to interfere with the concurrent findings of the foras below if the findings are perverse or there is a jurisdictional error. 

8.     A finding can be said to be perverse finding when it is based on no evidence or where the material piece of evidence on record has not been considered.  It has been so held by 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”.

9.     Again in “Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286,” the Hon’ble Supreme Court has reiterated the same principle and has 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.”   

10. In T. Ramalingeswara Rao  (Dead) Through L.Rs. and Ors. Vs. N.Madhava Rao and Ors. decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019, the Hon’ble Supreme Court has 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 findings of the facts in this case are that the insured had died of the heart attack.  The facts proved on record clearly show that he was not suffering from any heart ailment when he filled up the proposal form and this was also not the defence of the petitioner.  The only defence taken is that the insured had underwent the treatment for T.B. and this fact was concealed.  The insured had died after about six months of buying the policy.  The case law relied upon by the learned counsel is not applicable on the facts of this case.  The concealment of facts was found material and relevant in the case Reliance Life Insurance Company Limited (supra) in view of the facts of that case.  In the present case, the facts are entirely different.  In this case the concealment of the fact alleged is the treatment of T.B. and the insured had not died of T.B.  The concealment of fact regarding the treatment of T.B., if any, cannot be termed as concealment of the material fact. There is no nexus between the concealment of the alleged fact and the cause of death.  The deceased was hearty and young boy who had died suddenly of heart attack.  It is not on record that he has been suffering with any heart ailment prior to his death. 

12.  In the similar matter of Civil Appeal No. 8245 of 2015, in Sulbha Prakash Motegaonkar & Ors. Vs. Life Insurance Corporation of India, wherein the similar grounds were taken before the Hon’ble Supreme Court that the husband of the complainant at the time of taking policy had concealed the fact that is suffering from lumbar spondylitis with PID and therefore, on the said concealment the claim was repudiated.  However, the deceased died due to ischemic heart disease and myocardial infraction.  The Hon’ble Supreme Court in the said matter opined that death of deceased was due to ischemic heart disease and myocardial infraction had nothing to do with his lumbar spondylitis with PID.  Hence the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured.  Therefore, National Commission had wrongly erred in accepting the repudiation of the claim.   In this case, the Hon’ble Supreme Court has held as under:

       “We are of the opinion that the National Commission was in error in denying to the appellants the insurance claim and accepting the repudiation of the claim by the respondent.  The death of the insured due to ischaemic heart disease and myocardial infarction had nothing to do with his lumbar spondylitis with PID with sciatica.  In our considered opinion, since the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured, the repudiation of the claim was incorrect and not justified.”

13.    Moreover the treatment of T.B. was taken by the insured, as observed after the filling of proposal form and no evidence was produced that the insured had underwent T.B. treatment prior to filing of proposal form on 11.6.2011.  The present revision petition has no merit and the same is dismissed in limine.

          Copy of this order be sent to both the parties.