1.      This Revision Petition No. 3288 of 2017 challenges the order of U.P. State Consumer Disputes Redressal Commission, Lucknow (‘State Commission’) dated 14.06.2017. Vide this order, the State Commission dismissed First Appeal No.897/2015 and affirmed the order of the District Consumer Disputes Redressal Forum-II, Lucknow (‘the District Forum’) dated 10.12.2014.

2.      As per the Report of the Registry, there is 13 days delay in filing of this Revision Petition. For the reasons stated in the IA/16381/2017, the delay is condoned.

3.      For Convenience, the parties in the matter are being referred to as mentioned in the Complaint before District Forum.

4.      Brief facts of the case, as per the complainants, are that in the second week of 2009, complainant No. 1 was approached by an agent of the Opposite Party (OP), who offered various policies with promising returns. The agent claimed that by depositing an onetime premium, after one and a half years, the refund would increase by one to one and a half times. Impressed by these promises, he purchased five policies: One policy in his own name: Gyan Prakash Singh (Rs. 49,900 dated 19.06.2009 Policy No. U2150118942), two policies in his wife's name: Smt. Amita Singh (Rs.49,900 dated 26.06.2009 Policy No. U143728485 and Rs.49,900 dated 28.06.2009 Policy No. U143728508 and two policies in his daughter’s name: Nishi Singh (Rs.49,900 dated 11.06.2009 Policy No. U215018421 and Rs. 49,900/- dated 11.06.2009 Policy No. U215018434. After receiving the policies 10 to 15 days later, he and his family were shocked to discover that each policy required premiums to be paid for 10 years, which was not what the agent had conveyed. His income of only Rs. 1,514 and was financially unable to continue paying the premiums. He promptly raised the issue with the OP. But no action was taken. Despite sending emails and letters to OP, he received no meaningful response. The OP replied that no refund application was submitted within the freelook period and refused to cancel the policy or refund the amount. The complainant argued that he refused to accept the policy within a week of receiving it but was ignored by OP. It is deficiency in service and unfair trade practices by OP. As partial resolution, the OP sent a cheque for 1/5th of the deposited amount in one of the policies, but he refused to deposit it. Aggrieved by the OP actions, the complainant filed a complaint before the District Forum, seeking Rs. 2,47,700 (the total amount deposited) with 12% interest, Rs. 1,00,000 as compensation and Rs. 25,000 as costs.

5.  The Opposite party neither appeared nor filed a reply to the complaint before the District Forum.

6.      The learned District Forum vide order dated 10.12.2014, allowed the complaint and directed the Opposite Party as under:

“ORDER

 The complaint of the complainant is partly accepted. Opposite Parties are jointly and severally directed that they from the date of passing of this order within 2 months after deducting the processing charges pay the above amount Rs.2,47,000/- with simple interest @ 9% per annum to the complainant." Apart from it, opposite parties jointly and severally pay to the complaint Rs.10,000/- as compensation towards mental harassment and Rs.5,000/- as litigation cost, if the opposite parties jointly and severally do not pay the above settled amount within the period to the complainant then the opposite parties jointly and severally shall pay the interest @ 12% per annum on the whole amount from the said date till realization to the complainant".

                                               (Extracted from translated copy)

7.      Being aggrieved by the order of the District Forum, the OP/ Petitioner filed an Appeal and the State Commission, vide order dated 14.06.2017 dismissed the said Appeal and directed as follows:

 “We have considered the arguments of the parties.

 Admittedly, the impugned judgment and order was passed ex-party against the appellants/ opposite parties in their absence. No written reply was filed on behalf of appellants/ opposite parties before the District Forum. Admittedly the applicants/ complainants have taken 5 policies mentioned in para 4 of the complaint from the appellants/ OP, wherein for the 3 policies Rs.49,900 and for the 2 policies Rs.49,000 amount has been deposited and in the said 5 policies, one policy is in the name of applicant/ complainant Gyan Prakash Singh, 2 policies in the name of applicant/ complainant Smt. Amita Singh and 2 policies in the name of applicant/ Complainant Nishi Singh. It is clear from the complaint that the appellants/ opposite parties have sent 1/5^th of the deposited amount by cheque on the application of applicants/ complainants to the applicants/ complainants, which they have not encashed it.”

 The appellants/ opposite parties have not denied the receipt of the notice of the complaint. They stated that the counsel they appointed, has not prosecuted the complaint on behalf of appellants/ opposite parties and did not file the written reply, but the appellants/ opposite parties have not given any evidence or proof that actually for prosecuting the complaint appointed the counsel. If, they would have actually appointed the advocate, then they would have paid the fees to the counsel and appellants/ opposite parties would have mentioned the same in their appeal but appellants/ opposite parties have not produced any documents of their company regarding appointment of the counsel and payment of the fees etc, on which basis their statement could be accepted that they in the complaint upon receipt of the notice appointed their counsel.

Under such circumstances, the contention of the appellants/ opposite parties is baseless that after receipt of the notice from District Forum appointed their advocate but advocate in the complaint has not prosecuted the same properly and did not file the written reply due to which the complaint has been decided ex-party.

Under such circumstances, I have to consider that weather it is legal 8& justified that appellants/ opposite parties after receiving the notice, without any justification did not appear before the District Forum and did not participated in the proceedings before the District Forum. The reason assigned by them for not appearing before the District Forum after considering is baseless and unbelievable. Therefore, I am of the view that the District Forum proceeding ex-party and passing impugned judgment and order is not against law

 The applicant/ complainant No.1 is a retired employee. Applicant / complainant No.2 is his wife and applicant/ complainant No.3 is his daughter and which is clear from the above facts that the policies issued by the appellants/ opposite parties in the name of these 3 applicants/ complainants, wherein 3 policies are of Rs.49,900/- and 2 policies of Rs.49,000/-. This amount has to be deposited upto 10 years in every policy for every year. In such conditions, the contentions of the applicants/ complainants have force and believable.

That the agent of the appellants/ opposite parties told to deposit the said amount at one time enticed to take the policy because such a big amount one retired employee and his wife and daughter every year regularly for 10 years cannot deposit. Therefore, after considering, the complaint and affidavit filed on behalf of applicant/ complainant and the documents produced, it is cleared that really the agent of the applicant/opposite party given the wrong information to the applicant/complainant for taking the policy and after cheating enticed them to take the policy which is an unfair trade practice. It is also manifest from the complaint and the evidence on record that upon showing unwillingness to accept the policy by the applicant/complainant 1/5^th of deposited amount was sent by the appellant/opposite party by way of cheque. Remaining 4/5^th of the amount has been forfeited. Under the above condition, the deduction made by the appellant/opposite party from the deposited amount of the applicant/complainant is unjustified because after cheating the applicant/opposite party has been enticed to take the policy.

After considering the above facts, I am of the view the deficiency which has been assessed by the District Forum against the appellant/opposite party is justified and legal. Therefore, the order passed by the Ld District Forum, directing the appellant/opposite party to refund the deposited amount along with interest is justified and legal. It is clear from the above facts that the appellant/opposite party after receipt of the notice without any sufficient cause did not appear before the District Forum. Therefore, the impugned judgment and order cannot be set aside merely on the ground that it was ex-parte order. The District Forum after considering all the facts as per law passed the order.

 The amount of Rs.10,000/- awarded by the District Forum to the applicant/complaisant towards mental loss as compensation, it is justified after considering the facts and conditions. Awarding of Rs.5,000/- as litigation cost by the Ld the District Forum is also justified.

It is manifest from para 3.9 of the Memo of Appeal that the appellant/opposite party on 26.7.2012 has issued the refund of 1/5^th of the amount of each policy to the applicant/ complainant, which the applicant/complainant has not accepted by not depositing the cheque in their account. Therefore, the cause of action of the complaint having arisen on 26.7.2012, the complainant has been filed within period of limitation. The complaint is not time barred.

  On the basis of the above facts and consideration I am of the view that no interference is required in the impugned order and judgment passed by the Ld District Forum. Appeal is without any merit and liable to be dismissed.

ORDER

The appeal is dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only). The said cost would be paid by the appellant/opposite party to the applicant/ complainant.

The amount deposited in the appeal by the appellant/ opposite party U/s 15 of the Consumer Protection Act, 1986 along with interest be sent to the District Forum for disbursal as per this order.”    (Extracted from translated copy)

8.      The learned counsel for the petitioners reiterated the grounds in the Revision Petition and asserted that the complaint was time barred as the policies were issued in the months of June and July, 2009 whereas the complaint was filed in the year 2013. The complainants approached beyond freelook period, seeking refund of premiums. He sought to allow the Revision Petition and set aside the concurrent findings of the Fora below and dismiss the complaint.

9.      The learned Counsel for the Respondents/Complainants argued in support of the impugned orders passed by the learned District Forum and the State Commission.  He sought to dismiss the present Revision Petition with costs.

10.    I have examined the pleadings and associated documents placed on record, including the orders of the learned District Forum and learned State Commission and rendered thoughtful consideration to the arguments advanced by learned Counsels for both the parties.

11.    The learned District Forum issued a well-reasoned order based on evidence and arguments advanced before it. The learned State Commission, after due consideration of the pleadings and arguments, determined that no intervention is warranted on the District Forum's order as the complainant was enticed by the OPs to enter into the contract of the said policies and otherwise, for the stated terms, the complainant had no scope to pay such high premiums. Both the fora considered that there was deficiency in service on the part of OPs. It is a well settled position in law that the scope for Revision under Section 21(b) of the Consumer Protection Act, 1986 and now under Section 58(1)(b) of the Consumer Protection Act, 2019 confers very limited jurisdiction on this Commission. In the present case, there are concurrent findings of facts and the revisional jurisdiction of this Commission is limited. Both the issues i.e. freelook period and limitation in filing the complaint were already dealt by the Fora below. Also, no new ground has been made out by the petitioner. After due consideration of the entire material, I do not find any illegality, material irregularity or jurisdictional error in the impugned Order passed by the learned State Commission warranting our interference in revisional jurisdiction under the Act. I place reliance on the decision of the Hon’ble Supreme Court in the case of ‘Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269.

12.    Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. SBI & Anr.  Civil Appeal No. 432 of 2022 Order dated 21.01.2022 held:-

“9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”

13.    Similarly, in a recent order the Hon'ble Supreme Court in Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. (2022) 9 SCC 31 has held that:- 

As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.

14.    Based on the deliberations above, I do not find any merit in the present Revision Petition No.3288 of 2017 and the same is, therefore, Dismissed and the order of the learned District Forum dated 10.12.2014 is modified to the extent that the compensation of Rs.10,000/- awarded on account of mental agony is set aside in view of the judgment of the Hon’ble Supreme Court in the case of DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, in CA Nos. 4910-4941 of 2019 decided on 10.05.2019 has held that multiple compensations for singular deficiency is not justifiable.

15.    Keeping in view the facts and circumstances of the present case, there shall be no order as to costs.

16.    All pending Applications, if any, also stand disposed of accordingly.