The revision petition No.699 of 2014 has been filed by the opposite parties in the original complaint case namely ICICI Prudential Life Insurance Co. Ltd. against the order dated 21.10.2013 of the State Consumer Disputes Redressal Commission, Rajasthan (in short ‘the State Commission’) passed in First Appeal No.1827 of 2011 and revision petition No.1980 of 2017 has been filed by complainant Hanuman Singh Bairwa against the same order dated 21.10.2013 of the State Commission.

2.      Brief facts of the case are that the complainant had taken two insurance policies from the respondent insurance company.  First policy was a Crisis Cover Policy for 15 years.  The sum insured was Rs.6 lakhs and a premium of Rs.3231/- was to be paid yearly for 15 years.  The second policy was a Market Linked Policy for Rs.1 lakh.  The first policy was obtained on 11.4.2009.  After six months of this policy, the complainant suffered from serious brain tumor and had taken treatment for the disease and the treatment expenses were claimed from the respondent company under Crises Cover Policy but the respondent company repudiated the claim on the ground that at the time of taking the policy, the complainant had suppressed his medical history as in the year 1994 he had been diagnosed with  ‘Tubercular Meningitis with Hydrocephalus’ and he had undergone ‘Ventriculo-Peritoneal shunt surgery.  This fact was not disclosed by the complainant.  Consequently, the respondent company not only repudiated the claim but also cancelled the second policy which was Market Linked Policy.  The complainant presented a complaint before the District Forum.  The complaint was resisted by the opposite party by stating that wrong statements and facts were given by complainant.  The claim of the complainant was liable to be rejected as per Section 45 of the Insurance Act,1938 .  As the complainant was suffering from tubercular Meningitis with Hydrocephalus since July, 1994, and he was hospitalized for the treatment of Ventriculo-Peritoneal.  All these facts were concealed by the complainant while taking policy. The District Forum accepted the contention of the company and dismissed the complaint. The complainant then filed an appeal before the State Commission. However, the State Commission vide its order dated 21.10.2013 passed the following order:-

“7.  In view of this we are inclined to accept this appeal partially while we uphold the judgment of the learned DCF as regard the Crisis Cover Policy is concerned but we set aside the decision of the learned DCF regarding Market Linked Policy and we order that this policy should be continued with all benefits as it had never been cancelled.  Any premium due under this policy shall be paid by the complainant without any penal charges.  The appeal is partially accepted.”   

3.      Heard the learned counsel for both the parties and perused the record.  For the sake of convenience the parties will be referred to as mentioned in the order of the State Commission. Learned counsel for the ICICI Prudential Life Insurance Company Limited mentioned that it is a clear case of pre-existing disease and the State Commission has given the following observations:-

“4.  We have heard the learned counsel for the appellant.  We are of the view that while taking the Crisis Cover Policy the complainant was obliged to disclose the facts about his medical history when he was asked in the proposal form to answer specific questions regarding health under col.23. In col. 23 (C) he was asked to answer whether he had ever consulted any doctor or he was currently undergoing any test or investigations or whether he has ever been hospitalized.  He was also asked whether he had undergone any medication for the past for more than a week. In col.23(h) he was asked whether he ever suffered from ailments relating to brain, mental/psychiatric ailment, parkinsonism, multiple sclerosis, nervous system, stroke, paralysis or epilepsy.  All these questions were answered by him in the negative while the record submitted by the respondent company shows that he had been operated upon for Tubercular Meningitis which is an infection of meninges-the system of membranes which envelops the central nervous system and Hydrocephalus which is also known as “Water on the brain” which is also a medical condition and he had undergone a surgery for this treatment.  So this fact was withheld by the complainant while take the Crisis Cover Policy. 

4.      From the above observations of the State Commission, it is clear that the complainant has withheld the material information from the Insurance Company.

5.      Learned counsel for the ICICI Prudential Life Insurance Company Ltd. further argued that when the bonafides of the insured are doubtful, the Insurance Company is entitled to cancel all the policies which were issued to the insured and from this aspect Market Linked Policy issued to the insured was also cancelled. The learned counsel stated that the Insurance Company is aggrieved by the order of the State Commission for restoration of the Market Linked Policy of the complainant. It was requested that the Insurance Company may be allowed to discontinue the market Linked Policy of the complainant.

6.      On the other hand, the learned counsel for the complainant submitted that the fora below have grossly erred in holding that the proposal form filled by the complainant was based on incorrect facts and that the complainant had suppressed the correct facts from the Insurance Company.  The fora below failed to appreciate that the form was filled by the Agent of the opposite party who was given all the information by the complainant.  The complainant had merely signed the proposal form on the instructions of the Agent  Learned counsel for the complainant/petitioner stated that the fora below grossly erred in observing that the petitioner had intentionally and deliberately got himself insured for an excess amount after suppressing the health conditions.  The fora below failed to appreciate that the complainant was leading a healthy life post the alleged Tubercular Meningitis in 1994 and had no reason to suspect of any ailment of Brain Tumor prior to obtaining the policy.  The fora below failed to appreciate the pleadings of the complainant that after six months of obtaining the policy, the pain had developed suddenly in his head and it was then that after thorough investigation, the Doctor advised that he was suffering from Pineal Gland Tumor.

7.      Learned counsel for the complainant further stated that the fora below failed to appreciate that the complainant had taken treatment for Tubercular Meningitis in the year 1994 and he was fully cured from the disease.  In any event, the previous disease has neither re-occurred nor has the Tumor that the complainant was diagnosed with got anything to do with the earlier disease and hence there is no question of concealment of facts or any misrepresentation by the complainant.

8.      It was submitted by the learned counsel for the complainant that the policy documents which were produced by the complainant specifically and clearly mentioned the fact that the benefit in the policy shall be given after period of six months towards the critical illness and that the insured was not suffering from the Brain Tumor prior to the policy or within six months of the policy and in such circumstances, there was no suppression and the insured was entitled to the benefits of the policy.  As there was no direct or indirect nexus between the earlier disease and the present disease, and in the absence of any evidence having been led by the opposite party to prove that the previous disease Tubercular Meningitis was the source of developing the Brain Tumor, the fora below ought to have allowed the claim of the complainant for the sum assured.

9.      In respect of the delay in filing the appeal by the complainant, the learned counsel stated that the delay has occurred because the complainant took late decision to file the appeal after knowing the fact of the appeal having been filed by the opposite party.  It was requested to condone the delay in filing the revision petition No.1980 of 2017 on the grounds mentioned in the application of condonation of delay.

10.    I have carefully considered the arguments of both the parties and examined record.  First of all, it is seen that the position in respect of Market Linked Policy has been explained by the following portion of the impugned order:-

“5.         As regards the second policy, the respondent company has not shown any reason for cancelling the policy though the first policy was cancelled on the ground of suppression of medical history.  Under the second policy the complainant was not obliged to answer any medical questions regarding his health as it was a Market Linked Policy and premium under this policy was to be paid yearly for ten years and the complainant was paying the premium regularly.  Under this proposal no false statement had been made by the complainant and no fact had been withheld.  So the respondent company was not justified in cancelling the Market Linked Policy of the complainant.”

11.    From the above observations of the State Commission it is clear that there is no ground for cancellation of the Market Linked Policy and the State Commission has rightly allowed the continuance of the Market Linked Policy of the complainant.  The opposite party has asserted that on the basis of non-supply of correct information under the Crisis Cover Policy, the complainant has broken utmost trust and faith which the party i.e. insurer and the insured are supposed to display has been broken, therefore, even the other policy Market Linked Policy was cancelled.  The fact is that in the Market Linked Policy, there is no breach of utmost trust and faith by the complainant and therefore, there should be no question of termination of this policy.    Thus, I do not find force in the argument of the learned counsel for the Insurance Company that even the Market Linked Policy should also be allowed to be closed as the complainant has breached utmost faith expressed between the parties.  Thus, I do not find force in the revision petition filed by the opposite party Insurance Company and accordingly the revision petition No.699 of 2014 is dismissed.

12.    So far as the revision petition No.1980 of 2017 filed by the complainant is concerned, it is seen that there was a delay of 1247 days in filing the present revision petition.  In respect of the delay in filing the present revision petition, application for condonation of delay has been filed, which reads as under:-

“2.     A certified copy of the impugned judgment was made available to the petitioner on 24.10.2013.  The petitioner, who was suffering on account of a Brain Tumor and was being treated at SMS Hospital, Jaipur was not in a position to obtain any legal advise.  However, on or about 15.02.2015, the petitioner received a notice from this Hon’ble Commission and on consulting a local Advocate was informed that the Insurance Company had appealed to this Hon’ble Commission against the order of the State Commission.  The petitioner also received a second notice together with a cheque for Rs.5,000/-.  The petitioner along with his brother reached this Hon’ble Commission on the date specified in the notice but was not able to appear when the matter was called out as it took time for the petitioner to locate and reach this Hon’ble Commission.  The petitioner having no means to engage a lawyer accordingly submitted an application to this Hon’ble Commission.

3.       The petitioner, thereafter, learnt that an amicus had been appointed in this Hon’ble Court and after meeting the amicus at Delhi, was advised that the contents of the application be incorporated in the prescribed form of a revision petition as well as additional grounds be urged.  Accordingly, a revision petition in the prescribed format is being filed.

4.       The petitioner submits that the petitioner, who was working in a computer centre for a meagre amount of Rs.3,000/- and had been diligently pursuing the litigation, till he suffered the Brain Tumor, on account of his poor health and unemployment and acute financial condition, was unable to seek proper legal advise and prefer a revision petition against the order of the State Commission passed on the appeal filed by the petitioner.  Though the petitioner having filed the application prior to 19.10.2016, when this Hon’ble Commission was pleased to direct the petitioner herein to file proper revision petition in place of the application challenging the impugned order of the State Commission, and the delay be computed only till that date, the petitioner by way of abundant caution is seeking condonation of delay from the date of receipt of the impugned order till the date of filing the present revision i.e. 1336 days.  Furthermore, the delay in filing the petition has arisen solely on account of the facts set out herein above and is neither intentional nor on account of any negligence on the part of the petitioner.” 

13.    From the above, it seems that this revision petition has been filed only to counter revision petition filed by the opposite parties.  The complainant is seeking a relief that the claim refused under the Crises Cover policy should be allowed.  The averments made in this application also emphasise that the complainant did not feel aggrieved by the impugned order when he received the order, rather he became aggrieved when he learned about the revision petition filed by the opposite party.  Hon’ble Supreme Court in In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108,  has observed:-

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

14.    From the facts and circumstances of the present revision petition, it clearly seems that the complainant has not shown reasonable diligence in prosecution of his revision petition.  Therefore, negligence, deliberate inaction and lack of bonafides are imputable to the complainant in filing this revision petition.  No convincing reasons have been given in the application of condonation of delay.  Consequently, the application of condonation of delay is dismissed.

15.    Even on merits it is seen that there is a concurrent finding of fact by the District Forum and the State Commission in respect of non-admissibility of the claim under the Crises Cover Policy.  Both the fora below have examined this issue and have reached to the same conclusion.  In such situation, the scope under the revision petition is quite limited as held by the Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654, wherein the following has been 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 that 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 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 finding of two fora.”

16.    The facts cannot be reassessed by this Commission in revision petition in the light of the above judgment of the Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company (supra) and therefore, no interference is called for in the concurrent finding given by the fora below in respect of non-admissibility of the claim under the Crises Cover Policy which is barred on the fact that the complainant suppressed the material information about his health while taking the policy.  On the basis of the evidence available on record, the stand taken by the Insurance Company in this regard seems justified.  Thus, the revision petition filed by the complainant is liable to be dismissed on the ground of limitation as well as on merits.

17.    Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 21.10.2013 of the State Commission which calls for any interference from this Commission and consequently both the revision petitions No.699 of 2014 & 1980 of 2017 are dismissed.