PER MR SUBHASH CHANDRA, PRESIDING MEMBER

1.     This revision petition filed under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the Himachal Pradesh State Consumer Dispute Redressal Commission, Shimla (in short, ‘State Commission’) in Misc. Application 903 of 2017 in First Appeal dated ­­­­17.07.2018 dismissing the appeal against the order of the District Forum, Mandi (in short, ‘District Forum’) in Consumer Complaint No. 244 of 2016 dated 24.06.2017.

2.     The brief facts of the case as per the revision petitioner are that the petitioner has been directed to pay the respondent Rs 2,85,292.04 along with interest @ 9% from the date of the filing of the complaint i.e. 23.09.2016 till realization, Rs 50,000/- as compensation and Rs 5,000/- as litigation expenses in Consumer Complaint No. 244 of 2016 by the District Forum, Mandi vide its order dated 24.06.2017. His appeal before the State Commission was dismissed on the grounds limitation as the delay in filing the same after 103 days was not adequately explained.

3.     The petitioner’s case is that the order of the District Forum is contrary to facts and law and that the State Commission’s order dismisses his appeal without adjudication on merits. The facts of the dispute are that the respondent obtained an insurance policy of the petitioner on 26.06.2014 viz., Aviva Health secure Policy No. 10143844 for a sum of Rs 10,00,000/-. Premium of Rs 3,231/- half yearly was paid regularly. On 22.06.2015 the respondent suffered a heart attack and was admitted to Max Super Speciality Hospital, Mohali, Punjab on 23.06.2015 where he underwent various treatment including insertion of a pacemaker. He was discharged on 23.06.2015 after incurring an expenditure of Rs 3,50,000/- on treatment and hospitalization. The claim of the respondent was, however, repudiated by the petitioner on 03.08.2016 on the grounds that the diagnosed illness of heart block with pacemaker insertion does not fall under the purview of the 12 critical illnesses covered under the policy. The petitioner’s consumer complaint before the District Forum came to be allowed vide order dated 17.07.2018 as below:

“8.    The careful perusal of the said policy contract is revealing that the open heart replacement or repair of heart values is included as one of the heart related illness/ treatment. It says that the actual undergoing of open heart value surgery is to replace or repair one or more heart values, as a consequence of defect in abnormalities of or disease affected cardiac vavlue (s). The diagnosis of the value abnormality must be supported by an echocardiography and the realization of surgery has to be confirmed by a specialist medical practitioner. Catheter bases techniques including by not limited to ballon valvotomy/ valvuloplasty are excluded. The opposite party has filed on record the same terms and conditions of the insurance policy Annexure B, but there is nothing specific in Annexure B also about the 12 critical illness which do not include the heart related problem and the treatment of said problem. Therefore, we are of the opinion that the repudiation of the claim of the complainant by the opposite party vide letter annexure D 1 dated 03.08.2015 is not sustainable. Hence, the same is hereby rejected as for the aforesaid reasons, we are of the opinion that the opposite party is legally bound to make the genuine payment of health insurance to the complainant.

9.     The invoice-cum-receipt annexure A 3 to annexure A 9, are revealing that the complainant has made the payment of Rs.2,83,477.50 as shown in Annexure A 7 plus Rs.593.17 as per. Annexure A 3 and Rs.1221.37 as per Annexure A 9. The remaining receipts are revealing the details of amount of Rs.2,83,477.50 as shown in Annexure – A 7. Thus, it stands established that the complainant paid total amount of Rs.2,85,292.04. So we are of the opinion that the complainant is entitled to get this amount from the opposite party.

10.    Consequently, for the aforesaid reason, the present complaint is allowed to the effect that the opposite party is directed to pay Rs.2,85,292.04 to the complainant along with interest at the rate of 9% per annum from the date of filing of the present complaint till the actual payment.

11.    Since, the complainant was forced to file the present complaint, therefore, the opposite party is further directed to pay compensation to the tune of Rs.50,000/- and litigation cost to the tune of Rs.5,000/- to the complainant. With these observations, the present complaint stands disposed of.”

4.     The petitioner’s appeal against this order before the State Commission came to be dismissed as the application for condonation of delay of 103 days in filing the appeal under section 15 of the Act despite receiving the order on 10.07.2017 was not sufficiently explained. The State Commission’s order dated 17.07.2018 reads as under:

“12.   Submission of learned advocate appearing on behalf of non-applicant that applicant has not explained delay in satisfactory manner and on this ground application for condonation of delay be dismissed is decided accordingly. State Commission is of the opinion that delay of one hundred three days in filing appeal has not been explained satisfactorily by the applicant and State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to condone the delay of one hundred days in filing the appeal. Point no.1 is decided accordingly.

Point no.2 : Final Order

13.    In view of findings upon point no.1, above application filed for condonation of delay of one hundred three days in filing appeal is dismissed. Consequently appeal is also dismissed as barred by limitation.”

5.     The petitioner has prayed that the order of the State Commission be set aside as it did not consider the facts and through its dismissal of the application for condonation of delay did not examine his grounds of appeal against the order of the District Forum impugned by him.

6.     Heard the learned counsel for the petitioner as well as the respondent who is appearing in person. From the facts on record, which have been dealt with by the State Commission at some length in it order dated 17.07.2018, it is apparent that the petitioner could not explain the reasons for the delay in filing of the appeal adequately except to state that it took him time to locate the necessary documents, identify a counsel in Delhi and thereafter there was delay in filing of an appeal before the State Commission.

7.     This Commission in exercise of its revisional jurisdiction Commission is not required to re-assess and re-appreciate the evidence on record and substitute its own conclusion on facts. It can interfere with the findings of the foras 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 26 (b) of the Consumer Protection Act, 1986 is therefore, limited to cases where some prima facie error appears in the impugned order and 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 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.     The Hon’ble Supreme Court has reiterated this principle in the case of Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors – (2016) 8 Supreme Court Case 286 and 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.   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 the appeal. Findings of facts of the District Forum are based on evidences 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.

11.   It is apparent that foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. These orders are based on evidence on record. The petitioner has failed to show that the findings in the impugned order are perverse.  I therefore, find no illegality or infirmity or perversity in the impugned order. The present revision petition is found to be without merits and is accordingly dismissed.