1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 58 of Consumer Protection Act 2019, against the order dated 18.01.2020 of the State Consumer Disputes Redressal Commission Tripura (hereinafter referred to as the ‘State Commission’), in Case No. A/22 of 2019 in which order dated 28.06.2019 of West Tripura District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 70 of 2018 was challenged, inter alia praying staying the order dated 18.01.2020 and 28.06.2019 of the State Commission and District Forum respectively.

2.       While the Revision Petitioner (hereinafter also referred to as OP) was Appellant and the Respondent (hereinafter also referred to as  Complainant) was Respondent in the said FA No. 22 of 2019 before the State Commission, the Revision Petitioner was OP and Respondent was Complainant before the District Forum in CC no. 70 of 2018.

3.       Notice was issued to the Respondent on 16.10.2020.  Parties filed Written Arguments/Synopsis on 23.08.2022 ( Petitioner ) and 14.02.2023 ( Respondent ) respectively.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that Complainant purchased Jeevan Arogya Policy from the OP and complainant was the principal insured under the said policy.  Father of complainant Sri Purnendu Gupta and her mother Smt. Sumita Gupta were also covered under the said policy.  While the complainant was paying the premium of the policy regularly, her father underwent ‘ ventral hernia’ surgery at the Apollo Hospital, Chennai on 18.07.2016 i.e. during the subsistence of the policy.  Sri Purnendu Gupta was admitted in the aforesaid hospital on 17.07.2016 and was discharged on 22.07.2016.  The complainant after completion of treatment of her father returned to Agartala and submitted  her claim of Rs.2,16,827/- being the cost of treatment of her father under the said policy alongwith medical prescriptions, bills and vouchers etc. with a forwarding letter addressed to OP No.2. i.e. the Chief Manager, LICI , Agartala Branch No.1 on 08.08.2016.  Upon receipt of the same, OP No.1 i.e. The Manager ( HI), LICI Silchar Divisional Office had sought some clarification from the complainant.   On 14.09.2016, the complainant replied to the queries and, thereafter on 12.01.2017, the OP No.2 personally visited the house of complainant and made physical verification of her claim and also related documents.  On 27.03.2017, complainant received letter from the Manager ( HI), LICI, Silchar Divisional Office, the OP No.1 wherein she was informed that claim raised by her was reduced by OP to Rs.17,100/- as of ‘Other Surgical Benefit’ under the policy.  According to the complainant, she has fulfilled the terms and conditions of the policy, but inspite of that, OP denied her justified claim on the ground that ‘ventral hernia’ surgery is not a major surgery.  Being aggrieved, the Complainant filed CC before the District Forum and District Forum vide order dated 28.06.2019 partly allowed the Complaint.  Being aggrieved, the OP filed an Appeal before the State Commission and State Commission vide order dated 18.01.2020 dismissed the Appeal of the OP.  Hence, the OP is before this Commission now in the present RP.

5.       Petitioner has challenged the said Order dated 18.01.2020 of the State Commission mainly on following grounds:

1. Insurance policy is based on the principle of utmost good faith and cannot be varied by any party or even by the Courts and terms and conditions of the policy shall govern the contract  between the parties and cannot be overlooked. Further any suppression of material facts vitiates the contract as clearly stated under Section 45 of the Insurance Act, 1938. 

2. Both the fora below have failed to appreciate the terms and conditions of the policy in its proper perspective and also failed to appreciate that laproscopic ‘ventral hernia’ surgery is not covered in the list of ‘Major Surgical Benefit’.  Even both the Fora below failed to appreciate that complainant failed to prove by leading expert evidence that the said surgery is deemed to be a major surgery.

3. Both the Fora below failed to appreciate that in the present case, the specific waiting period of 2 years from the date of commencement of 17 years of hospitalization was not applicable as the hospitalization took place after nearly 5 years of taking the policy.

4. The insured ought to have disclosed the fact that he was suffering from hypertension for ten years and coronary artery disease for the last six years which was within his knowledge at the time of filling the proposal form.

5. Reliance is placed on the following judgments of Hon’ble Supreme Court / National Commission

1. United India Assurance Co. Ltd. Vs. M/s Harchand  Rai Chandan Lal ( JT 2004 ( 8) SC 8 )

2. Oriental Insurance Co. Ltd. Vs. Sony Cheriyan 1999 6 SC 451

3. National Insurance Company Ltd. Vs. Laxmi Narain Dhut, Civil Appeal No. 1140 of 2007

4. General Assurance Society Ltd. Vs. Chandumull Jain & Anr. 1996 ACJ 267 ( SC)

5. New India Assurance Co. Ltd. Vs. Dharam Singh and Anr.  FA No. 426 of 2004.

6.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

6.1     Counsel for the petitioner apart from repeating the points which have been stated in para 5, argued that State Commission has not given the independent reasons in the order but has merely endorsed the reasons of the District Forum. Further, as per the terms and conditions of the policy, the surgery is not included in the list of surgery chart and, therefore, no amount is payable.   It is further argued that no amount of premium has been paid by the complainant on underwriting the risk. Further, at the time of taking the policy, the complainant was fully aware that surgery conducted upon him was not covered under the policy.  Counsel apart from the relying the judgments aforesaid,  also placed reliance on the following judgments :

1. Vikram Greentech ( I) Ltd. Vs. New India Assurance Co. Ltd. (2009) 5 SCC 599
2. Ekjot Singh Vs. E-Meditek Solution Ltd. and Anr. , RP No. 4779 of 2012

c.       Shrikant Murlidhar Apte Vs. LIC of India, RP No. 634 of 2012

d.       Bhushan Kumar Vs. LIC,  RP No. 2726 of 2014

e.       Anita ( since deceased ) Vs. Branch Manager LIC  2014 SCC Online NCDRC 462

f.       ICICI Lombard General Insurance Co. Ltd. Vs. Bhaneshwar Dayal Sharma 2014 SCC Online NCDRC 282

g.       SBI Life Insurance Co. Ltd. Vs. Ashwani Kumar Juneja 2013 SCC Online NCDRC 743

h.       Hardeep singh Vs. ICICI Prudential Life Ins. Co. Ltd.  2017 SCC Online NCDRC 1678. 

Counsel for the Petitioner  relied on other judgments also.

6.2.    Amicus Curiae on behalf of the Respondent argued that Petitioner arbitrarily paid a sum of Rs.17,100/- by wrongfully considering the claim of the respondent under ‘Other Surgical Benefits’ whereas the same should have  been allowed in totality under ‘Major Surgical Benefits’.  The medical condition of the respondent’s father first arose after the commencement of the policy, after the waiting period prescribed.  The Petitioner vide letter dated 05.06.2017 informed that surgical process undergone by the respondent’s father is not included in ‘Major Surgical Benefit list’.   It is further argued that vide letter dated 11.09.2017, Petitioner for the first time provided a list of major surgeries and day care procedures allowed under the plan, wherein it categorically stated that ‘these things are already there in the policy bond although in a very small size’.  As per the petitioner, the terms and conditions are not readable with naked eyes and were never brought to the notice of the respondent at the time of taking the policy.   It is further submitted that as per the policy, specific waiting period for getting benefit out of the policy for treatment of hernia is two years.  Father of the respondent remained as an indoor patient for five days after undergoing the surgery. 

7.       We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties.  In this case there are concurrent findings of both the Fora below against the Petitioner herein.  Extract of relevant paras of the order of the State Commission is reproduced  below :

“We have gone through the impugned judgment as well as the evidence on record. It appears from the inpatient bill issued by the Apollo Hospitals, Chennai that the total treatment cost was Rs.2,11,826.89 which has not been denied by the opposite parties- Insurance Company. The learned District Forum in fact directed the opposite parties to pay Rs.1,60,812/- to the complainant for providing services under the Heads as per the inpatient bill namely, Nursing and Hospitals Utilities amounting to Rs.3,500/-, O.T. Charges for Rs.31,310/-, O.T. Consumables for Rs.69,088.75/-, O.T. Pharmacy for Rs.6,914/- and Professional Charges for Rs.49,500/-, but did not allow the other charges like Equipment, Medical Administration and Non Pharmacy Material etc. thus, in fact, the learned District Forum also did not allow the entire actual cost of treatment. Though according to us, the complainant is entitled to get the entire cost of treatment. We are of the opinion that, if surgery like 'ventral hernia' is come within the purview of Policy in question, then an insured is entitled to get the actual cost of treatment, but there is no appeal before us by the complainant. Thus, we are not in a position to provide the actual cost of treatment though the father of the complainant was admitted in the hospital from 17.07.2016 to 27.07.2016 for his surgery….”

8.       Relevant para of order of the District  Forum is also reproduced below :

“We find that the O.Ps. did not deny the fact that the father of the Complainant Sri Purnendu Gupta had under gone "Ventral Hernia Surgery on 18/07/2016 at Apollo Hospital, Chennai during covered period of the Policy. Sri Gupa had to remain as indoor patient at the Hospital from 17/06/2016 till he was discharged on 22/07/2016. The O.Ps. have partly allowed the claim of the Complainant and paid her Rs. 17,100/- treating her father's case to have fallen under "other surgical benefit" denying the claim of the Complainant that the surgery is of major surgery one. Admittedly, the Hernia Surgery of the father of the Complainant was performed in the year 2017 which is five years after the date of purchase of the policy. As per the policy, the specific waiting period for getting benefit out of the policy for treatment of Hernia is two years. Moreover, it is on record that the father of the Complainant remained as an indoor patient for 05 days in the Apollo Hospitals for under going the surgery. This is a significant aspect to make us understand about the health condition of the father of the Complainant at the Pre-and post operation stages who is also a senior citizen. Having regard to this position we are of the opinion that the Complainant should not be deprived of getting Insurance benefit for the "Ventral Hernia Surgery" which was under taken by her father at the Apollo Hospital, simply on the ground that such a surgery does not find place in the list of major surgical benefit. We find that the O.Ps. have only paid Rs.17,100/- to the Complainant for the surgery whereas the claim of the Complainant was Rs.2, 16,827/- being the total actual cost of treatment and that too has been supported by cogent evidence produced by the Complainant from the Apollo Hospitals under Exhibit-I series.”

9.       We have gone through the terms and conditions of the policy in question.  We are not in agreement with the contentions of the Petitioner that ‘ventral hernia’ is not covered under the list of ‘Major Surgical Benefit’.  We also do not agree with the contentions of the Petitioner that there was any suppression of material facts by the Respondent herein.  Under the policy, Major Surgical Benefit Sum Assured is equal to 100 times the applicable benefit in any policy year for each insured.  Surgery or surgical procedure means a medically necessary procedure or intervention performed by a qualified medical practitioner and carried out through a natural orifice or approached by cutting or penetration of any part of the  body to treat a disease deformity or injury. 

10.     As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269]. the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577]  held 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.”

11.     The Hon’ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd. Civil Appeal No. 5928 of 2022, decided on 8^th  September, 2022, held that:-

“13. 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.

14. 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. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act.”

12.     Both the State Commission and District Forum have passed well-reasoned order(s).  We find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld.  Accordingly, the Revision Petition is dismissed.

13.     The pending IAs in the case, if any, also stand disposed off.