National Consumer Disputes Redressal
Kotak Mahindra Life Insurance Co. Ltd. & ... vs V Alivelamma on 18 December, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1065 OF 2023 (Against the Order dated 07/02/2023 in Appeal No. 52/2020 of the State Commission Andhra Pradesh) 1. KOTAK MAHINDRA LIFE INSURANCE CO. LTD. & ANR. ...........Petitioner(s) Versus 1. V ALIVELAMMA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,PRESIDING MEMBER
FOR THE PETITIONER : MR. PRAVEEN MAHAJAN ADVOCATE WITH
MS. VRINDA, ADVOCATE
Dated : 18 December 2023 ORDER
This revision petition has been filed under section 21(1)(b) of The Consumer Protection Act 1986 in challenge to the Order dated 07.02.2023 passed by the State Commission in First Appeal No.52 of 2020 arising out of the Order dated 20.02.2020 passed by the District Commission in Complaint no. 115 of 2018.
Heard learned counsel for the petitioners and perused the entire record including inter alia the impugned Order dated 07.02.2023 passed by the State Commission, the Order dated 20.02.2020 passed by the District Commission and the memo of petition.
It appears that husband of the complainant was having a life assured policy for a sum of Rs. 20,00,000/- and had duly paid its premium. The policy was valid at the relevant point of time when the insured died. The petitioners / opposite parties had got health condition of the insured checked and obtained all necessary documents before issuing the insurance policy. It is stated that the insured-deceased was regularly attending his duty during the course of his life time and had attended to his duty even on the fateful day when he suffered heart attack and died. As the insured person died during the tenure period of policy, the insurance claim was made but the petitioners belated the payment of the claim and eventually repudiated the same on the ground that the insured was suffering with certain ailments before taking the policy but they were not disclosed to the petitioner-insurance co. The main ground of repudiation of the claim was the suppression of material facts of the previous ailments.
As the claim was not honoured, the wife of the insured-deceased alleged deficiency of service on behalf of the petitioner insurance co. and a complaint was filed before the District Commission which was allowed and the petitioners / opposite parties were directed to pay an amount of Rs. 20,00,000/- to the complainant with interest @ 9% per annum from the date of filing of the complaint till the date of actual realization.
Feeling aggrieved by the Order passed by the District Commission, the appeal was filed but the same did not find favour of the State Commission and was also dismissed. Being aggrieved by the same, the present revision petition has been filed by the petitioners / opposite parties.
Learned counsel for the petitioners / opposite parties while assailing the impugned Order has once again reiterated the submissions as were made before the two fora below. It has been submitted that the relationship between the insured and the insurance co. emanates out of complete good faith and if the insured does not come up with clean hands and obtains the insurance policy after suppressing the material facts or previous ailments, it goes to the root of the legitimacy of the contract and non-disclosure of the previous ailments entitled the petitioners to repudiate the claim on the ground of concealment of past medical history. It has also been submitted that the Consumer Protection Act provides for summary proceedings and the provisions of the C.P.C. and the Indian Evidence Act do not apply to the proceedings of the Consumer Commissions and, therefore, the findings of the two fora below about the petitioners' failure to prove the documents relied upon by the petitioners are erroneous. Submission is that whatever documents were submitted on behalf of the petitioners to show the previous ailments of the insured ought to have been taken as sufficient and should have been accepted as such and the complaint deserved to be dismissed. Learned counsel has tried to persuade the Bench to go over all the factual aspects, material and the documents all over again and reappreciate the evidence as available on record and to arrive at its own findings as, according to the learned counsel, the findings arrived at by the two fora below are erroneous.
The Bench has gone through the impugned Order passed by the State Commission and also the Order passed by the District Commission in the light of the submissions made by the learned counsel.
The perusal of both the Orders show that all the submissions that have been raised by the learned counsel for the petitioners were thoroughly discussed in both the Orders passed by the fora below but for reasons given in the Orders, which appear good enough, the complaint was allowed and the Order of the District Commission got confirmed by the State Commission.
Twin Orders passed by the fora below are part of the record and it is needless to recapitulate or quote them here all over again in their entirety. But it would be sufficient to give a birds-eye view of the approach that has been adopted and the reasoning which persuaded by the two Commissions not to accept the repudiation of the claim as valid.
So far as the principle of the faith and liability to disclose the material facts correctly and not to conceal any material facts or previous ailments is concerned, it has not been disputed either by the District Commission or by the State Commission. But what appears to be the main reason to allow the complaint or to confirm the Order of the District Commission is that in view of the fora below, it was the onus of the petitioners to prove to the satisfaction of the Commission that the deceased-insured was actually suffering from alleged ailments before taking insurance policy and demonstrate and prove to the satisfaction of the Commission that the documents on the basis of which such allegations have been made could be accepted as legally acceptable or admissible documents worth placing reliance upon them and worth being acted upon. The District Commission was of the view that the mere marking of the documents as exhibit does not dispense with their proof nor it can be presumed that just because a document has been marked the same acquired legal admissibility or legitimacy. In this regard the observations made by Commission of first instance may be aptly quoted which are to the following effect:
"--- --- --- Therefore, the medical records cannot be set to have been proved. Burden of proof lies on the person who assets certain facts existing like fraud, misrepresentation, undue influence etc., and urges the forum to believe the existence of those facts, must prove that those facts exist as per section 101 of the Indian Evidence Act. Similarly, in contract of insurance burden lies on the insurance company to prove and establish that there were violation of terms and conditions of the policy or the life assured had deceived the opposite parties/insurance company by furnishing wrong information. In a contract of indemnity/insurance burden lies on the part of the Insurance Company to prove that there are violation of the conditions of the policy and it is not liable to pay any amount, as per the decision of the Hon'ble Supreme Court in Kamala Mangalal Vayani v. United India Insurance Company Ltd., 2010 ACJ 1441.The opposite parties/insurance company failed to discharge the burden. Therefore, the opposite parties/insurance company is bound to pay a sum assured to the complainant who is nominee of the life assured --- --- ---".
10. After discussing the relevant law at length, the District Commission proceeded to observe that "--- --- --- The opposite parties have not even filed the affidavits of those persons who issued Ex.B-6 and B-7 so as to give some credibility to the documents ---
--- ---." It further proceeded to observe that "--- --- ---Therefore, we are unable to place any reliance on the attested copies of the medical record marked by the opposite parties under Ex.B6 and the investigation report under Ex.B.7, which was primarily based on Ex.B6. If Ex.B6 and B7 are eschewed from consideration for want of reliability, there was no other evidence adduced by opposite parties to prove the allegation of pre-existing illness suffered by the insured --- --- ---''. And it further expressed its view that "--- --- ---The Opposite parties repudiated the claim of the complainant on the ground of suppression of material fact by the insured of his pre-existing illness without there being any substantial legal proof --- --- --- ".
11. The complaint was allowed after a thorough discussion on law and facts both. When the matter was taken by the State Commission, it reappraised itself with all the details of the material and evidence available on record and after taking note of the admitted facts regarding issuance of the insurance policy, its validity at the relevant point of time, the delay in honoring the claim, the notice given to the insurance co. and the repudiation of the claim etc., the State Commission succinctly captured the hub of the controversy involved and conclusively opinioned as follows:
14. The burden of proof lies on the opposite parties to establish that the life assured suppressed the material information in the proposal form thereby induced it to issue policy. Once the opposite parties discharged the burden lies on them, the onus of proof shifts on the complainant to establish that the opposite parties repudiated the claim on untenable grounds. There is no much dispute between the parties with regard to the Exs.A-1 to A-5, Exs.B-1, B-2, B-8 and B-9. The crucial question to be addressed by this Commission is whether the District Forum discarded Exs.B-5, B-6 and B-7 on untenable grounds. In order to appreciate the rival contentions, we have carefully scanned Exs.B-5 to B- 7. Ex.B-5 and B-6 are the case sheets alleged to have been secured by the surveyor. These case sheets are Xerox copies. Any person with reasonable intellectual faculty, may not be in a position to know in which hospital, the life assured alleged to have been taken treatment much prior to submission of health declaration. Ex.B-6 is the medical information purported to have been issued by the Government General Hospital, Ananthapuramu to the opposite parties. This document is a notarized copy. It is needless to say, no one is entitled to notarize any document without seeing the original. Ex.B-6 does not bear the signature of the medical officer. It is not possible to know, who issued this certificate. Ex.B-7 is the Xerox copy of the investigation report. As per the investigation report, the investigator has verified the medical records of Srinivasa Kidney Care Hospital, Saveera Hospital, NSR Hospital and Government General Hospital. The investigator did not secure the medical record from the hospitals referred to supra. Any opinion expressed by the investigator without medical record is of no avail. The opposite parties did not obtain affidavit of the investigator to establish that he prepared the report after securing necessary documents from the concerned official. It is needless to say that investigator's report not supported by affidavit is of no value in the eye of law. Viewed from any angle, no credibility or credence can be attached to Exs.B-5 to B-7. Once these documents are discarded, there is no other material on record to substantiate the stand of the opposite parties that the life assured obtained the policy, Ex.A-1/B-2 by suppressing his health condition. Basing on the material available on record, the irresistible conclusion that can be drawn is that the opposite partied miserably failed to prove that the life assured suppressed the material information and obtained the policy. The opposite parties repudiated the claim of the complainant on untenable grounds. The act of the opposite parties in repudiating the claim of the complainant would fall within the ambit of deficiency in service as contemplated under Section 2(1)(g) of the Consumer Protection Act, 1986. Hence, this point is answered in favour of the complainant and against the opposite parties.
Learned counsel has once again tried to persuade the Bench to re-enter into the factual aspects of the case and re-appreciate the evidence. It may be observed that in evaluating the correctness of the impugned Order, it has to be kept in perspective that in exercising revisional jurisdiction, this Commission has to operate within the confines and ambit as has been provided by the relevant provisions of the Consumer Protection Act. It does not need any elaboration to reiterate that the impugned Order may be castigated with success only when it may be brought forth and shown that the fora below have failed to exercise jurisdiction vested in it or that the fora below have transgressed their jurisdiction and have been guilty of committing a jurisdictional error while reaching at their conclusion. It has to be shown that the State Commission or the District Commission have exceeded their jurisdiction or have abstained to exercise the same. The Bench feels constrained to observe that the learned counsel appearing for the petitioners have not been able to point out any such jurisdiction error in the impugned Order.
13. The Orders of the two fora are a matter of record. No useful purpose will be served by reproducing them here all over again. Suffice is to say that the Bench finds that the Orders passed by the two fora below to be well-appraised and well-reasoned. The Bench does not notice any jurisdictional error or material irregularity as may go to vitiate the findings. The Bench also does not find any reason to make fresh de novo re-appreciation of the evidence in revision. The Bench therefore finds no good ground for interference in the impugned Order in the exercise of the revisional jurisdiction of this Commission. The Bench has also not been able to come across any streak of perversity in the findings nor has it been able to discern any legal principle having been overlooked or wrongly ruled. Certainly the fora below cannot be castigated either to have overstepped or transgressed their jurisdiction or to have omitted to exercise the same rightfully. The facts and circumstances appear to have been weighed and vetted well and to our satisfaction.
14. Hon'ble Supreme Court too in its decision given in case of Rajiv Shukla vs. Gold Rush Sales and Services Ltd. and Anr., (2022) 9 SCC 31 has observed that in exercise of power in its revisional jurisdiction, the National Commission is not required to interfere with the concurrent findings given by the fora below on appreciation of evidence. Relevant extracts of the observations made by Hon'ble Apex Court may be quoted herein below:
At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car. Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered by the National Commission in exercise of the revisional jurisdiction. It is required to be noted that while passing the impugned judgment and order the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986. 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. 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.
15. Similar views were expressed by the Apex Court in the earlier case of Rubi (Chandra) Dutta vs. United India Insurance company (2011) 11 SCC 269.
16. The bench has considered both the Orders passed by the fora below and the relevant record available, but feels constrained to observe that there is hardly any good reason which may persuade the Bench to take a different view in the mater other than what has already been taken or adopted by the two fora below.
17. The present petition being bereft of merits stands dismissed as such.
18. The Registry is requested to send a copy each of this Order to the parties in the petition and to the learned counsel for the petitioner as well as to the two fora below within three days. The stenographer is requested to upload this Order on the website of this Commission within three days.
..................................................J KARUNA NAND BAJPAYEE PRESIDING MEMBER