2. Along with the Revision Petition, IA No. 5162 of 2016, an application for condonation of delay of 22 days has also been filed by the Petitioners. However, as per computation done by the Registry, delay is of 26 days. In view of the reasons given in the application and in the interest of justice, IA/5162/2016 is allowed and delay condoned.

3. The case of the Complainants/Respondents is that Vinod Kumar Kaushik (since deceased) had taken "Family Care First'' plan, vide Policy No.0176535784 from the Petitioner/Opposite Party on 12.7.2010, valid upto 12.7.2013 on premium of Rs.15,875/-, for total cover of Rs.3,00,000/-. The wife of the Complainant, Saroj Kaushik was the nominee in the Policy. As per the terms and conditions of the Policy, all medical expenses of accident and diseases of any kind were covered under the Policy. Treatment expenses and medicines etc. were to be borne by the Opposite Parties. On 24.11.2010, the Insured slipped and fell down in the bathroom due to which he sustained left hip joint fracture with periprosthetic. He was admitted in Fortis Hospital Mohali, on 24.11.2010 and remained there upto 01.12.2010. Surgery for total hip replacement was conducted at a cost of Rs.2,10,954/-. The Complainant filed claim No.AZBJ/00055390 with the Opposite Parties but the Opposite Parties repudiated the claim, vide letter dated 31.01.2011, on the ground that the Insured had history of hip replacement. Complainant filed the Consumer Complaint No. 213 of 2011 before the District Forum with the following prayer:-

It is therefore, prayed that the:

a) the Opp. Parties may kindly be directed to pay a sum of Rs.210954/- along with interest from the date of accident till realization and further the Opp. Partis may kindly be directed to pay the future expenses to be incurred by the complainant in future as the complainant has not fully cured till yet;

b) the Opp. Parties may kindly be directed to pav a sum of Rs.50,000/- as compensation on account of mental agony, physical and financial harassment caused to the complainant due to illegal acts of the complainant besides cost of litigation amounting to Rs.5500/- in the interest of justice. Any other relief in addition to or in the alternate, which this Hon'ble court may deem fit and proper be also awarded to the complainant against the respondents/Opp. Parties in the interest of justice.

4. The Complaint was resisted by the Opposite Party by taking preliminary objection that the Complaint was not maintainable as liability of Insurance Company was contractual. It was alleged that the Complainant had a history of hip replacement and the Complainant submitted the medical claim for the pre-existing condition knowing well that his claim was not admissible as per the terms and conditions of the Policy. It was also contested that as per the terms and condition of the Policy Insurance, Opposite Party was liable to make payment only after one year from the first renewal date or date of revival whichever is later but in instant case Policy year and claim year was same i.e, 2010.

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5. The District Forum after hearing Learned Counsel for the Parties and going through the record observed that the stand of the Opposite Party that Complainant had history of hip transplant was not tenable as the Policy was Mediclaim policy and therefore it was the duty of the Opposite Party to conduct the medical examination of the Complainant from a panel of expert doctors, which was mandatory from the legal point of view. Since Opposite Parties failed to conduct any medical examination, the onus was on the Opposite Parties to prove their version regarding pre-existing disease, which they failed to do. The Opposite Parties have produced proposal form and letter of repudiation, which were not supported by any cogent evidence. The District Forum, therefore, partly allowed the Complaint and directed the Opposite Party as follows: -

"Resultantly, we partly allow the complaint of the complainant and by Directing the respondents to pay Rs.2,10,954/- along with Interest @ 9% p.a. from date of complaint till its realisation and further to pay Rs.5500/- as cost of proceedings. Order be compiled within one month from the date of preparation of this order failing which penal action under section-27 of C.P. Act shall be initiated against them."

6. Aggrieved by the order of the District Forum, the Opposite Parties filed Appeal No.224 of 2014 before the State Commission. The State Commission, after hearing the Learned Counsel for the Parties and perusing the record, observed that no evidence was produced by the Opposite Parties regarding the surgery for hip replacement of the Insured. Neither any Doctor was produced as a witness nor any affidavit filed to corroborate their assertion. It was further observed that only because the claim was made by the Complainant within one year from the commencement of the Policy, the Opposite Parties cannot repudiate the claim. The State Commission dismissed the Appeal and ordered as follows:-

"6. Consequently, we do not find any merit in the appeal filed by the insurance company and dismiss the same with no order as to costs.

7. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refurided to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, If any."

7. Aggrieved by the order of the State Commission, the Petitioner/Opposite Party preferred this Revision Petition with the following prayer:-

"In view of the above it is most respectfully prayed that Hon'ble Commission may graciously be pleased to;

(a)call for the records, consider and examine the same in respect of Complaint Np.213/11 of Learned District Forum and F.A. No 224/2014 of Learned State Commission,

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(b) Set aside and quash the order dated 04.01.2016 passed by the Learned State Commission, Punchkula in FA No.224/2016 and allow the present petition and dismiss the complaint.

(c)set aside and quash the order dated 22.11.13 passed by the Learned District Forum Yamuna nagar in complaint case no 213/2011. And dismiss the complaint. (d)Cost of the petition be also awarded to the petitioner throughout and such other further order as may be deemed just and proper be passed.

And

(e) This Hon'ble Commission may further be graciously pleased to grant interim stay of the operation of the impugned orders dated 22.11.2013 passed by the District Forum Yamuna Nagar in Complaint No213/2014 and order dated 4.1.2016 passed by State Commission, in Appeal no. 224/14.

(f) pass any other and /or further order(s), relief(s) and/or direction(s) as this Hon'ble Commission may deem fit and proper in favour of the Petitioners under the facts and circumstances of the case."

8. Heard Learned Counsel the Parties and carefully perused the record. Learned Counsel for the Petitioner/Opposite Party submitted that both the Fora below while passing the impugned order had ignored the basic principles of Insurance law and also the settled principles of law. It was submitted that the Policy was obtained by suppression of previous illness. It was further argued that Fora below ignored the fact that the Discharge summary of 2008 was submitted by life assured himself, as such, the document itself got corroborated. He also submitted that the claim for total hip replacement was admissible only after a year from the first renewal date or date of revival whereas the first renewal date fell 3 years after the date of commencement of the Policy.

9. The Learned Counsel for the Respondent/Complainant submitted that as per the terms and conditions of the Policy, all medical expenses of accident, diseases of any kind were covered under the Policy and the expenses of treatment, medicines etc. were to be borne by the Opposite Parties. It was also submitted that at the time of taking the Policy, the Complainant was medically examined by the Opposite Parties and the Opposite Parties were bound to pay the claim amount as per their Policy.

10. In view of the above submissions and document placed before this Commission it is not disputed that the Complainant submitted a medical claim amounting of Rs.2,08,005/-. Both the Fora below concurrently held that averments made by Opposite Party were not supported by documentary evidence and also no doctor who treated the Complainant was brought on affidavit. The Complainant in his Complaint stated that the claim was wrongly repudiated on the ground that he had a history of hip replacement.

11. The Opposite Party relied on the treatment record relating to the past history of the Insured, which were neither verified nor supported by proper evidence. Also, neither the

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Doctor was produced as a witness nor any affidavit was filed to prove the treatment record. In absence of any evidence, it cannot be said that the Insured was having any past history.

12. Jurisdiction of this Commission under Section 21 (b) is very limited. This Commission is not required to re-appreciate and reassess the evidences and reach to its own conclusion. The Court can intervene only when the Petitioner succeeds in showing that the Fora below have wrongly exercised its jurisdiction or there is a miscarriage of justice. It was so held by the Hon'ble Supreme Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. (2011) 11 SCC 269 has held as under: -

"13. 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."

13. In view of the above settled principle I find no reason to interfere with the concurrent findings of both the Fora below. Petitioners have failed to point any illegality or irregularity in the order passed by the State Commission, warranting interference in exercise of Revision jurisdiction of this Commission under the Consumer Protection Act, 1986. Revision Petition is accordingly dismissed. No order as to the cost.

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C. VISWANATH

PRESIDING MEMBER

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