Bank Of India vs Ashapurna Chandra & 2 Ors

Subhash Chandra, Presiding Member

This revision petition has been filed against the order dated 05.10.2012 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ‘the State Commission’) in SC Case no. FA/387/2011 dismissing the appeal of the Revisionist and upholding the order of the District Forum.

The brief facts of the case are that the respondent/ complainant’s husband opened a savings bank (SB) account with Bank of India (in short, ‘Bank’), Purulia Branch on 27.08.2007. The National Insurance Company Limited respondent no.3 herein/ complainant no.1 launched a mediclaim policy, viz., BOI National Swasthya Bima especially for the account holders of Bank of India and their family members. The husband of the complainant took the policy from 13.08.2007 to 12.08.2008 and was issued a policy certificate. He thereafter renewed the policy for the period from 13.08.2008 to 12.08.2009. According to the terms and conditions of the policy the premium amount was to be deducted by the Bank from the account of the account holder. The due date of premium amount was on 12.08.2009. The bank deducted an amount of Rs.2590 on 18.08.2009. However, the said amount was subsequently re-credited on 15.01.2010 to the said SB account. Members of the family were entitled to cashless treatment and reimbursement of the amount towards medical expenses. In May 2010, the policy holder was advised an FNAC test for a swelling in the neck which was diagnosed as Metastasis Squamous Cell Carcinoma. He approached BP Poddar Hospital and Medical Research Limited, Kolkata for better treatment but learnt that as the policy had lapsed on account of the Bank not debiting the premium amount from his SB account for renewal of the same on or before 12.08.2009, the policy was deprived of facility of cashless facility in medical treatment. The policy holder, finding no other alternative, availed medical treatment on payment of Rs.1,50,000/-.

The policy holder on 07.06.2010 approached the Bank regarding the non-deposit of the third premium amount to the National Insurance Company and was informed  vide letter dated 10.06.2010 that he would be conveyed the decision in due course. He sent a legal notice to the Bank and National Insurance Company Limited Purulia Branch on 31.08.2010 demanding Rs.1,50,000/- which was duly acknowledged.  He also lodged a complaint before the Assistant Director, Consumer Affairs and Fair Business Practices, Purulia against the complainants which could not be settled amicably at the hearing on 02.12.2010.

Alleging deficiency in service by the petitioner for non-renewal of the policy question within the due date, the respondent/complainants approached the District Forum, Purulia seeking the following reliefs:

i. For giving direction to the opposite parties to pay Rs.1,50,000/- along with interest @ 10% per annum from 31.08.2010 to the complainants  towards damage for non-renewal of the policy in question;

ii. For giving direction to the opposite parties to renew the policy in question for further period for the coverage of the benefit of the present complainants;

iii. For giving direction to the opposite parties to pay compensation of Rs.50,000/- to the complainants for harassment and mental pain; and

iv. For giving direction to the opposite parties to pay litigation cost of Rs.10,000/- to the complainants.

The District Forum, Purulia allowed the appeal vide its order dated 1st August 2011 and held as follows:

That the Consumer Complaint no. 7 of 2011 be and the same is allowed in part on contest without costs against the OPs.

That the OP no.1 (National Insurance Company Limited, Purulia Branch) has no liability at all for payment of damage for non-renewal of the policy in question as claimed by the complainants.

That the OP no.2 (Bank of India, Purulia Branch) is directed to pay Rs.1,43,425/- only towards medical expenses as incurred by the complainants for treatment of Amit Chandra, since deceased within 30 days from this date, failing which the complainants shall be at liberty to proceed in accordance with law.

Aggrieved by the order of the District Forum, Purulia, the petitioner herein (Bank of India) approached the State Commission. The State Commission upheld the orders of the District Forum and held that:

“It appears that late Amit Chandra first opened the policy and it was valid from 13.08.2007 to 12.08.2008 and thereafter it was renewed from 13.08.2008 to 12.08.2009. The premium amount in question was due on 12.08.2009. It is the contention of the bank that upto 10.08.2009 there was no sufficient balance, but on 11.08.2009 the sum of Rs.2000/- was deposited. It is the further contention of the bank that such amount was deposited without informing the reason of such deposit. From the papers on record it is clear that after such deposit was made on 11.08.2009 there was no difficulty on the part of the bank to debit the amount of premium on 12.08.2009 as the due date was 12.08.2009. This debit of the premium amount was also done on the previous year. There was no reasonable explanation on the part of the back as to why the amount was not debited and sent to the National Insurance Company Ltd., on 12.08.2009. The bank debited such amount on 18.08.2009 which was not accepted by the insurance company as the policy had already lapsed. In the case of Senior Branch Manager, Punjab National Bank and Ors vs Sudhir Pal Singh (Supra) it has been held that the bank did not get the insurance done and it was deficiency in service on the part of the bank. It in the instant case also despite the fact that there was sufficient amount on the due date the bank did not debit the amount and, as such, there was deficiency in service on the part of the bank. The learned District Forum however, did not pass any order against the insurance company. We find that there is no ground to interfere with the findings of the learned District Forum. There is no merit in this appeal.

In the result, the appeal fails and the same stands dismissed. The impugned judgment is affirmed. We make no order as to costs”.

The present revision petition has impugned this order of the State Commission on the ground that the bank account of the policy holder had insufficient balance as on the date of renewal and that he was aware of the same. Revision Petitioner has relied upon the judgement of the Hon’ble Supreme Court in Shree Ambica Medical Stores & Ors., vs. The Surat Peoples Cooperative Bank Limited & Ors., dated 28.01.2020 in Civil Appeal no.562 of 2020.

Heard the learned counsels for both the parties and perused the records carefully. In the instant case there are concurrent findings on facts by the District Forum and the State Commission in favour of the respondent/complainant. The revisionist has essentially argued that the premium it had to deposit towards the BOI National Swasthya Bima in respect of the husband of the Respondent/complainant could not be done on account of fact that there was insufficient balance in the account of the account holder. It is seen from the records that this issue had been considered by the lower fora. The order of the State Commission has specifically considered the issue of available balance in the policy holder’s account on the date of the due date of renewal of the policy based upon the bank statement of the policy holder. The fact that the premium was due on 12.08.2009 and the fact that it was debited from the policy holder’s account on 18.08.2009 is not disputed. Despite the availability of Rs 3872/- in the bank account on the due date of renewal, it is not explained by the petitioner why the premium of Rs 2590/- was not credited into the account of the policy holder by 12.08.2009 which the Bank was obliged to do. It is also evident from the passbook filed by petitioner that an amount of Rs 2590/- which was the premium was re-credited to the policy holder’s account on 15.01.2010 by the petitioner herein.  All these facts have been considered by the lower fora which have arrived at concurrent findings.

This Judgment in Shree Ambica Medical Stores (Supra) deals with exclusion clause that pre-existing disease which cannot be covered under the fresh insurance policy and that a policy is required to be renewed with effect from the date when it fell due for renewal and that the act of the insurance company in refusing to renew the same is arbitrary. In the instant case, it is the bank which has failed to remit the premium to the insurance company to renew the policy even though it was obliged to do so and there was balance available in the policy holders account,. Therefore, the Bank’s obligation to meet the cost of treatment of the policy holder cannot be transferred to the insurance company but must be borne by the Bank.

While this Commission has revisional jurisdiction, in exercise of its jurisdiction, it is not required to re-assess and re-appreciate the evidence on record and substitute its own conclusion on facts especially when the findings on the facts of the lower fora are concurrent on facts. This Commission can interfere with the concurrent 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. In other words, evidence which are either not part of the record or when material evidence on record is not considered. 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.”

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.”

The Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors, dated 05.04.2019 has again held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

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. In the instant case it is seen from the records that the lower fora have concluded that the Bank had erred in not making the timely remittance to the insurance company towards the renewal of the premium of the policy holder despite availability of funds in the policy holder’s account. Even though there was sufficient balance available in the Bank account, the fact of making transfer on 18.08.2009 instead of 12.08.2009 by which date the policy had already lapsed is apparent from the records and the discussions in the order impugned.

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. Concurrent findings of facts of these two foras are based on evidences lead by the parties 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.

It is a settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction.

Foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner. It is apparent that the fora below have based their findings on evidence on record. Learned counsel for 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, therefore, found to be without merits and is accordingly dismissed.