Details DD MM YY

Date of disposal 05 05 2023

Date of filing 27 12 2022
Duration 09 04 -
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD

COURT NO: 04
Review Application No. 40 of 2022

1. Aditya Birla Sun Life Insurance Co. Ltd.

(Formally Known As Birla Sun Life Insurance Co. Ltd.)
4th Floor, Vaman Center, Makwana Road,
Near Marol Naka, Andheri Kurla Road,
Andheri East, Mumbai - 400059 …Applicants.
At Present:
16th Floor, One World Centre, Tower 1,
Jupiter Mill Compound, 841, Senapati Bapat
Marg, Elphinstone Road, Mumbai – 400013
2. Aditya Birla Sun Life Insurance Co. Ltd.
(Formally Known As Birla Sun Life Insurance Co. Ltd.)
405, 4th Floor, Empire State Building, Ring
Road, Near Parag House, Surat, Gujrat 395002
V/s
1. Meetaben Subhashbhai Dixit
Widow of Subhashbhai B. Dixit
Residence:8, Nevil Park Society, Front of
China Town Society, New City Light Road,
Surat-395003 …Respondent.
BEFORE: Dr. J.G. Mecwan, Presiding Member.
APPEARANCE: Mr. Milan Dudhia, L.A. for the applicants.
Mr. Pratik Joshi,L.A. for the respondent.
ORAL ORDER: (BY DR. J.G. MECWAN, PRESIDING MEMBER)
1. The applicant in Compliant No. 24/2010 has filed present Review

Application under Section 50 of the Consumer Protection Act, 2019

(herein after referred to as the ‘C.P. Act’). wherein the main relief is

prayed in present Review Application are as under:

i. Be pleased to recall the order dtd. 25.11.2022 passed in Compliant no.

24/2010 and pass necessary orders in the Compliant no. 24/2010
considering the grounds rose in present application.

RUTVIK RA.40.22 Page 1 of 8

 ii. Hon’ble State Commission be please to grant any other relief which is just
and fair in accordance with law.
2. Read Review Application dated 21.12.2022 of applicant/original
opponent of C.C. No. 24/2010 wherein following points has been raised
by the appellant:
1. Hon’ble State Commission has while passing of the final order not considered
and not provided their findings on the issue for which the complaint was
remitted back by Hon'ble NCDRC.Hon'ble NCDRC has remanded the complaint
with andirection/observation that "It would be necessary to examine Gitaben B.
Chapatwala to find out as to why she did not record in the proposal form that
though the deceased had obtained the other insurance policies, the details of the
said policies were available with his C.A.After recording her statement, the State
Commission also needs to go into the question as to whether the respondent
would be bound by the act of Smt. Gitaben B. Chapatwalaor not." However, this
Hon'ble State Commission has while passing of the order not considered that the
complaint was remitted back to decide above findings/direction/observation.
This Hon'ble Commission has without discussing this issue passed the order
and provided findings about the reasons of repudiation made by the opponent
has not served the purpose of the issue for which the complaint was remanded,
and therefore the order passed by this Hon'ble Commission is required to be
reviewed.
2. Hon’ble State Commission has while passing of the order not considered the
fact that nowhere in the complaint, the complainant has denied about having
insurance policies by her husband from other insurers. Even in the counter
affidavit the complainant has not denied about the having insurance policies
from other insurers prior to obtaining the policy from the opponents,
therefore, it is required to consider that the opponent company does not have
to prove about the insurance policies held by the life assured being an
admitted fact. In their rejoinder affidavit the complainant has stated the life
assured had provided information about having insurance policies from
other insurance companies to the agent, but the agent has not considered
that information as important or necessary to disclose therefore, the
declaration made by the life assured was true. The complainant has stated
that "the agent was well within the knowledge about the insurance policies
hold by the life assured but she has not disclosed the same in the proposal
form" considering these averments and admission on the part of the
complainant it is undisputed that the life assured was having insurance
policies from other insurers prior to obtaining insurance policy from the
opponents.
3. It is further submitted that it was not considered that the core issue involved
in this case is whether the respondent would be bound by the act of the
agent or not for not disclosing the other insurance policies hold by the life
assured. However, this Hon'ble Commission has not discussed this issue
and decided the complaint on the issue whether the repudiation made by the
opponent is true or not. While passing of the order it was also not considered
by this Hon'ble Commission that in the case of Reliance Life Ins. Co. Ltd. vs.
Rekhaben Rathod in Civil Appeal No. 4261 of 2019, Hon'ble Supreme Court
has held that "Now it is clear that a person who affixes his signature to a
proposal which contains a statement which is not true, cannot ordinarily
escape from the consequence arising there from by pleading that he chose to
sign the proposal containing such statement without either reading or
understanding it. That is because, in filling up the proposal form, the agent
normally, ceases to act as agent of the insurer but becomes the agent of the
insured and no agent can be assumed to have authority from the insurer to
write the answers in the proposal form." Considering this law laid down by
Hon'ble Supreme Court, it is proved that though the agent has not disclosed
in the proposal form about having insurance policies from other insurers, it is
required to consider as the suppression made by the complainant. This
Hon'ble State Commission has committed serious error by not considering
this law laid down by Hon'ble Supreme Court.

4. Hon’ble State Commission has while passing of the order in para-5 of the
judgment observed that: the advocate for the opponent has argued that

RUTVIK RA.40.22 Page 2 of 8

 opponent company has by producing emails and premium receipts of the
other policies proved that the suppression was made, but in para 7 of the
order they have provided finding that "neither complainant has admitted
that the other policies alleged were taken by DLA from other Insurance
Companies nor did insurance company lead any evidence to prove that other
policy have been taken by DLA and hence, state commission ought to have
given opportunity to the respondent to prove the insurance policies alleged to
have been taken by DLA from Other insurance companies and also
complainant ought to have been given an opportunity to rebut the evidence
produced by the insurance company." This observation made by the Hon'ble
State Commission is total contrary to the direction given by Hon'ble NCDRC
while the complaint was remitted back.
5. It is further submitted that in para 8 of the of the order this Hon’ble State
Commission has observed that: to prove that other policies have been taken
by DLA the opponent Insurance Company has submitted copy of their Emails
which are on record at Page no. 136 to 141. These emails are received from
various insurance companies and on the basis of this emails the opponent
Insurance Company had repudiated claim of the complainant." In para 9 of
order Hon'ble State Commission has further observed that: "Hon'ble National
Commission in judgment/order observed that opponent Insurance Company
did not lead any evidence to prove the other policies alleged to to prove that
other policies have been taken by DLA the opponent Insurance Company has
submitted copy of their Emails which are on record at Page no. 136 to 141.
These emails are received from various insurance companies and on the
basis of this emails the opponent Insurance Company had repudiated claim
of the complainant." In para 9 of order Hon'ble State Commission has further
observed that: "Hon'ble National Commission in judgment/order observed
that opponent Insurance Company did not lead any evidence to prove the
other policies alleged to have been taken by the DLA As far as allegations of
other policies are concerned, the opponent Insurance Company has only
submitted copy of emails and it is submitted by open! insurance company
that as per section 658 of the Indian evidence act these emails should be
considered as evidence in this matter" and then provided their findings
about admissibility of the electronic evidence under section 6580f Indian
evidence act, by quoting judgment of Hon'ble Supreme Court. This Hon'ble
State Commission has provided their findings on emails and it's
unacceptability, however, the premium receipts issued by Max New York Life
insurance Company though available on record, in their finding this
Commission hold that "opponent has not produced any evidence then email
correspondence" which is factually incorrect. That on page 88-91 the
opponent has produced four different premium receipts issued in the name of
complainant's husband, dated 177.2006, 9.2.2007 and 13.8.2005. In all
these receipts the policy numbers and sum insured amount are different
which proves that the Life Assured was having 4 different insurance
policies, prior to obtaining the policy from opponent, this Hon'ble State
Commission completely ignored this vital evidence which suggests that DLA
was having insurance policies from other insurers.
6. Hon’ble State Commission has completely ignored section 45 of the
insurance act, the life assured had died within 8 months- from the date of
issuance of the policy, and as per Section 45 of the Insurance Act, when the
life assured had died within 2 years from the date of issuance of the policy
and the claim was repudiated by the opponent on the ground of suppression
of material facts, and if opponent produce any evidence in support of their
repudiation, it is the duty of the complainant to disprove that evidence. In
present case, the complainant has not produced contrary evidence to the
evidence produced by the opponent showing that the life assured was not
having many other insurance policies, and the receipts produced by the
opponents are false. The Hon'ble State Commission has committed apparent
error by not observing these premium receipts issued by Max New York Life
Insurance Company, which is on record, this has created clear injustice to
the opponent and therefore, also the present review preferred by the
applicant is required to allowed.

RUTVIK RA.40.22 Page 3 of 8

 7. Hon’ble State Commission has while passing of the order grossly relied upon
the admissibility of electronic evidence stating that the email has to be
considered as a secondary electronic record and the certificate on affidavit is
required to be submitted with email but opponent has submitted only emails
and therefore, without certificate as required by Section 65 B of the Indian
Evidence Act, the emails produced in this matter cannot be considered as
evidence and hence, opponent has failed to prove that the DLA was having
another insurance policies Hon'ble State Commission has while providing
findings on this issue, not considered the fact that the complainant herself
has accepted that her husband was having insurance policies from other
insurance companies and it was informed to the agent at the time of filling
the proposal, but the agent has not disclosed the same in the proposal form.
This Hon'ble State Commission has committed error in holding that the
opponent has failed to prove the reason for repudiation. It was required to
consider that when the complainant herself has admitted about having other
insurance policies from other insurer, the opponent has not to prove the
same with certificate. Nowhere in the evidence affidavit/counter affidavit
complainant has denied about having insurance policies mentioned by the
opponent in their reply. Therefore order passed by this Hon'ble State
Commission being erroneous on the face of the record, required to be
reviewed and necessary order is required to be passed considering the
grounds rose in this application.
8. Hon’ble State Commission has not provided proper findings against the order
passed by another bench of this Hon'ble State Commission in the appeals
filed by the Future General India Insurance Co. Ltd. and BhartiAxa General
Ins. Co, Ltd., wherein, the present complainant was respondent. In these
judgments another bench of Hon'ble State Commission has hold that
suppression about other insurance policies are material suppression and they
have reversed the judgment delivered by Hon'ble CDRF, Surat and dismissed
the complaints Hon'ble State Commission has allowed the Complaint where
in it is the case of complainant that Insurance company agent Gitaben
Chapatwala was informed about having insurance policies hold by her
husband but as policies were lying with CA., she has not shown that in
proposal form. Therefore the order passed by this Hon'ble Commission is not
passed on the issue for which it was remitted by Hon'ble NCDRC is required
to be reviewed and necessary order is required to be passed.

3. Submission of Ld. Adv. Mr. Joshi for the respondent:

Ld. Adv. Mr. Pratik Joshi argued out that points raised by the Ld. Adv.

Mr. Dudhiya in review application has already been clarified by Hon’ble

State Commission in Para 8,9,10 and 11 of judgment.

Further as per provision of Consumer Protection Act 2019 State

Commission has the power to review any of the order passed by if there

is an error apparent on face of the record and therefore when there is no

any error apparent on the face of the record then present review

application filed by applicant is not maintainable.

4. Scope of Review:
It will be beneficial to refer following provisions of law:

RUTVIK RA.40.22 Page 4 of 8

 A. Section 50 of the Act:“The State Commission shall have the power to
review any of the order passed by it if there is an error apparent on the
face of the record, either of its own motion or on an application made by
any of the parties within thirty days of such order.”
B. Order 47 Rule (1) of the CPC, 1908:
“(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no
appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who,
from the discovery of new and important matter or evidence which, after
the exercise of due diligence was not within his knowledge or could not
be produced by him at the time when the decree was passed or order
made, or on account of some mistake or error apparent on the face of
the record of for any other sufficient reason, desires to obtain a review of
the decree passed or order made against him, may apply for a review of
judgment to the Court which passed the decree or made the order.”

5. Considering the section 50 of the Act and order 47 Rule (1) of the CPC,
1908 there are three grounds under the order 47 Rule 1, which reads as
under:

(i) The discovery of new and important matter or evidence which, after the
exercise of due diligence was not within his knowledge or could not be
produced by him at the time when the decree was passed or order made,
(ii) on account of some mistake or error apparent on the face of the record
(iii) for any other sufficient reason,

But as per section 50 of the C.P. Act, 2019 the State Commission have
power to review its order on only one ground i.e. if there is an error
apparent on the face of record.
6. Merit of the case:
In the present review application it is the main contention of the

applicant that state commission has not considered submission of

opponent insurance company and not provided findings on the issue for

which complaint was remitted back by Hon’ble NCDRC and passed order

without discussing this matter. Furthermore Hon’ble State Commission

completely ignored of vital evidence which suggests that DLA was having

insurance policies from other insurers and hence order passed by the

Hon’ble State Commission is erroneous on the face of the record and

therefore requires to be reviewed and necessary order is required to be

passed considering the grounds rose in this application.

RUTVIK RA.40.22 Page 5 of 8

7. This Commission come across the following judgments wherein, Hon’ble
Supreme Court has laid down ratio on scope of review by the Court.
(A) AIR 1980 Supreme Court 674: Northern India Caterers (India vs.
Lt. Governor of Delhi dated 21.12.1979.

8. It is well settled that a party is not entitled to seek a review of a judgment

delivered by this Court merely for the purpose of a rehearing and a fresh
decision of the case. The normal principle is that a judgment pronounced
by the Court is final, and departure from that principle is justified only
when circumstances of a substantial and compelling character make it
necessary to do so. Sajjan Singh v. State of Rajasthan.(1) For instance, if
the attention of the Court is not drawn to a material statutory provision
during the original hearing, the Court will review its judgment. G. L. Gupta
v. D. N. Mehta.(2) The Court may also reopen its judgment if a manifest
wrong has been done and it is necessary to pass an order to do full and
effective justice. O. N. Mahindroo v. Distt.Judge Delhi &Anr.(2) Power to
review its judgments has been conferred on the Supreme Court by Art. 137
of the Constitution, and that power is subject to the provisions of any law
made by Parliament or the rules made under Art.

145. In a civil proceeding, an application for review is entertained only on a

ground mentioned in XLVII rule 1 of the Code of Civil Procedure, and in a
criminal proceeding on the ground of an error apparent on the face of the
record. (Order XL rule 1, Supreme Court Rules, 1966). But whatever the
nature of the proceeding, it is beyond dispute that a review proceeding
cannot be equated with the original hearing of the case, and the finality of
the judgment delivered by the Court will not be reconsidered except "where
a glaring omission or patent mistake or like grave error has crept in earlier
by judicial fallibility."ChandraKanta v. Sheikh Habib.
9. Now, besides the fact that most of the legal material so assiduously
collected and placed before us by the learned Additional Solicitor General,
who has now been entrusted to appear for the respondent, was never
brought to our attention when the appeals were heard, we may also
examine whether the judgment suffers from an error apparent on the face
of the record. Such an error exists if of two or more views canvassed on the
point it is possible to hold that the controversy can be said to admit of only
one of them. If the view adopted by the Court in the original judgment is a
possible view having regard to what the record states, it is difficult to hold
that there is an error apparent on the face of the record.

(B) In Lilly Thomas v. Union of India and others reported in AIR 2000 SC

1650, the Hon'ble Apex Court has held that the power of review can be

exercised for correction of mistake and not to substitute views. The

relevant portion of the said decision is usefully extracted hereunder:-

"55. It follows, therefore, that the power of review can be exercised for
correction of a mistake and not to substitute a view. Such powers can be
exercised within the limits of the statute dealing with the exercise of power.
The review cannot be treated an appeal in disguise. The mere possibility of
two views on the subject is not a ground for review. Once a review petition
is dismissed no further petition of review can be entertained. The rule of law
of following the practice of the binding nature of the larger Benches and not
taking different views by the Benches of coordinated jurisdiction of equal
strength has to be followed and practised. However, this Court in exercise of
its powers under Article 136 orArticle 32 of the Constitution and upon
satisfaction that the earlier judgments have resulted in deprivation of
RUTVIK RA.40.22 Page 6 of 8
 fundamental rights of a citizen or rights created under any other statute,
can take a different view notwithstanding the earlier judgment.

(C) The Hon'ble Supreme Court in KamleshVerma v. Mayawati and Others

reported in 2013 (4) CTC 882 has held that the review proceedings are
not by way of an Appeal and have to be strictly confined to the scope and
ambit of Order 47, Rule 1 of CPC. The relevant portion of the said
decision is usefully extracted hereunder:
"15.Review proceedings are not by way of an Appeal and have to be
strictly confined to the scope and ambit of Order 47, Rule 1 of CPC. In
Review jurisdiction, mere disagreement with the view of the Judgment
cannot be the ground for invoking the same. As long as the point is already
dealt with and answered, the parties are not entitled to challenge the
impugned Judgment in the guise that an alternative view is possible under
the Review Jurisdiction."

(D) The Hon’ble Supreme Court in the Case of Asstt. Commissioner of

Income Tax, vs. Saurashtra Kutch Stock Exchange Ltd, reported in
2008 (230) E.L.T. 385 (S.C.), held that
“In our judgment, therefore, a patent, manifest and selfevident error which
does not require elaborate discussion of evidence or argument to establish
it, can be said to be an error apparent on the face of the record and can be
corrected while exercising certiorari jurisdiction. An error cannot be said to
be apparent on the face of the record if one has to travel beyond the record
to see whether the judgment is correct or not. An error apparent on the
face of the record means an error which strikes on mere looking and does
not need long-drawn-out process of reasoning on points where there may
conceivably be two opinions. Such error should not require any extraneous
matter to show its incorrectness. To put it differently, it should be so
manifest and clear that no Court would permit it to remain on record. If
the view accepted by the Court in the original judgment is one of the
possible views, the case cannot be said to be covered by an error.”

From the above observations of Hon’ble Apex Courts, it is crystal clear that the

review petition cannot be an appeal remedy as the scope of review is very

limited. However, in this review application the points raised by applicant are

only disagreement with the order of this State Commission in C.C. no. 24/2010

but in review jurisdiction mere disagreement that the view of the judgment

cannot be the ground for invoking the same and the review cannot be treated

as appeal in disguise. As per section 50 of the C.P. Act. 2019 if there is an error

apparent on the face of record i.e any typographical error or any arithmetical

RUTVIK RA.40.22 Page 7 of 8

 errors are only required be considered and review can be exercised for

correcting of mistake and not to substitute a view.

8. In view of the above discussion in depth in the opinion of this commission

review application filed by the applicant cannot be considered and therefore

following final order is passed.

ORDER

1. Review application 40/2022 is hereby dismissed.

2. Order dated 25.11.2022 passed in the C.C No. 24/2010 is hereby

confirmed.

3. No order as to cost.

4. Office is directed to forward a free of cost certified copy of this order to

the respective parties.

Pronounced in the open Court today on 5th May, 2023.

[Dr. J.G. Mecwan]

Presiding Member

RUTVIK RA.40.22 Page 8 of 8