BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 17th December 2016
PRESENT
SMT. C.V. SHOBHA : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO.388/2015
(Admitted on 07.11.2015)
Rozario Oswald Saldana,
S/o Late John Saldana,
Aged 68 years,
R/at Osleen House, Darbe Post,
Puttur, D.K.
……… Complainant
(Advocate for Complainant by Sri. SD)
VERSUS
1. C.E.O.
Yashaswini Co Op. Farmer Health,
Care Scheme, 6th Floor,
M.S.Building, Co.OP, Secretariat,
Ambedkar Veedi,
Bangalore 01
2. Manager,
MD India Healthcare Services Pvt.Ltd,
Bunglow No.8, 9th Cross, 9th Cross Road,
Vinayak Nagar, Shamana Garden,
Wilson, Garden, Bangalore 27.
3. General Manager,
Mangalore Catholic Co Op Bank,
Hampankatta, Mangalore,
4. Manager,
Omega Hospitals Pvt Ltd,
Mahaveer Circle, Kankanady,
Mangalore 02
…. Opposite Parties
(Advocate for the Opposite Party No.1:Sri.TP)
(Opposite Party No.2 and 4: Ex-parte)
(Advocate for the Opposite Party No.3:Sri.UA)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. C.V. SHOBHA
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite parties claiming certain reliefs.
2. The complainant prays for the order for reliefs directing the opposite party No.1 and 2 to pay Rs.19,000/ to the complainant with 12% interest from 04.08.2014 till payment, the Opposite Party No.4 to issue full bill to the complainant, Rs. 30,000/ towards compensation, Rs.20,000/ towards expenses and grant such other reliefs as this forum deems fit to grant under the circumstances of the case under section 12 of C.P.Act.
II. The brief facts of the case are as under:
The complainant along with his wife are the member of Opposite Party No.1 and 3 as per receipt No. 62/135,136 dated.11.04.2014 and it is valid for one year. The complainant has paid Rs.1,400/ to the Opposite Party No.3 for medical insurance of Opposite Party No.1. As per the insurance scheme Opposite Party No.1 will reimburse the medical expenses to the members and Opposite Party No.2 is the T.P.A of Opposite Party No.1 and 4 is the hospital where the complainant has taken treatment. The Opposite Party No.4 under patient ID 45140/OH43428 for Benign Prostate Hyperplasia on 30.07.2014 and after operation the complainant was discharged on 04.08.2014 and the complainant has spent Rs.29,000/. The Opposite Party No.4 has sent preauthorization along with copy of receipts, originals discharge summaries, lab reports and bills to the Opposite Party No.2 but the Opposite Party No.2 have sanctioned Rs. 10,000/ to the Opposite Party No.4. But the remaining amount has not been paid by the Opposite Party No.1 and Opposite Party No.2 to the complainant. Hence the complainant got issued regd lawyers notice dated 22.12.2014 to the Opposite Parties and the Opposite Party No.1 has issued false reply dated 22.12.2014 to the Opposite Parties and the notices were served on the Opposite Parties on dated 26.12.2014, 24.12.2014, 23.12.214 and 23.12.2014 respectively. It is submitted that as per the information provided by the Opposite Party No.1 the entire medical expenses are met by the Opposite Party No.1. it is submitted that it is compulsory to join the membership of Opposite Party No.1 if a person is member of a society. But the Opposite Party No.1 and 2 have not paid the claim amount to the complainant. Hence the non payment amounts to deficiency of service. It is submitted that the aim of the insurance scheme is to reimburse the medical expenses of the member. It is submitted that the complainant is paying membership of Rs.1,400/ per year to the Opposite Party No.3 . The Opposite Party No.1 and 2 are intentionally making the complainant to run to pillar to post for the claim amount. It is submitted that the terms and conditions if any framed by the Opposite Party No.1 should be incorporated favoring the policy holders and thereby serving the purpose of insurance. Otherwise the very purpose of the insurance scheme will be defeated. Further the medical insurance should always have reimbursement procedure for claiming the medical expenses. It is submitted that the Opposite Party No.1 and 2 are duty bound to pay the claim amount to the complainant. But the Opposite Party No.1 and 2 are not at all paying the same with a view to make unlawful gain. The quality, nature and manner of performance of service that the Opposite Party No.1 and 2 have rendered and undertaken to be rendered is hopelessly bad and inadequate and the same suffers from serious deficiencies. Due to the wanton and deliberate negligent act of the Opposite Party No.1 and 2 the complainant has been suffering the great financial loss, mental agony and restlessness. Further it is submitted that Opposite Party No.4 have not provided the bills for medicine charges and doctor charges and other charges and preauthorization details to the complainant. Hence Opposite Party No.4 is duty bound to supply full bill and preauthorization details to the complainant under medical establishment Act to the complainant. Hence the above complaint is filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act,) seeking direction from this FORA.
III. Version notice served to the Opposite Parties by RPAD. Opposite Parties 1 and 3 appeared through their counsel filed version. The Opposite Party No.1 hereby denied that the complainant along with his wife is the members of the Opposite Party No.1 and 2 as per receipt No. 62/135,136 dated, 11.04.2014 and it is valid for one year. That the Opposite Party No.1 denies that the complainant was admitted to the Opposite Party No.4 for Benign Prostate Hyperplasia on 30.07.2014 and after operation the complainant was discharged on 04.08.2014. It is further denied by the Opposite Party No.1 that the complainant has spent Rs.29,000/ for the operation and Opposite Party No.2 has sanctioned Rs. 10,000/ to the hospital. That the aim of the insurance scheme is to reimburse the medical expenses of the member and the complainant is paying membership of Rs. 1,400/ per year to the Opposite Party No.3 and the Opposite Party No.1 and 2 are intentionally making the complainant to run to pillar to post for the claim amount and non payment of the claim of complainant amounts to deficiency of service by the Opposite Party No.1 and 2. It is a trust formed by the Government of Karnataka to help the co operative Farmers in the year 2003. It is clearly mentioned the object in the trust deed. That in order to avail the benefits of the Yashaswini scheme, the member has to follow the procedures prescribed under the scheme. Unless and until the member has not followed the procedures prescribed under the scheme, this Opposite Party is not at all liable to pay any amount to the members. That the Opposite Party No.4 sent the documents pertaining to the complainant to Opposite Party No.2 for consider it. As an implementing agency the Opposite Party No.2 after verifying the bill recommended it to Opposite Party No.1 trust. The Opposite Party No.1 it its meeting approved only a sum of Rs. 10,000/ as he is legally entitled that much amount only. Hence Opposite Party No.1 sent a bill amount of Rs. 10,000/ to Opposite Party No.2. The Opposite Party No.2 made payment of Rs. 10,000/ to the Opposite Party No.4. That the payment has made by the Opposite Party No.1 on the basis of the treatment taken by the complainant. That the complainant has produced bill issued by the Opposite Party No.4 alleging that she has paid Rs.29,000/ towards their charges. But as per the agreement the Opposite Party No.4 has agreed to conduct operation which the complainant had undergone only on payment of Rs. 10,000/ and same is paid by the Opposite Party No.1. The list of the operation and the amount fixed for each surgery is agreed by the Opposite Party No.4 and same is produced. Opposite Party No.3 filed separate version. The averment of the complainant that he and his wife namely Leena Saldan are members of this Opposite Party is admitted. This Opposite Party is an Urban Co Operative Bank registered under the Karnataka Co Operative Societies Act. The Co Operative Department of Karnataka State Government has introduced a Healthcare Scheme namely Yashaswini Co operative Farmer Health care scheme managed by the Opposite Party No.1. The members of the co operative societies/ co operative Banks operating in the state of Karnataka are eligible to become members of the aforesaid insurance scheme on payment of prescribed premium. The membership to the said insurance scheme is optional and not compulsory. The interested members of any of the co operative societies can join the scheme by paying the requisite premium to the scheme, to the Opposite Party No.1 through their respective co operative society. The complainant being a member of this Opposite Party, an Urban co operative Bank , opted to become member of the Opposite Party No.1 and paid premium a total premium of Rs. 1,400/ ie. Rs.700/ for insurance cover to himself plus Rs. 700/ for insurance cove to his wife Leena Saldana through this Opposite Party.
In support of the complainant One Mr. Rozario Oswald Saldana, (CW1) complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced the document same has been got marked as Ex C1 to C7. One Mr.R.M.Nataraj, (RW1) of Opposite Party No.1 filed their counter affidavit and answered the interrogatories and produced the documents got marked as Ex R1 to R5.
IV. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complainant proves that there is a deficiency of service on the part of the Opposite
- If so, for what relief and from whom the complainant entitled?
- What order?
We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.
Point No. (i) and (ii) : As per Affirmative
Point No. (iii): As per the final order.
REASONS
V. POINTS No. i: As the complainant claims the relief under CP Act section 12 against the Opposite Party No.1 to 4 on the reason that the he took the surgical treatment with Opposite Party No.4 from 30.07.2014 to 04.08.2014 under patient ID 45140/OH43428 for Benign Prostate Hyperplasia. For which he incurred an expenses in all a sum of Rs.29,000/. The Opposite Party No.4 has sent preauthorization along with copy of receipts, original discharge summaries, lab reports and bills to the Opposite Party No.2 and the Opposite Party No.2 have sanctioned Rs.10,000/ to the Opposite Party No.4. The remaining amount was paid to Opposite Party No.4 by the complianant and got discharge.
As aware even by Opposite Party No.1 and 2 and also it is an admitted fact that, the complainant along with his wife they are the authorized members of the society i.e. Opposite Party No.3, who none other than the agent of Opposite Party No.1 and 2, for the reasons best known to them. For which Ex.C1 is before us and also the same is discloses that it was issued by Opposite Party No.3 by collecting of a total sum of Rs. 1,420/ from them as on 11.07.2014. Hence, it is clear that this complainant and his wife are the members. So that the same was obtained for getting the benefits pertaining to medical treatment and its expenses, charges by the complainant. The same was also further admitted that the period is of covering one year, commencing from (June 1st to May 31st of every year) the same was disclosed in Ex.R2 document produced by Opposite Party No.1. On that ground in the case on hand, since the complainant took treatment from 30.07.2014 to 04.08.2014, which covers for the relief sought by him. Now, the complainant so treated at Opposite Party No.4 as per Ex.C2 and spent Rs.29,000/. The Opposite Party No.4 has sent preauthorization along with copy of the receipts, original discharge summaries, lab reports and bills to the Opposite Party No.2 and the Opposite Party No.2 have sanctioned Rs.10,000/ to the Opposite Party No.4. But the remaining amount has not been paid by the Opposite Party No.1 and 2 to the complainant. Accordingly he claims the same with Opposite Party No.1 and 2, in this case as they have not make the good to him though he made of his best efforts during the relevant period of time. Thereafter without any remedy, he raised this complaint before us.
For which even there is no any dispute for collecting the necessary documents by the Opposite Party No.2 in this regard. Now, the Opposite Party No.2 and 4 have already placed exparte in this case. As the Opposite Party No.1 is contesting the matter and raised the dispute that they are not liable as contending that the hospital, where the complainant took treatment with Opposite Party No.4 is not one of Network hospital. But as found in document Ex.R1 that the hospital Opposite Party No.4 is in serial No.15 of the Said document. So that the contention taken by Opposite Party No.1 is totally false and unbelievable. Further, the contention regarding the so called terms and conditions which as per Ex.R1 and R2, is produced by them at the first time before us. Because, as contended by the complainant it was not furnished along with Ex.C1 by Opposite Party No.3. For that reason, any angle this complainant is unable to produce the same before any authority, unless it has been duly furnished to him along with Ex.C1 that on 11.07.2014. On that ground alone it is a pure suppression of material facts by Opposite Party No.1 to 3. This aspect is also reveals from the version of Opposite Party No.1 para X sub para 2, that Opposite Party No.3 the relationship has been admitted with them. Which devotes that the Opposite Party No.1 and 3 are acting as both sails in the same boat. Further, the Opposite Party No.1 has produced documents as per Ex.R1 to R5, Ex.R1 and R2 is the terms and conditions of the policy now, the Opposite Party No.1 submits that the member has to follow certain conditions and has to take treatment in the network Hospital to avail medical expenses. Now, the Ex.C1 is the receipt issued by Opposite Party No.3, where in the back side of the receipt does not show anything. The Ex.C1 only has seal and sign of the Opposite Party No.2. Hence non- issuance of proper receipt and terms and conditions of the policy itself is deficiency of service by the Opposite Party No.1 and also produced documents as per Ex.R1 to R.5, but failed to produce any documents to show that Ex.R1 and R2 are served to the complainant at the time of issuing the receipt. Hence as per the ruling reported in 2011 I CPJ 25 (NC) the Hon’ble National Commission has said that imposition of restriction in exclusion clause was a unilateral action and the complainant was not told about such clause and hence not binding. When Opposite Party No.2 is also placed as an exparte, all Opposite Party No.1 to 3 are taking the false contention, with an intention to avoid from their liability, in the case. Further even as per Ex.R1 and R2 no ground to escape from the liability.
It is a settled law that, in case the Opposite Parties suppresses any material information, concealment of any exclusion clauses it adversely affects the beneficiaries/members/consumers herein the Complainants.
The Regulation 3 of the Insurance Regulatory and Development Authority (Protection of Policy Holders Interests) Regulations, 2002, framed by Insurance Regulatory and Development authority (IRDA) in exercise of powers under Section 114 (A) of the Insurance Act, 1938, read with Sections 14 and 26 of the Insurance Regulatory and Development Authority Act 1999 the exclusion clauses if not explained they are not binding on the insured those exclusion clauses are required to be ignored while considering the claim of the insured. (Reported in S.C. & National Commission Consumer Law Cases 2005 . 2008).
With all the above facts and circumstances including the document Ex.C4, legal notice and it was duly served as per Ex.C5 and C6, and they kept quite without any response. Being so no ground in denying the liability. Furthermore, even according to the rulings of higher courts including Hon’ble National Commission and Supreme Court which reveals the suppression of material facts as well as non production of documents are the material for showing the pure deficiency of service by the side of Opposite Party No.1 to 3. As happened in this case also concluding that with all the available materials of pleadings documentary and oral evidence are enough to come to a proper conclusion by us as there is a pure deficiency of service by the Opposite Parties. Apart from that the act of Opposite Party in collecting the amount from the complainant as per Ex.C1 that on 11.07.2014, has no meaning with the contention of the denying the same because once when it was not properly effected by the Opposite Party, the purpose of the said membership is of no use. This also concluding that the steps which taken by the Opposite Party is amounting to unfair and not justify in any angle. Such being so we concluding here by relying with the rulings as below. The Honble National Commission decided on merits as well as SLA(Civil)26928/2012 the Honble Supreme Court dismissed the Special Leave Appeal on 3.12.2012 by upheld in the order passed by the Honble National Commission as well as Lower Courts. The observation made in the above citations are self explanatory. In the instant case, we are of the opinion that, though the Government of Karnataka introduced Yashaswini Health Care Scheme for the benefit of the poor farmers, it is the bounden duty of the Opposite Parties who may be a trust or through the agent to explain/disclose the name of the network hospitals/name of the surgeries/disease covered/amount fixed thereon and other terms and conditions to the beneficiaries to get the benefits. It is to be stated that, the above said scheme is a benevolent scheme started by the Government of Karnataka to provide medical assistance to the poor farmers and to protect the interest of the members of the Yashaswini Scheme holders/members and not to make profit out of it. The Opposite Party should see that the terms of the Insurance Scheme do not operate harshly against the insured/members and in favour of the insurer/trust. A prospectus of insurance product/healthcare scheme are required to be clearly state the scope of benefits, the extent of insurance cover and in explicit manner explain the warranties, exceptions and conditions of the insurance health cover/scheme and the product shall be clearly spelt out with regard to their scope of benefits. Further it is made very clear under the regulation that insurer or its agent or other intermediary shall provide all material information in respect of the proposed cover to the insured/members herein the Complainants.
From the above, it is amply clear that, the Regulatory Authorities taken much care to protect the interest of the consumers. Under such circumstances, the scheme introduced by the Karnataka Government through the trust or agent or companies shall protect the interest of the poor beneficiaries/consumers herein the Complainants. In our view, the unexplained or unnoticed information regarding name of the network hospitals and prerequisite conditions would not be binding to the insured/members of the scheme herein the Complainant. The reason being, the regulations are mandatory in nature so as to protect the consumer’s interest. As per Hon’ble National Commission New Delhi RP No.3602 to 2607/2014, matter pertaining to the same Opposite Party No.1 regarding the identical matter, where the same stretch has been involved and so also the same contention was taken by Opposite Party No.1 who none other than the petitioner in the matter, it was denied by the Honble Commission and direct to pay as per the district Fora. In the said matter in question, the forum direct to pay the amount to Opposite Party No.1 and the said order was challenged before Honble State Commission and where, the Opposite Party No.1 was an aggrieved, approached the National Commission on that angle also we answered in this case that the point No.1 is answered in the affirmative by fixing the liability against Opposite Party No.1 and 2 the make good to the complainant.
Point No.ii: In view of the above discussion, we are of the considered opinion that, though the Opposite Parties received the membership fee under the Yashaswini Scheme from the poor members/Complainants herein and admitted that the Complainants as well as their family members under the Yashaswini Scheme and the said scheme was valid to avail the medical benefits for one year and the Complainants and their family members taken treatment during the existence of the policy but the Opposite Party No.1 not reimbursed the remaining medical expenses till this date is not justifiable which amounts to deficiency in service as well as unfair trade practice. Under the above circumstances we observed that the Complainants are innocent consumers paid the medical bills as demanded by the respective hospitals for which the Complainants are not accountable and Opposite Party No.1 is liable to reimburse the remaining medical expenses paid by the Complainant.Once when the point No.1 is in affirmative and so also deficiency of service made by Opposite Party No.1 to 3 has been proved including there was no any protection with justification including unfair trade practice with view of Opposite Party No.1 and 2, primarily are both held responsible and liable to pay the said remaining amount of Rs.19,000/ only along with accrued interest at the rate of 10% p.a. from 04.08.2014 the date of discharge as per Ex.C2, till realization to the complainant. That apart towards causing harassment and mental agony they also liable to pay for a sum of Rs.5,000/ towards compensation and another sum of Rs.5,000/ towards cost and litigation expenses.
POINTS No. (iii): In the result, accordingly we pass the following Order:
ORDER
The Complaint is allowed in part. The opposite party No.1 to 3. Jointly and severally held liable and responsible, to pay for a sum of Rs. 19,000/ (Rupees nineteen thousand only) with accrued interest at the rate of 10% p.a. from 04.08.2014, the date of discharge till realization. Further Opposite Party No.1 to 3 are also liable to pay for a sum of Rs.5,000/ (Rupees five thousand only) towards compensation and another sum of Rs. 5,000/ (Rupees Five thousand only) towards cost and litigation expenses incurred by the complainant. Payment shall be made within 30 days from the receipt of copy of this order.
Complaint against Opposite Party No.4 is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.
(Page No. 1 to 15 directly dictated by President to computer system to the Stenographer typed by him, revised and pronounced in the open court on this the 17th day of December 2016)
MEMBER PRESIDENT
(SMT. LAVANYA M.RAI) (SMT. C.V. SHOBHA)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1: Mr. Rozario Oswald Saldana
Documents marked on behalf of the Complainant:
ExC1: 11.07.2014: Copy of the membership receipt.
ExC2: 04.08.2014: Copy of the Discharge summary.
ExC3: 22.12.2014: O/c of regd. lawyers notice.
ExC4: 26.12.2014: Postal Acknowledgments.
ExC5: 24.12.2014: Postal Acknowledgments.
ExC6: 23.12.2014: Postal acknowledgments.
ExC7: 23.12.2014: Postal Acknowledgments.
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr.R.M.Nataraj,
Documents Marked on behalf of the Opposite Parties:
Ex.R1: Copy of the list of the operation and amount fixed for each Operations.
Ex.R2: True copy of the pamphlet given to the complainant.
Ex.R3: True copy of the letter written by the Opposite Party No.1 to IRDA.
Ex.R4: True copy of the Endorsement issued by IRDA.
Ex.R5: True copy of the list of the Hospital issued to the complainant.
Dated: 17.12.2016. PRESIDENT
