BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 09^th December 2016

PRESENT

        SMT. C.V. SHOBHA             :  HON’BLE PRESIDENT 

        SMT.LAVANYA M. RAI        :   HON’BLE MEMBER                                         

COMPLAINT NO.382/2015

        (Admitted on 31.10.2015)

Shri. S.Krishna Bhat,

S/o Late Narayana Bhat,

Aged 63 years,

A/at Anugraha Olaroad,

Madanthyaru Post, Kukkala Village,

Belthangady Taluk, D.K.

                                                            ……… Complainant 

(Advocate for Complainant by Sri. SD)           

VERSUS

1. C.E.O.

Yashaswini CoOp. Farmer Health,

Care Scheme, 6^th Floor,

M.S.Building, Co.OP, Secretariat,

Ambedkar Veedi,

              Bangalore 01

2. C.E.O.

Madanthyaru Primary Agricultural,

Co operative Bank, Madanthyaru Post,

Belthangady Taluk, D.K.

                                                                        …. Opposite Parties

(Advocate for the Opposite Party No.1:Sri.TP)

 (Advocate for the Opposite Party No.2: In person)

ORDER DELIVERED BY HONBLE PRESIDENT  

SMT. C.V. SHOBHA

1. 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 to pay Rs.70,320/ to the complainant with 12% interest from 14.12.2014 till payment, Rs.20,000/ towards compensation, Rs.10,000/ 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 3 family members are the members 1^st Opposite Party and 2^nd Opposite Party as per receipt No.2224 dated 04.08.2014 and it is valid for one year.  The complainant has paid Rs.1000/ to the 2^nd Opposite Party for the medical insurance of 1^st Opposite Party.  As per the insurance scheme 1^st Opposite Party will reimburse the medical expenses to the members.When the matter stood thus the complainant was admitted to the Dhanvanthari Hospital Puttur on 06.12.2014 for Laproscopic Hernioplasty (TEP) on 08.12.2014 and was discharged on 14.12.2014. The complainant has spent Rs.70,320/ for the operation.  After the operation the complainant has submitted the claim form along with copy of receipt, originals of discharge summary, consolidated bill and bills to 1^st Opposite Party as per the letter dated 02.01.2015.  But there is no response from the 1^st Opposite Party.  Hence the complainant issued regd. Lawyer’s notice dated 23.07.2015 to the Opposite Parties and the same was served on 27.07.2015 and on 24.07.2015 to the Opposite Parties respectively without demur.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.  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 Party No.1 appeared through their counsel filed version. The 1^st Opposite Party hereby denied that the along with 3 family members are the members 1^st and 2^nd Opposite Party as per receipt No.224 dated.04.08.2014 and it is valid for one year.  It is further denied that the complainant has paid Rs.1000/ to the 2^nd Opposite Party for the medical insurance of the 1^st Opposite Party and as per the insurance scheme the 1^st Opposite Party will reimburse the medical expenses to the members. The 1^st Opposite Party denies whatever statement alleged by the complainant in para 3 that the complainant was admitted to the Dhanvanthari Hospital, Puttur on 06.12.2014 for Laparoscopic Hernioplastey (TEP) and after operation complainant was discharged on 14.12.2014 and has spent Rs.70,320/ for the operation. In fact in order to avail the benefits of the Yashaswini scheme, the member has to follow the procedures prescribed under the scheme.  In order to claim any amount under the scheme, the member has to be operated in any of the network hospital earmarked by the trust.  It is submitted that in the card issued to the members itself it is very clearly mentioned that the member has to take treatment only at network hospital.  There is no force of whatsoever nature while admitting the person to the scheme.  The scheme was introduced by the Government of Karnataka with an intention of helping the co operative farmers who are not above to bear the medical expenses.  The Opposite Party No.2 is acted as an agent of the Opposite Party No.1 without any consideration for help the co operative farmers.  While joining the complainant to the health scheme the Opposite Party No.2 told him the conditions of scheme.  That Opposite Party No.2 not undertaken to pay the medical expenses and hence there is no any liability for him. The hospital has charged for Laparoscopic Hernioplasty (TEP) operation Rs.70,320/ the maximum allowed under the Yashaswini Scheme is much less if the members took treatment in a listed hospital.  That the operation charges collected is too heavy and bill produced for professional charges also collected by different doctor is a concocted bill for claim the amount.  The complainant is not entitled for any amount since it is treatment in a non-network hospital. Version notice served to the Opposite Party No.2 by RPAD, the Opposite Party No.2 filed their version through post, the same is received by the forum on 04.12.2015. The Opposite Party No.2 admitted in their version that the complainant and his family members are the members of the society.  We have collecting Rs. 1,000/ for complainant and his family members and further renewed for the year 2014.15 under the receipt No.5503. In support of the complainant One Sri. S.Krishna Bhat, (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 marked as Ex C1 to C6. One Mr.R.M.Nataraj, (RW1) of Opposite Party No.1 filed their counter affidavit and answered the interrogatories and produced the documents 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:

1. Whether the complainant proves that  there is a deficiency  of service on the part of the Opposite
2. If so, for what relief and from whom the complainant entitled?
3. 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 and ii):   As the complainant claims the relief under CP Act section 12 against the Opposite Party No.1 to 2 on the reason that the he took the surgical treatment with Dhanwantri Hospital Puttur from 06.12.2014 to 14.12.2014. For which he incurred an expenses in all a sum of Rs.70,320/ as per Ex.C3 documents (Containing medical bills and discharge summary) the same was paid to said M/s Dhanwantri Hospital Puttur and got discharged. As aware even by Opposite Party No.1 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.2, who none other than the agent of Opposite Party No.1, 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.2 by collecting Rs. 840/ for complainant and his family members and further renewed for the year 2014.15 by collecting another sum of Rs.1,000/ on 04.08.2014 under receipt No.5503, under Khata No.A2224 vide ID No. 0913879, that also reveals from Ex.C1 and containing documents Ex.C2 is the demand letter of the claim addressed to the Opposite Parties by the complainant dated 02.01.2015 along with all the necessary documents as shown there in.  As such the custodian of all such documents are none other than the Opposite Parties.  The same is also found even in Ex.C4 dated 23.07.2015 legal notice to them, the same is duly served vide Ex.C5 and C6 RPAD receipts.  Though no response by Opposite Parties to the complainant. 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 1^st to May 31^st 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 06.12.2014 to 14.12.2014, which covers for the relief sought by him.  Now, the complainant so treated at Dhanwantri Hospital  as per Ex.C2 and C3 containing other 18 and discharge summary, in total which covers of total sum of Rs.70,320/.  Hence on this basis he incurred an expenses of total sum of Rs.70,320/ towards hospital treatment, surgery, medicine etc.  Accordingly he claims the same with Opposite Party No.1, 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.1 in this regard.    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.2 Dhanwantri Hospital is not one of Network hospital.  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, 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.2.  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 04.08.2014.  On that ground alone it is a pure suppression of material facts by Opposite Party No.1 and 2.  This aspect is also reveals from the version of Opposite Party No.1 para X sub para 2, that Opposite Party No.2 the relationship has been admitted with them.  Which devotes that the Opposite Party No.1 and 2 are acting as both sails in the same boat.  Further, all Opposite Party No.1 and 2 are taking the false contention, with an intention to avoid from their liability, in the case.  Further even as per Ex.R3 and R4 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 Holder s 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 to C8, 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 Honble 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 and 2.  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 04.08.2014, 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 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 Hon’ble 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 3607/2014, 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 Hon’ble 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 Hon’ble 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. 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 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 medical expenses paid by the Complainants in all the cases. With our thorough observation on the documents among Ex.R series, Ex.R3 dated 29.12.2010 a Xerox copy legal notice addressed to the proprietor Dhanwantri Hospital, Darbe, Puttur, D.K by Opposite Party No.1 regarding treatments with the said hospital to the Yashaswini patients.  Further, the same is also reveals that, the copies of the same forwarded to Karnataka medical counsel Bangalore, Indian medical counsel, Karnataka unit Bangalore, DRC D.K. Mangalore, ARC Puttur sub Division, Puttur D.K. and Sri Sanjay D Advocate Puttur.  Such being so the said facts regarding treatment with M/s Dhanwantri Hospital Puttur to all the Yashaswini patients respectively, given treatment by them was already in the knowledge and notice of Opposite Parties even from the year 2010.  Such being so the applicability of this case, for the treatment pertaining to this complainant of the year 2014, was also comes in the preview of applicability.  Such being so, for the facts and circumstances and so also suppressing the material facts, the Opposite Parties are directly held responsible and liable to make the good of the complainant.  This also reveals us that the Opposite Party intend to avoid from the liability.  Hence it is clear that the Opposite Party must be very cautious in proving all the material documents by the time of issuance of registration under Yashaswini Scheme to the complainant, but in the case on hand the said aspect is totally ignored by any of the Opposite Parties there is sole pure violation of principles and also pure deficiency in service with unfair trade practice, with view of Opposite Party No.1 and 2, total sum of Rs.70,320/ only along with accrued interest at the rat 10% p.a. from 14.12.2014 till realization.  That apart towards causing harassment and mental agony they also liable to pay for a sum of Rs. 10,000/, to pay for a sum of Rs.10,000/- 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 parties are jointly and severally held liable and responsible, to pay for a sum of Rs. 70,320/(Rupees seventy thousand three hundred twenty only) with accrued interest at the rate of 10% p.a. from the date of discharge i.e. on 14.12.2014 till realization.  Further Opposite Parties are also liable to pay for a sum of Rs.10,000/(Rupees ten 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.

Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room. 

(1 to 13 pages dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 9^th 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: Sri. S.Krishna Bhat.

Documents marked on behalf of the Complainant:

ExC1: 04.08.2014: Copy of the membership receipts.                      

ExC2: 02.01.2015: O/c of the claim sent to the 1^st Opposite Party.

ExC3: 24.12.2014: Repudiation letter by the 1^st Opposite Party with 33documents.

ExC4: 23.07.2015: O/c of the regd notice.

ExC5: 27.02.2015: Postal Acknowledgement of 1^st Opposite Party.

ExC6: 24.07.2015: Postal Acknowledgement of 2^nd Opposite Party.                                        

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr.R.M.Nataraj,

Documents Marked on behalf of the Opposite Parties:  

Ex.R1: True copy of the list of the network hospitals.

Ex.R2: True copy of the pamphlet given to the complainant.

Ex.R3: True copy of the Notice issued to Dhanvanthari Hospital.

Ex.R4: True copy of the letter written by the Opposite Party No.1 to IRDA.

Ex.R5: True copy of the Endorsement issued by IRDA.                                                                                                 

Dated: 09.12.2016.                                              PRESIDENT