BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 20^th February 2017

PRESENT

  SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

  SRI T.C. RAJASHEKAR                  : HON’BLE MEMBER

ORDERS IN

C.C.No.88/2014

(Admitted on 06.03.2014)

Mr. K. Divakara Rai,

S/o Late Thaniyappa Rai,

Aged about 34 years,

R/at Kudamara House,

Chikkamudnoor Post,

Puttur Kasba Village,

Puttur, D.K.

                                                     ….. COMPLAINANT

(Advocate for the Complainant: Sri SD)

VERSUS

1. Director,

    Medical Health Service,

    E.S.I. Hospital,

    Rajajinagar,

    Bangalore.

2. Branch Manager,

    Employee State Insurance Corporation,

    E.S.I. Hospital Premises,

    Kadri, Shivabhag,

    Mangalore  02.

3. S.M.C. Office,

    Regional Office,

    E.S.I. Corporation No.10,

    Binny Fields, Bangalore.

                                                    …..........OPPOSITE PARTIES

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

(Advocate for the Opposite Party No.2 & No.3: Sri RCN)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

     The complainant an employee at M/s Muliya Keshava Bhat and Sons Puttur being member of opposite party medical insurance paying monthly premium at Rs.95/ covering his and his family’s risk.   He was treated at Dhanvanthari Hospital Puttur for non healing ulcer and spent Rs.56,485/ for the treatment when bills were submitted out of the opposite parties paid only Rs.30,470 and despite demand failed to pay the balance amount of Rs.26,015 including legal notice.  Hence seeks the relief.

II.     Opposite party No.2 and No.3 filed written version calming that complainant is bad for misjoinder of parties as against them is not maintainable without prejudice the claim they have no rule in respect of medical reimbursement hence seeks dismissal.

2.     Opposite party No.1 in the written version claims the patients are reimbursed for treatments taken only in the schedule hospitals as per the rates mentioned in the CGHS and ESI rate list.  The ESI has entered into with tie up with various Private hospitals/nursing homes in Karnataka with the insured person or his dependents undergo medical treatments only those prescribed hospitals the patients/insurance covered members are reimbursed with the actual costs showed aforesaid mentioned list.  In the complainant case he has directly gone to Dhanvanthari Private Hospital without first consulting ESI and the said hospital is not with the list of tie of hospital with ESI.   In case of tie up hospitals prior consent of ESI is a condition precedent for becoming eligible to reimburse with the actual medicinal expenses show in the list.  Secondly the complainant s case is not an emergency case to directly go to a private tie up hospital by passing the ESI.  Thirdly as it is a non-healing ulcer and their consultation with the ESIC was a condition precedent.  Despite this on current a part of amount of Rs.30,447/ was paid as per the applicable rates and complainant directly gone to a private hospital .  The opposite parties did not served the manuals, rules for the members to collect them from the office of the ESIC.   Hence contending complaint is not maintainable seeks dismissal.

3.     In support of the above complainant Mr. K Divakara Rai filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C10 and as detailed in the annexure here below.  On behalf of the opposite parties Dr. Ashok Kumar Naik M (RW1) Medical Superintendent, also filed affidavit evidence and not answered the interrogatories served on him and Mr. Ramesh M Mugadur (RW2) Deputy Director of E.S.I. Corporation, also filed affidavit evidence and answered the interrogatories served on him.

III.    In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

      The learned counsel for both sides filed notes of arguments.    We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties.  Our findings on the points are as under are as follows

               Point No.  (i): Affirmative

              Point No.  (ii): Affirmative

              Point No. (iii): As per the final order.

REASONS

IV.   POINTS No. (i):     The complainant is covered under the insurance coverage issued by opposite party No.1 is not in dispute. Hence the relationship of consumer and service provider between the complainant and the opposite party No.1 is established in the respect of opposite party No.2 and No.3 there is no specific case made out by complainant against them.  Hence the complainant itself is not maintainable against opposite party No.2 and No.3.  There is an dispute as to the amount complainant is entitled from opposite party No.1 towards reimbursement which is a deficiency in service as contemplated under section 2(1) (e) of C P Act in respect of opposite party No.1 and complainant.  Hence we answer point No.1 in the affirmative.

POINTS No.(ii):  The complainant took treatment at Dhanvanthari Hospital Puttur is undisputed.  The claim of complainant is that the said hospital is not in the tie up list with ESI tie up hospital but what are all the tie up hospital including in the said list is not brought to our notice. As such list is not produced.   Hence the claim on this count of opposite party No.1 is not tenable.

2.     The claim of opposite party No.1 further is as per the admissible amount to specified diseases opposite party No.1 has produced a list prepared and it as to make payment only as per the suggestion at that rate only but what is at least and whether the charges collected by the hospital from complainant in excess of the list of opposite party No.1 has produced what the admission list complainant has produced a list that known as cash and estimation rate list.  However which are of the amounts of the bills which is not mentioned in this list is not explained by opposite party No.1.

3.     The learned counsel for complainant to substantiate complainants claim at the time of complainant becoming member of the ESIC he was not informed as to the conditions and the exclusion and such exclusion as not brought to the notice.   As such in view of the decide cases in such circumstances it was pointed out that the insurance company in this case opposite party No.1 is liable to make good expenditure incurred by complainant.  In the case on hand it is to be noted even according to opposite party No.1’s written version it is not a case that the complainant was informed beforehand at the time of the becoming member of the insurance coverage as to the exclusion clauses and which are all the hospitals which are included in the tie up in respect of such beforehand information as to the conditions the National Consumer Dispute Redressal Commission, New Delhi in National Insurance Co. Ltd vs. D.P. Jain III (2007) CPJ 34 (NC) held the exclusion clauses not explained the regulations are not binding on the insured it reads thus:

Consumer Protection Act, 1986 Section 21(b) Insurance Regulatory and Development Authority (Protection of Policy Holders Interests) Regulations, 2002 Regulations 3 and 11(4) Insurance Mobile Phone Stolen Repudiation of claim Ground, absence of actual or threatened force Complaint allowed by District Forum Compensation awarded Appeal dismissed Hence revision Prospectus required to state scope of benefits, extent of insurance cover and in explicit manner explain warranties, exceptions and conditions of insurance cover If exclusion clauses not explained, regulations not binding on insured Said clauses required to be ignored while considering claim of insured Exclusion clauses should be read, as they are When statute provides manner in which particular thing must be done, same must be done in that manner only Op bound to follow regulations Procedure prescribed under Regulation 3, required to be followed If said procedure not followed, Regulatory Authority free to take action under case, intermediary (I.CL) issued insurance cover as an agent of OP Op bound to reimburse complainant.

4.     By referring section 2 (1) (b) of C P Act in 1986 and Insurance

Regulatory and Development Authority Policyholders Interests Regulation 2002 reads thus:

2 (1) (b)

(b) Authority means the Insurance Regulatory and Development Authority established under the provisions of section 3 of the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999)

5.    Similar is the view expressed in another reported case of NC III (2009) CPJ 246 (NC) United India Insurance Co. Ltd & Anr. Vs. S.M.S. Tele Communications & Anr.  Respondents held:

     Consumer Protection Act, 1986 Section 2(1)(g) Insurance Exclusion Clause  Applicability  EPABX system totally damaged due to short circuit Claim repudiated under exclusion clause Forum held equipment damaged due to lightening, exclusion clause not applicable Bank and insurer held liable to pay loss assessed by Surveyor Compensation and cost awarded Order upheld in appeal State Commission held, EPABX system not an electrical machine/apparatus/fixture Repudiation unjust Hence revision Contents and meaning of exclusion clauses explained to complainant, not proved As per order of National Insurance Co. Ltd V. D.P. Jain, unexplained/unnoticed exclusion clauses, not binding to insured Exclusion Clauses required to be ignored if mandatory requirement of explaining Exclusion Clause, and adhered by insurer/Agent, before issuance of Insurance Cover Order of Lower Fora upheld.

Thus on going through the above we are of the view and the case where the opposite party No.1 failed to explain the restrictions when complainant became member of the ESIC hence directed to pay the entire amount.  As such under the circumstance as it is not the full settlement of the claim of the complainant.    Opposite party shall be directed to pay Rs.26,015/ with  interest at 6% from the date of legal notice till the date of payment. Opposite parties shall also directed to pay compensation including cost at Rs.10,000/ against opposite party  No.1.   Hence we answer point No.2 in the affirmative against opposite party No.1. 

POINTS No. (iii): Wherefore the following order

ORDER

        The Complaint is allowed.   Opposite party No. 1 is directed to pay Rs.26,015/ (Rupees Twenty Six thousand and Fifteen only) with interest at the rate of 6% per annum to complainant from the date of legal notice till the date of payment.

2.  Opposite party No.1 shall also directed to pay Rs.10,000/ (Rupees Ten thousand only) towards compensation.

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

     (Page No.1 to 8 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open        court on this the 20^th February 2017)

             MEMBER                                         PRESIDENT

  (SRI T.C. RAJASHEKAR)         (SRI VISHWESHWARA BHAT D)

D.K. District Consumer Forum           D.K. District Consumer Forum

 Additional Bench, Mangalore             Additional Bench, Mangalor

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. K Divakara Rai

Documents marked on behalf of the Complainant:

Ex.C1: 01.10.2011: Copy of the pay slip

Ex.C2: 26.03.2012: Copy of the cheque for Rs.30,470/

Ex.C3: 01.08.2011: O/c of claim letter

Ex.C4: 21.07.2011: Copy of discharge summary

Ex.C5: 21.07.2011: Copy of the bills (24)

Ex.C6: 14.06.2012: O/c of regd. Lawyers Notice

Ex.C7: 09.05.2012: Reply of 2^nd opposite party

Ex.C8: 04.07.2012: Reply of 1^st opposite party

Ex.C9: 18.06.2012: Postal Acknowledgement (3 in nos.)

Ex.C10:                : Letters dated 08.09.2011

Witnesses examined on behalf of the Opposite Parties:

RW1  Mr. Dr. Ashok Kumar Naik M, Medical Superintendent

RW2  Mr. Ramesh M Mugadur Deputy Director of E.S.I. Corporation,

Documents marked on behalf of the Opposite Parties:

 Nil 

Dated: 20.02.2017                                    PRESIDENT