BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 6^th May 2017

PRESENT

  SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SMT.LAVANYA M. RAI                   : HON’BLE MEMBER

ORDERS IN

C.C.No.169/2015

               (Admitted on 22.5.2015)           

Shreelatha Mahalinga,

W/o Mahalinga,

Aged about 28 years,

R/at. Ganeshkripa,

Darbe, Puttur, D.K.

                                                                    ……… Complainant

(Advocate for Complainant by Sri. SD)                                                                                                  

VERSUS

1. Manager,

The Oriental Insurance co.Ltd,

Krishnaprasad Building,

                       3^rd floor, M.G. Road,

Lalbagh, Mangalore 03, D.K.

2. Manager,

Raksha TPA Pvt. Ltd,

25.8.497,1(2), 1^st floor,

Mangala Complex,

D.No. 14.103/28,

Balmatta Road, Hampankatta,

                        Mangalore 01.

                                                                                        …. Opposite Parties

 (Advocate for Opposite Party No.1. Sri. AKK)

 (Opposite party No.2: Ex parte)

ORDER DELIVERED BY HON’BLE MEMBER

SMT. LAVANYA M. RAI

1.  This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.

The brief facts of the case are as under:

          The complainant is a policy holder of Happy Family Floater policy of 1^st Opposite Party as per No.422203/48/2014/3070 for Rs. 3,00,000/.  The policy is valid from 11.1.2014 to 10.1.2015 and the 2^nd Opposite Party is the TPA of 1^st Opposite Party.  The complainant has paid Rs.5,614/ as premium to the policy.  On 20.4.2014 the complainant admitted to Mangalore Nursing Home Mangalore for Disfunctional Utering Bleeding.  After the operation the complainant discharged on 22.4.2014 and the complainant had spent Rs.1,05,577/ for the said operation.  Thereafter the complainant submitted the claim to 1^st Opposite Party on 21.4.2014.  But Opposite Party no.2 paid Rs.46,329/ without any explanation.  On 15.7.2014 the complainant had addressed the letter to 1^st Opposite Party to release the balance amount but Opposite Party not replied, hence the complainant issued legal notice on 17.11.2014 but 1^st Opposite Party issued false reply.  Hence the above complaint filed by the complainant before this forum under section 12 of the C.P.Act 1986(here in after referred to as the Act) seeking direction  to refund of Rs.59,285/ with 12% from 22.4.2014 till the payment and also pay for Rs.30,000/ as compensation and 10,000/ as expenses and certain other reliefs.

II. Version Notice served to the opposite parties by RPAD, inspite of receiving notice the Opposite Party No.2 not present nor represented the case hence placed exparte.  On the other hand Opposite Party No.1 filed version admitted the Opposite Party issued policy. The claim if any under the policy is subject to the terms, conditions and exclusion clauses but denied that not served the policy conditions to the complainant.  The contract of insurance is only concluded when the policy holder received the copy of the issued insurance policy from the insurance company.  The complainant is well aware of the terms and conditions of the policy and the benefits which is entitled to as described in the policy agreement without prejudice to the above is submitted that the policy schedule with terms and conditions are available in the website of Opposite Party.  The conditions, warranties, exclusion clauses always follow the policy schedule and it is not a separate or independent document and it is part and parcel of the policy. Opposite Party submitted that the complainant treated with total Abdominal Hysterectomy, but neither discharge summary nor patient records of Mangalore Nursing Home not show any complications with the complains of the complainant, but inflated the medical/hospital/doctors bills with an intention which is against the terms and conditions of the policy.  The cost of total Abdominal Hysterectomy with BSO with adhesiolysis charged by the Mangalore Nursing Home is much higher than the top three private hospitals such as Apollo Hospital, Columbia Asia Hospital and Mallya Hospital in Bangalore region.  For network hospital, such cost would be as per the rate pre agreed between Network Hospital and the TPA/ Company for surgical /medical treatment that is necessary for the treating the insured person who is hospitalized, whereas such cost shall be the cost of surgical/medical treatment that is necessary and reasonable for treating the condition for which the insured person is hospitalized.  Any expenses other than the above shall be borne by the insured person only as per exclusion clause in the policy.  As such this Opposite Parties are not liable for more that the amount already disbursed to the complainant hence prays for dismissal.     

III.     In support of the above complaint, the complainant Smt. Shreelatha Mahalinga, filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked at Ex.C1 to C9. On behalf of the opposite party Mr. Raghu Naik, (RW1) Assistant Manager, of opposite party filed affidavit evidence and answered the interrogatories served and produced documents got marked at Ex.R1 to R3.

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

1. Whether the Complainant proved that the Opposite Party committed deficiency in service?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

  We have considered the arguments submitted by the complainant and Opposite Party and also considered the materials that, placed before the Fora and answered the points are as follows:                     

                              Point No. (i) : Affirmative

                              Point No. (ii) : Affirmative

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

REASONS

V.   POINTS No. (i) and (ii):  It is undisputed fact that the complainant obtained policy as per Ex.C1 from Opposite Party. The complainant admitted for dysfunctional uttering bleeding to the Mangalore Nursing Home and after the operation she discharged and spent Rs.1,05,577/ for the operation.  At the time of submission of the claim to Opposite Party No.1 as per Ex.C2, Opposite Party No.2 paid Rs.46,329/ as per Ex.C5 therefore the complainant issued letter to the 1^st Opposite Party to release the balance amount.  But Opposite Party No.1 replied false and stating that as per the policy condition paid Rs.46,329/ to the complainant. Now the complainant plea that, without attached terms and conditions of the policy the Opposite Party issued only 2 pages policy.  The Ex.C1 shows that the complainant entitled Rs.3,00,000/,  therefore the Opposite Party has to pay the balance claim. Relying upon the ruling III (2009) CPJ 246 National Commission reads thus:

Unexplained/unnoticed exclusion clauses, not binding to insured  Exclusion Clauses  required to be ignored if mandatory requirement of explaining Exclusion Clause, not adhered by insurer/Agent, before issuance of insurance cover

As per S.8 of the Insurance Regulatory and Development Authority (Protection of policy holder interest) regulations, 2002 reads thus:

1. A life insurance policy shall state the primary documents which are normally required to be submitted by a claimant in support of a claim.
2. A life insurance company, upon receiving a claim, shall process the claim without delay.  Any queries or requirement of additional documents, to the extent possible, shall be raised all at once and not in a piece meal manner, within a period of 15 days of the receipt of the claim.

It is well settled principal that unless policy and its conditions are served on the insured the conditions cannot be imposed on the insured.  After verifying the Ex.C3 and C4 it clearly shows that the complainant paid Rs.1,05,577/ for her treatment and Ex.C3 shows that the Doctor’s who attended the complainant for treatment.  The dispute of the Opposite Party that the bill submitted by the complainant is exorbitant, hence the Opposite Party paid only Rs.46,329/. The Opposite Party argued that Opposite Party No.2 evaluated the entire treatment records of the complainant that neither discharge summary nor in patient records of Mangalore Nursing Home not show any complications.  But the bills with an intention which is against the terms and conditions of the policy and the professional charger of the Doctor’s is highly exorbitant and they are inflated bills by the hospital to make unlawful gain.  The charge of the Mangalore Nursing home is much higher than the top three hospitals such as Apollo Hospital, Colombia Asia Hospital and Mallya Hospital in Bangalore region hence opposite parties are not liable to pay the balance amount. As per Ex.C5 the Opposite Party paid the bill amount and stated that as per the terms and condition of policy clause No.3.12 as per Ex.C8.  Reasonable and necessary expenses the Opposite Party paid the bill. The opposite parties submission before the fora that the exorbitant bill submitted by the complainant is higher than the top three hospital of Bangalore but complainant herein taken treatment in Mangalore.  The professionals charges are deferent from one and another hence whatever amounts to the professionals/ Doctor’s paid by the complainant is as per their professional charges hence the submission made by the Opposite Party is not correct.

The case referred in IV 2015 CPJ 718 National Commission reads thus:

Petitioner took just technical ground and without considering seriousness of patient/complainant, repudiated reimbursement of claim Better health facilities and treatment is fundamental right of each person complainant 

          Applied the observation made by the Honble N.C. we take a realistic and not a technical or pedantic view.  Therefore the contention of the Opposite Party is does not arise.  Therefore we are of the opinion that the Opposite Party No.1 and 2 shall pay the balance amount of Rs.59,285/ is justified.  Rejection by Opposite Party to pay this amount is nothing but deficiency in service.          Considering the forgoing discussions the complainant deserve to receive the balance amount of Rs. 59,285/ with 9% interest from 22.4.2014 till the payment along with Rs.30,000/ as compensation and Rs.5,000/ as litigation expenses.  As such point No.1 and 2 Affirmative.

          In the result, accordingly we pass the following Order.

ORDER

                The complaint is allowed with cost. Opposite Parties jointly and severally shall pay Rs. 59,285/ (Rupees fifty nine thousand two hundred eighty five only) with 9% interest from 22.4.2014 till the payment along with Rs.30,000/(Rupees thirty thousand only) as compensation and Rs.5,000/(Rupees five thousand only) as litigation expenses.  Payment shall be made within 30 days from the date of receipt of copy of this order.

            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 9 directly dictated by Member to the Stenographer typed by him, revised and pronounced in the open court on this the 6^th May 2017)

             MEMBER                                        PRESIDENT

      (LAVANYA M RAI)                    (VISHWESHWARA BHAT D)

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

             Mangalore                                       Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Smt. Shreelatha Mahalinga

Documents marked on behalf of the Complainant:

Ex.C1: 10.1.2012: copy of the Happy Family Floater policy.

Ex.C2: 28.4.2014: Copy of the claim letter.

Ex.C3: 22.4.2014: Copy of the discharge summary.

Ex.C4: 22.4.2014: Copies of the bills (15).

Ex.C5: 1.7.2014: Claim settlement voucher.

Ex.C6: 15.7.2014: Letter addressed by complainant to 1^st Opposite Party.

Ex.C7: 17.11.2014: O/c of the regd lawyers notice.

Ex.C8: 10.12.2014: Reply of the 1^st Opposite Party.

Ex.C9: 18.11.2014: Postal Acknowledgement of 2^nd Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr. Raghu Naik, Assistant Manager

Documents marked on behalf of the Opposite Parties:

Ex.R1: Happy Family Floater Mediclaim Insurance policy bearing no. 422203/48/2014/30370.

Ex.R2: Claim settlement voucher.

Ex.R3: Reply dated 10.12.2014 sent by Opposite Party no.1 to the legal notice of the complainant.

Dated: 06.05.2017                                    MEMBER