BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 28^th October 2016

PRESENT

        SMT. C.V. SHOBHA             :  HONBLE PRESIDENT 

        SMT.LAVANYA M. RAI        :   HONBLE MEMBER                                         

COMPLAINT NO.117/2013

        (Admitted on 25.04.2013)

Ashok Saralaya P.

S/o Radhakrishna Saralaya,

Aged about 41 years,

R/at. Radha Nilaya,

Near Taluk Panchayath Office,

Sullia, D.K.

                                                                ……… Complainant 

(Advocate for Complainant by Sri. SD)           

VERSUS

1. The Manager,

National Insurance Co.Ltd,

Dharmasthala Building,

Main Road, Puttur, D.K.

2. Manager,

Dedicated Healthcare Services,

TPA (India) Pvt. Ltd,

25.8.497, 1(2), 1^st Floor,

Arjun Anjali Compound,

Opp. Shiva Restaurant

Gorigudda, Valencia,

              Mangalore 02 

                                             …. Opposite Parties

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

(Opposite Party No.2: Ex parte)

ORDER DELIVERED BY HON’BLE 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 parties to pay Rs.1, 17,531/ to the complainant with 12% interest from 25.05.2012 till payment Rs. 30,000/ 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 top Number Complaint lodged by the complainant against the above of the opposite parties Under Section 12 of Consumer Protection Act for the relief as sought for, on the strength that the complainant along with his wife and daughter are the holder of Hospitalization Benefit policy of the 1^st Opposite party as per No. 602301/48/11/8500001422 for Rs. 1,00,000/ each.  The Policy is valid from 21.02.2012 to 20.02.2013 and the 2^nd opposite party is the TPA of the 1^st opposite party.  The complainant has paid Rs. 4,719/ as premium to the above policy.  The complainant has been served with insurance card and policy schedule of 3 pages only and no terms and conditions attached to the policy are served to the complainant. When the matter stood thus the complainant wife Smt. Annapoorani A.  Was admitted to the Forties Malar Hospital Chennai on 20.05.2012 for G2 PILI AT 26 WEEKS OF GESTATION WITH SEVERE PIH+ SEVERE HELLP SYNDROME and after operation she was discharged on 25.05.2012.  The complainant has spent Rs. 1,17,531/ for the operation.  After the operation the complainant has submitted the claim as per claim No.  DHS 12Z089432 along with originals of bills, reports and discharge summary to the 2^nd opposite party.  The 2^nd opposite party has repudiated the claim as per letter dated. 24.07.2012 stating that the claim is repudiated as per exclusion clause No. 4.12.  it is submitted that the opposite parties have not served policy conditions to the complainant at any point of time.  Hence the opposite parties cannot take shelter under the exclusion clause to repudiate the claim of the complainant.  Hence non serving of the policy conditions along with policy schedule to the complainant itself amounts to deficiency of service by the opposite parties.  Further the repudiation is unjust, illegal and opposed to law.  Hence the opposite parties are duty bound to pay the claim of the complainant under the policy.  Hence the complainant got issued regd.  Lawyer s notices dated. 18.10.2012 to 05.11.2012 the opposite parties and the notices were served on the opposite parties on 19.10.2012 to 06.11.2012 without demur.  Hence this compliant. It is submitted that the opposite parties are duty bound to pay the claim of the complainant.  But they are not doing so in order to make unlawful gain and cause loss to the complainant.  Hence the non-payment of the claim of the complainant on the part of the opposite parties amounts to deficiency of service.   Due to the wanted and deliberate negligent act of the opposite parties the complainant is suffering from monetary loss, mental agony and restlessness.  Hence opposite parties are liable to pay compensation to the complainant.  Further submitted that the opposite parties have not followed the law while issuing the membership receipt.  The opposite parties are duty bound to issue the membership receipt as specified by the law.  The non-issuance of membership receipt as per law amounts to deficiency of service by the opposite parties.  It is submitted that the opposite parties have not served the terms and conditions if any under the Mediclaim Insurance scheme to the complainant. The cause of action arose for the complaint on 25.05.2012 when the complainant was discharged from the Hospital and on 24.07.2012 when the claim was repudiated by the 2^nd opposite party which is within the jurisdiction of the  Forum.

III.      Further, on observation by us of the order sheet maintained in the case by this Forum, the necessary notice sent to all the opposite parties by RPAD with copies of the complainant. Inspite of receiving version notice the opposite party No.1 neither appeared nor contested the case before this FORA. Opposite Party No.2 appeared before for and contended that the issue of Hospitalization Benefit Policy mentioned in the complaint is admitted. The amount said to have been spent in the hospital is disputed.  Repudiation of the claim is admitted. The repudiation is on the ground that the Hospitalization was for treatment  arising from or traceable to pregnancy childbirth including caesarean section, miscarriage, abortion or complications there of including changes in chronic conditions arising out of pregnancy which is excluded for insurance coverage. That the exclusion Clause 4.12 speaks of this exclusion.  The Prospectus of Medi Claim policy attached to the policy is enclosed.  It is denied that the petitioner had not been served with conditions of the policy contained in the insurance Medi-claim policy.  It is a part of the policy and it has always been sent to the policy holder as a rule, including the complainant.  The policy together with Prospects containing condition was personally handed over to the complainant. In support of the complainant One Sri. Ashoka Saralaya P. (CW1) complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced the document as No.C1 to C10.  One Mr. Sudhakar Kochi (RW1) Administrate Officer National Insurance Co.Ltd of opposite party filed counter affidavit and answered the interrogatories and produced the document marked Ex R1. 

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 Parties No. 1 & 2?
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:   The case of the complainant is that, as he is a consumer under the opposite parties No. 1 and 2 for the benefit of mediclaim for his family members Hospitalisation i.e. for himself and his wife and a daughter.  For that he took a said mediclaim policy from the opposite parties vide No. 602301/48/11/8500001422 for sum insured Rs. 1,00,000/ each for that the opposite party No.1 duly collected total a huge sum of Rs. 4,753/ towards premium amount and also the said policy is valid from 21.02.2012 to 20.02.2013 and the said opposite party No.2 is a TPA as DHS it means Dedicated Health Care service private Ltd.  For which opposite party No. 1 also issued a card to the name of Smt. K.N. Annapoorni w/o Ashok Saralaya P, who is the complainant in the case.  As such the said card itself describes that Dedicated Helath Care Service (DHS).  Even such being so, none of the opposite party fails to provide any service, as contemplated under the CP Act as well as to protect the interest of the complainant in particular that apart the annexed mediclaim policy itself naming clature that hospitalization benefit policy such being so, there is no any meaning in order to say that it is of a benefit on any extent to any of the general Public citizen in the Society, like the complainant in the case.  Because, only on the ground that, the opposite party No.1 not at all supplied any of the document to the complainant pertaining to disclosure its any of the terms and conditions, belonging to the said mediclaim policy.  But the said only a bare policy  was issued thought its agent vide code No. 21309 by name Mr. Rohit, as disclosed in it.  Further, it is also an admitted facts that the said policy was renewed from the year 2008 by time to time.  The said fact is also a prime factor is that since the matter pertaining into mediclaim insurance, as such the insurance law, which means the fundamental principle at most good faith must be observed by the contracting parties good faith forbids  either party from non-disclosure of  a facts which parties know.  The insured has a duly to disclose and similarly it is the duly of the insurance co and its agents to disclose all material facts in their knowledge since obligation of good faith applies to both equally.  As aforesaid factor regarding the principles laid down in the law of insurance and the similar set of facts involved in this case also, the same is most appropriate to come to a conclusion in the case on merit, so that the main reason for raising the above case by the complainant side against the opposite party is also aware by them is that on dated 19.05.2012 the wife of the complainant by name Smt. Annapoorni admitted to M/s Forties Malar Hospital at Chennai and took all the treatments for her illness of G2 PILI At 26 WEEKS OF GESTATION WITH SEVERE HELLP SYNDROME WITH SEVEAR THROMBOCYTOPENIA, and so treated with surgery and all other necessary tests till 25.05.2012.  The specialist in the hospital treated her with best efforts provided, though the said her fetus not survived then the said dead born male fetus was removed under surgery.  Thereafter, all the necessary treatment and medical advice, she was discharged on 25.05.2012 from the hospital.  By that time the said hospital was charged a huge sum of Rs. 1,17,531.57.  The said huge amount was also remitted by her and allowed her to leave from the hospital.  The above facts have been revealed us from the documents available in the case. Thereafter, the complainant made his legal claim and demand with the opposite party for refund of the said sum insured amount of Rs. 1,00,000/ towards his wife s treatment expenses, which incurred by them. inturn, even from the beginning the opposite party taken the ground that the said treatment which taken by her, not allowed to claim any amount as per their mediclaim insurance policy prospecturs condition vide No. 4.12 and also they have taken a defence that the said document also furnished in separate along with the policy schedule, for the said period.  Hence such being the case, since the said defence was taken by the opposite party thereafter the burden of proof regarding supplied the said terms and condition to the complainant during that time, by them or not.  Because, the case on hand also lies on the same ground that the said terms and conditions not furnished to the complainant at any point of time.  Therefore the total case of the claimant is that, it is of a pure deficiency of service on the said ground alone.  That apart, for the reason of fixing the fault of the Opposite Party regarding protection to the consumer as well as causing deficiency in service to him by the Opposite Party No.1 on our perusal in the record that on 03.11.2014 the evidence affidavit filed by Opposite Party side, we posted for interrogatories that on 25.11.2014 complainant filed his detailed interrogatories mentioning about 24 questions in total.  Though the Opposite Party not at all filed any reply to the same so far.  Hence the said interrogatories dated 25.11.2014 is still stagnant as not answered properly to any of the questions.  So the burden still kept on the shoulder of the Opposite Party only in order to discharge their part of contract, as per the policy.  Because, mainly the question No.8 reads as whether the terms and conditions are separately printed and then attached to the policy?  No reply to the same by the Opposite Party.  Hence, it is enough to presume that, even under the clause of presumption, we have to go ahead with drawing adverse inference and come to a conclusion that Opposite Party utterly fails to proving that factor regarding furnishing of the said terms and conditions of the policy to the complainant at any relevant point of time along with the said policy schedule.  Therefore it is with a malafide intention they have suppressing the material facts.  On that ground only they have kept quite without giving any reply in the case before us.  But of the first time they have produced the same before this Forum at the later stage this also amounts to pure deficiency of service in the matter. On this aspect also, we have no other go unless to see whether, it was supplied by the opposite party to the complainant in original of the said terms and conditions or not?  For their considered opinion is in the negative, as the opposite party concerned utterly fails in proving the same in its favour.  The reason for that are on two sides.  That is on the date of filing their version that on 09.07.2013 they have filed two documents with a memo before us.  Where one is photo stat copy of policy schedule and another original of the said mediclaim insurance policy prospectors.  Another is if it was already supplied to the complainant, the question of producing the same before us by the opposite party only on 09.07.2013 does not arise.  Therefore on that ground alone including all the pleadings, oral and documentary  evidence, notes of arguments reveals that, the opposite party in all the steps fails in proving the said defence which taken by them as it was  already furnished to the complainant in separate along with the said policy schedule.  Apart from that, even when we go through the said document of mediclaim insurance policy prospectors there are so many mentions for disallowing the claims, regarding the medical treatment etc.  In such a view if the said document was supplied in the beginning by the opposite party no one general public citizen in the society will come forward to obtain the said mediclaim policy by make payment of such a huge premium amount.  For that even in this case also the opposite party done the same thing  as on the date of issuance of policy schedule they have not supplied the same, but later when this claim was demanded by the complainant, the said false ground was taken by making a suppression of facts.  On this reason also we come to a considerable opinion that, the action which taken by the opposite party in the case is of to avoid from making payment or refund of the said sum, illegaly the opposite party made the said repudiation letter on dated 24.07.2012 by rejecting the said legal claim of the complainant.  It is also further noted that if it was really true, there was no any need in keeping all the original documents by the opposite party, pertaining to treatment and expenses incurred to the complainant.  Hence, for the discussion made in detail above by us the point No.1 is held in the affirmative as there is a pure deficiency of service on the part of the opposite party side, only with a view to escape from make payment or refund, the claim of the complainant. 

The ruling reported in 2012 (II) CPJ Page 602 (NC) and 2012 STPL (CL) 1568 (NC) where in N.C opined that the petitioner had contended before for a below that the copy of the terms and conditions of the policy was not supplied to him and the district Forum had accepted the contention, not supplied to him by the respondent when he took the insurance policy.  So we are of the view that the respondent was not justified in repudiating the claim on this ground.

Further we also clearly noted though the citation of Honble S.C of India I (2000) CPJ page 1 Where in it is the concept of suppressing the material facts Appellant in its affidavit filed confirmed that it was supplied only with cover note and schedule of policy  other terms and conditions containing exclusion clause did not form part of contract of insurance Respondent cannot claim benefit of said exclusion clause  finding of National Commission not tenable in law when terms and conditions containing exclusion clause not communicated Exclusion clause did not form part of contract of insurance Respondent cannot claim benefit of said exclusion clause finding of National Commission not tenable in Law.

The citation produced by the Opposite Party also observed by this Forum.  But none of the same are not applicable to the facts of the case.  Since there was no any consistency between the defense taken by the Opposite Party to the facts of this case with the facts of those citations, we hold the Opposite Party have committed deficiency in service.  Hence, we hold that the point No.1 is in affirmative.

Points No. II: Further, regarding point No.2 is concerned, once where there is a deficiency in service on the part of the Opposite Party, it is crystal clear that it amounts to unfair trade practice, harassment and also mental agony caused to the complainant.  Further, the Opposite Party also kept unnecessarily the said huge sum of Rs. 1,00,000/ with them, though it is aware that it belongs to complainant, as per the said mediclaim policy.  So, for the said amount also to carry interest at 10% from date of complaint i.e. 26.04.2013 till make payment.  Further, due to the said inconvenience, false plea, suppression of materials by the opposite party in throughout the case, the Opposite Party is also liable to pay a sum of Rs. 10,000/ towards compensation to the complainant to meets the interest of justice, particularly in the matter of like this mediclaim insurance.  Because, by any of the general public citizen in the society in also of the motive, to have such a policy under mediclaim is that, in the event of happening of any medical expenses in future, that has to make the good by the concerned insurance company as it is of their bounden duly and responsibility in order to discharge by them.  Even in spite of it, it was not properly with application of mind the Opposite Party concerned done in this case also.  Therefore, we have no any hesitation in concluding this case as aforesaid, for the reasons assigned by us.    Hence on that ground alone it is enough to conclude the case.  So the point No.2 is also answered affirmative. 

POINTS No. (iii): In the result, accordingly we pass the following Order:

ORDER

Complaint is allowed in part.  The opposite parties are jointly and severally shall responsible and liable to pay for a sum of Rs. 1,00,000/(Rupees One lakh only) with accrued interest at 10% p.a. from the date of complaint i.e. on 25.04.2013 make payment.  Further, opposite parties are 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 8 pages dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 28^th day of October 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:

CW 1: Mr.Ashoka Saralaya P.

Documents Produced on behalf of the Complainant:

No.1: Dated: 21.02.2012    Copy of the Policy.   

No.2: Dated: 21.02.2012    Copy of the Card.

No.3: Dated: 25.05.2012    Original discharge summary.

No.4: Dated: 25.05.2012    Original bills.

No.5: Dated: 19.05.2012    Original obstetric scan.

No.6: Dated: 24.07.2012    Repudiation Letter of 2^nd Opposite Party.

No.7: Dated: 18.12.2012    O/c of the regd lawyer s notice.

No.8: Dated: 19.10.2012    Postal Acknowledgement of Opposite  Parties(2).

No.9: Dated: 05.11.2012    O/c of the regd lawyer s notice.

No.10: Dated: 06.11.2012   Postal Acknowledgement of Opposite Parties (2).                              

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr. Sudhakar Kochi

Documents produced on behalf of the Opposite Parties:

No.1: Office copy of the policy with prospectus of Mediclaim policy (Hospitalization Benefit Policy) valid for the period from                            21.02.2012 to 20.02.2013.                                                                                                    

Dated: 28.10.2016.                                              PRESIDENT