C.F. CASE No. : CC/2012/91
COMPLAINANTS : 1) Mallika Sarkar
W/o Debasis Sarkar,
2) Debasis Sarkar
Both of 147, J.L. Nehru Road,
Badrapara, P.O. + P.S. Nabadwip,
Dist. Nadia
OPPOSITE PARTIES/OPs : 1) Alpha Medical Services Pvt. Ltd.
21/1, Maulana Abul Kalam Azad Road
(opposite of Howrah A.C. Market),
Howrah - 711101
2) Heritage Health TPA Pvt. Ltd.
Nicco House, 5th Floor 2,
Hare Street, Kolkata – 700001
3) Branch Manager
The New India Assurance Company Ltd.
Krishnagar Branch, Bus Stand,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
PRESENT : SHRI PRADIP KUMAR BANDYOPADHYAY, PRESIDENT
: SHRI SHYAMLAL SUKUL, MEMBER
: SMT REETA ROYCHAUDHURY MALAKAR, MEMBER
DATE OF DELIVERY
OF JUDGMENT : 29th November, 2013
: J U D G M E N T :
The instant case was instituted by one Smt Mallika Sarkar, W/o Sri Debasis Sarkar a resident of 147, J.L. Nehru Road, Badrapara, P.O. + P.S. Nabadwip, Dist. Nadia against the opposite parties viz., Alpha Medical Services Pvt. Ltd., Heritage Health TPA Pvt. Ltd., and New India Assurance Company Ltd. with an allegation of deficiency in service.
Shorn off the unnecessary details, the material facts of the instant case are: that Sri Debasis Sarkar, aged about 50 years, husband of the complainant obtained an ‘Individual Mediclaim Policy’ on 17.04.2011 from the opposite party No. 3 the New India Assurance Company Ltd. being policy No 512403341101000000007 and the policy was in vogue upto midnight of 16.04.12 having a coverage of Rs. 1,00,000/- & cumulative bonus Rs. 10,000/- for Sri Sarkar. During the subsistence of the said mediclaim policy the husband of the complainant developed some problem in his abdomen. When he consulted physician/surgeon it was diagnosed that he was suffering from ‘Acute Cholecystitis’. The physician / surgeon advised surgery. Accordingly, he underwent surgery in Alpha Medical Services, Howrah. Sri Sarkar after his surgery and treatment claimed Rs. 55,287/- spent for his procedure / treatment. But the opposite party No. 3, the New India Assurance Company Ltd. had settled the claim for a sum of Rs. 25,354/- and repudiated the remaining claim amount. When the grievances of the husband of the complainant was not redressed, left no alternative a complaint under Section 12 of the Consumer Protection Act, 1986 was filed by the complainant praying for reliefs as stated in the petition of complaint.
On notice, opposite party No. 3 Insurance Company entered appearance and contested the case by filing written version challenging, inter alia, the very maintainability of the case. The opposite party, Insurance Company have got to say that the proceeding is misconceived, malafide, groundless and unsustainable in law. On such ground the opposite party Insurance Company pray straightway dismissal of the case. But the opposite parties No. 1 & No. 2 neither entered appearance nor filed written version in spite of notices were served on them. It summed to us the opposite party No. 1 & 2 abandoned the case, the same was ordered to be heard out and decided in absence of them.
The core points for consideration before us are:-
- Whether there was any deficiency in service from the side of the opposite party No. 3 by deducting the claim amount?
- Whether the complainant is entitled to get relief, if so, to what extent?
DECISIONS WITH REASONS
At the very outset, let us note that in order to substantiate their respective cases the parties did not prefer adducing any verbal evidence despite opportunity given to them. They relied upon documentary evidences only. Status of the insured as ‘consumer’ is nowhere challenged by the opposite parties. Documents on record indicate beyond doubt that he happens to be a ‘consumer’ as per meaning of the term laid down under Section 2(d) of the Consumer Protection Act, 1986.
Other question relates to the point of limitation. To get relief under the Consumer Protection Act, one is to bring one’s petition of complaint within a period of two years from the date of cause of action has arisen. On this point too the present complainant is in the right side of the matter.
The fate of the present complaint hinges on the answer to the question is as to whether the opposite parties are justified the deducting Rs. 29,933/- from the claim amount and in doing so whether they have committed any negligence / deficient in service.
Ld. Advocate representing the complainant pleads that it is a glaring example of utter negligence on the part of the opposite parties Insurance Company as because the insured submitted the claim of Rs. 55,287/- along with all documents pertaining to expenditure incurred for his procedure / treatment but the opposite parties Insurance Company arbitrarily and unwarrantedly settled the claim for a sum of Rs.25,354/- and repudiated the remaining claim stating that the items mentioned in the would not come within the scope of liability covered by the said policy and the deduction was made as per the terms and conditions of the mediclaim policy. But the opposite parties Insurance Company neither furnished the insured the said terms & conditions nor explained the same to him at the time of obtaining the mediclaim insurance policy. But it is fundamental principle of insurance law that utmost faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose similarly it is the duty of the Insurance Company and its agents to disclose all material facts in their knowledge since obligation of good faith applies to both equally. Unfortunately, the opposite parties Insurance Company violated this principle by not disclosing the aforementioned terms and conditions of the insured. Thus, the opposite parties Insurance Company fall squarely within the mischief of unfair trade practice as well as deficiency in service. Under the circumstances, the insured is entitled to get compensation for mental harassment and cost of the proceeding in addition to the amount repudiated by the opposite parties Insurance Company.
In rebuttal, ld. Advocate representing the opposite party No. 3, Insurance Company submits that the opposite party No. 3 Insurance Company deducted Rs.29,933/- from the claim-amount of the insured in conformity with the terms and conditions of the said mediclaim policy. The complainant knowing claimed the reimbursement of expenses some non-medical items. Those are not come within the scope of liability covered by the said policy. The reimbursement of Ambulance charge service charges are not permissible under the policy. That apart the reimbursement for some expenses not supported by proper Bill / cash memo cannot be entertained as per terms and conditions of the said mediclaim policy. The complainant did not sincerely follow the terms and conditions of the said mediclaim policy in preparing claim. Clause 2 of the said policy clearly states that no payment for physician / surgeon’s bill shall be made under clause 2.3 other than as part of the hospitalization bill. But the said claim/ bill is not included in the hospitalization bill. The insured himself paid the surgeon’s bill in cash. So the insured is not entitled to get the reimbursement of the entire bill raised by the surgeon clause 3(b) reads as under. “Fees paid in cash will be reimbursed up to a limited of Rs. 10,000/- only, provided the surgeon / anaesthetist provides a numbered bill. Moreover, the insured whimsically claimed Rs.3,000/- per day for room expenses defying the policy-condition (clause 2.1). Clause 2.1 reads as under: “Room boarding and nursing expenses as provided by the Hospital / Nursing Home not exceeding 1% of the sum assured (without Cumulative Bonus) per day or actual whichever is less. Furthermore, the deduction of other charges was made by the opposite party No. 3, Insurance Company as per clause 2.4 note 1, clause2.4. Note 1. states, “The amount payable under 2.3 and 2.4 shall be at the rate applicable to the entitled room category …..” Thus, the opposite party No. 3, Insurance Company have acted bonafide without fraud and within the bounds of their authority. The opposite party Insurance Company had settled the claim of the issued for Rs. 25,354/- and repudiated the remaining claim justifiably. Hence, there is no deficiency in service on the part of the opposite party Insurance Company. Under, the facts and circumstances, the opposite party Insurance Company pray the present petition of complaint be rejected outright with cost.
We have given our anxious thoughts, to the arguments advanced by the ld. Advocate for both parties and also to the facts of the case and evidence on record.
In view of the solid and unflappable evidence of opposite parties Post Offices the case of the complainant pales into insignificance. The opposite parties have firmly established their case with cogent and reliable evidence. Under the circumstances, the complainant has no bone to pluck with the opposite parties.
At this juncture it is pertinent to mention that it has been long recognized rule, ‘Caveat emptor qui ignorare non debuit quod jns alieunum emit’ – let a purchaser who ought not to be ignorant of the amount and nature of the interest which he is about to buy, exercise proper caution. It needs to be mentioned here that the conspectus of the aforementioned facts shows that the entire problem cropped up due to the wilful ignorance and carelessness of the insured. At the time of obtaining the aforesaid policy the complainant ought to be well aware of the ‘terms and conditions’ of the said Mediclaim Policy. Despite her willful ignorance and carelessness the complainant filed this case and prayed reliefs. But the legal maxim is “Nemo exproprio dolo cousquitur actionem” – Nobody can be rewarded for his own faults. None acquires a right of action for his own wrong. Therefore, the complainant in the circumstances of the present case cannot claim any compensation and in view of his carelessness. There is no deficiency in service on the part of the opposite parties.
In view of the above observations, we feel that the present petition of complaint is nothing but a gross abuse of the process of law and the petition is totally devoid of merit, frivolous and bogus one for which the complainant is not entitled to get any relief and the same is liable to be dismissed. Accordingly, it is
Ordered,
that the present petition of complaint is dismissed without any order as to cost.
Let a copy of this judgment be delivered to the parties free of cost.
