West Bengal

Birbhum

CC/28/2020

Suchibrata Sen, S/o Lt S.K Sen - Complainant(s)

Versus

Branch Manager, National INS Co Ltd - Opp.Party(s)

Subrata Mukhopadhaya

16 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

BIRBHUM (SURI)

C. F. CASE NO/CC/28/2020

 

PETITIONER           Vs.                                     O.Ps

Suchibrata Sen, S/o Lt S.K Sen                      1.Branch Manager, National INS Co Ltd

Baganpara, Santiniketan                                 Vill and P.O Suri, Birbhum

Dist. Birbhum, Pin 731235                             2.Fortis Hospital and kidney Institute

Filed by Subrata Mukhopadhay.                    111/A, Rash Bihari avenue, Kol 29

 

 

 

PRESENT   :  Shri Sudip Majumder  President in Charge.

                                                         : Smt. Saswati Saha   Member.

 

 

Date of filing:    27/02/2020.

Date of disposal: 16/05/2023.

 

J U D G E M E N T

Shri Sudip Majumder. President in Charge.

            The complainant/petitioner files this case U/S 12 of Consumer Protection Act, 1986. The fact of the case in brief is that one Sri Suchibrata Sen aged about 76 years, permanent resident of ‘Ha Ja Ba Ra La’, Baganpara, Sriniketan, District-Birbhum who purchased a Mediclaim Policy from the                     OP No. 1/National Insurance Co. Ltd. being Policy No. 150401501710000736 which is valid till the midnight of 07/12/2019 and by this way the complainant/insured became a consumer/customer of the OP No. 1 i.e. Insurance Company.

            It is the further case of the complainant that after insuring, the insured was being ill and went to treat himself at Fortis Hospital & Kidney Institute at 111/A, Rash Bihari Avenue, Kolkata and he was also admitted on 09/11/2018 and operated in the said Hospital on 10/11/2018 and the OP No. 2 released the complainant/insured from the said hospital on 14/11/2018 and for the treatment the complainant also incurred a cost of Rs. 1,52,188/ (One lack fifty two thousand one hundred eighty eight only).

            It is the next case of the complainant that after treatment the complainant/insured returned to his house and thereafter the complainant/insured lodged his legitimate claim amounting to Rs. 1,52,188/ (One lack fifty two thousand one hundred eighty eight only) before the insurance company with all relevant papers in original.

           

 

 

 

It is the specific version of the complainant that the OP/Insurance Company finally paid Rs. 64,472/ to the complainant and repudiated the claim (partly) of the complainant/insured by showing some baseless ground i.e. PPN package, but there is not any whisper of PPN Package in the policy terms and conditions, neither the agent of the OP No. 1 informed the complainant of anything about package.

            It is also necessary to mention that the complainant was treated and operated at Fortis Hospital & Kidney Institute, Kolkata and for this said hospital is also made necessary party as OP No. 2 in this case.

            Hence, after finding no other alternative the complainant is compelled to file this complaint before this Forum/Commission for proper relief and prays for:

1. To pay the complete treatment cost amounting to Rs. 1,52,188/ (One lack fifty two thousand one hundred eighty eight only) with interest from the date of claim till the date of realization of the same and
2. Rs. 2,00,000/ (Two lacks only) harassment cost for stress and mental agony and
3. Rs. 50,000/ (Fifty thousand only) as compensation amount and
4. Any other relief/reliefs as the Court think fit and proper.

The OP No. 1/National Insurance Co. Ltd., Suri Branch has contested the case by filing written version denying all material allegation of the complainant and stated that there was no deficiency in service on the part of the OP No. 1 and the case is not maintainable, either in law or in fact.

OP No. 1/National Insurance Co. Ltd. stated in para 16 of their written version as “that the OP Insurance Company is not medically expert they rely upon the report of the medical expert herein in this case they rely upon the report of the TPA Medi-Assist. The OP Insurance Company settled the alleged claim relying upon the expert opinion of the aforesaid TPA.”

OP No. 1/National Insurance Co. Ltd. further stated in para 15 of their written version as “ This claim pertains to the treatment of: Jaundice at R Fleming Hospital from 09/11/2018 to 14/11/2018 for the claim amount Rs. 1,65,037/.

We reviewed the documents by the panel of experts, and as per their opinion we regret that the OP Insurance Company is unable to consider the claim for re-settlement.

The reason(s) are as follows:

The file has been rechecked and it is found that as per policy Rs. 8,377/- has been deducted as non-medical items (deduction as per IRDA rules and regulations) and also note that client got admitted in Fortis Hospitals Ltd. and the nursing home falls in PPN network packaging so Rs. 92,188/- is deducted as excess ailment limit of PPN package. In view of the above facts, we regret that we would not be in a position to consider your request for review of the claim and the claim remains inadmissible for settlement.”

 

 

Ultimately the OP No. 1 prayed for dismissal of the case.

            Both the parties submitted written notes on argument (W/N/A). Some documents have also been filed by the complainant’s side and compared with original documents. Thereafter, respective Ld. Advocates for the OP No. 1 also submitted some documents with Firisti.

            Heard Ld. Advocates for both sides.

            Considered.

            Perused all the documents.

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Ops?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

Decision with reasons

Point No. 1:

            In this case, the complainant purchased a Mediclaim policy from the OP No. 1being Policy No. 150401501710000736 on payment of proper fees and this policy is valid till the midnight of 07/12/2019. Thus the complainant is a consumer under the OP/National Insurance Company Ltd. and the                 OP No. 1/National Insurance Company Ltd. is the service provider. Hence, the complainant is a consumer as per Sec. 2(1)d(ii) of the Consumer Protection Act, 1986.

Point No. 2:

            Pecuniary jurisdiction of this Forum/Commission as per Sec. 11(1) of the Consumer Protection Act, 1986 i.e. Rs. 20,00,000/. OP No. 1/National Insurance Co. Ltd., Suri Branch situated in Birbhum District i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

In this case, the cause of action arose from 05/03/2019 and the case has been filed on 27/02/2020 and as such it can be said that the complainant has been filed in this case within the statutory period of the C.P. Act, 1986 and, as such, the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.

Point No. 3:

It appears from the documentary evidence as available in the case record that the complainant was admitted in Fortis Hospital & Kidney Institute, 111/A, Rash Bihari Avenue, Kolkata-29 09/11/2018 for

 

 

 

 

 

prostrate operation. He was HHdischarged on 14/11/2018 and his legitimate claim was of Rs. 1,52,188/. Out of this claim was the OP No. 1 paid Rs. 64,472/ to the complainant and the remaining amount of claim was repudiated by the OP No. 1.

It is necessary to mention that the OP No. 1 stated at para No. 15 in their written version as“ This claim pertains to the treatment of: Jaundice at R Fleming Hospital from 09/11/2018 to 14/11/2018 for the claim amount Rs. 1,65,037/.”

 Further it is necessary to mention that in support of this statement of OP No. 1 submitted a report which was made by TPA Medi-Assist. But, the said TPA Medi-Assist was not able to show or submits any discharge certificate of the complainant regarding the treatment of “Jaundice at R. Fleming Hospital from 09/11/2018 to 14/11/2018.”

On the other hand, the complainant submits the relevant document as discharge certificate from the Fortis Hospital & Kidney Institutes, Kolkata regarding his prostrate operation as well as documents of payment of cost of such operation.

From the documentary evidence as available in the case record it is crystal clear that the complainant/insured was neither suffering from Jaundice nor admitted in R Fleming Hospital.

From the above discussion, this Commission is of the view that the report made by the TPA Medi-Assist is completely baseless, misleading, manufactured as well. This is a vexatious one.

The OP No. 1/National Insurance Company Ltd. on several occasions harassed the complainant and paid as partly claim of Rs. 64,472/ only instead of actual claim of Rs. 1,52,188/- as Mediclaim insurance claim to the complainant which is proved beyond all reasonable doubt that there is/was deficiency in service as per Sec. 2(1)(g) of the C.P. Act, 1986 as well as unfair trade practice as per Sec. 2(1)(r) of the C.P. Act, 1986 on the part of the OP No. 1/National Insurance Co. Ltd.

Point No. 4:

            From the documentary evidence as available in the case record it is crystal clear that the complainant is a consumer/customer since long by purchasing Mediclaim insurance policy on payment of proper fees. This policy was valid till midnight of 07/12/2019. The complainant was admitted in Fortis Hospital & Kidney Institutes, Kolkata on 09/11/2018 and his prostate operation was done on 10/11/2018 and he was discharged from the said Hospital on 14/11/2018.

            OP No. 1/National Insurance Co. Ltd. paid partly claim of Rs. 64,472/ to the complainant instead of actual cost of operation of Rs. 1,52,188/- and repudiated the remaining claim of the complainant showing a baseless, flimsy and vexatious ground.

           

 

 

 

As in this case, it is proved that there is deficiency in service on the part of the OP No. 1/National Insurance Co. Ltd. Hence, the complainant is entitled to get relief or compensation as prayed for.

            Hence, from the above discussion it is proved that the complainant could be able to prove his case beyond all reasonable doubt.

• In ICICI Bank Ltd. Rep. By Its. vs. Mr. Kateka Sudhakar,S/O K.J… on 5 March, 2018 the Hon’ble State Commission, Hyderabad stated in para 16 as follows:

“16. The Supreme Court held that the compensation to be awarded is to be fair and reasonable.          In Charan Singh vs Healing Touch Hospital and others 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer  and the change it brings in the attitude of the service provider. The Court held While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge.”

            Keeping the view of the Hon’ble Apex Court in mind in respect of the manner of the compensation and quantum of compensation as per fact and circumstances of the present case this Commission is of opinion that in the instant case the loss of the complainant would be served in just way in terms of money and the quantum of compensation will be just and proper if the OP No. 1 is directed to pay Rs. 50,000/-(Fifty thousand only) to the petitioner or complainant as additional compensation as against mental agony and harassment to the complainant.

            Further, it is necessary to mention that the OP No. 1/National Insurance Co. Ltd. repudiated the legitimate claim of the complainant on the strength of one baseless, manufactured, vexatious report which was made by TPA Medi-Assist. It appears to us the act of the OP No. 1/National Insurance Co. Ltd. is unfair trade practice as per the C.P. Act. That’s why OP No. 1 should be saddled with exemplary cost of Rs. 5000/-(Five thousand only) for its deliberate unfair trade practice.

            In this case, we observe that the complainant appeared before this Commission days after days and it is very painful to him.

The case is pending from 27/02/2020. Today is 02/05/2023 i.e. more than 3 years and considering the age of the complainant i.e. about 76 years. At the age of 76 years it is very painful to him for recovery of his legitimate claim from OP No. 1. Hence, the amount of compensation which we fix at Rs. 50,000/-(Fifty thousand only) is justified.

 

 

• In Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr. (2000) 10 SCC 213 it was held that “Interest ought to have been awarded from the date on which the claim was filed before the Forum.”
• In Krishna Bhagya Jala Nigam Ltd. Vs. G. Harishchandra Reddy & Anr. (2007) 2 SCC 720 it was held that “Only 9% interest be awarded on refund matter.”

            In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be given @ 9% p.a. calculating from the date of filing of this case.

Hence, it is,

            O R D E R E D,

                                        that the instant C.F. Case No. 28/2020 be and the same is allowed in part on contest with costs. The OP No. 1/National Insurance Company Ltd. is directed to pay the remaining insurance claim of Rs. 87,716/ (Eighty seven thousand seven hundred sixteen only) i.e. (Rs. 1,52,188/ Rs. 64,472/) to the complainant along with interest @ 9% per annum calculation on and from 27/02/2020 (i.e. from the date of filing of this case) till realization. The OP No. 1/National Insurance Company Ltd. is also directed to pay Rs. 50,000/- (Fifty thousand only) to the complainant/petitioner as against mental agony and harassment to the complainant.

The OP No. 1 is also directed to pay the exemplary cost of Rs. 5000/-(Five thousand only) to the Consumer Legal Aid Accounts, DCDRC, Birbhum, Account No. 34041754378, IFSC Code. SBIN0000191, State Bank of India, Suri Branch.

The entire decree will be complied by the OP No. 1 within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order to execution in accordance with law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.