1) This complaint has been filed by the Complainant against the Opposite Party Hospital alleging them for arbitrarily and illegally delaying the refund of deposit of Rs.20,000/- paid to the Opposite Party at the time Admission of his wife and further for the illegal deduction of Rs.1,737/- from Rs.20,000/- deposited with them and for refusing to issue the cheque of Rs.18,263/- under protest thereby being deficient in service & guilty of Unfair Trade Practice and for directions to the Opposite Party to refund the deposit amount of Rs.20,000/- alongwith interest @ 24 % p.a. for 3 months, 15,000/- towards mental tension, Rs.15,000/- towards physical hardship, Rs.5,000/- towards cost of litigation & Rs.1,00,000/- towards Business loss, etc. summing up to Rs.1,76,200.
 

2) The facts of the case in a nut shell are as follows –

     It is the case of the Complainant that on 04/04/2008 a sum of Rs.20,000/- was deposited with the Cumballa Hill Hospital & Heart Institute at the time of Admission of his wife for surgery.(The said Hospital hereinafter for the sake of brevity and convenience to be referred to as Opposite Party). The xerox copy of the said receipt no.2046716 dated 04/04/08 issued by the Opposite Party is filed by the Complainant with the list of documents.
 

3) The Complainant representatives time and again visited as well as corresponded with the Opposite Party for refund of the said deposit after discharge of his wife, however, in vain. Therefore, the Complainant called the TPA i.e. Vipul Medicorp TPA Pvt. Ltd. to enquire whether the claim lodged by Opposite Party Hospital was paid by them. It was brought to the notice of the Complainant that on 09/08/2008 the TPA had already made the payment to the Opposite Party. Thereafter the Complainant representatives aggressively followed up with the concerned representatives of the Opposite Party for refund of deposited amount of Rs.20,000/-. However, the Opposite Party deducted a sum of Rs.1,737/- from the said deposit amount and was issuing the cheque to the Complainant for the balance amount of Rs.18,263/-On enquiring with the Opposite Party about the said deduction from the deposit amount the representative of the Complainant was informed that TPA had deducted the amount of Rs.1,737/- and therefore, the said amount was deducted by the Opposite Party from the deposited amount. It is further the case of the Complainant that on the day of discharge of his wife i.e. on 09/04/2008 the Opposite Party issued a bill to the tune of Rs.3,69,973/- and subsequent to her discharge the Opposite Party issued an another bill dated 10/04/2008 wherein the amount reflected was Rs.3,06,036/-.due to issuance of two bills there was delay in settlement of his claim due to which he suffered immense mental tension. The Complainant also contends that in the bill dated 09/04/2008 issued by the Opposite Party the charges reflected for Pharmacy Medicine were Rs.17,660.42 whereas, in the subsequent bill dated 10/07/2008 it was reflected as Rs.19,367.42 towards Pharmacy Medicine charges. The Complainant asked for the difference of Rs.1,707/- as it was deducted from the deposit of Rs.20,000/- as no clarification was given. Aggrieved by the said deduction as no reason was cited for the same however, the Complainant’s representative agreed to take the said cheque after the deduction under protest. The Opposite Party, however, failed to give the same to the Complainants representative under protest. The Complainant thereafter sent many fax, messages and thereafter reply was received from the Opposite Party to collect the cheque but neither the amount as mentioned nor any clarification was given about why the aforementioned amount was deducted. Though the Complainant received calls from Dr.Shetty of the Opposite Party on 12/11/2008, however, Dr.Shetty did not revert back to the Complainant within 1 hour as assured so the Complainant was constrained to lodge this present complaint for the aforementioned reliefs.
 

4) Pursuant to the issuance of the notice, the Opposite Party appeared and filed their written statement denying all the allegations made against them by the Complainant in the complaint. The Opposite Party contends that the Complainant has come to this Forum with unclean hands and has fail to make out a case under provisions of Consumer Protection Act and further that his claim being exorbitant, excessive as well as unreasonable on that ground itself the complaint is liable to be dismissed. The Opposite Party further contends that the present Complainant has already received Rs.20,000/- on 04/12/2008 alongwith their covering letter dated 03/12/2008 from the Opposite Party vide cheque no.644545 dated 15/10/2008 for Rs.18,263/- and cheque no.655285 dated 26/11/2008 for Rs.1,737/-. Therefore, the claim of the present Complainant is fully satisfied and he is not entitled for any reliefs under the provisions of the Consumer Protection Act further that the said cheques have been encashed by the Complainant. The Opposite Party avers that the complaint was filed on 15/11/2008 in the Hon’ble Forum and notices were issued on 27/11/2008 to the Opposite Party. The Opposite Party has refunded the Rs.20,000/- back to the Complainant therefore, there is no consumer dispute. The Opposite Party also contends that admittedly the Insurance Company by name Vipul Medicorp TPA Pvt.Ltd made payment in favour of the Opposite Party and therefore, the Complainant was entitled to get the refund of Rs.20,000/-. The Complainant was informed time and again to collect the refund cheque however in vain. The Opposite Party also denies that the Complainant was asked to sign an apology letter and that no mental agony was caused to the Complainant as claimed. The Opposite Party avers that the amount of Rs.1,707/- was deducted by the said Insurance Company and therefore, the said amount was deducted by the present Opposite Party from the Complainant’s deposit. Further that sometime is required for getting actual amount from the Insurance Company as well as for clearing the entire transaction & as a practice patients are asked to deposit amount of fees in advance as in certain cases to indemnify the Opposite Party for the deductions made by the Insurance Company. It is further averred by the Opposite Party that at the time of admission of the patient the. Complainant’s relative gave an undertaking that he will settle the final bill and claim reimbursement from the said TPA. The Complainant has suppressed the said fact from the Forum and therefore, has not come before this Forum with clean hands. There is no dispute about the services rendered by the Opposite Party Hospital or the Doctors attached to it. It is averred that time & again Complainant was informed to collect the cheque however, in vain.
 

5) With reference to the claim of the Complainant he has not produced any proof regarding loss of business etc. therefore, the Complainant is not liable for reimbursement for the loss of business. The Opposite Party therefore prayed for dismissal of complaint with compensatory cost.
 

6) We have perused the record, heard the Complainant son and the Ld. Advocate for the Opposite Party at length, so also examined the rival contentions raised by both the parties, our observations, finding and reasons are as follows -I
 

7) The first & foremost issue which arises for consideration is whether the Complainant is a Consumer under the Consumer Protection Act 1986?
 

In the present case in hand the Complainant has admittedly deposited a sum of Rs.20,000/- in the Opposite Party Hospital which was refundable after reimbursement from the Insurance Company to the Opposite Party Hospital. The said deposit was made on 04/04/2008 towards surgery to be conducted on his wife Mrs.Sushila K.Shah. Though no deficiency regarding the Opposite Party Hospital or the Doctors attached to it is alleged. Admittedly as on 09/08/2008 the Opposite Party Hospital was reimbursed by Vipul Medicorp TPA Pvt.Ltd. but the said deposit was admittedly refunded to the Complainant on 04/12/2008 by two cheques being nos.644545 dated 15/10/2008 for Rs.18,263/- and cheque no.655285 dated 26/11/2008 for Rs.1,737/-. It is crystal clear that the Opposite Party Hospital despite being reimbursed by Vipul Medicorp TPA Pvt.Ltd delayed the refund of the said deposit to the Complainant. We are of the view that to cover up for its deficiency the Opposite Party Hospital subsequent to the filing of the complaint before this forum on 04/12/2008 handed over the cheques of the said amounts to the tune of Rs.20,000/- to the Complainant. Under the Consumer Protection Act, 1986 u/s 2(1)(g) the term deficiency is defined as “any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service” In the present case the Complainant had hired the services of Opposite Party Hospital for consideration and deposited a sum of Rs.20,000/- which was refundable subsequent to the reimbursement by Vipul Medicorp Pvt.Ltd. After admittedly receiving the amount from Vipul Medicorp Pvt.Ltd., vide covering letter dated 09/08/2008 which was received by the Opposite Party on 16/09/2008 as contended delaying the refund of the said deposit without any just would amount to arbitrary and illegal retention by the Opposite Party Hospital of the refundable deposit. Though there is no documentary evidence produced on record about the receipt of the said amount on 16/9/08. On careful perusal of the letters produced with the W.S on record addressed by Vipul Medicorp Pvt.Ltd., to the Opposite Party Hospital regarding issuance of cheques against the claim the dates reflected is as 09/08/2008. Therefore, it can be safely concluded that there was an inordinate delay of about 4 months for refunding the said deposit of the Complainant. Under the Consumer Protection Act, 1986 U/s.2(1)(o) service has been defined and includes service of any description and therefore, the services rendered by the Opposite Party Hospital after payment of consideration and subsequent administrative service with regard to refund would bring them within the purview of the term service. Hence, we are of the view that it is obligatory on the part of the Opposite Party Hospital to properly administer the affairs of the Hospital, which include proper billing, appropriation of monies recovered from the Insurance Agency and refunding the monies which has been received by them in excess at the earliest without any unjust deductions. From the facts of the present case it is borne out that the Opposite Party Hospital was deficient in rendering proper administrative service i.e. inordinately delaying the refund of deposit of Rs.20,000/- to the Complainant. Therefore, the Complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 hence, this issue is answered in affirmative.
 

8) It is the contention of the Opposite Party that the Complainant is not a power of attorney holder of Mrs.Sushila Shah etc & that no averment is made in the Complaint regarding locus as well as the consumer relationship between the parties & that there is no consumer dispute. The said contention of the Opposite Party is devoid of merit as from the document at Ex- “A” produced by the O.P with their W.S are letters dtd. 09/08/08 addressed by Vipul Medicorp Pvt.Ltd. to the Opposite Party Hospital wherein the contents reflected are as follows -
 

sub: Issuance of cheque against file number 09CB03NAE004 of SUSHILA K. SHAH
 

Dear Sir/Madam, 

        Please find enclosed Cheque No. : 313882 dated 09/08/2008 for Rs.129533.00 drawn on IDBI BANK LIMITED in full and final settlement of mediclaim claim file number 09CB03NAE004 under policy number 260600/48/0/9500000416 held by KUMUDCHANDRA T SHAH against your Bill No.0 dated 13/04/2008. Since the payment was made Mr.Kumudchandra T. Shah for Sushila K. Shah. Therefore, it can be said that the Complainant had hired the services of the Opposite Party Hospital for his wife and it appears that she was the beneficiary under the said policy. Therefore, it is of no consequence whether the Complainant wife gave him power of attorney or not to prosecute the present complaint as the Complainant and/or his wife both had a right to file the present complaint. From the above referred documents it is clearly evident that the relation of the present Complainant Mr.Kumudchandra T.Shah and Mrs.Sushila K.Shah is of husband & wife although there is no averment regarding the same in the complaint and it was vehemently argued by the Complainant's Son that they are layman. It is also pertinent to note that in para 22 of the written statement of Opposite Party Hospital states that it is true to say that there were two letters sent by the Insurance Company dated 09/08/2008 and further that the Complainant was having two different policies therefore two different letters were sent by the Insurance Company and therefore, the said policy refers to two different deductions and two different bill amounts. The Opposite Party Hospital themselves considered the payment received by the present Complainant towards part payment of Rs.1,29,533/- for his wife. It is pertinent to note that it is nobody’s case that Mrs Sushila .K.Shah has objected to the prosecution of this present complaint nor has the Opposite Party hospital brought anything contrary on record to uphold their contention. Further it is also pertinent to note that no where in the written statement the Opposite Party Hospital has raised this plea only in their written arguments they have brought up this plea just to evade the legitimate right of the Complainant. In view of what is afore-stated we are of the view that it is of no consequence at all. Further in our view the Opposite Party is just trying to side track the main issue.
 

9) It is the contention of the Complainant that the Opposite Party Hospital had illegally deducted the sum of Rs.1,737/- from the refundable deposit of Rs.20,000/-. Contra the case of the Opposite Party Hospital is that Vipul Medicorp Pvt.Ltd. had deducted the sum of Rs.1,707/- therefore, the Opposite Party Hospital deducted the said sum from the deposit of Rs.20,000/- and was willing to hand over Rs.18,263/- back to the Complainant. It is clearly evident from the record that two bills one dated 09/04/2008 for Rs.3,69,973/- and another dated 10/04/2008 of Rs.3,06,036/- were raised by the Opposite Party Hospital with Vipul Medicorp Pvt.Ltd., and the charges towards Pharmacy medicine reflected in bills dated 09/04/2008 were Rs.17,660.42 and in the bill dated 10/04/2008 Rs.19,367.42 there were discrepancies in the said bills for which the Complainant sought clarification however, no reply was given. On the contrary the Complainant was directed to see clarification from Vipul Medicorp Pvt.Ltd., directly. It is highly inconceivable that for the said deduction made by the Insurance Company no reason was given. It appears that the reasons if given by Vipul Medicorp Pvt.Ltd. were against the Opposite Party Hospital. Hence, were suppressed by the Opposite Party Hospital. It is pertinent to note that when the Complainant's representative wanted to collect the said amount of Rs.18,263/- under protest he was not given the same under protest. As it was within the knowledge of Opposite Party Hospital that they were responsible for the said deduction by Vipul Medicorp Pvt.Ltd., if any as they were discrepancies in the two bills regarding Pharmacy Medicine charges. It is also pertinent to note that the Opposite Party Hospital in their written statement in para 9 have stated that the Insurance Company Vipul Medicorp Pvt.Ltd. made payment in favour of Opposite Party and therefore the Complainant is entitled to get the payment of Rs.20,000/-. If that was the case, we failed to understand as to why the amount of Rs.18,263/- after deducting Rs.1,737/- was not handed over to the Complainant's representative under protest as the Complainant could have taken up with the concerned Insurance Company. Even otherwise, coercing anybody or the Complainant in present case to receive the amount of Rs.18,263/- towards full and final settlement as against the deposit of Rs.20,000/-. To compel the representative Complainant to sign the discharge voucher for full and final settlement which the Complainant wanted to sign accepting the said amount under protest. In our view would tanta amount to coercive bargaining by the Opposite Party and therefore amounts to unfair trade practice on their part.. In view of the above discussion we can safely conclude that the Opposite Party Hospital was not justified in deducting the amount of Rs.1,737/-from the amount of Rs.20,000/- deposited with them as usual practice adopted by them to indemnify themselves in case of deductions by the Insurance Companies.
 

10) In view of the admitted position in para 6 of the their written statement wherein the Opposite Party has in categorical terms admitted that the Complainant had approached them for refund of deposit of Rs.20,000/- which was deposited by the Complainant on 04/04/2008 and that the Complainant had already received the amount of Rs.20,000/- on 04/12/2008 alongwith a covering letter dated 03/12/2008 vide two cheques dated 15/10/2008 for 18,263/- and 26/11/2008 for Rs.1,737/-. In para 7 of their written statement the Opposite Party has stated that the said cheques have been en-cashed. In para 8 of their written statement it is sated that the complaint was filed on 15/11/2008 and notices were issued by the Hon'ble Forum on 2/11/2008 though the Opposite Party has produced on record letter dated 04/11/2008 and 12/11/2008 there is no amount mentioned in the said letter dated 04/11/2008 and in the letter dated 12/11/2008 the amount mentioned is Rs.18,263/- and clarification if any, sought by the Complainant for the said deduction is to be sought from TPA Vipul Medicorp Pvt.Ltd., Mumbai. It is pertinent that no clarification was given by the Opposite Party Hospital regarding the said deduction nor the Complainants letters seeking clarification for the said deduction were replied by the Opposite Party Hospital. In para 9 of their written statement the Opposite Party has stated that it is true to say that the Insurance Company TPA Vipul Medicorp Pvt.Ltd, made payment in favour of Opposite Party and therefore, the Complainant is entitled to get the refund of deposit of Rs.20,000/-. Therefore, in categorical terms the Opposite Party Hospital has stated that the Complainant is liable to get refund of deposit of Rs.20,000/-. In para 12 of their written statement the Opposite Party Hospital stated that it is matter of fact the amount of Rs.1707 was deducted by Insurance Company and therefore, the said amount was deducted by the present Opposite Party herein and that some time was required for getting the actual amount from the Insurance Company as well as some time is required for clearing the entire transaction. Further in para nos.21, 22 & 23 it is apparent that the Opposite Party Hospital was not only deficient in the administrative services but was guilty of unlawful deduction and delay in refunding the deposited amount. We are of the well considered view that the Opposite Party Hospital is not coming out with the truth regarding the said deduction which in our view was illegal and further they are trying to suppress the fact that there was inordinate delay of about 4 months in refund of the said deposit. In view of the above pleas taken by the Opposite Party in their written statement it is clearly evident that the Opposite Party is deficient in their services as well as guilty of practicing unfair trade practices. The undertaking given by the relative of the Complainant is of no consequence in view of the facts and circumstances of this case.
 

11) The Complainant has produced the following documents in support of his case which are as follows -
 

1. Xerox copies of Bills of Cumballa Hill Hospital & Heart Institute.
2. Xerox copy of Receipt of Deposit. 

3. Xerox copies of Fax Messages sent by the Complainant to Cumballa Hill Hospital & Heart Institute.
4.Xerox copy of Fax messages received from Cumballa Hill Hospital & Heart Institute. 

5.Xerox copies of letter of Insurance of cheque from Vipul Medicorp TPA Pvt. Ltd. to Cumballa Hill Hospital & Heart Institute.
 

12) In view of the above discussion we find substantial force and truth in the contentions raised by the Complainant. The Complainant had a grievance regarding an apology letter which was asked to be tendered by the Opposite Party Hospital representatives for no fault of his. Since, there is no documentary evidence the Opposite party is denying the same but from the aforesaid conduct it can be believed that the Opposite Party Hospital representative must have asked for an apology letter for no fault of the Complainant. It is highly deplorable that the Opposite Party representative forget that they are in the service industry and they have to be polite courteous to their customers. It is unfortunate that the Opposite Party Hospital being of such high stature and repute conducts itself in such fashion. The overall approach of the Opposite Party hospital appears to be high handed and further that delay in refund of the deposited amount of about 4 months & illegal deduction of Rs.1,737/ by the Opposite Party would bring them within the purview of deficiency in services as well as unfair trade practice. Undoubtedly there has been a delay of about 4 months for which the Complainant needs to be compensated. Further in our view, the Complainant was made to go through immense mental agony and was made to run from the pillar to post to recover his deposit amount of Rs.20,000/- and had to knock the door of this Forum for redressal of his grievances and therefore, the Complainant needs to be compensated for the same to achieve the ends of justice. The only issue which remains to be adjudicated is whether the Complainant is liable for compensation of Rs.1,00,000/-for loss of business. There is no documentary evidence produced by the Complainant to substantiate the loss of business & further the Complainant has in para 3 of his written argument stated that business loss claimed at Rs.1,00,000/- is not pressed for. We are therefore unable to consider the same. Hence, the following order -
 

-: O R D E R :-

 

1. Complaint No.227/2008 is partly allowed in the following terms.

 

              2. The Opposite Party is directed to pay to the Complainant Rs.7,500/- (Rs.Seven Thousand Five Hundred Only) towards 

               interest, mental agonyand Rs.2,500/- (Rs.Two Thousand Five Hundred Only) towards cost of litigation. 
 

3. The Opposite Party is directed to comply with this order within 4 weeks from the receipt of the order hereof.