Complaint No: 14 of 2019.

                                                                     Date of Institution: 17.01.2019.

                                                                             Date of order: 22.11.2023.

Sumesh Vig Son of Satish Vig aged about 28 years, resident of Sai Karyana Shop, c/o residence Village Taragarh Batala District Gurdaspur.

                                                                                                                                                        …...........Complainant.                                                                                                                                                                                                                                                                                                                                                                                                       

                                                    VERSUS

1.       ICICI Prudential Life Insurance, 1st Floor of the Building SCO 134-135-36 Sector 8C Chandigarh-160009 (Above ICICI Wealth Branch, Near Sindhi Sweets).

2.       ICICI Prudential Life Insurance, Branch Jalandhar Road, Batala, Tehsil and District Gurdaspur, through its Branch Manager.

3.       Employees State Insurance Corporation Hospital Batala, Near Civil Hospital Batala, Tehsil Batala, District Gurdaspur, through its Branch Manager.

4.       Employees State Insurance Corporation Hospital Amritsar, Near Guru Nanak Hospital Amritsar, Tehsil and District Amritsar, through its Branch Manager.

5.       Medical Superintendent of Employees State Insurance corporation Hospital, Majitha Road, Amritsar.

                                                                                                                                                ….Opposite parties.

                                       Consumer complaint under section 12 of the Consumer Protection Act.

Present: For the Complainant: Ms. Meena Mahajan, Advocate.

             For the Opposite Parties No.1 & 2: Sh. Sandeep Ohri, Advocate.  

             For the Opposite Parties No.3 & 4: Sh. Rajinder Kumar,  Advocate. 

              Opposite Party No.5 exparte.

Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.

ORDER

Lalit Mohan Dogra, President.

          Sumesh Vig, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against ICICI Prudential Life Insurance Etc. (here-in-after referred to as 'opposite parties).

2.       Briefly stated, the case of the complainant is that in the year of 2017, the complainant was appointed as Senior Sales Manager in the office of opposite party No. 2. It is pleaded that as per the rules and guidelines of Employees State Insurance Corporation, Opposite Party No. 2 has got itself registered as the Insurance Authority under the ESI on 05.01.2018 vide Insurance No.1713513364. It is further pleaded that opposite parties deducted the premium from the Saving Account of the complainant against the ESI amounting to Rs.356/- per month. It is further pleaded that Marital status of the complainant is unmarried and as per his status, the parents of complainant are dependent as mentioned in the Insurance Policy issued by the opposite party No. 2. It is further pleaded that unfortunately on 10.09.2018 at about 6:00 A.M father of the complainant suddenly fell sick and was suffering from chest pain. It is further pleaded that immediately the complainant approached at ESI Hospital Batala, i.e. OP No. 3, the Medical Officer namely Subash Chander who was on duty but did  not deal with the complainant properly and refused to give the treatment on the basis of ESI Card. It is further pleaded that on the same day i.e. on 10.09.2018 complainant had got admitted his father at Dr. Adarsh Heart and Super Specialty Hospital Amritsar where first aid given by the Hospital and continue the treatment. It is further pleaded that on 02.10.2018 Angiography was done by the Concerned Doctor of Heart and Super Specialty Hospital Amritsar and declared that father of the complainant was suffering from heart attack and by-pass surgery is required for the safety of the life of father of the complainant. It is further pleaded that again on 04.10.2018 the complainant approached the opposite party No. 3 alongwith the Doctor's report, but Dr. Subash Chander who was on duty under opposite party No. 3 wrongly marked his case to the opposite party No. 4. It is further pleaded that opposite party No. 4 has refused to give the treatment to his father on the reference of Dr. Subash Chander i.e. opposite party No. 3. It is further pleaded that due to the bad act and conduct of the opposite parties No. 3 and 4, complainant admitted his father in emergency at Fortis Escorts, Amritsar on 21.10.2018 where he was remained admitted from 21.10.2018 to 28.10.2018 and all the expenses were borne by the complainant on the treatment of his father from his own pocket. It is further pleaded that Total amount of Rs.2,50,000/- (Rupees Two Lacs Fifty Thousands Only) was incurred by the complainant on the treatment of his father. It is further pleaded that after discharge from the hospital the complainant submit his claim form in the office of the opposite parties, but the concerned officer did not admit his claim form and refused to accept the same without any sufficient cause and excuse which caused mentally harassment and damages to the complainant. It is further pleaded that the opposite parties are in deficiency in service towards the complainant. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.

          On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to settle the claim for making the payment of Rs.2,50,000/- incurred by the complainant from his own pocket for the treatment of his father. It is further pleaded that necessary direction may kindly be issued to the opposite parties to pay compensation amounting to Rs.1,00,000/- towards damages, harassment suffered by way of mental tension and agony and litigation expenses or any alternative relief as the court may deem fit to the complainant, in the interest of justice.

3.       Upon notice, the opposite parties No.1 and 2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present Complaint is false, frivolous, vexatious and abuse of the process of this Hon'ble Commission and therefore same is liable to be dismissed. It is further pleaded that Complainant has failed to prove any cause of action against the answering opposite parties and in absence of the same the present complaint is liable to be dismissed as far as it is against the answering OP’s. It is pleaded that the answering OP’s is not the insurer of the Complainant but merely a facilitator as per the mandate of law. It is further pleaded that it is pertinent to note that no allegation has been made by the Complainant against the answering OP’s and all the allegations have been made against the OP’s No. 3 and 4 and the answering OP’s has unnecessarily been made a party in the present complaint. It is further pleaded that the present complaint is not maintainable in the present form. It is further pleaded that answering OP’s states that the complainant is an employee of the answering OP’s, no service has been provided in this case by the company to the complainant and thus, no consumer dispute exists between the complainant and the OP’s No. 1 and 2. It is further pleaded that the Complainant has sought a relief from this Hon'ble Commission which he is not entitled to get as no service as such has been provided by the answering OP’s to the Complainant and no deficiency in service on the part of the answering OP’s have been demonstrated by the complainant. It is further pleaded that the Hon'ble Commission may be pleased to dismiss the present complaint as against the answering OP’s. It is further pleaded that complaint deserves to be dismissed on this count alone. It is further pleaded that the preliminary objections raised herein above with regard to the maintainability of the complaint, go to the very root of the matter and as such these objections need to be considered at the outset and the answering opposite parties most humbly pray to dismiss the complaint summarily as far as they are against the answering OP’s without going into the merits thereof. It is further pleaded that the complainant is working with the OP’s No. 1 and 2 and his ESI premium is being deducted every month. It is further pleaded that concerned authorities are depositing the said amount regularly and the ESI card of the complainant is active as there is no lapse on part of the OP’s No. 1 and 2 with respect to the deduction and deposit of the ESI amount. It is further pleaded that answering OP’s is not the insurer of the Complainant but merely a facilitator as per the mandate of law. It is further pleaded that the answering OP’s have no knowledge about the medical problem of the father of the complainant and the treatment and further have no knowledge about the denial of the treatment. It is further pleaded that the Complainant did not raise any concern / grievance regarding the ESI Card not working at the ESIC Hospitals with the answering OP’s. It is further pleaded that ESI rules are applicable on the complainant and the other OP’s. It is further pleaded that no such claim has been presented to the answering OP’s and there is no deficiency on the part of the answering OP’s company and all allegations have been made against the OP’s No. 3 and 4 and the answering OP’s has unnecessarily been made a party in the present complaint. It is further pleaded that a dispute between a Company and its Employee cannot be adjudicated under the Consumer Protection Act and disputes are exclusively of civil nature and the same can be adjudicated by a Civil Court of Competent Jurisdiction or in certain instances by the Labour Court. It is further pleaded that company has provided no service in this case to the complainant. It is further pleaded that there is no deficiency in service on the Part of the OP’s Company and the complainant is not entitled to any relief whatsoever and no cause of action arises in favour of the complainant. It is further pleaded that territorial jurisdiction of this Hon'ble Commission is not disputed.

          On merits, the opposite parties No.1 and 2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs. 

4.       Upon notice, the opposite parties No.3 and 4 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that all the matters regarding dispute between the employer and the Corporation, between an Insured Person and Corporation are to be decided by the Employee's Insurance (E.I.) Court under Section 75 of ESI Act, 1948. The case is not maintainable before the Hon'ble Court of Commissioner of Employee's Compensation as per the provisions of Section 74 and 75 (3) of ESI Act, 1948 and as per Section 75 (3) of the ESI Act, 1948, "No civil court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by a medical board, or by a medical appeal tribunal or by the Employee's Insurance Court. It is pleaded that as per letter No.V-14/11/5/2012-Med.1 (Policy) dated 07.11.2016, the competent authority has approved the recommendations which are re-produced as under (Annexure R-1):-

"The IP (Insured Person) should have been in continuous employment for the last two years as on the date of diagnosis for SST (other than the cases of employment injury) and at least 156 days contribution was paid by the IP during the immediately preceding four contribution periods with eligibility for sickness benefit in at least two benefit periods."

After completion of above period the IP and family will be eligible for SSTY including the children of IP with congenital diseases and genetic disorder.

It is further pleaded that therefore in the instant case the Insured Person was registered with Employees' State Insurance Corporation w.e.f. 05.01.2018 and as such he has not completed two years of service on the day of availing Super Specialty, hence he is not entitled for Super Specialty treatment of his father.

          On merits, the opposite parties No.3 and 4 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs. 

5.       Opposite party No.5 did not appear despite the service of notice and was proceeded against exparte vide order date 30.12.2019.

6.       Learned counsel for the complainant has tendered into evidence affidavit of Sumesh Vig, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-29.

7.       Learned counsel for the opposite parties No.1 and 2 has filed reply of the complaint.

8.       Learned counsel for the opposite parties No.3 and 4 has filed letter of dated 15.12.2016 as Ex.OP-3,4/1 alongwith reply of the complaint.

9.       Rejoinder not filed by the complainant.

10.     Written arguments filed by the complainant but not filed by the opposite parties.

11.     Counsel for the complainant has argued that in the year 2017 complainant was appointed as Senior Sales Manager in the office of opposite party No.2 and as per rules and guidelines of Employees State Insurance Corporation, opposite party No.2 has been got registered as insurance authority under ESI on 05.01.2018 and opposite parties deducted premium form the saving account of the complainant i.e. Rs.356/- per month. The marital status of the complainant was unmarried and parents of complainant were dependent as mentioned in the insurance policy. It is further argued that on 10.09.2018 father of the complainant fell sick and was taken to ESI Hospital Batala and opposite party No.3 did not take card and refused to give treatment on the basis of ESI card on account of which on 10.09.2018 complainant admitted his father at Dr. Adarsh Heart and Super Speciality Hospital Amritsar where angiography was performed and was advised by-pass surgery. It is further argued that on 04.10.2018 complainant approached opposite party No.3 but opposite party No.3 did not accept the genuine request of the complainant and opposite party No.4 refused to give treatment to the father of the complainant on reference of Dr.Subash Chander. In emergency complainant got his father admitted at Fortis Escorts, Amritsar where he remained admitted under treatment from 21.10.2018 to 28.10.2018 and had to spent Rs.2,50,000/- on the treatment of his father. It is further argued that complainant had submitted his claim with the opposite parties which was refused by the opposite parties which amounts to deficiency in service.

12.     On the other hand counsel for the opposite parties No.1 and 2 as argued that all the allegations are against opposite parties No.3 and 4 and as such complaint against opposite parties No.1 and 2 is not maintainable ad there is no deficiency in service on the part of opposite parties No.1 and 2.

13.     Counsel for the opposite parties No.3 and 4 has argued that complaint before this Commission is not maintainable and the dispute between employer and corporation and is required to be decided by ESI Court under section 75 (3) of the ESI Act, 1948 and jurisdiction of this Commission is barred. It is further argued that as per letter dated 07.11.2016 competent authority has approved the recommendations as per which the IP should have been in continuous employment for the last two years on the date of diagnose for SST and at least 158 days contribution was paid by the IP during the immediately preceeding four contribution periods with eligibility for sickness benefit in at least two benefit periods and in the present case insured was registered with the corporation w.e.f. 05.01.2018 and did not complete two years of service on the day for availing Super Speciality for treatment of his father and complaint is liable to be dismissed.

14.     Opposite party No.5 remained exparte.

15.     We have heard the Ld. counsels for the complainant and opposite parties No.1,2,3 and 4.  

16.     To prove his case complainant has placed on record his affidavit Ex.C1, copy of ESI Ex.C2, copies of medical bills and prescription slips Ex.C3 to Ex.C14, copy of consent form Ex.C15, copy of report Ex.C16, copies of treatment record Ex.C17 to Ex.C19, copies of bills Ex.C20 to Ex.C29 whereas opposite parties No.1 and 3 have placed on record affidavit of Tanvi Chaubal Manager Legal. Opposite parties No.3 and 4 have placed on record copy of letter dated 15.12.2016 Ex.OP-3,4/1.

17.     It is admitted fact that the complainant is employee of opposite parties No.1 and 2. It is further admitted fact that opposite party No.2 has been got registered as insurance authority under ESI on 05.01.2018. It is further admitted fact that amount of Rs.356/- per month was deducted from the saving account of the complainant. It is further admitted fact that father of the complainant remained under treatment from 10.09.2018 to 28.10.2018 with Dr. Adarsh Heart and Super Speciality Hospital Amritsar and thereafter Fortis Escorts Amritsar and amount of Rs.2,50,000/- has been spent by the complainant on the treatment of his father. Perusal of Ex.OP-3,4/1 clearly shows that IP should have been in continuous employment for the last two years as on the date of diagnose for SST and at least 156 days contribution paid by the IP during immediately preceding four contribution periods with eligibility for sickness benefit in at least two benefit periods. After completion of above period the IP and family will be eligible for SST including the children of IP with congenital diseases and genetic disorder. Meaning thereby that the claim of the complainant for availing super speciality treatment of his father was not admissible as insured person was admittedly registered with Employees State Insurance Corporation w.e.f. 05.01.2018 and father of the complainant fell sick on 10.09.2018 and remained under treatment upto 28.10.2018 just within eight  months and accordingly has not completed the period of two years as per the guidelines. Accordingly, as per the admitted policy and guidelines the complainant is not entitle to the reimbursement of the medical expenses allegedly incurred by the complainant on the treatment of his father.

18.     Accordingly, we do not find any merit in the present complaint and the same is ordered to be dismissed with no order as to costs.   

19.     The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

20.     Copy of the order be communicated to the parties free of charges. File be consigned.                                                                                                                                                               

            (Lalit Mohan Dogra)

                                                                                      President.  

Announced:                                                   (B.S.Matharu)

Nov. 22, 2023                                                       Member.

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