Date of Filing:11/04/2011

        Date of Order:14/06/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  14^th DAY OF JUNE 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO. 704 OF 2011

Dayaram B. Khatri,

S/o. Late Bhawarlal,

C/o. S.P. Khatri & Co (C.A),

# 11, 20^th Cross, Cubbonpet,

Bangalore-560 002.                                                            ….  Complainant.

V/s

1) The Manager, HDFC Ergo General

Insurance Company Limited, 1^st Floor,

H.M. Geneva House, No.14,

Cunningham Road, Bangalore-560 052.

2) The Manager, HDFC Ergo,

General Insurance Company Limited,

(Regd. Office) Raman House,

H.T. Parekh Marg, 169, Backbay

Reclamation, Mumbai-400 020.                                        …. Opposite Parties.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay Rs.1,86,157/- with interest at the rate of 15% per annum, are necessary:-

          The complainant is having a medical policy of the opposite parties bearing No.93675599/00005 (Accidental Protection Plan) and it is in force.  On 24.05.2010, he met with an accident at 8.45 AM by an Auto Rickshaw bearing No. KA-03-AC-7747, and sustained bleeding injuries on his right hand.  The said auto rickshaw driver in the guise of giving medical treatment dropped the complainant near a temple and went away.  On request by the complainant his son came and took him to the Fortis Hospital.  On 25.05.2010 the Traffic Police came and registered the case in Crime No.51/2010 as against the Auto Rickshaw driver.  Because of the pain the complainant could not put his signature, but put his LTM on the complaint.  After taking x-ray it was found that the complainant has suffered “communicated fracture, neck of right humorous”, and the complainant incurred an expense of Rs.1,890/- for first aid treatment.  The complainant approached the opposite parties who have told him to meet the hospital expenses first and then they will reimburse the same.  Accordingly the complainant was admitted in Kamakshi Hospital, Mysore, took further treatment between 26.05.2010 to 08.06.2010 for 14 days by spending Rs.42,874.00, took treatment from 17.07.2010 to 18.07.2010 for two days spending Rs.1,673.00, took treatment from 21.09.2010 to 22.09.2010 for two days by spending Rs.6,429.00.  Thus for 18 days he has spent a total sum of Rs.50,976/-.  Further the complainant has spent Rs.720/- as per 6 bills spent Rs.3,058/- to Aushad Pharmacy, Rs.1,890/- towards Fortis Hospital.  Thus in all he has spent Rs.56,644/-.  On 09.08.2010 the complainant sent the 10 original documents towards the above and claimed Rs.84,715.50 paise and also informed that one more operation is due to the shoulder as the Doctor advised to take in the first week of September-2010 and further stated that he will be submitting the bills.  The opposite party has sent a letter dated: 30.08.2010 agreeing to pay Rs.35,158/- only which is not correct.  During the course of operation the doctors fixed two K-Wire (Rods) near the right shoulder and also put full bandage on the right hand, the complainant feels lot of pain.  After removal of the rods in the last week of September-2010 by operating for about 2 months the complainant was also advised for full rest by the Physician and there was temporary disability between 24.05.2010 to 18.11.2010 as opined by the Doctors.  The complainant has made following claim:-

In spite of repeated requests, demands and notices the opposite parties has filed to settle the claim.  Hence the complaint.

2.       In brief the version of the opposite parties are:-

          The amount payable under the policy to the complainant was assessed based on the policy terms and conditions.  As per the policy, the complainant is entitled for 12% of the medical bills which he had submitted, amounting to Rs.57,500/-, which will be Rs.6,900/-.  The period of inpatient treatment was from 26.05.2010 to 08.06.2010 and 17.07.2010 to 18.07.2010.  The total number of days of inpatientship, works out to be 16 days.  Hence at the rate of Rs.4,312.50 per week for the sixteen days i.e., for two weeks and two days, the sum of loss of income works out as Rs.9,858/-.  The hospitalization expenses covered per day are Rs.1,150/-, the total is Rs.18,400/- + 6,900/- + 9858 = Rs.35,158/-.  All other amounts and the claims pertains to the subsequent period and treatment.  Hence the complainant cannot have grouse that the entire claim is not paid by the opposite parties and is entitled for the amount claimed.  Unless the claim is made and subjected to scrutiny and decision taken or communicated, the complainant will not get any cause of action to approach this Forum.  Regarding the first part of the claim the opposite parties has sent the cheque to the complainant but the complainant has refused.  All the allegations to the contrary are denied.

3.       To substantiate their respective cases the parties have filed their respective affidavits and the complainant has filed the written arguments with documents.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether there is deficiency in service/unfair trade practice?
2. What Order?

5.       Our findings are:-

Point (A)        :           In the Positive.

Point (B)        :           As per the final Order

                             for the following:- 

-:REASONS:-

Point A & B:-

6.       Reading the pleadings in conjunction with the affidavit and documentary on record it is an admitted fact that the complainant is having an insurance policy of opposite party bearing No.93675599/00005 (Accident Protection plan) and it was in force.  It is also an admitted fact that the complainant had met with an accident on 24.05.2010, he was taken to the Fortis Hospital where certain treatment was given and he sought cashless facility which was declined and the complainant has taken treatment at different hospitals being an inpatient.  On 25.05.2010 at 8.45 traffic police registered a criminal case No.51/2010 against the driver of the Auto Rickshaw.

7.       It is also an undisputed fact that the complainant had made a claim on 09.08.2010 claiming certain amounts and the opposite parties have scrutinized, that part of the claim, and ordered payment of Rs.35,158/- on 30.08.2010.  Subsequently the complainant has claimed further amount, in all amounting to Rs.1,85,157/-.  All the entire claim is not processed by the opposite parties on the ground that the second part of the claim has not been processed since no documents are produced to it.  It is an untenable contention.

8.       When the complainant has laid the claim before this Forum and the copies of all the documents were furnished to the opposite parties before this Forum the opposite parties would have taken all the documents reassessed the entire claim of the complainant and could have paid whatever the amount is due in accordance with the policy.

9.       Merely sending a cheque for Rs. 35,158/- on 02.06.2011 will not absolve the liability of the opposite parties to pay the amount towards all the claim after processing it and coming to a definite conclusion what is the exact amount which is due.  If we direct the opposite parties to consider the entire claim of the complainant afresh and pass appropriate orders deliver whatever amount due to the complainant within a period of 30 days we think that will meet the ends of justice.  All the documents furnished by the complainant has to be returned to the opposite parties counsel and the opposite parties there from has to consider the entire claim afreash and pass an appropriate orders by sending the amounts due to the complainant.  If the complainant after receiving the money he is at liberty to approach Consumer Forum if he is entitled to or advised so.  Hence we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1. The Complaint is Allowed-in-part.
2. The entire original records produced by the complainant shall be given to the counsel for the opposite parties.  The opposite parties shall consider the whole claim of the complainant afresh not in piece meal processing it and pass an appropriate orders; pay the amount which ever finds due to the complainant within 30 days from today.
3. The opposite parties are also directed to pay Rs.2,000/- to the complainant towards cost of this litigation.
4. The opposite parties are directed to send the amount as ordered at Serial Nos.2 & 3 above through DD by registered post acknowledgment due to the complainant and submit the compliance report to this Forum with necessary documents within 45 days.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 14^th Day of June 2011)

MEMBER                                           MEMBER                          PRESIDENT