Ld. Advocate(s)

                                    For Complainant: Jayshree Paul

                                    For OP/OPs : Avijit Gope

            Date of filing of the case                      :10.03.2022

            Date of Disposal  of the case              :24.06.2024

Final Order / Judgment dtd.24.06.2024

The concise fact of the case of the complainant in a nutshell is that the complainants are the brother  and sister of deceased  Shruti Bandyopadhyay and her legal heirs and successor. The said Shruti Bandyopadhyay was an  employee  of P.W Roads Department and retried  as a Clerk  of the National  Highway  Division  No.2, Kalyani, Nadia. The employees of all  departments  of the said company  was brought under the Health Insurance Scheme  and accordingly  the said Shruti Bandyopadhyay was enrolled  under the  West Bengal Health Insurance. All employees  and pensioners  were entitled  to cashless  medical treatment  scheme, 2014 and her beneficiary  I.D No. is 111677231/1/1 on 11.05.2021. The said Shruti Bandyopadhyay  fell ill  and was treatment  of Dr. S.K. Roy . Doctor  advised  to RTPC test  for Covid-19.  On 17.05.2021 she was admitted  to SNR Carnival Hospital at Kalyani, Nadia  for treatment.  During treatment  and admission  the complainant  told the hospital authority  for cashless  treatment  as she was under the pensioner  cashless treatment scheme, 2019. Due to deterioration   of her condition  she was admitted  to the nursing home of OP No.1 SNR Carnival Hospital  , Kalyani, Nadia on 17.05.2021 as indoor  patient  for Covid-19. The medical bill was increasing day by day. Due to poor economic condition the complainant  was shifted  to NSS Covid Hospital  on 21.05.2021 and she expired  on 22.05.2021. The SNR Hospital  was paid all the  medical bills  from 17.05.2021 to 21.05.2021 for more than Rs.2,12,000/-. The nursing home authority  refused  to provide  the cashless  benefit without sufficient  reason.  The said Shruti Bandyopadhyay  was a pension holder  and used to get  Rs.13265/- as monthly  pension.  So, it was very difficult  for her  to bear  the cost of  treatment .  The OP No.1  adopted  unfair trade practices  by refusing  to pay cashless  benefit. So the complainants  suffered  mental pain and agony  for which they are entitled to compensation . So, the present case is filed.  The cause of action arose on 23.06.2017 being the  date for  enrolment of health insurance  policy, thereafter,  on 17.05.2021 and on subsequent  dates till the date of filing of this case. Said Shruti Bandyopadhyay sent a  letter to the Executive Engineer , Nadia Highway Division P.W Roads Department , Kalyani, Nadia  but they  did not reply . The Pro-OP No.2 is a necessary party  but the complainants does not pray any  relief against  Pro-OP No.2.  The complainants  prayed for  an award  against OP No.1 directing  the OP No.1 Hospital  to pay all amounts of billing  of deceased  Shruti Bandyopadhyay along with interest,  Rs.5,00,000/- for harassment and mental pain and agony and Rs.30,000/- towards litigation cost.

          The OP No.1 contested the case by filing  W/V wherein  they evasively  denied the  claim of the complainants  as stated in para 1 to 11. The OP No.1  challenged the case as not maintainable  on the ground  that the complainants  are not a consumer  of the OP No.1 nor has he hired  any services  from the OP No.1.  The Commission has no  jurisdiction . The positive defence case of the OP No.1 in brief is that the  complainants  filed the present case  cunningly.  The said  Shruti Bandyopadhyay was a regular patient of  Dr. S.K. Roy   of   OP No.1 Hospital and had a  good relation by and  between  them.  The said Shruti Bandyopadhyay  came to  Dr. S.K. Roy  on 11.05.2021 and the doctor advised  her for  RTPCR test for  detecting  Covid-19. The said test  was positive. The patient  who was suffering  from heart disease  and other complications. The family member of the said patient  waited/wasted  6 days  and ultimately admitted her in O.P Hospital  on 17.05.2021. The doctor tried their level best for her recovery . When medications  and investigations  were going  on suddenly  the family  members discharged the said Shruti Bandyopadhyay at their own  risk, as a result the OP No.1 could not treat her further . The complainants  admitted  that due to  poor economic condition the complainants  shifted  the patient to NSS Covid Hospital on 21.05.2021 but on 22.05.2021 the said Shruti Bandyopadhyay died. One Krintan  Dutta  discharged  the patient taking responsibility  and endorsed the signature  on 21.05.2022. The family members  of the complainants  never submitted  any papers  to get the said benefit . Even  for the sake of  argument  if the OP No.1 Hospital  refused  to provide  said medical  treatment scheme,  the legal heirs  of the complainants  has every opportunity  to reimburse  the said amount  by depositing  all the medical papers before the concerned  authority. The complainants  also could have lodged  complaint  to the particular authority against the alleged wrong regarding refusal  to accept documents  relating  to the scheme. In order to hide  their own  lacunae  the complainants have made out a false case.  There is no cause of action . The present case is filed with some ill intention to malign the OP NO.1. The OP No.1 claimed that the present case  is liable to be dismissed  with cost.

          The points of dispute  involved  in the present case  demand for ascertainment of the following points for proper adjudication of this case.

Points for Determination

Point No.1.

Whether the  present case is maintainable  in its present form and prayer.

Point No.2.

Whether the complainant  is entitled to get the relief claimed.

Point No.3.

          To what other relief the complainant is entitled to get.

Decision with Reasons

Point No.1.

The present point relates to ascertainment as to the maintainability of the case.

The OP No.1 questioned  the legality  of the case as not maintainable on the ground  that the complainants  are not  the legal heirs  of the deceased Shruti Bandyopadhyay, so the present case is not maintainable.

After perusing  the entire  case record  it appears  that the complainants  are brother  and sister of the deceased Shruti Bandyopadhyay filed the present case .

It is the admitted  fact that the said Shruti Bandyopadhyay was admitted  to the OP No.1 Hospital and subsequently,  she died. The complainants  claimed that  they are successors /legal heirs of Late Shruti Bandyopadhyay.

As per para 5 of the complaint  the complainants  paid the following  bill amount:-

Date                               Amount

12.05.2021                    Rs.30,000/-

20.05.2021                    Rs.9850/-

20.05.2021                    Rs.96400/-

21.05.2021                    Rs.79600/-

17.05.2021                    Rs.3350/-

                    The aforesaid  amount was  paid to the OP No.1 nursing hospital.

                    The OP No.1 could not deny  the said averment. So, for the treatment  of the deceased  Shruti Bandyopadhyay the complainants  incurred  the expenditure  and as such the relation  between the complainants  and the OP NO.1 comes well within the  purview of the C.P Act in as much as  the complainants  paid the said  amount  to the OP No.1 who is the service provider.

The Ld. Defence Counsel  for OP No.1 argued that the  complainants No.1&2 cannot be the legal heirs  of the deceased Shruti Bandyopadhyay. In the admission form name one Krintan  Dutta  is written  who is  Nephew  of Sudev Bandyopadhyay.

The argument  is not acceptable  in as much as the complainants filed  the case as consumer since  they paid  the cost of medical treatment of the patient  of Shruti Bandyopadhyay. So, the relation between the  complainants  and the OP No.1 is well established  that the  complainants  are the consumer  and the OP  No.1 is service provider.

The OP No.1 further challenged the case regarding  the cause of action on the ground  that if the cause of action  started  on 23.06.2017 then how the present case  could be filed  in 2022.

The argument  as advanced  by the OP No.1 is not acceptable  in as much as  the cause of action  arose  on 23.06.2017 on the ground  that the Pro-OP No.2, Nadia Highway  Division No.2 (Executive Engineer) is the employer  of the deceased Shruti Bandyopadhyay and the certificate  for enrolment  of health insurance policy was issued  on that date . Subsequently,  on 17.05.2021 the said Shruti Bandyopadhyay was admitted  to the OP No.1 nursing home and thereafter,  21.05.2021 when she  was discharged . The present case  is filed on 10.03.2022.  So, the cause of action has rightly  been defined  by the complainants  and as such the present case is filed well within the  limitation period of the C.P Act.

Thus having  assessed  the entire  position of law  against the pleadings  of the parties and the facts of the case the Commission  comes to the conclusion  that the present case  is not barred under any provisions of law.

          Accordingly,  point no.1 is decided in favour of the complainants positively.

Point No.2&3.

Both the points have  close nexus with each other  and as such  these are taken up together for  brevity and convenience of discussion.

It is the admitted fact  that the Shruti Bandyopadhyay firstly  came to Dr. S.K. Roy on 11.05.2021 who diagnosed  and advised  for RTPCR test for detecting  Covid-19 and the said test was positive. The said patient  was suffering from heart disease.  The family members waited for 6 days  and admitted  to OP No.1 Hospital  on 17.05.2021. The doctor of the said hospital  tried for her  recovery  but at the material point of time suddenly the family members  of the said  patient  discharged the said Shruti Bandyopadhyay from that hospital.  This part of pleadings  of the OP No.1 clearly  shows that  the deceased  Shruti Bandyopadhyay was medically  treated by the  OP No.1  hospital.  But  the  specific   case  of  the complainants   is  that despite  the said Shruti Bandyopadhyay being entitled to cashless  treatment,  the OP No.1 hospital  did not allow  the said facility to the patient.

There is no denial  that the said Shruti Bandyopadhyay was not covered  under the scheme of cashless  medical treatment. On the contrary  the OP No.1, however,  pleaded  that the complainants  did not produce the relevant document for getting the  said cashless  benefit.

Ld. Defence Counsel  further argued  that the health insurance  was done  by the employer  , so deficiency in service cannot be  claimed  from the  OP No.1.

The argument is not acceptable  in as much as  when  a patient  is covered  under the cashless  health  benefit  or cashless  medical benefit  in that case  the concerned  hospital  has to make  arrangement  for such benefit.

The complainants  proved most  vital  documents  in course of trial.  The following are the documents  which the complainants  proved in course of trial :-

Annexure-1 Certificate for enrolment  of Shruti Bandyopadhyay for health in all employees  and pensioners cashless medical treatment scheme, 2014 (23.06.2017).

Annexure-2  Voter I.d Card.

Annexure-3 Admission  form  of Shruti Bandyopadhyay dated 17.05.2021 at SNR Carnival Hospital.

Annexure-4  Discharge Certificate  of SNR Carnival Hospital.

Annexure-5 Money receipt  for payment  of Rs.30,000/- dated 17.05.2021 dated 21.05.2021 for Rs.79600/-.

Annexure-6 Invoice  by SNR Carnival Hospital  for Rs.9852/-, Invoice  by SNR Carnival Hospital for Rs.36000/-.

Annexure-7 Cremation  Certificate of Shruti Bandyopadhyay dated 26.05.2021.

Annexure-8 Death Certificate of Shruti Bandyopadhyay dated 09.08.2021.

The aforesaid  documents  as proved  by the complainants  clearly  established that  the said  Shruti Bandyopadhyay was medically treated  by OP NO.1 Hospital  in payment of cash and could not enjoy the cashless treatment which was provided  by her employer National Highway Division  No.2.

Ld. Defence Counsel  repeatedly  hammered during argument that the complainants  could not provide the documents  for entitlement  of cashless  benefit for medical treatment.

If we closely  scrutinise  the medical documents  for treatment of the said Shruti Bandyopadhyay it would be  revealed that the OP No.1 hospital  issued several money receipts  but the OP No.1 could not prove  any document  to establish that they demanded the necessary  documents  for providing  cashless  benefit under the scheme.  On the contrary  the complainants  duly proved  the documents  as  annexure-1 wherefrom  it is established  that the said deceased Shruti Bandyopadhyay was entitled  to get  cashless  medical treatments benefit under the said scheme, 2014.

It is argued by Ld. Defence Counsel that the  relatives  of the complainants  discharged the patient  at their own risk.

This point is not relevant  in the instant case  in as much as the complainants  did not argue  or it is not the  case that the complainants  raised any grievance  regarding  wrong  treatment  of the patient by the OP No.1. However,  the main  allegation is  that despite  entitlement  of cashless  benefit  for medical treatment  the OP No.1 did not provide  it.

Ld. Defence Counsel  further argued  that there is nothing  to show  that the complainants  filed the policy and the  OP No.1 refused.

It is  evident from the  documents filed  by the complainants  that as per  the annexure-1  the complainants  is entitled to get the benefit   but there is nothing  to establish  the defence plea that the  OP No.1 ever demanded  the said  documents from the  complainants.

It is further  important  to consider  that the OP No.1 also pleaded  that the even  for arguments  sake of, if the OP No.1 hospital  refused  to provide  the said medical treatment scheme, the legal heirs  of the complainants have /had every  opportunity  to reimburse  the said amount  by depositing  all the medical papers  before the  concerned  authority.

The said defence plea clearly implies that the complainants/legal heirs of the complainants have incurred the medical expenses. As per the said scheme the beneficiary (Said Shruti Bandyopadhyay) is entitled to get the medical benefit that is cashless  medical treatment  and there is no scope for reimbursement under the said  scheme. So, the OP No.1 cannot escape the liability for providing cashless benefit for medical treatment under the said scheme as claimed  by the complainants.

Ld. Defence Counsel also argued that the hospital does not pay  the money under the  scheme.  When a patient  is admitted  in the hospital,  the insurance  desk  of the hospital claims  for  insurance  document  and hospital  either allows or denies  the said benefit. In the instant case  there is  no such case.

The argument  has no force  in as much as  in the admission document  which is proved as annexure-3  that is admission form or annexure-4 in the discharge summary  there is no mentioning  that despite  demand of the documents  regarding  cashless  benefit  for medical treatment the patient  party  failed to  provide  the said documents , so cost medical treatment  is charged  or the cashless benefit  is refused.

Ld. Defence Counsel  in this regard drew the attention  of the Commission regarding section 114 (g) of Evidence Act wherein it is provided that if a document is in the custody  of a person if it is not  produced  , then adverse  presumption  should be  drawn  that if the said document  is produced it will go against  him.

The said provision is not applicable  here in as much as  the complainants  produced the said  document in course of trial  as annexure-1. So, the onus is  shifted  upon the OP No.1 to establish that they asked  for the said document  (annexure-1) from the complainants  but in the  instant case the OPNo.1 failed to discharge  their onus of proof. Accordingly,  section 114(g) is not applicable  against the  complainants .

Ld. Defence Counsel  referred to  one case law  reported in Civil Appeal No.1374 by 2008 between  Union  of India  Vs Ibrahim  Uddin  and another  passed by  Hon’ble Supreme Court  wherein  it was held  that it is the duty  of the party to lead the best evidence in his possession.  In case material evidence  withheld, the court may draw adverse  inference .

The said case law is not applicable  here, because the complainants  duly filed the said best document being the pensioners  cashless  medical treatment  scheme, 2014 which is proved  as annexure-1.

Thus having  assessed  the entire  evidence  vis-a-vis after considering  the argument  advanced  by the Ld. Senior Advocat e for both the parties  the Commission  comes to the finding  that the complainants  successfully proved the case against  the OPs upto the hilt. The OP NO.1 by refusing to provide  the cashless  medical treatment  benefit  to the said Shruti Bandyopadhyay through the  complainants  have acted  in a manner  which caused deficiency in service and as such  the complainants  are entitled to get compensation.

Accordingly, point no.2&3 are  answered  in affirmative  in favour of the complainants.

Consequently,  the complaint  case succeeds  on contest with cost  against  the OP No.1.

Hence,

                              It is

Ordered

that the complaint case no.CC/25/2022 be and the same is allowed on contest against OP No.1 and ex-parte against OP No.2  with cost of Rs.10,000/- (Rupees ten thousand) in favour of the complainants. The complainants Sudev Bandyopadhyay and Bhaswati Bandyopadhyay do get an award for a sum of Rs.2,19,200/- (Rupees two lakh nineteen thousand two hundred) against the OP No.1 towards  the medical bills, Rs.50,000/- (Rupees fifty thousand) towards deficiency in service and mental pain and agony and Rs.10,000/- (Rupees ten thousand) towards litigation cost.

The OP No.1 is directed to  pay Rs.2,79,200/- (Rupees two lakh seventy nine thousand two hundred) to the complainants  within 30 days from the date of passing the final order failing which  the entire award money shall carry an interest @8% p.a from the date of passing the award  till the date of its realisation.

All Interim Applications  (I.A) stand disposed of  accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.    

Dictated & corrected by me

 ............................................

                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)                              ................ ..........................................

                                                                                                                          PRESIDENT

                                                                                       (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,

  ........................................                                                 

          MEMBER                                                                

(SHRI NIROD  BARAN   ROY  CHOWDHURY)