Orissa

Cuttak

CC/169/2016

Amreeta Dash - Complainant(s)

Versus

Managing Director,SaiJeevan Hospital Pvt Ltd - Opp.Party(s)

P Das

30 Oct 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                                    C.C. No.169/2016

Amreeta Dash

At prepsent Res:At:Flat No.325,

SARTHAK TOWER,Matamatha,Ring Road,

Buxi Bazaar,Cuttack,Odisha.                                                         … Complainant.

 

                Vrs.

 

1.        Managing Director,

Sai Jeevan Hospital Pvt. Ltd,

Kathagola,Near Mangalabag,

Cuttack-753001.

 

2.        Managing Director,

Dedicated Health Care Service TPA(India) Pvt. Ltd.,

(Ambata Building,(Eros Cinema Building),

2^nd Floor,East Wing,42,Maharshi Karve Road,

Church Gate,Mumbai,Maharashtra.                                              … Opp. Parties.

 

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   23.12.2016

Date of Order: 30.10.2017

 

For the complainant:           Mr. Padmanava Das,Adv. & Associates.

For Opp.Parties 1 & 2:         Mr. P.K.Sahoo,Adv. & Associates.

                    

 

Sri Dhruba Charan Barik,President.

                The complainant having attributed deficiency in service and unfair trade practice to the O.P.1 has filed this case seeking appropriate relief against the O.Ps in terms of her prayer in the complaint petition.

1. The facts of the complainant’s case stated in brief are that on 4.3.16 she got admitted to Sai Jeevan Hospital Pvt. Ltd.,Kathagolasahi near Mangalabag,Cuttack for gynecological problems and she gave birth to a female child through cesarean operation on 5.3.2016 in the said hospital.  She was discharged from that hospital on 8.3.16. Annexure-1 is copy of the discharge certificate of the complainant issued by O.P. No.1.  It is stated that on 4.3.16 the complainant’s father deposited Rs.20,000/- in the said hospital as per the demand of the O.P.1 to meet the required expenditure towards cost of medicines and treatment.  O.P.1 did not give the money receipt of having received Rs.20,000/- from the father of the complainant and even after repeated demand made by him to this effect, it was not complied with.
2. The complainant had obtained health insurance policy vide policy no.500100/48/15/48/00000437 for assured sum of Rs.3 lakhs.  It was in force.  It is stated that subsequently when the O.P No.1 came to know about such policy he managed to obtain signature of the complainant while she was under stress on blank form with the help of his staffs in the Hospital and by using those documents he was able to collect money amounting to Rs.38,043/- from O.P.2 on the strength of the claim bearing No.DHS-16Z042738 through NEFT Transaction No.168865547NBHZP59 dt.8.8.16..  It is stated that the O.P No.1 received extra monetary benefit from the O.P No.2 with malafide intention by suppressing material facts of having received Rs.20,000/- cash earlier from the father of the complainant  and this conduct of O.P.1 is tantamount to unfair trade practice and deficiency in service.  Copy of the payment advice dt.10.8.16 has been filed and marked as Annexure-2.  Annexure-3 is the copy of birth certificate of the child of the complainant.
3. The complainant when came to know about it, requested O.P.1 to refund Rs.20,000/- received earlier but the latter did not oblige.  Thereafter she sent a legal notice on 4.10.16 by regitere3d post with A/D to O.P No.1 demanding refund of the said amount which was received by O.P.1 but without any response.  It is stated that silence on the part of the O.P. on legal notice of the complainant is also tantamount to deficiency in service.  Copy of the said legal notice has been marked s Annexure-4.  The copies of medical prescription of the complainant issued by Dr. Abhaya Pattnaik during her pre-delivery period have been filed and marked as Annexure,5,6,7 & 8 respectively.
4. She has undergone serious mental agony and harassment because of wrong doing of the O.P.1 and as such she filed the present case against the O.Ps wherein it is prayed that the O.P.1 be directed to refund Rs.20,000/- received in cash from her father on 4.3.16 together with interest @ 12% per annum from the date of receipt till the payment is made and also to pay compesati0on of Rs.10,000/- to her for harassment and mental agony meted out to her together with Rs.5000/- towards cost of litigation.  It is further prayed that the O.P may be directed to refund differential amount of Rs.18,043/- received from O.P No.2 illegally by submitting false vouchers in the interest of justice.
5. O.P.2 has not entered appearance.  O.P.1 has filed written version and contested the case.  At the outset it is stated that the present complaint is wholly misconceived, groundless and frivolous and as such is not sustainable in the eye of Law.  It is also stated that the complainant is not a consumer under C.P.Act and she has no right to file a complaint against him on the grounds whatsoever.  There is also no cause of action to file such a case since the O.P.1 is not guilty of rendering deficient service or following unfair trade practice in any manner.  It is further stated that the O.P.1 is a partnership firm licensed by DMET which is the Regulatory Authority under Clinical Establishment (Registration and Regulation) Act,2010 and had a hospital in the city of Cuttack.  It is under the constant supervision of the Regulatory Authorities and as such there is no scope for rendering deficient service or following unfair trade practice to any of its customer.  The other material averments in the complaint have been denied except that the complainant being an insurance policy holder was entitled to cashless hospitalization and treatment which has been done in this case with her full knowledge and she has also put her signature on the documents to put forth her claim before O.P.2.  Annexure-A is the copy of cashless hospitalization   and payment advice.  Annexure-B is the true copy of authorization letter in favour of O.P.1 by the complainant.  It is stated that she was discharged from hospital on 11.3.16 after giving birth to a female child on 05.3.16.  It is therefore prayed that this false and frivolous case filed against him by the complainant with malafide intention may be out rightly dismissed in the interest of justice.
6. One witness Subhasis Mohanty has tendered his affidavit evidence on behalf of the complainant.  Four witnesses have filed their affidavit evidence on behalf of the O.P.1. They are Santosh Kumar Panda,the manager of SAI Jeevan Hospital Pvt. Ltd., Dr. Ahbhay Kumar Pattnaik, the treating physician of the victim, Dr. Geetanjali Rath another treating physician of the same victim and one Ananda   Prasad Routray, the managing director of thes aid hospital respectively.
7. We have gone through the case records, the above affidavit evidence and the annexures filed by the concerned parties.  We have also heard the learned counsel for the complainant as well as of the O.Ps.
8. The bone of contention between the parties is the controversy over payment of Rs.20,000/- in cash by the father of the  complainant to the O.P.1 on 4.3.16 towards hospitalization and treatment of his victim daughter.  When it is asserted by the complainant that payment was made in the cash counter of the hospital on the very date of admission as per the demand of O.P.1, it is out rightly denied by the latter.  The above affidavit evidence have been filed by the witnesses of both the parties to prove the point.  All the four witness appearing on behalf of O.P1 have unequivocally stated that the complainant has not paid a single pie in the cash counter of the hospital on the very date of admission of the victim there.  Witness Ananda Prasad Routray is the managing director and the witness Santosh Kumar Panda is the manager working in the same hospital.  The latter is the directly subordinate to the former and he cannot take different stand from what has been stated by the former on this point.  Other two witnesses namely Dr. Abhay Pattnaik and his wife Dr. Geetanjali Rath have been working as doctors in the same hospital who have personally treated the victim.  Being medical professionals, they are to keep themselves confined to the treatment of the patient and are not accepted to have any knowledge about the monetary transaction made by the patient or anybody on his or her behalf.  Both of them have categorically stated that they have not received a single pie much less Rs.20,000/- in cash from the complainant or her father.  Contrary to it, is the evidence of Subhasis Mohanty, the only witness appearing on behalf of the complainant.  He is neither related to the complainant nor has any interest in the case.  He is a social worker rendering his service voluntarily to the needy.  In his evidence it is clearly stated that he has accompanied the victim lady to the hospital of O.P.1 on 4.3.16 and on the very date of admission, the complainant’s father paid Rs.20,000/- in the cash counter of the said hospital in his presence towards treatment of the victim.  It is also revealed from his evidence that despite repeated requests made by the complainant’s father to O.P.1 to issue money receipt to him for such deposit, the latter replied that it would be handed over to him at the time of the discharge of the patient from the hospital.
9. The case of O.P.1 is that since the victim lady was insured under Mediclaim policy bearing No.50100/48/15/41/00000437 by United Insurance Company Ltd., she was entitled to cash-less hospitalization and treatment and for that reason no amount in cash was received from her or her father.   She was then given admission on the very date of her joining in hospital on 4.3.16.  As against it, evidence of  witness Subashis Mohanty for the complainant clearly reveals that the assistant of the said hospital cunningly had taken signature of the patient on a number of written forms and collected some photo copies of the documents which were kept in the bag of the said patient in hospital on 5.3.16 after she gave birth to a female child.  He has claimed to have seen the entire occurrence.  Evidence of the above witness is found in conformity with the case of the complainant.  In the above premises, the evidence of the witness Subhasis Mohanty for the complainant is found more clear, cogent and convincing.  That apart, it is an admitted fact that the hospital of O.P.1 is not a charitable institution and no private hospital can give admission to a patient and take him/ her to the operation table without there being any payment made by him or her for such hospital.  Therefore the objection raised by the O.P to the payment of Rs.20,000/- in cash by the complainant fails.
10. The next point of dispute between the parties is discharge certificate of the patient Amreeta Das of the said hospital.  That discharge certificate has been filed and marked as Annexure-1.  Date of discharge of the patient from the said hospital is 8.3.16 as revealed from the said certificate.  But O.P.1 has vehemently raised objection to the contents of Annexure-1 at the time of advancing his argument mainly on the ground that the patient was discharged from that hospital on 11.3.16 instead of 8.3.16.  Annexure-C is the said discharge certificate of the patient filed by the O.P.1.  As such it is submitted that Annexure-1 is a fake and fabricated document filed in this case by the complainant to strengthen her case. On the other hand, it is submitted by the learned counsel for the complainant that  there is no whisper of  a single word in the written version challenging the correctness and genuineness of Annexure-1 in any manner.  All that is stated in the written version is that the complainant is called upon to the strict proof of the averments made on the complaint.  As such the objections made by the learned advocate for O.P.1 regarding the correctness of Annexure-1 being beyond pleading is not acceptable.
11. Further submission advanced by the learned advocate for the complainant is that the treating physician Dr. Abhay Pattnaik has put his signature on Annexure-1.  It has been disputed by the O.P.1 that the said signature is not an authentic signature of the concerned doctor.  On the other hand it is stated that Annexure-6 is the true and authentic document of the patient showing date 11.3.16 as the date of her discharge from the hospital and it was clearly signed by the other treating physician Dr. Gitanjali Rath.
12. To prove that the signature of the Dr. Abhay Pattnaik on Annexure-1 is the genuine signature of the said doctor, the learned advocate for the complainant has filed a series of medical prescriptions of the said patient issued by the same doctor while undergoing treatment under him in the pre delivery period.  It has not been disputed by O.P.1.  Such medical prescriptions have been filed and marked as Annexures-5,6,7 & 8.  The short signature of Dr. Abhay Pattnaik appearing on those medical prescriptions when compared to that on Annexure-1  clearly reveals to the naked eye that those are the signature of one and same person.  That apart, nowhere Dr. Abhay Pattnaik in his affidavit evidence has whispered a single word that his signature on Annexure-1 is not genuine.
13. While advancing his argument the learned counsel for the complainant has vehemently argued that on 4.10.16 a legal notice was duly served on the O.P.1 demanding refund of Rs.20,000/- from him in the circumstances narrated in the said notice.  Although O.P.1 has received the said legal notice yet there was no response to it from his side.  Relying upon a decision of the Hon’ble State C.D.R.Commission,Odisha reported in 34(1992) OJD-88 (Kamadhenu Enterprises Vrs. Postmaster General,Odisha) it is submitted that failure to reply to the legal notice is tantamount to deficiency in service.

In view of the above it is held that Annexure-1 is a true and genuine document of discharge of patient from the said hospital on 8.3.16 issued by O.P.1. and the other discharge certificate vide Annex-C filed by O.P.1 showing 11.3.16 as the date of discharge from the hospital of the complainant is a fake and fabricated document prepared for the purpose of this case.

14. During course of argument the learned counsel for the O.P.1 has fairly submitted that the complainant is not only the father of the patient Amreeta Das but also a Sr. Advocate who is conducting the present case before this Forum on behalf of his daughter.  The complainant has really intended to have some monetary benefit out of the amount paid by the Insurance Company to O.P.1 and more particularly the complainant had demanded Rs.30,000/- from O.P.1 out of the said amount.  He has also requested O.P.1 to submit the inflated bill to the Insurance Company for their purpose but his request was turned down by O.P.1 for which the complainant got aggrieved and protested against O.P.1 by filing such a false case.  It was seriously resisted to by the learned advocate for the complainant and according to him the entire fact now submitted before the court by the learned advocate for the O.P.1 is based on surmises and conjectures and there is no slightest mention about it in the written version of the case filed by O.P.1.  Accordingly it is submitted that the entire stand of O.P.1 as stated above is unacceptable being beyond of pleading.  The submission of the complainant has force in it.
15. The submission of the learned advocate for O.P.1 that the complainant having not taken shelter of law by filing a police case against O.P.1 for having illegally received Rs.20,000/- in cash and not having  restrained the concerned insurance company from honouring the insurance claim made by the O.P.1, clearly shows that the present case is false and baseless one filed with oblique motive and as such it may be dismissed.

In our considered opinion, failure of the complainant to resort to other provision of law for redresssal of his grievances is not a sufficient and convincing ground to discard the case of the complainant in its entirety in view of the clear and clinching evidence available in the case record.  Hence ordered;

ORDER

The case of the complainant is allowed on contest against O.P.1 and exparte against O.P.2.  O.P.1 is directed to refund Rs.20,000/- to the complainant illegally received from her on 4.3.16 by cash together with interest @ 8% per annum from the date of such receipt till its realization.   O.P.1 is further directed to refund to the complainant the  differential amount of Rs.18,043/- out of Rs.38,043/- received towards insurance claim from O.P.2 and he is further directed to pay compensation of Rs.5000/- and litigation cost of Rs.2000/- her.  This order shall take effect within a period of 45 days from the date of receipt of this order.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 30^th     day of October, 2017 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                         President.

                                                             

                                                                                                                   (Sri B.N.Tripathy )

                                                                                                                          Member.

 

                                                                                                                      (Smt. Sarmistha Nath)

                           Member(W)