IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

   DATED THIS THE  21^ST DAY OF FEBRUARY 2018

Present: -    Sri. E.M.Muhammed Ibrahim,B.A, LL.M. President

        Sri. M.Praveen Kumar, Bsc, LL.B, Member

       CC.No.62 /2011

(1). S.Sujith (Minor)                                   :                   Complainants

S/o Suresh Babu

Pampayikkodu Padinjattathil

Chirattakkonam Muri

Thalachira P.O

Vettikkavala Village

Kottarakkara

Represented by the 2^nd Complainant

(2).Suresh Babu

S/o Sarojini

Pampayikkodu Padinjattathil

Chirattakkonam Muri

Thalachira P.O

Vettikkavala Village

Kottarakkara

[By Adv.P.Thulaseedharan Pillai, Kottarakkara]

V/S

1. Managing Director                                      :                  Opposite parties

          Sree Sathya Sai Multi Specialty Hospital (KNS Hospital)

          Kottarakkara

          [By Adv. S.Arun, Kottarakkara, Kollam]

2. Divisional Manager

          United India Insurance  Co.

          Divisional Office, SKP Building

         Beach Road, Kollam

         [By Adv. S.Subhash Chandra Babu, Kollam]

          Praveen Kumar.C                             :         Additional 3^rd Opposite party

         RSBY State Head, Kerala

        MD India Health Care Services (TPA) Ltd

        Branch Office T.C3/1916

        1^st Floor, Bhaskar Building

         Near St.Mary’s Church, Pattom

         Thiruvananthapuram (Impleaded as per order on IA 145/13 dated 28/10/2013)

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                                                          ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

          This is a  case  based on a complaint filed by one Suresh Babu on behalf of his minor son Sujith originally against 2 opposite parties under Sec.12(1) of the Consumer Protection Act 1986, praying compensation to the tune of Rs.50,000/- .

          The averments in the complaint in short are as follows.  The 2^nd complainant is the father of the minor 1^st complainant and the complaint has been filed by the 2^nd complainant on behalf of the said minor. During the month of June 2010 the 2^nd complainant had taken an insurance Policy under the scheme Rashtriya Swasthya Bima yojana (RSBY) in the name of his mother Sarojini Amma. One smart card bearing 0059575132012330 has also been issued in the name of Smt.Sarojini Amma.  The 1^st complaiant minor is also a beneficiary under the card being the grandson of the card holder Smt.Sarojini Amma. 

The 1^st opposite party Hospital is included in the list of the hospital were treatment under the scheme is given.  As the 1^st complainant has affected with Appendicitis he was admitted in the 1^st opposite party’s hospital on 18.11.2010 and treated at the hospital till 25.11.2010.  But the 1^st opposite party hospital denied the benefit of the scheme and billed an amount of Rs.15,904/- for the treatment.  In spite of the fact that the 1^st   complainant is included in the smart card and is entitled to get free treatment up to Rs.30,000/-  and that the 2^nd complainant has produced the smart card and convinced the 1^st opposite party hospital, they denied the cashless treatment by stating that the hospital has withdrawn from the scheme. Hence the 2^nd complainant was forced to pay the bill amount under protest. But on enquiry it was revealed that the 1^st opposite party is still included in the list of hospitals under the scheme and they are bound to provide free treatment as agreed while issuing smart card.  The failure on the part of the 1^st opposite party to give free treatment as agreed as per the terms of the insurance policy is a culpable  negligence  and  deficiency  in

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service.  In the circumstances the complainants are entitled to get back the bill amount compelled to be paid towards the treatment by the 1^st complainant and they are entitled to get compensation to the tune of Rs.34,096/- and also the costs of the proceedings.  Hence the complaint.

          Opposite party No.1&2 resisted the complaint by filing separate versions.  The contention of the 1^st opposite party in short are as follows.  At the time of admission of 1^st complainant ie, on 18/11/2010, the 1^st opposite party hospital was not included in the list of hospitals included in the RSBY scheme, that this hospital was included in the scheme only for a short period from 26/04/2010 to 15/10/2010, that due to the financial pendency from the additional 3^rd opposite party the MD India Health Care Service, the hospital gave notice on 15/7/2010 showing their inability to continue in the scheme and 0n 15/10/2010 withdrawn from the scheme, that thereafter only the 1^st complainant was admitted at the 1^st opposite party hospital, that at the time of admission itself they were informed that this hospital is not included in the RSBY scheme as on those days and a public notice was also affixed in the notice board of the hospital one month prior to the date of admission, that the 1^st complainant was got admitted there knowing that the said hospital is not  included in the RSBY scheme, treated there and got discharged on 25/11/2010 by paying the bill amount, that there is no deficiency in service on the part of the 1^st opposite party and the complaint is only to be dismissed with cost of the 1^st opposite party.

          2^nd opposite party contended that the complaint is vitiated by non - joinder of necessary parties, that the real card holder under RSBY CHIS scheme is not a party in this complaint, that the RSBY CHIS or its representatives are not in the party array, that since the card holder or the RSBY CHIS representatives are not parties to the proceeding, the complaint is not maintainable, that the complainants are not card holders under the scheme, that the averment that one Sarojini Amma, the mother of the 2^nd complainant is the card holder, and as such the 1^st complainant also is a beneficiary under the  card  being the  grandson of the    cardholder  is  not correct,

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that the  enrolment of  beneficiaries under the scheme are based  on  the  agreement between Comprehensive Health Insurance Agency , Kerala having its office at 7^th floor , Trans Towers, Vazhuthacadu, Thiruvananthapuram ( in short CHIAK) on the 1^st part and United India Insurance C/o Ltd, Regd and Head Office at 24, Whites Road, Chennai on the 2^nd part, that as per clause 10(iv) (m) of the said agreement the beneficiary or the eligible person of the family will be entitled for cashless treatment in designated hospitals on  presentation of the smart card issued under the scheme, that the 1^st opposite party verified the card while the 1^st complainant was in hospital and replied that it is not a designated or empanelled hospital under the scheme and its name is not in  the   schedule kept under the scheme, that service is provided to the beneficiary based on the presentation of smart card and finger print authentication only, that each empanelled hospital/ or health service provider shall possess a computerized machine which can read the smart card to ascertain the balance available from the insurance amount, that the beneficiaries shall be provided treatment free of costs for such ailments covered under the scheme within the limits/sub limits and sum insured ie, not specifically excluded under the scheme.      The complainants did not send any notice to the 2^nd opposite party with their grievance if any in this matter before the institution of this complaint, that they did not even claim orally before the 2^nd opposite party for their grievance, that the 2^nd opposite party came to understand about the grievance of the complainants only on receipt of this complaint, that there is no wilful latches or deficiency of service or dereliction of duty or any unfair trade practice by the 2^nd opposite party in this matter,  that the  complainants  are not entitled to get Rs.50,000/- towards treatment expense and compensation from the 2^nd opposite party.  The complaint is only to be dismissed with cost to 2^nd opposite party.

                  On the basis of the contentions of 2^nd opposite party the 2^nd  complainant has filed IA 145/13 and got impleaded the additional 3^rd opposite party in the array.  However additional 3^rd opposite party remain  exparte.

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                  In view of the above pleadings  of opposite party 1&2 the points that arise for consideration are:-

1. Whether the 1^st complainant is entitled to get cash less treatment under RSBY scheme from the 1^st opposite parties Hospital?
2. Whether there is any deficiency of service or any fair trade practice on the part of the opposite parties as claimed in the complainant?
3. Reliefs and  costs

Evidence on the side of the complainant consists of oral evidence of PW1 and 2 and got marked Ext.P1 to P5 documents.  The Managing Director of 1^st opposite party has been examined as DW1 and got marked  Ext.D1 to D4 documents.  Opposite party 2 has not adduced any evidence either oral or documentary.

Point No.1&2

For avoiding repetition of discussion of materials these two points are considered together. The following are the admitted facts in this case.  Smt.Sarojini Amma the mother of the 2^nd complainant and the grandmother of the 1^st complainant has taken a policy under the RSBY scheme and the policy was effective with effect from June 2010 till 31.3.2013.  The benefit under the policy are offered to the family of the policy holder  Smt.Sarojini Amma  under the RSBY project sponsored by MD India Health Care Service (Additional Opposite party 3).  Admittedly the 1^st opposite party hospital was empanelled as a service provider under RSBY scheme. In view of the Ext.D4 agreement the beneficiary or any eligible member of the family of the policy holder will be entitled for  cash less treatment on presentation of the smart card issued under the scheme.    Ext.P4 the extract of the beneficiary card and Ext.P3 smart card would probabilise the fact that the complainant including 1^st  complainant are beneficiaries under   the scheme. It is also an admitted case that smart card is given to family and not to an individual that the beneficiaries and benefits under the RSBY&CHIS  scheme  are  BPL  families  and  that  families  covered  under  D4

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agreement who have paid their  contribution  and are enrolled in the scheme.  There is also no dispute with the fact that 1^st complainant is a beneficiary as per D4 agreement.

In view of the above admitted facts coupled with Ext.P1 to P4 documents it is clear that the policy under RSBY CHIS scheme  was valid as on the date of treatment of the 1^st complainant at 1^st opposite party hospital ie, between 18.11.2010 and 25.11.2010.  Admittedly the bill relating to treatment expenses was Rs.15,904/-, that the 1^st opposite party hospital demanded to pay the bill amount and that the complainants were  forced to pay  the same under protest.  In view of the above admitted  and proved facts it is clear that the 1^st complainant is entitled to get cashless treatment as per the scheme.  But admittedly the 1^st opposite party hospital has denied the same and would content that as on the date of treatment it has ceased to be the service provider, that the said hospital was included in the RSBY scheme only for a short period of 6 months from 26.04.2010. Hence treatment expenses were realised from the complainants.  The 1^st opposite party hospital would further content as the financial transaction  with 2^nd opposite party was not smooth, the  1^st opposite party  hospital given Ext.D1 notice showing their inability to continue in the scheme.  Ext.D2 is the confirmation letter regarding the treatment of RSBY scheme in 1^st opposite party hospital  issued from RSBY State Head, Kerala, MD India Health Care Service(Additional 3^rd opposite party). Admittedly Ext.D3 is a list of hospitals which are included in the RSBY scheme. The above list is issued by MD India Health Care Service (Additional 3^rd opposite party ).  But the date of issuing such D3 list is not stated in that list which would create a doubt in the mind of the forum that it was created and circulated later only to save the 1^st opposite party from liability as argued by the complainants counsel.

                  The learned counsel for the 1^st and 2^nd opposite party has argued that in view of the pleadings and evidence including Ext.D3 1^st opposite party hospital was not in the list as on those days.  We find no force in the above  argument as  there is

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nothing on record to indicate that the withdrawal of 1^st  opposite party  hospital  from the scheme was duly intimated to the policy holder.  In view of  Ext.D1 &D2 e-mail copies dated 15.07.10 and 22.01.2013 it is  clear that the 1^st opposite party hospital  is one among the empanelled hospitals under the RSBY scheme and started RSBY facility in 1^st opposite party hospital on 26.04.2010.  Smt.Sarojini Amma has admittedly joined the scheme during the month of June 2010 which would indicate that at the time of issuing Ext.P3 smart card the 1^st opposite  party  was a service provider as it was an empanelled hospital and by fully knowing and understanding that the 2^nd complainant joined the scheme by taking the policy in the name of his mother Sarojini Amma and obtained a smart card by paying amount towards the insurance scheme. The opposite parties would admit that the 2^nd complainant has obtained the policy and smart card only after paying insurance premium.   There is also no dispute with regard the fact that the 1^st complainant was admitted at the 1^st opposite party hospital  on 18.11.2010 and discharged  on 25.11.10.  According to 1^st opposite party it was not included or empanelled at the time of admission of the 1^st complainant and argued that the hospital issued notice to MD India health care service as early on 15.07.2010.  But it is seen that the said notice was acknowledged and accepted by Additional 3^rd opposite party only on 22.01.13 which is evident from the date shown in Ext.D2 email communication sent by 3^rd opposite party to the 1^st opposite party.

                   It is to be pointed out that the 1^st and 2^nd opposite parties have no case that it has given any notice to the beneficiaries of the scheme regarding their unwillingness to act as an empanelled hospital and their unilateral withdrawal from the RSBY scheme. The  opposite party No.2&3 have also not seen given any such notice to the beneficiaries that the 1^st opposite party has withdrawn from the scheme nor intimated regarding any alternative arrangement made by Additional opposite party 3.  None of the opposite parties have any case that they have given any advertisement regarding the removal of the 1^st opposite party  hospital  from RSBY

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facility immediately when the 1^st opposite party expressed their unwillingness to act as an empanelled hospitals of RSBY scheme. In the circumstance it is cristal clear that opposite party No.2 has failed to comply with the provisions under clause 8(i)(ii) of Ext.D4 agreement which is a clear unfair trade practice on the part of the 2^nd opposite party. As we pointed out earlier Ext.D2 and Ext.D3 would not serve the purpose as Ext.D3 is undated and Ext.D2 is dated 22.01.13.

          A contract of insurance is uberrimae fidei  contract.  Parties are bound by the terms of the contract.  One cannot uni-laterally withdraw from such a contract without giving proper intimation to beneficiaries especially when 2^nd opposite party has collected premium from the beneficiaries.  Even if the 1^st opposite party intends to withdraw from the scheme sufficient notice has to be given in writing to the beneficiaries and also asked 2^nd &3^rd opposite parties to protect the interest of the beneficiaries by making alternative arrangements by publishing the revised list of hospital then and there or by repaying the premium collected from them. But none of the opposite parties has not done any such things except producing an undated list of service providers which appears to be subsequently created one.  In the circumstances it is clear that there is deficiency of service and unfair trade practice on the part of the opposite party No.1&2  Hence they are bound to return the amount collected against the terms of policy and also liable to pay compensation to the complainant for their mental agony.  The complainants are entitled to get back the medical expenses paid by the 2^nd complainant to 1^st opposite party hospital as per P5 series Medical bills and also entitled to realise compensation from the opposite party No.2 for the mental  agony  suffered by the complainants.

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       In the result complaint stands allowed in the following terms.

        The 1^st opposite party is directed to return Rs.15,904/- with interest @9% per annum from the date of payment of the amount till realisation with a right to recover the  same  from  the  2^nd  opposite party.   Opposite party No.2  is  directed  to  pay Rs.10,000/- as compensation and Rs.5000/-as cost of the proceedings.  Opposite party No.1&2 are directed to comply with the above order within 45 days from today failing which the complainants are entitled to realise the same with interest @12% per annum from the date of order till realisation from the opposite party No.1 &2 to the extent as indicated above  and from their assets.       

Dictated to the  Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the 21^st day of February  2018.    

   E.M.Muhammed Ibrahim:Sd/-

                                                                           President

    M.Praveen Kumar:Sd/-

      Member

                                                                  Forwarded/by Order

                                                                    Senior Superintendent

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I N D E X

Witnesses Examined for the Complainant

Ext.PW1:-   Suresh Babu

Ext.PW2:-   Pradeep

Documents marked for the  complainant

Ext.P1: -     Discharge Summary

Ext.P2:-      Copy of Ration card

Ext.P3:-      RSBY Insurance Card

Ext.P4:-      Extract of beneficiary card

Ext.P5:-      Medical bills

Witness examined for the opposite parties

Ext.DW1:   Dr.Jayakumari

Documents marked for the  opposite parties

Ext.D1:-      e-mail copy dated 15/07/2010

Ext.D2:-      e-mail copy

Ext.D3:-      List of hospitals in the RSBY scheme

Ext.D4:-      Certified copy of agreement between Comprehensive Health Insurance agency and United India Insurance Co.Ltd.

E.M.Muhammed Ibrahim:Sd/-

                                                                         President

 M.Praveen Kumar:Sd/-

  Member

                                                                Forwarded/by Order