BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 100/2001 Filed on 24.02.2001

Dated : 15.10.2011

Complainant :

Dr. Sajis M. Mathai, Oriental Multi Speciality Dental Clinic, Aiswarya Shopping Complex, Opposite Market, Peroorkada, Thiruvananthapuram-5.

(By adv. V.K. Mohan Kumar)

Opposite parties :

1. M/s Oriental Insurance Company Ltd., Divisional Office, Jose Annexe, M.G. Road, Cochin-682 011.

    

2. The Oriental Insurance Company, Thakaraparambu Road, Thiruvananthapuram.

    

   (By adv. S.S. Kalkura)

    

3. Smile Care Hospital (Pvt) Ltd., 4^th Floor, C.S.I Building, M.G. Road, Thiruvananthapuram.

    

4. Smile Care Hospital (Pvt) Ltd., Sreekariyam Junction, Thiruvananthapuram represented by its Managing Director Dr. Ranjith Lal.

    

(By adv. K. Krishna Kumar)

This O.P having been taken as heard on 31.08.2011, the Forum on 15.10.2011 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant is the proprietor and doctor of M/s Oriental Multi-Specialty Dental Clinic, that complainant is the franchisee dental clinic of 3^rd and 4^th opposite parties Smile Care Hospital Private Ltd. and its Managing Director, that 3^rd and 4^th opposite parties have entered into a joint venture agreement with 1^st and 2^nd opposite parties for running a dental treatment expense reimbursement insurance scheme, that under the said scheme the dental treatment expenses is covered by Oriental Insurance Company (Opposite parties 1 & 2), that as per the facility professional dental service or treatment is available against production of valid policy, that the facility is available at all dental clinics who are authorized by the opposite parties 3 & 4 and the bill forwarded by the franchisee dental clinic will be reimbursed by the insurance company. Complainant had deposited Rs. 20,000/- as fixed deposit with 3^rd and 4^th opposite party for making the complainant a franchisee of the opposite party, that complainant canvassed several policies and issued insurance certificates to various persons as provided by the opposite parties, that complainant did not charge any amount for dental treatment to the policy holders as per the conditions of the policy and all the bills were forwarded to the opposite parties for reimbursement. Opposite parties have not reimbursed the amount. Complainant sustained severe mental agony and pain for not getting the reimbursed amount from the opposite parties. Complainant could not render dental service to the policy holders whom the complainant has canvassed. Complainant's goodwill among the patients is deteriorated to a considerable extent because of the inaction of the opposite parties. Hence this complaint to recover Rs. 1,68,610/- with interest thereon from February 2000 along with compensation and costs.

Opposite parties filed version contending interalia that complaint is not maintainable either in law or on facts, that opposite parties 1 & 2 had entered into a memorandum of understanding on 29.09.1999 with opposite parties 3 & 4 whereby opposite parties 1 & 2 had undertaken that if in the course of the period of insurance any insured person having contracted any dental ailment, any disease, any dental injury as a result of any accident and if any ailment requires any such insured person upon the advice of a duly qualified dental practitioner could undergo treatment as an outpatient at any authorized dental clinic of the opposite parties and opposite parties 1 & 2 undertook to pay by cheques favouring the authorized dental clinic through the insured not exceeding an amount of Rs. 10,000/-, that the claim ought to have been submitted with opposite parties 1 & 2 within 15 days of the completion of the treatment, that there is no consumer relationship between opposite parties 1 & 2 and the complainant. Opposite parties do not admit the claim of the complainant, that the claim of the complainant is exorbitant. It is submitted by opposite parties 3 & 4 that they had sent all bills forwarded by the complainant to 1^st and 2^nd opposite parties and the yardstick by which the amount of Rs. 1,68,610/- arrived at by the complainant not mentioned in the complaint. The variety of treatment given to various policy holders also not explained in the complaint. The 3^rd and 4^th opposite party have paid the premium of the policy holders concurrently. There is no lapse or latches on the part of the opposite parties 3 & 4. There is no cause of action for filing this complaint. Hence opposite parties prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the complainant is a consumer as defined in the Consumer Protection Act?

2. Whether the complainant is entitled to get treatment expenses under insurance scheme?

3. Whether the complainant is entitled to get back F.D of Rs. 20,000/- from opposite parties?

4. Whether there is unfair trade practice and deficiency in service on the part of opposite parties?

5. Whether the complainant is entitled to compensation and costs?

In support of the complaint, complainant has filed affidavit as PW1 and has marked Exts. P1 to P10. In rebuttal opposite parties 1 & 2 have filed affidavit as DW1 and has marked Exts. D1 to D3. No affidavit filed by opposite parties 3 & 4.

Points (i) to (v):- Admittedly, complainant is the franchisee dental clinic of the 3^rd and 4^th opposite parties. There is no point in dispute that opposite parties 3 & 4 have entered into a joint venture agreement with the 1^st and 2^nd opposite parties for running a dental treatment expense reimbursement insurance scheme. There is no dispute on the point that under the said scheme the dental treatment expense is covered by the Oriental Insurance company. It has been the case of the complainant that as per the facility, professional dental service or treatment is available against production of valid policy. According to complainant, the said facility is available at all dental clinics who are authorized by the 3^rd and 4^th opposite parties. It has been contended by the complainant that all the bills for treatment expenses are forwarded by the franchisee dental clinic 3^rd and 4^th opposite parties to the insurance company and the insurance company would reimburse all such expenses to the franchisee through 3^rd and 4^th opposite parties. It has also been contended by the complainant that he has deposited Rs. 20,000/- as fixed deposit with the 3^rd and 4^th opposite parties making complainant a franchisee of the opposite party. It has also been contended by the complainant that complainant canvassed several policies and issued insurance certificate to various persons as provided by the opposite parties and complainant was rendering dental services to policy holders to their utmost satisfaction and without complaints from any quarter whatsoever. It has also been contended by the complainant that he had never charged any amount for the dental treatment to the policy holders as per the conditions of the policy and all the bills of treatment expenses were forwarded to the opposite parties for reimbursement. It has been the case of the complainant that though complainant sent all the bills and relevant papers to opposite parties, so far opposite parties have not reimbursed the amount. The stand took by opposite parties is that complainant is not a consumer as defined in the Consumer Protection Act. Opposite parties are of the view that patients are canvassed by the complainant, that is franchisee for whom 3^rd and 4^th opposite parties used to get valid policies. On production of the said policies opposite parties 1 & 2 are bound to reimburse on the bills pertaining to treatment expenses forwarded by the complainant through 3^rd and 4^th opposite parties. It has been admitted by the 3^rd and 4^th opposite parties that they had sent all bills forwarded by the complainant to the 1^st and 2^nd opposite parties, but they had no knowledge about the above said bills which are not honoured. In this context, it should be noted that complainant had availed service of the opposite parties 3 & 4 on deposit of Rs. 20,000/- upon which valid certificate of insurance was delivered to policy holders and policy holders availed treatment from the complainant on the pretext that insurance company would reimburse all such expenses to the complainant. It should also be noted that policy holders/patients never paid treatment expenses to complainant nor did they claim treatment expenses from the opposite parties, nor did opposite parties challenge the treatment given to policy holders. As the treatment was given by the complainant to policy holders/patients under the scheme of insurance coverage, complainant is the beneficiary of the said policies, thereby complainant becomes a consumer as defined in the Consumer Protection Act. Thus the point is found in favour of complainant.

Admittedly, premia of the policy holders were paid and policy certificates were issued and bills forwarded by the complainant to opposite parties 3 & 4 were forwarded to opposite parties 1 & 2 to reimburse the treatment expenses. It has been admitted by opposite parties 1 & 2 that they had entered into a memorandum of understanding on 29.09.1999 with opposite parties 3 & 4 whereby opposite parties 1 & 2 had undertaken that if in the course of the period of insurance any insured person having contracted any dental ailment or disease, any dental injury as a result of any accident of visible and viable and external means and if any such ailment or injury requires any such insured person upon the advice of a duly qualified dental practitioner could undergo treatment as an outpatient at any authorized dental clinic belonging to or being franchisee of the insured, the opposite parties 1 & 2 undertook to pay by cheque favouring the authorized dental clinic through the insured such treatment expenses incurred in respect thereof or on behalf of such insured person but not exceeding in any one period of insurance an amount of Rs. 10,000/- in aggregate in respect of such treatment undergone by all the insured members of such family not exceeding 4. It has undertaken and expressed by the opposite parties 1 & 2 that aggregate amount of claims paid, claims outstanding to the total premia excluding the service tax received by the company upto the period ending each quarter during the policy period does not exceed 85% failing which both policy and memorandum of understanding referred to shall stand terminated forthwith. It has also been contended by opposite parties 1 & 2 that as per terms of the said policy it was mandatory that the persons sought to be insured should undergo a dental check up within 30 days of the enrolment to the scheme, and the claims ought to have been submitted with opposite parties 1 & 2 within 15 days of the completion of the treatment. It has also been contended by opposite parties 1 & 2 that on receipt of the relevant documents the opposite parties 1 & 2 subject to the admissibility of the claim falling within the purview of the policy and subject to the limit of liability effect payment of the claim to the dental clinic. It has been the stand of the opposite parties 1 & 2 that opposite parties 1 & 2 had settled the entire claims upto 85% of the premia paid by the time the claim of the complainant were received through opposite parties 3 & 4 and therefore they are not obliged under policy conditions to process the claim. Complainant's evidence consisted of oral testimony of the complainant as PW1 and Exts. P1 to P10. In his cross examination PW1 has deposed that he has not read the terms and conditions nor has he demanded the memorandum of understanding from the opposite parties. PW1 has further added that he has no direct dealings with opposite parties 1 & 2. when suggested that claims received upto 18.07.2000 were settled by opposite parties 1 & 2 by paying 85% (Rs. 1,28,793/-) of the total premium amount of Rs. 1,51,360/- received, PW1 deposed that he knows some of the claims were settled, but his claim never settled by them. Exts. P1 series are certificates of insurance (24 Nos). Ext. P2 is the copy of the franchisee certificate. Ext. P3 is the copy of the Articles of the Agreement between complainant (Franchisee Dental Clinic) and Smile Care Dental Claim. As per Ext. P3 Franchisee Dental Clinic shall provide quality dental treatments to the policy holders under the terms and conditions of the insurance policy, the policy holder will sign the claim and bills, the FDS will enter the actual treatments done and the cost in the original policy brought by the policy holder. The FDS shall send their claims, bills and photocopy of the original policy to the company. The company agrees to get all the claims reimbursed from the insurance company and the company agreed to pay all claims, comes under the purview of the Terms and Conditions of the policy. As per Ext. P3, the insurance company had given agreement to clear up the claim within 25 days of its submission as per the MOU agreement. So the maximum time to reimburse the claims shall not increase 30 days after its proper submission. As per Ext. P6 series, complainant had forwarded 24 insurance claim certificates to opposite parties 3 & 4 vide Smile Care Claim Certificate Nos. 00240/142(period 03.12.1999 to 02.12.2000), 00050/308 (period 22.03.2000 to 21.03.2001), 00201/103(period 12.11.1999 to 11.11.2000), 00236/41(period 01.12.1999 to 30.11.2000), 00053/33 (period 08.11.1999 to 07.11.2000), 00152/101(period 08.12.1999 to 07.12.2000), 00228/130 (period 29.11.1999 to 28.11.2000), 00205/107 (period 06.12.1999 to 05.12.2000), 000111 (28.10.1999 to 27.10.2000), 00214/116 (27.11.1999 to 26.11.2000), 00240/142 (03.12.1999 to 02.12.2000), 00230/132 (05.12.1999 to 04.12.2000), 01080/234 (31.01.2000 to 30.12.2001), 01079 (251) (14.12.1999 to 13.12.2000), 04812/300 (01.03.2000 to 28.02.2001), 04112/321 (15.04.2000 to 14.04.2001), 04116/319 (17.04.2000 to 16.04.2001), 04818/307 (11.03.2000 to 10.03.2001, 04819/306 (15.03.2000 to 14.03.2001), 00280/214 (08.03.2000 to 07.03.2001), 04117/318 (17.04.2000 to 16.04.2001), 01050/305 (15.03.2000 to 14.03.2001), 04804/309 (27.03.2000 to 26.03.2001), 04108/317 (15.04.2000 to 14.04.2001). A perusal of Ext. P6 series reveal that in all claims summary name of the beneficiary, details of the treatment, date of treatment, cost, signature of beneficiary and dentist are entered. Ext. P7 is the document showing details of dental claim. Ext. P8 is the document showing features of the policy. A perusal of the policy features reveals that the claims will be routed through Smile Care Hospital Pvt. Ltd. Dental Clinic Network duly authenticated and presented to the insurance company. Ext. P9 is the document deals with proposal, claims, claim procedure etc issued by the Oriental Insurance Company's Smile Care Dental Claim issued by Smile Care Hospital, procedure, and treatment charges are also seen attached with Ext. P9. Ext. P10 are carbon copies of bill books. Opposite parties 1 & 2 have furnished Exts. D1 to D3. Opposite parties 3 & 4 never filed proof affidavit nor furnished any documents. In this case, complainant had forwarded claims along with bills for treatment expense within the period of insurance to opposite parties 3 & 4 who had averred in the version that they had sent all bills to opposite parties 1 & 2. There is no point in dispute that complainant had forwarded claims to opposite parties. There is no allegation from the side of opposite parties that claim was not submitted within the prescribed time, nor is there any allegation regarding the treatment expenses, nor is there any allegation in regard to violation of policy conditions. Admittedly, as per Ext. P8 features of special insurance policy covering Dental Treatment Expenses of the members of Smile Care Dental Claims were presented by opposite parties 1 to 4 jointly. Therefore, opposite parties 1 to 4 are jointly responsible for settling the claims forwarded by the complainant. As per Ext. P6 series of certificates of insurance (24 Nos.) each certificate of insurance assured a sum of Rs. 10,000/- towards non-hospitalized dental treatment expenses as per the terms, conditions and exceptions contained in Ext. P8 prospectus. There is no material on the record to show that the claims forwarded by the complainant were settled. After jointly presenting a special insurance policy covering dental treatment expenses of the members of Smile Care Dental Claims and after collecting the premium from the package holder, opposite parties cannot remain as passive spectators on the claims for reimbursement of treatment expenses as stipulated in the policy. Even no reply is seen sent to complainant in regard to the claim forwarded to opposite parties. Non-settling the said claims without prompt reason would definitely amount to unfair trade practice and deficiency in service on the part of opposite parties. In view of the foregoing discussions and evidence available on record, we are of the considered opinion that complainant is entitled to get treatment expenses as assured by opposite parties under the joint insurance scheme.

In the result, complaint is allowed. Complainant is entitled to get reimbursement of treatment expenses as per Ext. P6 series (24 Nos.). Opposite parties 1 & 2 shall process and settle the claim as per Ext. P6 series and shall pay the settled amount to complainant within two months from the date of this order, along with Rs. 5,000/- as compensation. Opposite parties 3 & 4 shall also pay Rs. 5,000/- towards compensation. Parties shall bear and suffer their respective costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of October 2011.

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G. SIVAPRASAD : PRESIDENT

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BEENAKUMARI. A : MEMBER

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S.K. SREELA : MEMBER

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O.P. No. 100/2001

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Dr. Sajis M. Mathai

II COMPLAINANT'S DOCUMENTS :

P1 - Certificate of insurance

P2 - Copy of the franchisee certificate

P3 - Copy of the Articles of the agreement between complainant

P4 - Copy of certificate of insurance.

P5 - Letter dated 03.12.1999 of opposite parties to complainant

P6 - Copy of certificate of pre-acceptance of dental check up

P7 - Dental treatment expenses reimbursement insurance policy

P8 - Prospectus

P9 - Letter dated 22.03.2000

P10 - Bill books.

III OPPOSITE PARTY'S WITNESS :

DW1 -

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of agreement between Oriental Insurance Company and Smile Care Hospital Pvt. Ltd.

D2 - Copy of Dental Claim Special Contingency policy.

D3 - Details of policy holders of Smile Care Dental Care Scheme.

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PRESIDENT