DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 8th day of April, 2024
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member Date of Filing: 20/10/2022
CC/198/2022
- Sunny N. Jacob,
S/o. Jacob,
Nadayath House,
Manikapadam, Vadakkancherry,
Palakkad – 678 683
- Selin Sunny,
W/o. Sunny N Jacob,
Nadayath House,
Manikapadam, Vadakkancherry,
Palakkad – 678 683 - Complainants
(By Adv. A.V. Ravi)
Vs
M/s. Oriental Insurance Company Ltd.,
Divisional Office,
3rd Floor, Builtech Foundation,
Chittur Road, Palakkad – 678 013 - Opposite party
Rep.by its Manager.
(By Adv. Ajitha A.)
O R D E R
By Sri. Vinay Menon V., President
- Quintessential pleadings, alleged by the complainants, husband and wife, and admitted by the O.P.s, are that the complainants had repudiated part of the claim raised by the complainants for amounts expended for peritoneal dialysis underwent by the 2nd complainant. The O.P. admitted a claim of only Rs. 26,453/- out of Rs. 1,01,430/- claimed. It is aggrieved by the said repudiation of claim that this complaint is filed.
2. O.P. justified the repudiation of part of the claim on the ground that the 2nd complainant was undergoing CAPD (Continuous Ambulatory Peritoneal Dialysis) which did not require hospitalization and was only a D-I-Y process, a home dialysis process. The patients themselves carry out the process. Domiciliary hospitalization benefit under the policy is available generally, when the medical treatment was made for an illness/disease/injury which in the normal course require care and treatment at a hospital, but it is actually taken while confined at home under the following circumstances (1) The condition of the patient is such that the patient is not in a condition to be removed to the hospital; or (ii) the patient takes treatment at home on account of non-availability of a room in hospital. They had already paid the contractually payable amount for domiciliary hospitalization. They sought for dismissal of complainant.
3. Upon a studied consideration of the pleadings and counter pleadings, the following issues were framed for adjudication:
- Whether the complaint is bad for non-joinder of necessary parties?
- Whether the rejection of part claim by the OP was as per the terms and condition of the policy?
- Whether the complainant is entitled to domiciliary hospitalization benefit as per the policy?
- Whether there is any deficiency in service on the part of opposite party?
- Whether the complainant is entitled to the reliefs sought for?
- Any other reliefs?
4. (i) Evidence of complainant comprised of proof affidavit and Exhibits A1 to A7.
(ii) OP filed proof affidavit without any documents.
5. OP was granted two opportunities to file proof affidavit but they failed to file proof affidavit within the time granted and hence evidence was closed. Thereafter they filed IA 703/2023 seeking reopening of evidence which was allowed. Proof affidavit was filed during this extended period and evidence was closed again and the case was posted for argument notes and hearing. Thereafter the opposite party filed another application, IA 127/2024, seeking a 2nd reopening of evidence to produce documents. Since the said documents were already in the custody and possession of the OP and was not a document that came to their notice and possession subsequent to filing of proof affidavit, we presumed that non production is due to negligence and careless conduct of the case by the OP. Therefore IA 127/2024 was dismissed. Consequently IA 126/2024 seeking leave to produce documents was also dismissed.
Issue No.1
6. This issue of non-joinder of necessary party was included as the OP had raised a contention that Third-Party Administrator was not impleaded. In the facts and circumstances of the case, the contesting O.P. is competent enough to answer the questions raised. A TPA would only be an agent of the O.P. Therefore, this complaint is not bad for non-joinder of necessary party.
Issue Nos. 2, 3 & 4
7. Grievance of the complainant is that part claim of the amounts expended by them was not indemnified by the OP. Per complainants, such repudiation was contrary to the terms and conditions of the policy. The OP contents that such repudiation of claim was based on the terms and conditions of the policy and that Rs. 26,453/- was paid as indemnification of Domiciliary Hospitalization expenses.
8. Complainants vouch by the terms and conditions, but they have failed to produce the terms and conditions that form part of the policy documents. In the normal course of the conduct of a case, wherein the complainant being the dominus litis, has to prove their case by adducing the documents they are relying on. Having failed to produce the said terms and conditions, this complaint, in the normal course, ought to be dismissed.
But, herein, a conduct of the O.P. stands out, that makes us reconsider an automatic recourse to dismissing the complaint. In the version of the O.P., on the one hand they plead that the condition of the complainant warranted only home treatment and it was a Do – It – Yourself procedure. They contend that the condition suffered by the 2nd complainant did not warrant hospitalization and the TPA advised repudiation of the claim. The O.P.s tread further by stating as to why expenses incurred are not indemnifiable. But then they turn around and stated that they had paid the benefits payable. Yet, the pleadings are totally silent as to what prompted O.P. to pay Rs. 26,453/- against the contractual terms and conditions, had the condition of the complainant been one that merited Do-It-Yourself residential procedure alone. There is no plea that the said payment was effected as a good will gesture. In such a circumstance, we find that there is discordance between the first and second part of the pleadings of the O.P. raising suspicion as to the legality or irregularity of the conduct of the O.P.
9. So, such irregular conduct/pleadings give rise to the following questions:
1. If the TPA had sought for repudiation of the claim, why did the O.P. honour part of the claim?
2. What was the contractual condition that warranted payment of such a sum?
The parties herein being in a fiduciary relationship to each other, the O.P.s are bound to divulge such matters to the complainant, or at least to this Commission, in the interest of transparency and in the interest of justice. It is imperative that O.P. cannot act arbitrarily and impetuously considering that they deal with public money. To that extent, it was incumbent on the part of the O.P. to prove their case that they had acted in accordance with the terms and condition of the policy.
Being in a fiduciary capacity with the complainant, the O.P. had a duty to account for their decision to pay Rs. 26,453/- and their decision to withhold payment of balance amount by way of production of terms and conditions and the notes of the underwriter. Having failed to produce the said documents and adduce evidence, we are left with no option but to resort to adverse presumption as against the O.P.
10. We do so.
11. We are therefore constrained to hold that there is deficiency in service on the part of the O.P. in repudiating the claim of the complainants.
Issue No. 5
12. In view of the failure on the part of the complainants in proving that they are entitled to the entire balance amount, we are unable to grant this relief.
Issue No. 6
13. In the result, based on the findings and observations above, we hold as below:
1. There is deficiency in service on the part of the O.P. in repudiating part claim of the complainants.
2. The O.P. is directed to re-work the claim of the complainants and pay the amounts payable, as if the complainant is entitled to hospitalization claims.
3. Complainants will be entitled to interest on the amount so arrived at, at the rate of 10% p.a. from the date of Ext. A6 till the date of payment.
4. Complainants are entitled to compensation of Rs. 50,000/-.
5. Complainants are entitled to cost of Rs. 25,000/-
6. The above directives are to be complied within a period of 45 days from the date of receipt of a copy of this order, failing which the O.P. shall pay an amount of Rs. 500/ per month or part thereof from the date of this Order till the date of compliance of the directives herein.
14. Accordingly, this complaint stands allowed.
Pronounced in open court on this the 8th day of April, 2024.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Original Happy Family Floater 2015 Policy Schedule covering 6/2/22 to 5/2/23
Ext.A2 – Original Happy Family Floater 2015 Policy Schedule covering 6/2/21 to 5/2/22
Ext.A3 - Copy of lawyer’s notice dated 2/8/2022
Ext.A4 - Original reply notice dated 31/8/2022
Ext.A5 – Original Happy Family Floater 2015 Policy Schedule covering 6/2/23 to 5/2/24
Ext.A6 – Copy of claim form of 2nd complainant dated 7/12/22
Ext.A7 - Copy of claim form of 2nd complainant dated 2/2/2023
Exhibits marked on the side of the opposite party: Nil
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant: Nil
Witness examined on the side of the opposite party: Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
