KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM OP.3/2005 JUDGMENT DATED.22/01/2009 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER S.Venugopal, Vijaya, Temple Road, -- COMPLAINANT Ambalamukku, Peroorkada, Thiruvananthapuram 695003. (By Adv.S.Reghukumar) Vs. 1. National Insurance Company Ltd., Rep. by the Senior Branch Maager, Soundarya buildings, M.G.Road, Pulimood, Thiruvananthapuram. 2. T.T.K.Health Care Services Pvt.Ltd., rep. by the Senior BRANCH Manager Ravipuram, M.G.Road, Ernakulam, Kochi-682016. 3. K.R.Balasubramoniam, Agent, -- RESPONDENTS National Insurance Company Ltd., Soundarya buildings, M.G.Road, Pulimood, Thiruvananthapuram. JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER Complaint filed under Section 17 of the Consumer protection Act, 1986 claiming compensation of Rs.25 lakhs on the ground of deficiency in service on the part of the opposite parties. 2. The case of the complainant is as follows:- Complainant had taken Sampoorna Suraksha Policy, an Insurance Scheme with the first opposite party/National Insurance Company Ltd. The said policy was taken in October 2002 and the same was renewed for the subsequent year. He was having such a policy with effect from 15.10.2003 to 14.10.2004. After renewing the said policy the opposite party failed to issue the ID card and the details of the network hospitals for getting cashless treatment. There occurred undue delay in issuing the ID card and the details of the network hospitals. So, the complainant could not avail the cashless treatment facility which was provided by the Sampoorna Suraksha Policy. The aforesaid delay has also resulted in delaying treatment of a swelling which developed on the right thigh of the complainant. The complainant was in urgent need of an operation for the aforesaid swelling which developed on his right thigh. But because of the negligence and deficiency in service on the part of the opposite parties he had to wait for few months to get the treatment. By the said delay, the swelling on his right thigh developed into a Cancerous Tumour and the complainant had to suffer a lot due to the negligence and deficiency in service on the part of the opposite party. Hence the complaint claiming compensation of Rs.25 lakhs for the deficiency in service and unfair trade practice committed by the opposite parties. 3. The first opposite party alone filed written version contending as follows:- The complaint is not maintainable since the complainant suppressed material facts. The second opposite party settled the claim regarding his hospitalization benefits to the tune of Rs.89402/-. The insured amount was only for Rs.1 lakh/-. The complainant had taken Sampoorna Suraksha Policy for the period from 15.10.2003 to 14.10.2004. There was an agreement between the first opposite party and the second opposite party regarding issuance of the said policy. There is no laches or lapses on the part of the opposite party in settling the claim of the complainant. The complainant waited for the Insurance amount covered by the policy for his treatment for which the opposite party is no way liable or responsible. The complainant was informed about the procedures to be followed. There was no delay on the part of the opposite party in sending details to the second opposite party. The first opposite party had done everything possible for the issuance of ID cards to the complainant. The first opposite party never informed the complainant to wait for the claim amount for undergoing treatment for his illness. The complainant caused delay in the treatment. The whole amount spent by the complainant in connection with his treatment was reimbursed through the second opposite party. There is no deficiency in service or unfair trade practice on the part of the first opposite party. The complainant was benefited by the policy and he received the entire benefits under the policy. There is no cause of action for the complainant. The complainant had taken policy for Rs.1 lakh and he received the maximum claim amount. The complainant is not entitled to a compensation of Rs.25 lakh as claimed. There is absolutely no basis for the amount claimed. Thus, the first opposite party prayed for dismissal of the complaint. 4. The opposite parties 2 and 3 remained ex-parte. 5. From the side of the complainant Ext.P1 to P12 documents were marked and the complainant filed proof affidavit in lieu of examination in chief. The Branch Manager of the first opposite party was examined as DW1 and Exts.D1 to D4 were marked from the side of the first opposite party. No evidence was let in by opposite parties 2 and 3. 6. The points that arise for consideration are:- 1. Whether the complainant has proved the alleged deficiency in service and unfair trade practice committed by the opposite parties? 2. Whether the complainant has suffered any inconvenience, hardship, mental agony or financial loss due to the alleged deficiency in service and unfair trade practice on the part of the opposite parties. If so, what is the quantum? 7. POINTS 1 & 2:- There is no dispute that the complainant had taken a Medical Insurance policy under the name of Sampoorna Suraksha Policy from the first opposite party. He took the said policy for the first time in October 2003, and the same was renewed for the period from 15.10.2003 to 14.10.2004. It is an admitted fact that the policy was issued by the first opposite party/National Insurance Company Ltd. and there was an agreement between the opposite parties 1 and 2 regarding rendering of service under the policy to the policyholders. Admittedly, Health Insurance Guide Book was issued by the second opposite party/T.T.K.Health Care Service Pvt. Ltd. The issuance of such guide book is not disputed by the first opposite party. The very same Health Insurance Guide book had been produced from the side of the complainant. The conditions incorporated in the said guide book would make it abundantly clear that the policy holder under the Sampoorna Suraksha Policy can avail the facility known as cashless access and for availing such cashless access the policy holder has to approach net work hospitals enlisted by the opposite parties 1 and 2. It is to be noted that 3rd opposite party is only an agent of the first opposite party/National Insurance Company and he had nothing to do with the services to be rendered by the insurer/National Insurance Company or its service provider/Agent T.T.K Health Care Services Pvt. Ltd. So, the 3rd opposite party cannot be made liable for the alleged deficiency in service or unfair trade practice on the part of the opposite parties 1 and 2. 8. The Health Insurance Guide Book would make it clear that it is the duty of the opposite parties 1 and 2 to give the details of network hospitals under the scheme. Then only a policyholder can approach the network hospitals to get treatment under cash less access scheme. It would also make it clear that the opposite parties 1 and 2 were also bound to issue the Identity Card to the policyholders to avail the benefit. They have to issue the authorization form to the policyholder. But, in the present case the opposite parties 1 and 2 could not issue the ID cards or details of the network hospitals or the authorization forms to avail the facilities provided under the policy. 9. Ext.P2 is copy of the letter dated 15.03.2004 issued by the Branch Manager of the first opposite party/National Insurance Company Ltd. to the second opposite party M/s T.T.K Health Services intimating the necessity of issuing ID cards to the complainant as the policy holder. The P2 letter would make it clear that the second opposite party failed to issue the Identity cards to the policy holder/complainant, even after the lapse of 5 months of issuing P1 policy. It is to be noted that P1 policy was issued in October 2003 and until 15.3.2004 the second opposite party could not issue the identity cards to the complainant. It can also seen that the first opposite party/the Insurer was also well aware of the fact that the policy holder namely, the complainant was not provided with ID cards. The fact that the opposite parties 1 and 2 could not issue the identity cards and other details and the pre-authorization would make it crystal clear that the complainant was denied the facilities under the policy for more than 5 months. There can be no doubt about the fact that the complainant being the insured under P1 policy was legally entitled to get the ID cards and other relevant documents on 15.10.2003 itself or within a reasonable time. At any rate second opposite party was expected to issue the ID cards and other details to the insured at least within a period of 10 days. It was also the duty cast upon the insurer to see that the ID cards and other details are given to the complainant being the insured under P1 policy. Thus, the negligence and the resultant deficiency and unfair trade practice on the part of the opposite parties 1 and 2 would amount to deficiency in service. 10. The way in which the opposite parties 1 and 2 approached the issue regarding issuance of ID cards and the other documents to the complainant would make it clear that the opposite parties 1 and 2 were least bothered and concerned about the welfare of the consumer and they were only interested in getting the policy taken by the insured. After getting the insurance premium the opposite parties 1 and 2 in a way totally neglected the complainant/insured for more than 5 months. The aforesaid attitude on the part of the opposite parties 1 and 2 would tantamount to unfair trade practice. So, the case of the complainant that there was deficiency and unfair trade practice on the part of the opposite parties 1 and 2 is to be upheld. We have no hesitation in accepting the said case of the complainant/insured. 11. The next aspect for consideration is the quantum of compensation, which is to be awarded to the complainant for the deficiency in service and unfair trade practice on the part of the opposite parties 1 and 2. 12. The learned counsel for the first opposite party much relied on Section IV and the note thereunder limiting the maximum liability to the sum insured was mentioned in the schedule. There is no doubt about the fact that P1 policy was taken by the complainant and that the sum insured as Rs.1 lakh. Thus, P4 document would fasten the maximum liability at Rs.1 lakh. Admittedly, the complainant herein availed the facility by getting re-imbursement of the amount spent by him in connection with his treatment. It is categorically contended in the written version that the complainant has been paid Rs.89402/-. If that be so, the balance amount that is available under the P1 policy is only Rs.10598/-. The contractual liability between the complainant and first opposite party is limited at its maximum of Rs.1 lakh. So, the first opposite party/National Insurance Company Ltd., is only answerable and liable to the extent of the contractual liability of Rs.1 lakh. It has been held by the Hon. Supreme Court that in case of statutory liability, the person concerned can only be made liable to the limit of statutory liability. If the very same principle is applied in the case of contractual liability it can be seen that the first opposite party/Insurance Company herein can only be made liable to the maximum expenditure of Rs.1 lakh. 13. The fact that the complainant approached the Cosmopolitan Hospital, Thiruvananthapuram, Regional Cancer Center, Thiruvananthapuram, Baby Memorial Hospital, Kozhikode is not disputed. He had also undergone investigations and surgery at Baby Memorial Hospital, Kozhikode. It is also an admitted fact that the complainant spent amounts for his treatment from his own pocket and there after he got the said sum through the second opposite party. But, at the first instance, the complainant had to make arrangement to pay the hospital bills. It is to be noted that the complainant being the insured was entitled to get the cashless access and by invoking the facility there was no necessity for the complainant to pay the hospital expenses from his own pocket. But, in this case the complainant effected the payments and there after got it reimbursed. This happened only because of the negligence or deficiency in service or unfair trade practice committed by opposite parties 1 and 2. Thus, the complainant suffered mental agony, inconvenience and hardship due to the negligence of the opposite parties 1 and 2. 14. The complainant has also got a case that his treatment for the cancerous growth so delayed because of the negligence of the opposite parties 1 and 2 in issuing the ID cards, details of the network hospitals and the pre authorization. It is the case of the complainant that even in December 2003 when he took the policy he had a small swelling on his right thigh and he was in urgent need of an operation at his right thigh. But there is nothing on record to show that in October 2003 itself the complainant had such a swelling at his right thigh and he was in need of an urgent operation. There is no document to show that his treatment was delayed because of the non-availability of ID cards and other documents. There is also no scrap of paper available on record to show that because of the delay in issuing the ID cards and other documents his illness or disease had been worsened. It is further to be noted that there was no hindrance or difficulty for the complainant to get his treatment from any non net work hospitals and he could have obtained the medical expenses reimbursed. It is further to be noted that in the present case the complainant spent his treatment expenses from his own pocket and subsequently he got it reimbursed. Therefore, the materials on record and the facts and circumstance of the case would not support the case of the complainant that his treatment was delayed because of the negligence on the part of the opposite parties 1 and 2 in issuing the ID cards and other documents. One aspect to be borne in mind is the failure on the part of the complainant in mentioning the reimbursement of Rs.89402/- by way of the treatment expenses. It is to be noted that after getting the said amount reimbursed the complainant approached this form with the present complaint claiming compensation of Rs.25 lakhs. It was not fair on the part of the complainant in not mentioning anything about reimbursement of the treatment expenses. So, the way in which the complainant approached this Commission claiming compensation of Rs.25 lakhs would show that the complainant was very much interested to suppress the acceptance of Rs.89402/- by way of reimbursement of medical expenses. So, the case of the complainant that his treatment was delayed because of the negligence or deficiency in service on the part of the opposite parties cannot be believed or accepted. 15. It has been held by the Hon. Supreme Court in Lucknow Development Authority Vs. M.K.Gupta reported in AIR 1994 Supreme Court 787 that the consumer forms are bound to pay compensation to the consumer for harassment, mental agony or oppression. There can be no doubt about the fact that the complainant herein was harassed by the opposite parties by not issuing the ID cards and other documents within a reasonable time. It is to be noted that the complainant was approaching the opposite parties 1 and 2 again and again to get those documents, which the complainant was legally entitled. So, the aforesaid attitude shown by the opposite parties 1 and 2 would necessarily resulted in harassing the complainant. It would also in turn caused mental agony to the complainant. So, the complainant is to be compensated for the mental agony and harassment suffered by him at the hands of the opposite parties 1 and 2. It is to be noted that the complainant was denied a just and reasonable claim. He was legally entitled to get the ID cards and other documents under P1 policy. But the opposite parties denied those documents for more than 5 months. Thus, the complainant had to suffer injustice at the hands of the opposite parties. So, there can be no doubt about the fact that the complainant is to be compensated for the in justice he faced and suffered. 16. Considering all the facts, circumstances and the available materials on record, we are of the view that a sum of Rs.5000/- will be sufficient to meet the ends of Justice. It is to be borne in mind that the opposite parties have reimbursed the sum of Rs.89402/- to the complainant towards the hospital or treatment expenses met by him. So, the sum of Rs.5000/- as compensation is to be paid by the opposite parties 1 and 2 jointly and severally. They are also liable to pay cost of Rs.1000/- to the complainant. These points are answered accordingly. In the result the complaint in OP.3/05 is allowed to the extent as indicated above. The opposite parties 1 and 2 are jointly and severally liable to pay the compensation of Rs.5000/- to the complainant with cost of Rs.1000/-. The third opposite party is exonerated from the liability to pay compensation. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA -- MEMBER S/L APPENDIX COMPLAINANTS EXHIBITS Exhibit P1:- Policy No.570201/48/03/3501458 issued by the 1st opposite party. Exhibit P2:- Copy of letter dated 15.3.2004 of the 1st opposite party to 2nd opposite party Exhibit P3:- Copy of the letter dated 18.5.2004 issued by the consmopolitan Hospital Exhibit P4.:- Copy of letter dated 20.5.2004 from Regional Cancer Centre to Tata Memorial Hospital, Mumbai. Exhibit P5:- Cover in which identity card was issued by the 2nd opposite party. Exhibit P6:- --do- -do- Exhibit P7:- Copy of Discharge summary issued by Baby Memorial Hospital. Exhibit P8:- The originalof the letter dated 22.4.2004 sent by the 2nd opposite party. Exhibit P9:- The original of the list of T.T.K. Network hospitals in Kerala. Exhibit P10:- The original of the Health Insurance Guide Book issued by the 2nd opposite party. Exhibit 11:- The original of the Health card/identity card issued by the 2nd opposite party. Exhibit 12:- The original of the cover dated 4.6.2004 in which the Identity card as well as the Health Insurance Guide Book were sent. COMPLAINANTS WITNESS:- Nil OPPOSITE PARTIES EXHIBITS:- Exhibit B1:-Copy of the letter dated 13.6.2005 issued by the 2nd opposite party to the 1st opposite party. Exhibit B2:- Copy of letter dated 12.11.2004 issued by the complainant to this opposite party. Exhibit B3:- Copy of the letter dated 21.3.2005 issued by complainant to this opposite party. Exhibit B4-Conditions of mediclaim policy vide No.570201/48/03/3501458 OPPOSITE PARTIES WITNESS:- S.Dineshkumar, Branch Manager, National Insurance, ThiruvananthapuramBranch. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA -- MEMBER
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