No. 20/15.07.2009.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Complainant through Mr. Jayanta Dasgupta, the Ld. Advocate and O.P. Nos. 1 & 2 through Mr. G. P. Dey, the Ld. Advocate are present.  The Complainant filed the complaint case contending that Complainant – Hospital, as welfare measure to extend medical support to its employees and to mitigate medical expenses, entered into contract with O.P. No. 1 – Insurance Company for having Mediclaim Policy for the employees of the Complainant.  From time to time Group Mediclaim Policy for one year on each occasion, had been renewed for the staff of Group ‘D’ category and such Policy is called Tailormade Group Mediclaim Policy.  During the Policy period 2007 – 2008 from 28.02.2009 till 27.02.2008 in terms of memorandum of understanding met between the Complainant and the Insurance Company, claim was submitted in respect of insured member within the scope of the same memorandum of understanding firstly on 18.07.2009 and thereafter on several dates for a claim totaling to Rs.25,72,488/-.  When the claim amount was not being released in spite of repeated follow-up by the Complainant, correspondences were exchanged.  Under the terms of Agreement the O.P. No. 3, appointed by the O.P. No. 1 as Third Party Administrator (TPA) was to settle the claim of the Policy Holder.  The O.P. No. 3 being the TPA by its letter dated 28.08.2008 addressed to this Commission, disclosed that the claim had been lodged with them as mentioned by the Complainant but it could not be processed as they did not receive the Policy copy from the insurer.  The O.P. No. 3 explained the same as the only reason for delay.  In the proceeding the O.P. No. 3 contested only by filing the said letter.

Complainant in its complaint stated in Paragraph 7 the relevant facts as follows :

“Your petitioner hospital states that despite repeated follow up, persuasion by the management of the hospital opposite parties have failed and neglected to settle the claims and to make payment against such claims to yours petitioner hospital as per the terms of understanding and have committed breach of condition of policy.  It is further stated that at the time of execution of the said agreement the officers and agents of the opposite party company assured that comprehensive policy document would be furnished to the complainant upon payment of agreed amount of premium as a matter their system to enable to the petitioner to examine further the conditions and benefits under the policy, yet no such policy was at all furnished to the complainant though it hired the service of insurance coverage from the opposite party company”.

O.P. No. 1 in its Objection dealt with the same contention of the Complainant in Paragraph 10 as follows :

“That with reference to paragraphs No. 6 and 7, it is stated that the allegations made thereto are not true picture and rather there exists several material suppression”

O.P. No. 1 in Paragraph 11 of its Written Version stated as follows :

“That with reference to paragraph No. 8, it is stated that the O.P. No.3 by filing their W.S. on 16.9.08 admitted that “…… But we cannot process any claim until and unless we receive the policy copy…..” Thus it is apparent to settle the claim from the side of the complainant, there exists various lacunas on their own part and thus the answering opposite party No.1 is not liable for the deficiency of service whatsoever and howsoever.  The Annexure ‘A’ shall explicit on this point which bring a letter of Sr. Divisional Manager 11.11.08”.

The Complainant made prayer for direction upon the O.P. to release the claim amount of Rs. 25,72,488/- in favour of the Complainant, direction to O.Ps to pay the Complainant Rs. 50,000/- as compensation and Rs. 3,00,000/- towards interest.  After the Written Version was filed by the O.P. No. 1 and letter dated 28.08.2008 was filed by the O.P. No. 3 and evidence on Affidavit, questionnaire and reply were filed by both parties and Brief Notes of Argument were also filed matter was taken up for hearing.

Heard Mr. Dasgupta in support of the Complainant and Mr. Dey on behalf of O.P. Nos. 1 & 2.

It appears that the dispute in the present proceeding is very short and it relates to only claim of the Complainant that in spite of Insurance Policy claims are not being settled for a long time.  Under the Agreement, as contended by the Complainant, the O.P. No. 3 is to make payment.  In support of this contention the copy of the memorandum of understanding being Annexure ‘A’ to the Complainant has been relied on.  The Paragraph (viii) provides mode on settlement of claim and it records that payment will be made by the TPA (Family Health Plan Limit other than cash less terms and the grade one hospital in India and in sub-para 3 thereof this also recorded that the said memorandum of understanding is to form part of the Policy.

Therefore, it is apparent that the O.P. No. 3 being the TPA is to process the claim on behalf of the Insurance Company in respect of any claim against the said Policy.  This fact has not been denied by the Insurance Company.

It appears that the defence of the TPA being the O.P. No. 3 is that the claim could not be settled as the Insurer did not supply the copy of the Insurance Policy.  It appears that Complainant also did not get the copy of the Insurance Policy.

Mr. Dey denied the said contention but the O.P. Nos. 1 & 2 could not produce any document showing supply of copy of the Policy either to the Complainant or to the O.P. No. 3.  In such circumstances the denial of O.P. Nos. 1 & 2 in their Written Objection as regards their responsibility in the matter as alleged particularly in Paragraph 11 of the Written Version, compel us to conclude that the O.P. Nos. 1 & 2 actually bypassed the allegation and failed to make out clear case as regards any reason for not supplying the Insurance Policy either to the Complainant or to the O.P. No. 3 – TPA.

Undoubtedly the ultimate liability to settle and pay the clam is of the insurer.  But under the agreement the O.P. No. 3 is to process the claim and pay the same to the claimant.

In the circumstances we are convinced that the delay has occurred causing deficiency in service only on the part of the O.P. Nos. 1 & 2.  Mr. Dey, the Ld. Advocate for the O.P. Nos. 1 & 2 further relied on the Clause providing for a procedure of arbitration proceeding in case of a dispute between the parties.  But it is a settled law that mere existence of an arbitration clause in the Agreement does not prevent any Forum or Commission under the Consumer Protection Act from deciding the complaint if filed by any Complainant.  In this connection reliance can be placed judgement in the case of Skypak Couriers Limited – vs. – Tata Chemicals Limited reported in 2000 (6) SCC 236 settling the position in law clearly in the following terms :

“…..Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of any arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force”.

In above view of the matter we allow the complaint with the following directions :

(1)     O.P. No. 1 is directed to furnish the Insurance Policy to the O.P. No. 3 positively within a period of one month from the date of this order.

(2)     O.P. No. 3 is directed to settle the claim in accordance with law and make payment of any amount found due against such claim to the Complainant within two months from the date of furnishing the Policy by the O.P. No. 1 to O.P. No. 3.

(3)     O.P. No. 1 is directed to pay a sum of Rs. 50,000/- as compensation to the Complainant and litigation cost of Rs. 5,000/- and in case of default of compliance by O.P. No. 1, the Complainant will be entitled to recover the same in accordance with law.

Certified copy be issued forthwith, if applied for.