F I N A L O R D E R / J U D G E M E N T
Presented by: -
Shri Debasish Bondhyapadhyay, President.
Brief fact of this case: - This case has been filed under section 12 of C.P. Act, 1986 by the complainant against the OPs stating that complainant is a Medi-claim policy holder being No. 153500/48/15/8500002065, valid from 10/06/2015 to 09/06/2016 and complainant lodged a claim in the month of November, 2015 for a sum of Rs.25,829/- only.
Complainant also stated that Complainant got himself admitted into Nightingle Hospital on 29/10/2015 for treatment of heart ailment and was remained admitted in the said hospital up to 31/10/2015 and on that day i.e. on 31/10/2015 complainant was discharged after complete investigation from the end of the said hospital for which complainant paid a sum of Rs.25,829/- only. Thereafter, complainant submitted the entire original papers including bill and other documents issued by the said Nightingale Hospital including IPD Case History papers before the OPs. Complainant thereafter stated that in spite of submission of all the papers and document to the OPs in original and as per requirement of the OPs all the reports were submitted accordingly but after that OPs have issued a letter dated 12/07/2017 wherein complainant has been intimated that the claim of the complainant has been turned down on the alleged reason of no response received from the insured for the queries raised by the alleged TPA. Complainant stated that the claim has been illegally turned down by the OPs and the claim lodged by the complainant on account of his illness and OPs should have been considered the same with immediate effect from the date of lodging the claim.
Thereafter, complainant also paid a sum of Rs.31,000/- to the OPs for the said Medi-claim Policy about which OPs were fully aware and in spite of lawful claim lodged by the complainant OPs illegally turned down the same . Complainant stated that the claimed amount should have been considered by the OPs and accordingly OPs should pay the claimed amount with interest since 31/10/2015.
Complainant further stated that after receiving the letter dated 12/07/2017 of the OPs complainant in reply sent a letter dated 16/08/2017 to the OPs for reconsideration of the claimed amount which was duly received by the OPs in due time but by a letter dated 28/08/2017 OP No. 2 informed the complainant to submit IPD Case paper of Nightingale Hospital which were missing at the time of processing.
Complainant again stated that in reply of the letter of the OP No. 2 dated 28/08/2017 complainant again sent a letter on 25/09/2017 by speed post with A/D informing the said OP that complainant is not liable to further submit the papers to review the complainant’s case which have been missed out from the file of the said OP. Complainant also stated that after being discharged from Nightingale Hospital complainant claimed before the Insurance Authority under the said policy and also sent letters to the OPs time to time regarding settlement of the said claim but OPs did not pay any heed to the request of the complainant. On the contrary OPs have illegally repudiated the claim of the complainant.
Under such circumstances being suffered from mental pain & agony and also finding no other alternative way Complainant filed this case before this Commission (formerly Forum) praying for directions upon the OPs to pay an award a sum of Rs.25,829/- only to the complainant which have been paid to the Nightingale Hospital and complainant also prayed before this Commission to pay a sum of Rs.50,000/- only to the Complainant as compensation towards mental pain and agony and complainant also prayed for all cost of the proceeding.
Defense Case as per OPs: - OPs have contested the case by filing W/V denying all material allegations made by the complainant and contented inter alia that: -
The instant application as framed by the complainant is not maintainable either in law or in facts and the contents of the complaint is baseless, harassing and complainant with some malafide intention has filed this case and also the instant case is bad for mis-joinder/non-joinder of the parties and for achieving unjust gain complainant filed the instant petition.
OPs stated that the instant petition of complaint is motivated and vindictive and it is also beyond the scope of alleged policy in question and there is no deficiency of service on the part of the OPs since the considered decision of the OPs as per terms & conditions of the policy in question was intimated to the complainant immediately on receiving the alleged claim. It is a settled principle of law held by the Hon’ble Apex Court as well as Hon’ble National Commission that constitution of the policy bond which is the basis of the contract of insurance is question of law and it is true & correct interpretation would give the Consumer Forum to pronounce upon the deficiency in service. It is further stated by the OPs that OPs issued a National Mediclaim Policy being No. 153500/48/14/8500002122 in favour of the complainant for the period from 10/06/2014 to 09/06/2015 containing certain terms & conditions and exclusions etc. as would be appeared from the said policy and complainant would have to prove those strictly by producing all relevant papers.
OPs also stated that it is not correct that complainant on and from 29/10/2015 to 31/10/2015 was admitted at Nightingale Hospital on account of heart ailment. Complainant admitted in the said hospital for the purpose of investigation only and such diagnosis can be carried out as out patient procedure and at that time his condition does not require hospitalization. As such, no treatment of any illness and/or decease was made by the doctor in the said hospital as it appears from the discharge summery issued by Nightingale Hospital on 30/10/2015 and also from the Initial Assessment Sheet issued from the said hospital on 31/10/2015 i.e. the IPD case history papers and the claimed amount paid by the complainant to the said hospital towards Bed Charges and expenses for the investigations, which are not payable when there is no treatment was made as per terms & conditions of the policy in question.
OPs have further stated that OPs as well as MEDSAVE i.e. TPA requested the complainant a number of times to produce the IPD Case History as well as Discharge Certificate for consideration of the alleged claim and lastly on 12/07/2007 OPs have turned down the said claim for want of those papers and at the time of complainant’s prayer OPs have managed to obtain the IPD Case History i.e. Discharge Summery Initial Assessment Sheet from the said Nightingale Hospital and on perusal of those it appears that from the indoor case papers during hospitalization only Holter Monitoring for SCV and PVC and other investigations had been done for which a sum of Rs,13,000/- towards Bed Charges, Rs.9,380/- towards investigation charges and Rs.1,049/- towards pharmacy charges were claimed but no active line of treatment was taken. Therefore, as per policy, the claim was not payable and in this connection the OPs referred the EXCLUSION Clause No. 4, 4.19 & 2.23 of the terms and conditions of the policy in question and as such, the petition of complaint of the complainant is liable to be rejected.
Issue(s) / Point(s) for Consideration
On the basis of the pleadings of the parties, this District Commission for the interest of proper and complete adjudication of this case is going to adopt the following point(s) for consideration: -
- Whether the complainant is the consumer to the OPs or not?
- Whether this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any unfair trade practice on the part of the OPs or there is any deficiency in service on the part of the OPs.
- Is the complainant entitled to get relief/reliefs as prayed for?
Evidence on record
Complainant filed evidence on affidavit, filed reply against the questionnaire of the OPs, filed questionnaire against the evidence of the OPs.
Whereas OP filed evidence supported by affidavit, filed reply against the questionnaire of complainant.
The evidence given by the complainant side and OP side is nothing but the replica of the petition of complaint and written version which have been filed by the complainant and OP respectively.
DECISION WITH REASON
The first 2(two) issues/points of consideration adopted in this case are interlinked and/or interconnected with each other and so this 2(two) issues are clubbed together and taken up for discussion jointly.
On close scrutiny from the materials on record, it reveals that the complainant is the consumer under Section 2(i)(d)(i)(ii) of the C.P.Act, 1986 to the OPs.
Complainant appears to be the resident of Howrah whereas OP is also having their residences/office in district Howrah. Considering the nature of the case and prayers of the complainant it straightway gives clear signal that pecuniary value of the case is within Rs.20,00,000/- i.e. within the limit of this Commission (formerly Forum). So, this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try this case.
Regarding the point of cause action and limitation this District Commission after going through the materials of this case record finds that cause of action of this case which has been highlighted by the complainant has been continued. In this regard it also important to note that this complaint case has been filed by the complainant by complying the provision of Section 24 of C. P. Act, 1986. According to the provision of Section 24 of the C. P. Act, 1986 this complaint case can be entertained by the District Commission or by the State Commission or by the National Commission even after expiry of 2(two) years if the complainant satisfies the Ld. Commission that he/she has sufficient grounds for not filing the case within 2(two) years. On the background of this position and as the cause of action continued, thus, it is crystal clear that this case is not barred by limitation and there is no ground of stating that there is no cause of action for filing this case.
On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant against the OPs. Moreover, after going through the provision of Section 2(i)(d) of Consumer Protection Act it appears that this case is maintainable and according to the provision of Section2(i)(d) of C. P. Act, 1986 the complainant is a consumer in the eye of law.
It is the settled principle of law that insurance policy is contractual obligation. It is the settled principle of law that failure of insurance company to comply with the contractual obligation to release the claim amount is deficiency of service. This legal principle has been laid down by the Hon’ble State Commission, Delhi and it is reported in 2022(2)CPR13(DEL). All these factors are clearly depicting that this case is maintainable and the complainant is a consumer of the OPs and this District has territorial/pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the OPs. Thus, the above noted 2(two) issues/points of consideration are decided in favour of the complainant side.
The point of consideration No. 3 is related with the question as to whether there is unfair trade practice and deficiency of service on the part of the OPs or not? The point of consideration No. 4 is related with the question as to whether the complainant is entitled to get any relief in this case or not? These 2(two) points of consideration are interlinked and/or interconnected with each other and for that reason these 2(two) issues/points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of deciding the fate of this case as well as the above noted 2(two) points of consideration there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity of making scrutiny of the documents filed by the parties of this case.
On comparative studying of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the OPs and on close compare of the documents filed by both sides it appears that on the following points of this case either there is admission on behalf of the both parties or the parties of this case have not raised any dispute: -
- It is admitted fact that the complainant/petitioner was admitted in Nightingale Hospital on 29/10/2015 for the treatment of heart ailment.
- It is also admitted fact that the complainant was admitted in the said hospital up to 31/10/2015.
- There is no dispute over the issue that the complainant was discharged on 31/10/2015 after complete investigation from the end of the said hospital.
- There is no controversy over the issue that the complainant had paid a sum of Rs.25,829/- only to the hospital authority for medical treatment.
- It is also admitted fact that the hospital authority has issued bill and medical papers of treatment including IPD case history papers.
- It is also admitted fact that the complainant deposited/submitted all these papers and documents to the OPs for claiming the above noted amount.
- There is no dispute over the issue that the OPs have repudiated the claim of the complainant.
- It is also revealed from the evidence on record that both the complainant side and OP had exchanged letters with regards to the claim submitted by the complainant.
- It is admitted fact that the complainant has not yet received the above noted claim amount from the OPs for which the complainant has instituted this case for getting the claim amount as well as for getting compensation for suffering mental pain and agony.
Regarding the above noted admitted facts and informations there is no necessity of passing any separate observation as because it is the settled principle of law that facts admitted need not be proved. This legal principle has been embodied in Section 58 of the evidence act.
On the background of above noted facts and circumstances the parties of this case are differing on the point and/or the apple of discord between the parties of this case is that the complainant has adopted the plea that he is entitled to get the claim amount but the OPs without having any reason have repudiated the claim which nothing but deficiency of service. But on the other hand, it is the defense alibi of the OPs that the OPs asked the complainant for submitting some queries but the said queries and papers and documents were not filed by the complainant for which the OPs have been compelled to repudiate the claim.
For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the complainant was admitted to Nightingale Hospital with the complaint of heart ailment and complainant was admitted to the hospital for 3(three) days and had to pay medical bill of Rs.25,829/-. Over this issue OPs are alleging that the TPA claim some queries and papers and documents but due to non production of the queries and papers and documents the claim was not disbursed. It is also pointed out by the OP that Hon’ble Apex Court as well as Hon’ble National Commission has been pleased to observe that constitution of policy bond is the basis of contract of insurance but at the same time this District Commission shall not forget about the definition of service which embodied in Section 2(O) of the C. P. Act, 1986. Over this issue it is the settled principle of law that service under Section 2(O) of the C.P.Act, 1986 is wide enough to comprehend service of every description and this District Forum has the jurisdiction to entertain and try such complaint. This legal principle has been laid down by the Hon’ble Apex Court and it is reported in 2022(2)CPR(249)(SC).
Thus, it is crystal clear that OPs have their fault, negligence and deficiency of service in the matter of not granting the claim of the complainant. In view of this position, the OPs are liable and responsible to pay the claim amount of Rs.25,829/- only along with interest @ 9% per annum to the complainant and so the issue/point of consideration No. 4 & 5 are decided in favour of the complainant.
In the result, it is accordingly,
O R D E R E D
That this Complaint Case being No. 391 of 2017 be and same is allowed on contest but in part against the OPs.
It is held that the complainant is entitled to get the claim of Rs.25,829/- only along with interest @ 9% per annum from the OPs and also entitled to get compensation of Rs.20,000/- only from the OPs.
The OPs are directed to pay the said amount to the complainant within 45(forty five) days from the date of this order otherwise the complainant is given liberty to execute this order as per law.
In the event of non-payment/non compliance of the above noted direction the OPs must have to pay and/or deposit Rs.5,000/- in the Consumer Legal Account of D.C.D.R.C., Howrah which is to be utilized for the purpose of poor litigant public.
Let a plain copy of this order be supplied free of cost to the parties/Ld. Advocates/Agents on record by hand under proper acknowledgement/send by ordinary post for information and necessary action.
The final order will be available in the following website Dictated & Corrected by me
(Shri Debasish Kr. Bandyopadhyay)
President, DCDRC, Howrah
