BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                              Dated this the 28^th March 2014

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER                  

COMPLAINT NO.32/2013

(Admitted on 2.2.2013)

Mahabala Shetty,

So Late Annu Shetty,

Aged About 42 years,

Rat. Ajaynagar House,

Padnoor Post   village,

Puttur Tq., D.K.                                           …….. COMPLAINANT

(Advocate for Complainant: Sri Sanjay D)

          VERSUS

1. The Manager,

     National Insurance Co. Ltd.,

     Dharmasthala Building,

     Main Road, Puttur, D.K.

2. Manager,

     Vipul Med Corp. Pvt. Ltd.,

      Plot No.145, 2^nd Mallige Complex,

      KHB Colony, 5^th Block,

      Koramangala,

      Bangalore.                                                ……OPPOSITE PARTIES

(Advocate for Opposite Party No.1: Smt. Hemalatha Mallya)

(Opposite Party No.2: Exparte)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.          1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The complainant stated that, he along with his family member are the holder of the Universal Health Insurance Policy  as per policy bearing No.602301/48/10/8500001254 for a sum of Rs.30,000/- and policy was valid from  17.12.2010 t016.12.2011. The same has been issued by 1^st Opposite Party and 2^nd Opposite Party is the third party administrator.

When the matter stood thus, the complainant’s wife Smt.Padmalatha was admitted to the Dhanvanthari Hospital, Puttur  on 5.5.2011 for Laparoscopic Cholecystitis  and was operated on 5.5.2011 and was discharged on 9.5.2011 and spent Rs.23,580/-  for the operation and thereafter the complainant submitted the claim form along with required documents, but the opposite parities have paid Rs.7,300/- towards claim which is part satisfaction of the amount.  Hence the complainant issued legal notice to pay the entire amount, but the opposite parties have failed to comply the demand made therein and hence the complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to  pay Rs.16,280/-  to the complainant along with interest at 12% per annum from 9.5.2011 till payment along with compensation and cost of the proceedings.

II.        1. Version notice served to the Opposite Parties No.1 and 2 by R.P.A.D. Opposite Party No.2 inspite of receiving version notice neither appeared nor contested the case before this FORA.  Hence, we have proceeded exparte as against the Opposite Party No.2.  The acknowledgement marked as Court Doc. No.1. 

 Opposite Party No.1 appeared through their counsel filed version stated that they have issued Universal Health Insurance Policy and they have settled the claim for Rs.7,300/-  as per the conditions of the policy.  It is stated that, the complainant is entitled only for 0.5% of sum insured towards room rent, 1% of sum insured towards rent at ICU, 15% of sum insured towards doctors charges and 15% of sum insured towards other charges and denied the deficiency and prayed for dismissal of the complaint.

III.       1.  In support of the complaint, Mr.Mahabala Shetty (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced Ex. C1 to C8. On behalf of Opposite Parties one Mr.Subramanya Kini (RW-1) Assistant Divisional Manager of  Opposite Party No.1  filed counter affidavit and answered the interrogatories served on him and produced Ex. C1 to C3

            In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Parties have committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

                        We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                                      Point No.(i): Affirmative.

                                      Point No.(ii) & (iii): As per the final order.          

REASONS

IV.       1.  POINT NO. (i) TO (iii):-

    In the instant case, the facts which are admitted is that, the 1^st Opposite Party issued Universal Health Insurance Policy as per policy bearing No.602301/48/10/8500001254 for a sum of Rs.30,000/- and policy was valid from  17.12.2010 to16.12.2011. It is also admitted that, the complainant’s wife Smt.Padmalatha was admitted to the Dhanvanthari Hospital, Puttur  on 5.5.2011 for Laparoscopic Cholecystitis  and was operated on 5.5.2011 and was discharged on 9.5.2011 and spent a sum of Rs.23,580/- as per Ex C5 i.e. discharge summary. 

Now the points are in dispute before this FORA is that, according to the complainant opposite party served two pages of the policy, but not served conditions of the policy to the complaint.  Without serving conditions the opposite party cannot deduct any amount from the final bill.  In other words, the terms and conditions of the policy was not within the knowledge of the complainant and therefore it is contended that the 2^nd Opposite Party has only paid Rs.7,300/- towards the claim which is arbitrary.  Hence this complaint.

The Opposite Party on the contrary contended that, the complainant was within the knowledge of terms and conditions of the policy and as per the terms and conditions of the policy, 1^st and 2^nd Opposite party settled amount of Rs.7,300/- which is correct. 

However, on perusal of the documents available on record, we find that, admittedly the 1^st Opposite party issued a Universal Health Insurance Policy to the complainant and his family under B.P.L holders (i.e. Below Poverty Line).  It is a settled position of law that, whatever the insurance policy along with terms and conditions introduced by the general insurance company’s shall be within the knowledge of the insured if it is not within the knowledge of the insured then the terms and conditions are not binding on the complainant/insured person. 

In ruling reported in 2007 III CPJ 34 – N.C. –The Hon’ble National Commission has said that when statute provides manner in which particular thing must be done, same must be done in that manner only and General Insurance Company’s are bound to follow the regulations under I.R.D.A without protection of Policy holders  interest). In another ruling reported in 2009 III CPJ -246 N.C. – the HON’BLE NATIONAL COMMISSION held that unexplained unnoticed exclusion clauses  are not binding to the insured and  it requires to be ignored. 

Similarly, in the instant case, it is burden on the opposite party’s to prove that the terms and conditions accompanied by the policy are within the knowledge of the complainant.  However, we have noted that, the counsel for the opposite party produced policy with conditions before this FORA to substantiate their version, but the policy and conditions does not show that to which it belongs to rather in the end portion of the conditions, it is printed that ‘Kanteerava Offset/2000 Nos./08/2007’ that means conditions produced by the Opposite party before this Forum pertaining to the  year 2007. Therefore it is made us very clear that the 1^st Opposite party  failed to serve the terms and conditions of the policy which part and parcel of the insured policy issued by them.  It is proved that the terms and conditions are not within the knowledge of the complainant in this case and the opposite parties are liable to pay damages for their deficiency of service committed in this case.

It is a settled position of law that, the terms and conditions of the policy is mandate and each terms and conditions of the policy is a part and parcel of the claim and therefore it is bounden duty of the  opposite party company to see that the every terms and conditions of the policy shall be accompanied to the policy and served to the insured persons without any negligence/irregularities, but as we noted that the general insurance company is are very careless with regard to the terms and conditions.  Laterally, they are only bothered to develop their business by issuing a policy wherein the terms and conditions are not annexed is very common.  Therefore in this case, we are of the opinion that the opposite party company shall pay damages for the lapse committed by them in this case.  By considering the citation reported in 2009 III CPJ 246,  HON’BLE NATIONAL COMMISSION, we hold that the opposite party not explained/issued terms and conditions of the policy issued to the complainant.  Therefore, they shall pay damages of Rs.10,000/- (Rupees Ten thousand one hundred only) irrespective of payment made by them under the policy and also pay Rs.2,000/- (Rupees Two thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.  Since there is no contractual relationship between the complainant and Opposite Party No.2. Hence complaint against Opposite Party No.2 is hereby dismissed.

            In the result, we pass the following:

ORDER

The complaint is allowed.  The Opposite party No.1 i.e. National Insurance Co. Ltd., represented by its Divisional Manager/authorized signatory shall pay Rs.10,000/- (Rupees Ten thousand one hundred only) as damages to the complainant.  And also pay Rs.2,000/- (Rupees Two thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party No.1 directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment

The complaint against Opposite Party No.2 is hereby dismissed.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 28^th day of March 2014)                  

            PRESIDENT                                                  MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Mahabala Shetty – Complainant.

Documents produced on behalf of the Complainant:

Ex C1: 17.12.2010: Copy of the Policy.

Ex C2: 10.5.2011: O/c. of the Claim Letter.

Ex C3: 16.5.2011: Letter addressed by 1^st O.P.

Ex C4: 30.8.2010: Copy  of the bills(6)

Ex C5: 9.5.2011: Copy of the discharge summary.

Ex C6: 23.6.2011: Copy of the pass book.

Ex C7: 7.10.2011: O/c of regd. Lawyer’s notice.

Ex C8: 10.10.2011: Postal Acknowledgment of 1^st O.P.

Witnesses examined on behalf of the Opposite Parties:

RW-1: Mr.Subramanya Kini (RW-1) Assistant Divisional Manager of  O P No.1.  

Documents produced on behalf of the Opposite Party:   

Ex R1: Policy Prospectus

Ex R2: Policy condition.

Ex R3: Calculation Sheet.

Dated:28-03-2014                                         PRESIDENT