The instant case was instituted on the basis of a written complaint filed by Sri Sidhanta Kumar Bagchi, S/O Late Sudhin Kr. Bagchi, Uttar Chirail Para, P.O & P.S.Kaliaganj, Dist. Uttar Dinajpur u/s.12 of Consumer Protection Act, 1986 which was registered as Consumer Case No. 74/16 in this Forum.
The fact of the case as revealed from the petition of complaint as well as the evidence is that the complainant/petitioner is a business man by profession. The O.P. No.1 is an Insurance Co. having Insurance business. The complainant purchased a medicine Insurance Policy bearing No. 00000000088872A and sum assured was Rs. 5,00,000/-. It has been stated in the petition of complaint as well as evidence that the complainant admitted to Madhurima Nursing Home at Bulbulchandi Road, Malda due to attack of stroke and he was admitted to the nursing home from 22.07.2015 to 15.08.2015. Due to Brain in trace rebral hemorrhage and the doctor after proper treatment found fit released him from the nursing home on 15.08.15 with some specific restriction and for taking medicine. It has been further mentioned that the complainant informed about his illness to the O.P. No.1 and also informed the TPA i.e. O.P.No.2. The complainant claimed Rs.4,53,430/- for the reimbursement of the medical expense which was incurred by the complainant for his treatment at Madhurima Nursing Home. On 17.01.15 the O.P issued a letter and asked some documents for settlement of the claim and the complainant sent the documents to the office of O.P.No.2. Suddenly the complainant lost some medical documents like as blood report, X-ray report, scan report along with bill, voucher and finding no other alternative the complainant lodged a complaint before the Kaliaganj P.S on 24.11.15, but no action was taken from the end of Kaliaganj P.S. On 04.12.15 the complainant sent another letter to the O.P.No.2 stating that some documents has been misplaced from his custody and further requested to the O.Ps for early settlement of the claim. But no action has been taken from the end of the O.Ps. On 23.12.15 the O.P No.2 issued another letter requested the complainant to provide some information and documents Thereafter on 23.12.15 the complainant contacted with the office of the O.P and explained that no other documents is available and all documents have been sent to the office of the O.P. Thereafter on 18.04.16 through email the complainant came to know that the claim has been repudiated by the O.Ps. It has been further asserted that at the time of inception of the policy the complainant was in good health. Due to the negligent act and deficiency of service of the O.Ps the complainant has suffered irreparable financial loss. As such the complainant has filed the complaint before this Forum claiming Rs.4,53,430/-for reimbursement of medical expenses, Rs.50,000/- as compensation for mental harassment and Rs.5,000/- as litigation cost.
The petition has been contested by the O.P. No.3 Branch Manager, SBI A.D.B. Branch, Kaliaganj and O.P/SBI General Insurance Co. Ltd. separately by filing written version.
The defence case as made out by O.P.No.3 is that the instant case is not maintainable and the case is bad for non joinder of necessary parties. The definite case is that the complainant has suppressed the material facts and has not come before the Forum with clean hand. As such the instant case is liable to be dismissed.
The further case of O.P.No.3 is that the complainant did not seek any relief against the O.P.No.3. Under such circumstances the O.P.No.3 may kindly be exonerated from this case.
On the other hand the O.P/SBI General Insurance Co. Ltd has contested the case by filing written version denying all the material allegations as leveled against the OP/SBI General Insurance Co. Ltd. contending inter alia that there is no cause of action against the O.P/SBI General Ins. Co. Ltd. The claim is barred by the principle of waiver, estoppels and acquiescence. The definite case is that as per investigation report the hospital authority does not confirm the eligibility criteria and facility for providing ceaseless services to insured member as per policy norm, the treating doctor was not an allopathic doctor giving the allopathic treatment and the O.P submit that the claimant made all false, untrue and suppression of material facts and the claim of the complainant will be forfeited as per terms and conditions of the policy. The further defence case is that the complainant neither lodged any claim to the O.P/SBI General Insurance Co. Ltd. nor submitted any documents in respect of his claim. Considering the fact and circumstances the instant case is liable to be dismissed with cost.
In this case the complainant himself was examined as P.W.1 and he was cross examined. One Jotirmoy Kr. Roy Gupta was examined as P.W.2 and cross examined. During trial the complainant has filed some documents by way of firisti. The Xerox copy of money receipt of Madhurima Nursing Home has been marked as exbt.1. Xerox copy of receipt of part payment has been marked as exbt.2. Xerox copy of discharge certificate has been marked as exbt.3. On the other hand the O.P/Ins. Co did not adduce any evidence.
Now the point for determination whether the complainant/petitioner is entitled to get any compensation or not.
DECISION WITH REASONS:
At the time of argument the Learned Lawyer for the complainant argued that there is no doubt that the complainant was treated at Madhurima Nursing Home. In this regard the discharge certificate has been filed by the complainant to show that he was treated in the nursing home from 22.07.15 to 15.08.15 and money receipt has been filed showing that the nursing home as realized the amount from the complainant for the treatment. The Ld. Lawyer of the O.P submitted that the burden of proof lies upon the complainant to prove that he was treated by any doctor, but no prescription has been filed by the complainant to prove that he was treated by a doctor. How the Forum will come to a conclusion that he was treated by doctor. In reply the Ld. Lawyer of the complainant has argued that discharge certificate from the Madhurima Nursing Home has been filed wherefrom it is found that he was treated from 22.07.15 to 15.08.15. But in the discharge certificate we do not find the name of the attending consultant doctor though in the Xerox copy of the discharge certificate it appears the initial signature of R.M.O. When the O.P has raised the objection that the complainant was not treated by any allopathic doctor, so the complainant should have examined the R.M.O. who issued the certificate. The explanation given by the Ld. Lawyer of the complainant is that the original discharge certificate has been lost for which a general diary has been lodged to the Kaliaganj P.S. It may be fact that the original document may be lost but there is no evidence to the effect that the R.M.O is not found. Moreover, no explanation has been sought for from Madhurima Nursing Home showing that the doctor who signed the discharge certificate is still in service in the nursing home or not on the date of evidence of p.w.2. But nothing has been done in this regard. The explanation given by the complainant is that the original document has been lost. But such allegation is not at all true as because the document may be lost but the nursing home as yet in existence and the documents related to the treatment must have in the nursing home. The complainant should have call for those documents like prescription and other medical papers. But nothing has been done. So, a confusion has arisen whether the complainant was at all treated at the Madhurima Nursing Home or not. It is the duty of the complainant to examine the doctors who treated the complainant, but nothing has been done on the part of the complainant. Mere filing the Xerox copy of discharge certificate is not sufficient to prove the nature of treatment which was done in the nursing home.
On perusal of the bill it is found that Rs.4,53,430/- has been expend and the details of the bills has been given from which it is found that Neuro physician may not be known to the patient as he was unconscious at the time of treatment. It may be fact that the patient may be unconscious but the document must have lying in the nursing home as regard to the treatment of neuro physician, but nothing has come before this forum. Moreover, it is found from the bill that Rs.80,830/- is charged as medicine charges but no prescription is found from where it would be seen that what medicine was purchased and from where. But nothing has come before the Forum. How the Forum will assess the nature of treatment for which a heavy amount of Rs.4,53,430/- has been expend.
From the cross examination of p.w.1 it is found that he has not filed any RTI application for collecting the copy of C.T.Scan report and other medical reports. Such non filing of RTI report also raises a suspicion as to the genuineness of the claim. As and when all the original documents has been lost the complainant should have pray for RTI application or pray for Xerox copy of the treatment papers from the nursing home. But nothing has been done. The complainant examined one Jotirmay Roy Gupta. He is the sole proprietor of Madhurima Nursing Home. From his evidence it is found that the discharge certificate was signed by Dr. Victor Mukherjee but Dr. Victor Mukherjee has not been examined by the complainant. Dr. Victor Mukherjee was the best doctor who says about the nature of treatment. The money receipt was identified by P.W.2. But in the cross examination it has been mentioned that he has not brought any cash register or income tax file showing that the amount was reflected in the income tax return as income of the nursing home. The income tax return has not been filed by the nursing home authority to show that the amount of Rs.4,53,430/- was shown as income of the nursing home in the relevant year as regard to the treatment of the complainant. So, the evidence of P.W.2 that the nursing home has received Rs.4,53,430/- from the complainant for his medical treatment is not sustainable. So, considering the facts and circumstances the complainant has failed to prove his case. As such the instant case is liable to be dismissed.
Fees paid are correct,
Hence, it is
ORDERED
That the complaint case being no. CC-74/16 be and the same is dismissed on contest against the O.Ps but without cost.
Let a copy of this order be given to the parties free of cost.
