FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay    President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act   2019 by the complainant stating that the complainant became a member of the OP no.1 for the purpose of benefit of the Mediclaim and on 13.9.2019 the OP no.1 has received of Rs.4  300/- from the  SBI Account of the Petitioner of Harit Br. and covered one year medical benefit amounting of rupees five lac being policy no.0000000014538211 from 13.09.2019 to 12.09.2020 and the OP no.1 issued mediclaim card and certificate in favour of the petitioner  and unfortunately during valid period of mediclaim on 05.07.2020 the petitioner had an accident at about 12.20 am. Fell down in motorbike accident at village Harit (near petrol pump) on Chinsurah-Dhaniakhali Road and sustained fracture injury at mid shaft of clavicle and eventually on same date at about 4-40 pm the petitioner was admitted at the hospital of op no.2 for medical treatment    and also operated by Dr. Sagnik Mukherjee by fixing plates & screws and was taken several investigations and done x-ray and the petitioner has paid of Rs.40  572/- for his medical treatment and on 08.07.2020 the petitioner was discharged from the hospital of OP no.2   but unfortunately in the discharge certificate it was wrongly written by the OP no.2 as Jayanti Ghosh” instead of Jayanta Ghosh” in the place of the name of patient and in place of date discharge was wrongly written 06.07.2020 instead of 08.07.2020 and subsequently on 09.10.2020 the OP no.2 issued fresh document after proper correction.

Thereafter the petitioner had filed his claim before the OP no.1 and craved his medical expenses which he was paid for the purpose of his medical treatment along with proper documents but OP no.1 asked more document through E-mail and the petitioner has done and the petitioner on several occasion communicated with the OP no.1 and prayed for his medical claim as he is a bona bide policy holder.  But after full enquiry the OP no.1 declared that the petitioner is not entitled to get any money from the OP no.1 as wrong discharged certificate but indeed the OP no.2 rectified the defect but the OP no.1 with ill-motive   willfully did not pay his mediclaim in favour of the petitioner and on 24.12.2020 the petitioner has sent a legal notice through his Ld. Advocate Sri Nitai Chandra Ghosh to the OP no.1 and craved his claim but the OP did not obey the request of the legal notice.

Complainant filed the complaint petition praying direction upon the opposite party no. 1 to pay a sum of Rs. 40  572/- in respect of the said medical policy and to pay a sum of Rs. 20  000/- towards mental and financial harassment and to pay a sum of Rs. 20  000/- as litigation cost and to give other relief or reliefs as deem fit and proper.

Defense Case:-The opposite party No.1contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that there is no deficiency in service on the part of the OP insurance company as alleged by the complainant   and the OP insurance company relies upon the judgment laid down by the Hon’ble Supreme Court in the judgment of Ravneet Singh Bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66 wherein the Hon’ble Supreme Court laid down that the test of deficiency in service lay in the complainant proving that there was some fault   imperfection   shortcoming or inadequacy in the manner of the insurance company and further such fault etc must be willful.  More importantly the Hon’ble Supreme Court has held that where there is a bona fide  dispute between parties and where the service provider has after considering all the material with them and the relevant facts has acted in a particular manner   then such acts will not amount to deficiency in service as stated in the complainant.

The deficiency in service cannot be alleged without attributing fault   imperfection   shortcoming or inadequacy in the quality   nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.  The burden of providing the deficiency in service is upon the person who alleges it.  The complainant has   on facts   been found to have not established any willful fault   imperfection   shortcoming or inadequacy in the service of the respondent.  The deficiency in service has to be distinguished from the tortuous acts of the respondent.  In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service.  In case of bona fide disputes no willful fault   imperfection   shortcoming or inadequacy in the quality   nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith   it cannot be said that there had been any deficiency in service.  If the action of the respondent is found to be in good faith   there is no deficiency of service entitling the aggrieved person to claim relief under the Act.  The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down.  In efficiency   lack of due care   absence of bona fides   rashness haste or omission and the like may be the factors to ascertain the deficiency in rendering the service and the filling of the instant malafide intended suit proves the interest of the complainant in tarnishing the brand image of the Respondent and harassing it with the intention of extracting money unlawfully from them since as stated in the preceding paragraphs   there had been no irreparable loss and injury to the complainant due to any deprivation   harassment   mental agony.  In view of the same it is humbly submitted to the Hon’ble court to dismiss the complaint in limine since no cause of action lies and hence there is no deficiency of service and / or unfair trade practice.  The harassment or mental agony as alleged by the complainant is nothing but a figment of imagination of the complainant and the respondent cannot be hold responsible for such imaginative issues.

The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the fact of such bonafide mistake on the part of this OP no.2 Hospital would be evident from the following facts that the visiting card of the patient contains the name of the patient as Jayanta Ghosh and the date of his admission contains as on 05.07.2020 and the tax invoice dated 06.07.2020 issued by Sumit surgical the supplier of the Orthopedicsamplet instruments contains the correct name of the patient as Jayanta Ghosh” in capital letters and the money receipt dated 08/07/2020 of the OP no.2 hospital (Bhadreswar municipal hospital (ANKUR) in proof of payment of professional charges of the concerned doctor   that is   Dr. Sagnik Mukherjee correctly reflects the name of the patient as Jayanta Ghosh and the dates of his admission and discharge correctly bears the entry as 05.07.2020 and 08.07.2020 respectively and similarly   the money receipt dated 08.07.2020 issued by the OP no.2 Hospital in proof of payment to Dr. Debanjali Roy   the Anesthetist attached to the OP no.2 Hospital also contains the correct entry of the name of the patient Jayanta Ghosh and the date of his Admission and Discharge as 05.07.2020 and 08.07.2020 respectively and the indoor bill cum cash memo / money receipt dated 08.07.2020 bears the correct name of the patient Jayanta Ghosh as well as the staying charge also correctly reflects for the period from 05.07.2020 to 07.07.2020 amounting to a total sum of Rs.1200/- only calculated for three days at the rate of Rs.400/- per day and the bill for supply of medicine on 06.07.2020 issued by Bhadreswar municipal hospital (here the OP no.2) correctly reflects name of the patient Jayanta Ghosh and the corrected Discharge Certificate issued by the attending doctor   that is   Dr. Sagnik Mukherjee reflects the actual date of discharge as 08.07.2020 instead of earlier date written as  06.07.2020   duly scored through under initial of Dr. Mukherjee and the Discharge Certificate cum case summary sheet of the OP no.2 hospital correctly contains the name of the patient as Jayanta Ghosh and the date of Admission on 05.07.2020 and the date of operation on 06.07.2020 and the admission form reflects the correct entries   viz. Nameof the patient as Jayanta Ghosh   Date of admission as 05.07.2020 and the date and time of discharge have been written as 08.07.2020 at 1:10 p.m.

It is a pointer to the fact that the date of discharge of the patient here cannot be on 06.07.2020 as was inadvertently written on the discharge certificate issued initially and the indoor treatment sheet of the OP no.2 hospital also correctly contains the name of the patient as Jayanta Ghosh and the date wise entries contains from 05.07.2020   06.07.2020 and 07.07.2020.

It is also again a pointer to the fact that the date of discharge of this patient here cannot be on 06.07.2020 as was inadvertently written on the Discharge certificate issued initially and the medicine chart of the OP no.2 hospital contains the correct entries   e.g. name of the patient as Jayanta Ghosh and the medicines provided for 05.07.2020   06.07.2020 and 07.07.2020.

It is also a pointer to the fact that the date of discharge of this patient here cannot be on 06.07.2020 as was inadvertently written on the Discharge Certificate issued initially. Thus the instant case may kindly be dismissed as against them.

Issues/points for consideration

On the basis of the pleading of the parties   the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party no. 2 filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction   cause of action and whether complainant is a consumer in the eye of law   are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version   have not filed any separate petition on the ground of nonmaitainability of this case. On this background it is also mention worthy that the opposite parties have not filed any separate petition challenging the maintainability point   jurisdiction point and cause of action issue. The opposite parties in their written version by referring one judgement Ravneet Singh Bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66 have challenged the maintainability point and cause of action issue and also pointed out that the deficiency in service cannot be challenged without attributing fault   imperfection   shortcoming or inadequacy in quality   nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service but facts remain that relating to this matter this District Commission after going through the evidence on affidavit filed by the complainant and the documents filed in this case by the complainant finds that the complainant side in their evidence on affidavit have highlighted all the above noted factors which have not been disproved by the op   insurance company by placing cogent and satisfactory document. In this regard it is important to note that there is no controversy over the issue that the complainant had come across with road traffic accident and sustained facture injury and was medically treated at op no. 2   hospital. In this regard it is also important to note that at the relevant point of time of occurrence of road traffic accident   sustaining fracture injury and medical treatment of complainant under op no. 2   hospital was under mediclaim insurance coverage of op no. 1   company. Over this issue the definition of expression service” in Section 2 (O) of Consumer Protection Act   1986 was wide enough to comprehend services of every description and the District Forum has the jurisdiction to entertain and try such compliant. This legal principle laid down by the Hon’ble Apex Court and it is reported in 2022(2) CPR 249 (SC). Thus   it is crystal clear that the service provided by op no. 1   insurance company is not at all proper and it clearly indicates that there is deficiency of service on the part of the op no. 1   insurance company. In view of this position the above noted point of contention of the op   insurance company which has been highlighted in their written version has no legs to stand upon and so the said point of contention cannot be accepted. This District Commission after going through the materials of the case record finds that the complainant is a resident of Harit   under P.S. Dadpur   Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover   this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus   the point of jurisdiction which has been alleged by the opposite party no. 1 cannot be accepted. Moreover   u/s 34 of the Consumer Protection Act   this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act   2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. 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 side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act   2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act   2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission   Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite party no. 1 and this District Commission 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 opposite parties. Thus   the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions   there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the complainant became a member of op no. 1   insurance company for the purpose of getting benefit of mediclaim policy.
2. It is also admitted fact that the op no. 1also received premium on 13.9.2019 from        the complainant.
3. There is no dispute over the issue that the said insurance coverage was covered one year medical benefit amounting to Rs. 5  00  000/-.
4. There is no controversy over the issue that the said insurance policy number is 0000000014538211.
5. It is admitted fact that the said policy was valid from 13.9.2019 to 12.9.2020.
6. It is also admitted fact that the complainant on 5.7.2020 had come across with a road traffic accident on Chinsurah- Dhaniyakhali road at Harit near petrol pump.
7. There is no dispute over the issue that the complainant was admitted at the op no. 2 hospital for medical treatment.
8. There is no controversy over the issue that the complainant had to undergo operation under Dr. Sagnik Mukherjee for fixing plates and screws.
9. It is admitted fact that at the op no. 2   hospital the complainant had to undergo several investigations along with x-ray.
10. It is also admitted fact that the complainant had paid Rs. 40  572/- for medical treatment.
11. There is no dispute over the issue that the petitioner/ complainant was discharged from the hospital from op no. 2 on 8.7.2020.
12. There is no controversy that in the discharge certificate issued by op no. 2   hospital the patient’s name has been described as Jayanti Ghosh” instead of Jayanta Ghosh”.
13. It is admitted fact that in the discharge certificate the date of discharge has been written as 6.7.2020 instead of 8.7.2020.
14. It is also admitted fact that the complainant filed his claim before op no. 1   insurance company for the purpose of realizing medical expenses.
15. There is no dispute over issue that the op no. 1   insurance company repudiated the entire claim of the complainant.
16. There is no controversy that op no. 2   hospital subsequently issued fresh discharge certificate rectifying patient’s name as Jayanta Ghosh and date of discharge as 8.7.2020 and this subsequent certificate has also been submitted to the op no. 1   insurance company.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

                On the background of the above noted admitted  facts and circumstances the parties of this case are deferring on the point and/ or apple of discord between the parties of this case is that the complainant has adopted the plea that inspite of existence of valid mediclaim insurance policy under op no. 1 and even after filing claim petition the op   insurance company has repudiated the claim on the ground that there is defect in the name of the patient and date of discharge described in the discharged certificate  issued by op no. 2   hospital. But on the other hand   the op no. 1   insurance company has adopted the defense alibi that the deficiency in service cannot be alleged without attributing fault   imperfection   shortcoming or inadequacy in quality   nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service and in this connection the case law Ravneet Singh Bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66 has been referred and it is also alleged that the complainant has withdrawn his claim by filing a petition before the op insurance company and for these reasons the entire claim of the complainant  is not maintainable and so it is repudiated.

               In the matter of deciding the above noted questions raised by the parties   this District Commission after going through the evidence on record finds that the complainant by way of giving/ placing evidence on affidavit and by filing documents has proved his case. In this regard it is also important to note that it is the hard and first duty of the insurance company to comply with the contractual obligation. When the op no. 1   insurance company has accepted the mediclaim policy of complainant and received the premium   it is the duty of the op insurance company to indemnify the claim of the complainant particularly when it is admitted fact that the said insurance policy was covering for the period 13.9.2019 to 22.9.2020 and the road traffic accident of the complainant was happened during the existence of the period of insurance coverage. But facts remain that the op no. 1   insurance company has not discharged the duty and it amounts to deficiency of service. Op insurance company has adopted the plea that there is discrepancy in the date of discharge of the complainant from op no. 2   hospital and there is also discrepancy relating to the name of the patient. Over this issue it is very important to note that the op no. 2 hospital subsequently issued fresh discharge certificate by rectifying the above noted errors and it has been submitted before the op no. 1   insurance company but no importance has been given in respect of that document and this matter is clearly indicating that there is deficiency of service on the part of the op   insurance company. Thus   the above noted point of contention and the case law which is referred by the op no. 1   insurance company is not applicable in this case. It is alleged by the op no. 1   insurance company that the complainant by filing an application has withdrawn his claim. But facts remain that this matter has been totally denied by the complainant and so it is the duty of the op   insurance company to disprove the claim of the complainant that he has not withdrawn his claim but the op insurance company has miserably failed to do so. Thus   the above noted point of contention of the op no. 1   insurance company is also not acceptable.

                   A cumulative consideration of the above noted discussion goes to show that the complainant has proved his case in respect of all the points of consideration framed in this case and so he is entitled to get relief in this case from op no. 1   insurancecompany.

In the result it is accordingly

ordered

that the complaint case being no. 37 of 2021 be and the same is allowed on contest but in part but it is dismissed against op no. 2.

It is held that the complainant is entailed to get the cost of his medical treatment of Rs. 40  572/- from op no. 1   insurance company and he is also entitled to get Rs. 5000/- as compensation for deficiency of service on the part of the op no. 1   insurance company and he is also entitled to get litigation cost of Rs. 5000/- from op no. 1   insurance company.

Opposite party no. 1   insurance company is directed to pay the above noted amount of Rs. 50  572/- to the complainant within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction within 45 days the opposite party no. 1 is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C.   Hooghly 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/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.