Order No. : 07

Date : 19.02.2021

The record is put up today for order.

Heard Ld. Lawyers of both sides on the earlier date of hearing.

It appears that a complaint U/Sec. 12 of the Consumer Protection Act was filed by the revisionist before the Ld. District Consumer Disputes Redressal Forum, Burdwan being C.C. No. 102 of 2019 alleging deficiency in service and unfair trade practice on the part of the respondents/opposite parties.

That the fact of the complainant/revisionist in his complaint petition was that the complainant was insured under Medi Classic Insurance Policy issued by the Opposite Parties since the period of 02.03.2011 and the policy renewed up to the period of 28.02.2019. During continuation of policy being No. P/191123/01/2018/006601 for the period of 02.03.2018 to 01.03.2019 the complainant suddenly suffered certain illness in the first week of the January, 2019 and he was immediately admitted to Sparsh Super-Specialty Hospital, Bangalore for better treatment. The concerned doctors of cardiology team examined the complainant and after medical examination the concerned doctors diagnosed that the complainant was suffering from chronic kidney disease on heamodialysis and as such, the patient was admitted to the said hospital for undergoidng ‘renal transplant work-up’. As the complainant gave history of dispend on exertion since 3 months, as such, the patient was advised by the complainant was under gone coronary angiogram on 05.01.2019 by the concerned doctors. The treating doctors advised the complainant to discharge on subsequent date i.e. on 06.01.2019 but as per request on the patient’s attainders the complainant was discharged on 05.01.2019 at 8.30 P.M.

That the complainant paid Rs. 2,63,327/- to Sparsh Multi-Specialty Hospital from his own pocket towards coronary angiogram as per medical bill issued by the said Hospital. That thereafter as the complainant was insured under Medi Classic Health Insurance Policy, so, the complainant lodged the medi-claim before the opposite parties by way of submitting claim form duly filled up by him along with medical documents, discharge summary and medical bills issued by the Sparsh Multi-Specialty Hospital. The complainant requested the Opposite Parties for reimbursement of hospitalized expenses for treatment of chronic kidney disease as early as possible.

That after receiving the claim form along with all the medical bills and documents the opposite parties repudiated the claim of the complainant vide letter dated 13.02.2019 on the ground that from the discharge summary of the hospital it was observed that the insured patient was a known case of chronic kidney disease (CKD) for the past ten years and was on heamodialysis which confirmed that the insured patient had chronic kidney disease prior inception of the medical insurance policy. Hence the chronic kidney disease was a pre-existing disease and as the complainant did not disclose the above mentioned history in the proposal form which amounts to misrepresentation/non-disclosure of material fact and as such, the opposite parties were unable to settle the claim under the above policy and the claim had been repudiated and the policy cancelled. The Opposite Parties did not allow the complainant to renew the policy for the period 02.03.2019 to 01.04.2020.

That after receiving the repudiation letter dated 13.02.2019 the complainant was very much surprised on the ground of repudiation taken by the opposite parties because the complainant was confirmed that there was some mistakes from the side of the Sparsh Multi-Specialty Hospital regarding the period of suffering of chronic kidney disease for ten years because the complainant was never suffering from chronic kidney disease since ten years. So, the complainant sent a mail to the Sparsh Multi-Specialty Hospital at Banglore requesting for rectification of the discharge summary issued by them regarding the period of suffering of CKD for ten years. That after receiving the mail, the concerned doctor of the said hospital after scrutiny of the discharge summary admitted that there was some mistake from their part regarding the period of ten years on haemodialysis (CKD) of the patient. As such, the concerned doctor certified on 22.02.2019 thereby stating that Dr. Subhashis Nag, aged 52 years was admitted for coronary angiography on 05.01.2019 as part of pre-transplant evaluation. The concerned doctor also certified that it was falsely documented in the file that the patient was on haemodialysis since 10 years, but actually it was six months (since 04.09.2018) which was rectified in the discharge summary and as such, said hospital issued a corrected discharge summary in favour of the complainant after rectification.

That thereafter, the complainant sent a letter to the Branch Manager of the Opposite Party No. 2 thereby stating that the concerned doctor of the Sparsh Multi-Specialty Hospital admitted that they had wrongly mentioned the period of CKD on heamodialysis since ten years and subsequently they had already issued a new discharge summary in favour of the complainant after rectification. As such, the complainant submitted the doctor’s certificate dated 22.02.2019 as well as corrected discharge summary issued by Sparsh Multi-Specialty Hospital and requested the Opposite Parties to settle the claim as early possible. 

That inspite of receiving the corrected discharge summary as well as the certificate of the doctor, the Opposite Parties did not settle the claim of the complainant. Moreover, in spite of several requests from the side of the complainant, the Opposite Parties did not bother to make a single response against the said request of the complainant. Keeping silence on the side of the opposite party are clearly indicating deficiency in service and unfair trade practice on the part of the Opposite Parties. Finally, having no other alternative to get relief, the complainant has been compelled to file this case before the Ld. Forum below.

That a petition under Section 13 (3) B of the CP Act was filed by the revisionist at the time filing of complaint petition under Section 12 of the Consumer Protection Act. After admission of the said on the prayer of the complainant/revisionist the record was put up 23.04.2019. Considering the urgency of the revisionist and ad interim order on te peritioner under Section 13 (3) B was passed by this Ld. Forum in favour of the revisionist. The Ld. Forum was pleased to pass an order asking the Oppoiste Parties to give continuity benefit of the policy from 02.03.2019 to 01.03.2020 as per prayer of the complainant for renewal of the property and the direction was given to the Opposite Parites to comply the order within 15 days from the date of passing of the order dated 23.07.2019.

That after receiving the summons notice the Opposite Paties appeared before the Ld. District Forum, Burdwan through their Ld. Advocate and filed written objection against the said petition under Section 13 (3) B of the C.P. act though the opposite parties did not comply the said order passed by the Ld. Forum vide order No. 3 dated 23.07.2019. Due to non-compliance of the interim order passed by the Ld. District Forum, the complainant wanted to file an Execution Application to execute the interim order U/Sec. 25 and 27 of the C.P. Act. But the Ld. Forum did not receive the application on the plea that such application against the interim order could not be taken against the system of the machine and as such the complainant/revisionist could not file the said execution application against the interim order before the Ld. District Forum, Burdwan.

That though the interim application U/Sec. 13 (3) B of the C.P. Act was disposed off vide order No. 3 dated 23.07.2019 passed by the Ld. District Consumer Forum burdwan but the said application was again taken off hearing after a long time on 25.11.2019 and after hearing the argument in presence of both the parties and going through the material on record, the Ld. District Forum Burdwan was pleased to pass an order vide order No. 8 dated 25.11.2019 on the findings that whether the complainant suppressed any material facts or non disclosed any facts fraudulently etc. it can be decided only after full fledged of the petition U/Sec. 13 (3) B of the C. P. Act and opportunities to both parties should be given to adduce their evidence to submit documents in support of their claims. Therefore, at this preliminary stage the hearing U/S. 12 of the Act this petition U/Sec. 13 (3) B of the C.P. Act that issue cannot be disposed off at it involves complex materials of facs and law. It can be concluded exclusively only after following the entire process or procedure and not on interim basis. Hence, this issue is kept open for final hearing of this case and with this direction the petition U/Sec. 13 (3) B of the C.P. Act was disposed off accordingly.

That being aggrieved by dissatisfied with the order dated 25.11.2019 passed by Ld. District Forum Burdwan the complainant/revisionist named above has preferred this recivisional application under Section 17 of Consumer Protection Act 1986 before this Hon’ble State Commission, W.B. on the following grounds.

For that the Ld. Forum below failed to appreciate the materials on record.

For that Ld. District Forum committed an error in appreciation of evidence and arrived at a wrong conclusion.

For that the Ld. Forum below has acted illegally and/or with material irregularity in passing the impunged order.

For that the said impugned order dated 25.11.2019 is not proper.

For that the Ld. Forum failed to exercise their jurisdiction which is vested to them in law and exercised their jurisdiction which is not vested to them in law.

For that Ld. Forum failed to appreciate that once the interim petition U/S. 13 (3) B of the C.P. Act was disposed of accordingly vide Order No. 3 dated 23.04.2019, it cannot be taken off hearing as because the Ld. Forum below has no power to review its own order.

For that the Ld. Forum below failed to appreciate that there are no any provisions of review of its own order by the Ld. District Forum Burdwan.

For that the Ld. Forum failed to appreciate the insurance company has repudiated the claim of the complainant which is a matter of adjudication before the Ld. District Forum Burdwan but they cannot cancel the policy of the complainant.

For that the Ld. Forum below failed to apply its judicial mind towards the matter in the controversy.

For that the Ld. Forum below failed to consider that the averment in the petition and the said order dated 25.11.2019 clearly made out without any judicial application.

For that in any view of the matter the impugned order which is not tenable is liable to be set aise by this Hon’ble Commission.

The revisionist has prayed for setting aside the impugned order.

Ld. Lawyer for the OP filed a written objection as against the instant revision preferred by the complainant – revisionist. It is stated that the Ld. DCDRF Burdwan upon contested hearing was pleased to modify its order dated 23.07.2019 and passed a reasoned order dated 25.11.2019. It is also stated that there is no regularity in passing the impugned order under challenge and has prayed for the dismissal of the revision.

                                    Decision with reason

Challenge in the instant revision as whether the impugned order dated 25.11.2019 suffers from any irregularity, illegality and impropriety.

We find that Ld. DCDRF Burdwan was pleased to allow the application U/Sec. 13 (3) B of Consumer Protection Act (Old) giving ad interim relief to the complainant vide its order dated 23.07.2019. Again on 25.11.2019 after contested hearing Ld. DCDRF Burdwan was pleased to modify its order dated 23.07.2019 and also pleased to vacate the same ad interim relief.

It is a settled principal of law that Court cannot pass any final order in disposing an ad interim petition or upon an interim petition. Unfortunately, Ld. Forum below virtually passed a final order vide order No. 3 dated 23.07.2019 while disposing an adinterim petition.

Ld. Forum below in disposing interim petition passed an order which can only be passed at time of final disposal of the case. Ld. Forum as we find has put the curt before the horse. It appears that the Ld. Forum below passed the ad interim order for extension of the policy in question and to receive the necessary premium of  the said policy in respect of the policy in question. Thereafter, the Ld. Forum cannot review the impugned order and call it back and set it aside. It is a settled principle of law that a District Forum or State Commission in old Act has not been given power to set aside ex-parte order  or power of review. The power which has not been expressly given by the statue cannot be exercised. (Rajeev Hitendra Pathak & ORs. Vs. Achyut Kashinath Karekar 2011 (9) SCALE 287 (2011) 9 SSC 541).

We think that the Ld. Forum below committed illegality and irregularity in passing the impugned order and has made a mess of everything. Ld. District Forum missed the tree in the wood in the passing the two contradictory order successively. Such order cannot sustain in law as Ld. Forum below has modified its own order which is not permissible under t he statue of old Act.

Hence,

                                           ORDERED

The instant Revision is allowed on contest.

The impugned order being No. 8 dated 25.11.2019 is set aside.

Order No. 3 dated 23.07.2019 is also modified with the restriction that the complainant shall not be entitled to get any privilege, benefit or relief under the policy till the final disposal of the case.

Ld. Forum below is directed to dispose the case within 2 months from the receipt of this order in accordance to law framing appropriate issues.