The case of the complainant in a nutshell that  he was insured by one Mediclaim Policy of Oriental Insurance Company Limited being Policy No. 313102/48/2016/1787 which was started, and was valid and enforceable from the date 14.10.2015 to 13.10.2016 and that was executed through the opposite party no. 3 and the documentation of that Mediclaim Policy took place on 8.10.2015 in the said Panjub National Bank in presence of the opposite party no. 2 which is very much well within the Jurisdiction of the ld. Court and the Insured Amount of that Mediclaim policy was of Rs. 1,00,000/- (one lakh).

          The petitioner also states that in or around the last part of January 2016, he felt chest pain and on 26.1.2016 when the said pain was immensely increased he then made contact with Dr. Biswakes Majumder the renowned Cardiologist who treated the petitioner and advised him for Holter Monitoring for 24 hours and detected several problems in respect of his chest pain and after conducting E.C.G. on 26.1.2016 he prescribed Medicines and the petitioner continued to use the said Medicines while by taking said Medicines he did not get relief he again made contact with Dr. Biswakes Majumder and as per his advise Petitioner admitted in Nightangle Hospital on 9.3.2016 and as per the instruction of Dr. Biswakes Majumder, the Petitioner tested several test like Microbiological and Serological Test, Blood Test (in deferent way), E.C.G (10.3.2016), Chest (PA) X-Ray through Nightangle Hospital and subsequently the permanent Pacemaker was implanted in the chest of the petitioner and on 12.3.2016 the petitioner was discharged from Nightangle Hospital.

          The petitioner also states that he thereafter informed the opposite party nos. 1 and 2 about the facts of his treatment and implantation of Pacemaker along with the bill of his expenditure of Rs. 1,47,878/- and sent all related documents but the addressee no. 2 gave a letter dt. 9.5.2016 to the petitioner requesting him to furnish several information viz.

1) Bank account details such as name of the account holder, account no. bank name, bank branch, IFSC Code, account type or enclose cancelled cheque of the account holder.

2) Cancelled cheque, passbook copy etc.

3) The exact reason for the permanent pacemaker implantation by treating Doctor.

4) All past treatment related Doctor prescription & reports in support of submitted claims.

5) The duration of past ailments by treating doctor.

          The petitioner also states that through another letter dt. 18.5.2016, the opposite party no. 2 acknowledged that his office has received all related documents from the petitioner and through that letter he assured that the claim of the petitioner would be processed expeditiously and also requested to submit the above documents to the respective Branch Office for processing the claim. Accordingly the petitioner submitted the necessary documents to the opposite party no. 2 at its Kolkata branch and the Branch Manager of the opposite party no. 1 at its Burdwan Branch Office.

          The petitioner also states that thereafter on several occasions he attended the office of the opposite party nos. 1 and 2 and also made contact with them through telephone yielding no result. The opposite party nos. 1 and 2 intentionally neglecting to pay petitioner from getting the benefit of his Mediclaim Policy.

          The petitioner also states that he has incurred a cost of Rs. 1,47,878/- for the implantation of pacemaker including Hospital charge, Medicines and cost of pacemaker etc and he is very much entitled to get the benefit of his Mediclaim Policy and as per the instruction of the opposite party nos. 1 and 2 he submitted the relevant documents and on several occasions petitioner visited and attended the office of the opposite party nos. 1 and 2 with the request to disburse his claim but the  opposite party nos. 1 and 2 just harassed the petitioner by taking various pleas and pretext but did not bother to disburse his claim at any point of time.

          The petitioner also states that for the malafide and irresponsible acts and deeds of the opposite party nos. 1 and 2, the petitioner is suffering from immense mental and physical pain and agony.

          The petitioner also states that the opposite party nos. 1 and 2 have done sheer deficiency in service with unfair trade practice and liable to compensate the petitioner adequately as they did not bother to pay the legitimate claim of the petitioner rather they have harassed the petitioner immensely which caused severe mental suffering of the petitioner.

          The petitioner also states that he sent a legal notice dt. 29.11.2016 through the ld. Advocate to the opposite parties by giving 15 days time to disburse the legitimate claim of the petitioner but the opposite parties did not respond to the said letter.

          The petitioner also states that the cause of action of this suit firstly arose on 8.10.2015 when the petitioner entered Mediclaim Policy of the opposite party no. 1 which was executed in between the petitioner and the opposite party no. 1 in the Branch Office of the opposite party no. 3 and further cause of action arose on 18.5.2016 when the opposite party no. 2 through  letter confirmed the claim of the petitioner but refused to pay his claim and further cause of action arose when the opposite party nos. 1 and 2 did not respond the letter of ld. Advocate.

          The petitioner also states that he is a bona fide Consumer of the Oriental Insurance Company Limited of its Burdwan Branch according to Consumer Protection Act and being the Branch Manager, the opposite party No. 1 and being the TPA, the opposite party no. 2 have the obligation to pay the due benefit towards the petitioner covered under Mediclaim Policy without harassing the petitioner and the entire activity of the opposite party nos. 1 and 2 is clear indication of dereliction of duty and deficiency of service and unfair trade practice.

          The Complainant filed the complaint petition praying direction upon the opposite party to pay sum of Rs. 1,00,000/-  with Banking rate of interest to be calculated from 12.5.2016, a direction of Rs. 75,000/- to be paid by the opposite party due to deficiency in service, a direction of Rs. 15,000/- to be paid by the opposite party due to the mental agony of the petitioner, a direction of Rs. 15,000/- to be paid by the opposite party as litigation cost.

          The opposite party No.1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him.  This opposite party no. 1 submits that on receiving grievances of the complainant, reviewed his grievances and immediately without prejudiced to the rights of the contention of the opposite party no. 1 vide Electric Fund Transfer amounting to Rs. 77254/- against total claim of Rs. 83943/- towards full and final discharge of the aforesaid claim being number 15253271, transaction number being AXISP17262061223 into the Bank account of the claimant/complainant herein. The complainant has voluntarily received the said amount without any objection, which implies the grievance of the complainant has been already redressed by the opposite party no. 1 through the opposite party no. 2, therefore no cause of action is subsisting which is a precondition for a complainant to come within the ambit of the Consumer Protection Act and however, the complainant has deliberately chosen to suppress this material information from the Ld. Forum.

          The opposite party no. 1 also submits that it must be specifically mentioned that the Sum Insured of the Mediclaim Policy was Rs. 1,00,000/- at all material times and the same has been admitted by the complainant and in the said petition under objection is strongly disputed and denied, the complainant ha not submitted any clear proof about the expenses amounting to Rs. 147878 incurred.

          The opposite party no. 1 also submits that the policy issued to the complainant under which the dispute has been raised is governed by Limits of Liability as per various clauses.

          The opposite party no. 1 also submits that the grievances of the complainant has been already redressed and the complainant has voluntarily received the amount, accordingly no cause of action survives in the complaint which is a pre-condition in cases of gross deficiency in service, arbitral repudiation of claims as laid down time and again by NCDRF and the Hon’ble Supreme Court and, therefore, the ld. Court may be pleased to reject this complaint petition.

          The opposite party No.2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him.  The grievance of the complainant has been already redressed and the complainant voluntarily received the amount, accordingly nothing/no cause of action survives in the complainant which is a pre-condition in cases of gross deficiency in service, arbitral/illegal repudiation of claims as laid down time and again by NCDRF and prays for rejection of the complainant petition with exemplary cost.

          In the written version of the opposite party no. 3 states that the instant petition filed by the complainant is not maintainable and the case is defective for non-joinder and mis-joinder of parties. The complainant to harass the opposite party no. 3 made this complaint before the Forum. Opposite party no. 3 made this complaint before this Forum. The opposite party no. 3 states that he is not denying the facts that the statement of the documentation of the reject-mediclaim was made in the Itachuna branch of the Bank. Opposite party no. 3 further submits that paragraph nos. 4,5,6,7,8,9 and 10 of the complaint petition the opposite party no. 3 in no way can be added as a party to the case and states that whatever irregularity has been done that is between the insurer and insured and further submits that opposite party no. 3 has been improperly added as a party in the instant case and prays for dismissed the case with cost.

          The complainant filed evidence of affidavit which is nothing but replica of complaint petition.

          The opposite party nos. 1, 2 and 3 filed W.V. in support of their case. Opposite party no. 1 files affidavit in support of the petition treating W.V. as evidence. Opposite party no. 2 also files a petition praying for admitting the W.V.  as evidence. Both the complainant and opposite parties did not file written notes of argument.

          From the discussions hereinabove we find the following issues/points for consideration while passing final order.

Issues/points for consideration

1. Whether the complainant is the consumer of the opposite party or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite party?
4. Whether the complainant is entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken together for easiness of the discussions of this case.

1. In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986. The complainant here in is a consumer of the opposite party, as the complainant is insured by one  Mediclaim Policy of Oriental Insurance Company Limited and his policy no. is 313102/48/2016/1787 which was started and was valid and enforceable from the date 14.10.2015 to 13.10.2016.
   So, he is entitled to get service from the opposite party as consumer.
2. Both the complainant and the opposite party are residence/having their office addresses within the district of Hooghly. For mental agony and other expenses which is within Rs. 20,000,00/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3. The case of the complainant is that the complainant is a bona fide consumer of the Oriental Insurance Co. Ltd. of the Burdwan Branch. That is on around the last part of the January 2016 the complainant was advised by the Dr. Biswakes Majumder for monitoring  for 24 hours and detected the  problems in respect of his chest pain. After taking medicines the complainant did not get relief and Dr. Biswakes Majumder advised the complainant for hospitalization and as per advise of the Dr. Majumder the complainant admitted in the Nightingale Hospital and permanent pacemaker was implanted in the chest of the complainant and he was discharged on 12.3.2016. Thereafter the complainant informed the opposite parties stating  the facts of his treatment and implantation of pacemaker along with the bill of his expenditure of Rs. 1,47,878/- and sent all related documents and thereafter on several occasions. The complainant attended the office of the opposite party nos. 1 and 2 but the opposite parties are neglecting the request of the complainant to pay the complainant from getting the benefits of the mediclaim policy. In support of his case, complainant submitted affidavit-in-chief. The complainant in his affidavit-in-chief states that opposite party nos. 1 and 2 agree to pay Rs. 77,254/- against the claim of Rs. 83,943/- in para 16 of his affidavit-in-chief. The complainant in para 18 of the affidavit-in-chief admitted that opposite party nos. 1 and 2 deposited the amount of Rs. 77,254/- when the complainant was compelled to file the instant case and further states that if the opposite parties would settle the claim the complainant could not file the instant case. Opposite party nos. 1 and 2 submitted written versions and prays to treat the written version as affidavit-in-chief.

Opposite party no. 2 in his written version states and disputes that the complainant is guilty of suppression and concealment of material facts and willful misrepresentation. Opposite party no. 1 vide electronic fund transfer amounting to Rs. 77,254/- against total claim of Rs. 83,943/- towards full and final discharge of the aforesaid claim being no. 15253271 transaction no. being AXISP17262061223 into the account of the complainant and the complainant voluntarily received the said amount without any objection.

Having gone through the contents of the complaint it is crystal clear that opposite party nos. 1 and 2 have sheer deficiency in service and the opposite party nos. 1 and 2 did not bother to pay the legitimate claim of the complainant. By sending letter through the ld. Advocate to the opposite party nos. 1 and 2 15 days time to disburse the legitimate claim of the complainant. Opposite party nos. 1 and 2 in their W/V states that the complainant is entitled to get Rs. 772.54/- against total claim of Rs. 83943/- complainant states in his affidavit-in-chief that if the opposite party nos. 1 and 2 settled the claim the complainant would not file this case. The opposite party nos. 1 and 2 nowhere in their W/V states the reason that why claim of Rs. 83943/- could not be allowed and why Rs. 6689/- has been deducted.

The opposite party nos. 1 and 2 state that the complainant voluntarily received the said amount and could not raised any objection. Opposite parties file one photo copy of claim settlement advice for Medi Assist Insurance TPA private ltd. wherein the TPA states that payable amount and non payable amount. It appears in the claim settlement advice that Rs. 6689 could not paid by the TPA. It is also written in the form that if the complainant is not satisfied he may approached the grievance cell of the insurer at their under writing office or controller officer. The complainant is the bona fide consumer of Oriental Insurance Co. Ltd. Opposite party nos. 1 and 2 have/had the obligation to pay due benefit towards the complainant covered under Mediclaim Policy without harassing the complainant.

Considering the facts and circumstance we are in the opinion that entire activity of the opposite party nos. 1 and 2 is clear indication of dereliction of duly and deficiency of service towards the complainant. It is also pertinent to say that during the pendency of this case the opposite party nos. 1 and 2 settled the claim. But the act and conduct of the opposite parties amount to gross negligence to perform the duty. Being a bona fide customer the complainant could get his claim in time by the opposite parties.

So, we are in the opinion that the complainant is entitled to get the legitimate claim from the opposite party nos. 1 and 2.

Opposite parties settled the claim of Rs. 77,254/- against the total claim of Rs. 83943/-. So, the opposite party nos. 1 and 2 will have to pay Rs. 6689/- to the complainant as it is the legitimate claim of the complainant.

Hence, it is

          that the C.C. case no. 129/2017 be and the same is allowed on contest in part with a litigation cost of Rs. 6000/- to be paid by the opposite party nos. 1 and 2 to the complainant. The opposite party nos. 1 and 2 are directed to pay Rs. 6689/- as rest claim amount to the complainant.

          In the event of failure to comply with the opposite party nos. 1 and 2 shall pay cost of Rs. 50/- for each day delay. It caused on expiry the aforesaid 45 days by depositing the accurate amount, if any in the Consumer Legal Aid amount.