FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that the complainant is bonafide mediclaim policy holder vide policy no. 0307042816P117619759 dated 25.07.2017 in the name of the petitioner and his wife with United Insurance Co.TPA Heritage Health Insurance TPA Pvt. Ltd and this petitioner’s wife has been suffering with weakness, low grade fever, pain in abdomen and vertigo and black stool for two weeks and with many other complications and has been under treatment.  As per terms and condition of the said policy opp. No.1 & 2 are bound to pay the treatment bills amount alongwith doctor’s fees, ambulance fair, and pathological test fees in favour of this petitioner for his wife treatment and this petitioner has submitted her treatment bills along with all original documents to the op no.1 & 2 and OP no.1 & 2 duly received the said claims along with all original documents from this petitioner but with a view to harass this petitioner op no. 1 & 2 took several times for settling the said claims in favour of this petitioner and the petitioner several times requested to the op no.1 & 2 requested them to pay the said claims in her favour but official persons of the op no.1 & 2 only gave some replies against some e-mails of this petitioner in different dates and as per request made by op no.1 & 2 email by Subhomoy Ghosh  dated 02.02.2018 for asking the petitioner “provide the original preprinted money receipt of Rs.14,455/- this petitioner further sent attested copies of all medical bills along with Doctors fees to op no.1 & 2 concern  against the said claims but inspite of receiving the said  documents op no.1 & 2 further send a letter to the petitioner dated 13.3.2018 for asking the petitioner  “provide the original preprinted money receipt of Rs.3000/- and Rs.14,455/- “  but petitioner did not found any such bill or bills of Rs.3000/- and Rs.14,455/-.  Op no.1 & 2 intentionally did not pay any amount to this petitioner for her said treatment which is tantamount to deficiency in service on the part of opno.1 & 2.  Be it further mentioned here that this petitioner is a bonafide customer under the opposite party company and op no.1 & 2 are liable to pay the said claims total amounting of Rs.49,506/- along with interest in favour of this petitioner and on 12.04.2018 this petitioner through her Ld. Advocate  has sent legal cum demand notice through registered post with A/D to the ops with a request to pay the said claim amounts of Rs.49,506/- in favour of this petitioner but the op no.1 & 2 after receiving the said legal notice opno.2 gave a fake reply to his Ld. Advocate that (provide original pre-printed money receipt of Rs.3000/- & 14,455/-_ so which is tantamount to deficiency in service by the OP no.1 & 2.

Complainant filed the complaint petition praying direction upon the opposite party No-1 & 2 to pay a sum of Rs. 49,506/-  with interest and to pay a sum of Rs.50,000/- for mental agony for deficiency in service  and to pay sum of Rs.50,000/- for compensation as well as litigation cost.

Defense Case:-  The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the TPA requisitioned for the original printed money receipt but the petitioner did not provide the same.  The petitioner, however, admitted that he further sent attested copies of all medical bills alongwith doctors’ fees and thus the petitioner has not denied about the existence of money receipt of Rs.14455/-. It absolutely true that time without number of TPA raised query of the payment of Rs.14455/- as well as another bill of Rs.3000/- but the petitioner instead of complying that served a notice through Ld. Advocate for payment of Rs.49506/-  It is again strictly denied that as against the said legal notice the op no.2 gave any fake reply.  As the petitioner did not comply with the query of payment of Rs.3000/- and Rs.14455/- there was the same request for providing the original printed money receipt of those amounts and every mediclaim is processed and settled by the TPA and there is a process in doing such.  The insured is bound to satisfy the queries as are raised by the TPA.  The TPA through query letter (CCN:NH471802419) dated 01.02.2018 raised 2 queries.  The First query : “Provide the claim intimation copy (intimation must be submitted 24 hours from admission date and if not submitted with time to provide the reason)”and the second query : “Provide the original pre printed money receipt of Rs.14455/- and it was clearly stated that the claim will be processed on receipt of the above details and as the queryno.1 was satisfied then again there were queries for the original pre printed money receipt of Rs.3000/- & 14455/- and it was clearly mentioned in the query letter dated 13.03.2018 that in case of part compliance without satisfactory clarifications of the above queries the TPA will not be able to process the claim and when the TPA was waiting for the satisfactory clarification of the queries and more particularly when the process of claim was open and there was no repudiation of the claim the petitioner without submitting proper clarification to the TPA instituted the petition.

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 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 party 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 party 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 petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chinsurah, Hooghly and op no. 1 has it’s place of business at Chinsurah, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 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 parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 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 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A 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) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. 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 parties 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 complainant is a bona fide mediclaim policy holder under op nos. 1 and 2, insurance company.
2. It is also admitted fact that the said mediclaim policy no. is 0307042816P117619759 dated 25.07.2017.
3. There is no dispute that complainant has paid premium of the said policy.
4. There is no controversy over the issue that the wife of the complainant has been suffering from weakness, low grade fever, pain in abdomen, vertigo and black stool for last two weeks of the date of submission of the mediclaim.
5. There is no dispute over the issue that the complainant has filed claim petition to the op nos. 1 and 2 insurance company        and in this regard submitted medical treatment bills, doctor’s prescription etc to the op nos. 1 and 2.
6. It is admitted fact that op nos. 1 and 2 in the matter of releasing the said claim of the complainant was causing delay and was taking time on the pretext of further submission of documents.
7. It is also admitted fact that the complainant/ petitioner requested the op nos. 1 and 2 for early release of the claim amount.
8. There is no controversy over the issue that the op nos. 1 and 2 on 2.2.2018 asked the petitioner to provide original money receipt of Rs. 14,455/-.
9. There is no dispute over the issue that on 13.3.2018 the op nos. 1 and 2 once again asked the petitioner to provide original money receipt of Rs. 3000/-.
10. It is admitted fact that the op nos. 1 and 2 has neither released the claim amount nor repudiated the said claim.
11. It is also admitted fact that on 12.4.2018 the petitioner had sent a legal notice to the op nos. 1 and 2 by registered post with AD with request to pay Rs. 49,506/-.                               

              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 differing on the point and/ or apple of discord between the parties of this case is that the complainant is adopting the plea that the op intentionally harassed the petitioner in the matter of releasing the claim of Rs. 49,506/- and it has not only caused negligence but also deficiency of service to the complainant but on the other hand the op nos. 1 and 2 adopted the defence alibi that inspite of repeated demand of the money receipt by the TPA, the complainant has not furnished the same and as result of which the claim was not ultimately processed. As per case of the op nos. 1 and 2 there was no negligence or deficiency of service on the part of the op nos. 1 and 2.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords between the parties this District Commission after going through the evidence on record finds that there was an insurance policy of complainant for himself as well as for his wife under op nos. 1 and 2 insurance company and it is also revealed that the complainant in respect of illness of his wife has submitted claim of Rs. 49,506/- but it has not been finally released although there was contractual obligation to release the claim amount particularly when there was valid insurance mediclaim policy. In this regard it is the settled principle of law that failure of the insurance company to comply with the contractual obligation to release claim amount is deficiency of service and this legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13(Del). Moreso, 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 ops have their fault, negligence and deficiency of service on their part. So, the points of consideration nos. 4 and 5 are decided in favour of the complainant of this case. But as the complainant has failed to produce original money receipt in connection with the claim of Rs. 14,455/- and Rs. 3000/- and so complainant is not entitled to get the said amount.

In the result it is accordingly

ordered

that the complaint case being no. 77 of 2018 be and the same is allowed on contest but in part.

It is held that the complainant is entitled to get claim amount of Rs. 32,051/- along with interest @ 9% per annum from the date of filing of this case. It is also held that complainant is entitled to get compensation of Rs. 5000/- for deficiency of service and litigation cost of Rs. 5000/-.

Opposite party nos. 1 and 2 are directed to pay the said amount 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 the opposite party nos. 1 and 2 are 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.