BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 22nd February 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C. No.141/2014
(Admitted on 25.04.2014)
Mr. Suresh Kumar,
S/o Sri Mudara,
Aged 38 years,
Residing at Door No.4.24, BabbuKatte Post,
Permannur, Mangalore Taluk 574183.
….. COMPLAINANT
(Advocate for the Complainant: Sri RBM)
VERSUS
The Branch Manager,
New India Assurance Co Ltd,
Centenary Building, II Floor,
Ganapathy High School Road,
Mangalore 1.
…....OPPOSITE PARTY
(Advocate for the Opposite Party: Sri SKU)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
- 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against opposite parties claiming certain reliefs to pay the claim amount of Rs.38,000/ with interest at the rate of 12% from the date of discharge i.e. 6.3.2014 till the date of payment, to pay a sum of Rs.25,000/ towards mental agony and to pay Rs.5,000/ cost of the complaint.
2. In support of the above complaint Mr. Suresh Kumar filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents not marked. On behalf of the opposite party Mr. Sheshappa Naik M (RW1) Authorised Administrative Officer, also filed affidavit evidence and produced documents marked at Ex.R1 to R2 as detailed in the annexure here below.
The brief facts of the case are as under
Perused the complaint and the version/ additional version of the parties. This dispute is with regard to repudiation of cashless benefit as well as the claim of the hospital expenses. The complainant states that he had obtained a mediclaim policy and got hospitalized. The opposite party TPA has not approved the cashless benefit and the complainant compelled to make the payment to hospital on his own. Hence there is repudiation of claim and deficiency in service from the part of the opposite party. In defending his case the opposite party submitted that, only the cashless benefit is refused as per policy condition that for two years from the policy date the cashless benefit is not applicable. Opposite party continues that the refusal to cashless treatment does not mean repudiation and the complainant could have very well approached the opposite party for settlement of claim by submitting claim form but the complainant did not. However in additional version the opposite party contended that after referring the dispute to loka Adalat this opposite party agreed to consider the claim if claim form with the hospital documents submitted. The complainant submitted the claim form and the hospital bills and this opposite party after considering the policy condition accepted the claim to the extent ₹ 15500/ being the maximum limit for the kidney stone treatment ₹ 13500/ and ₹ 2000/ as pre and hospitalization expenses and in total ₹ 15500/ deposited in the forum. Hence this opposite party not committed any deficiency in service. The TPA is also a party to the dispute since he is the person refused the cashless benefit and he is a necessary party. Since the TPA is not arrayed as party the complaint suffers the non- joinder of necessary party. These are the being the facts of dispute in resolving this dispute we consider the following.
POINTS FOR ADJUDICATION
The evidence of the parties perceived, the documents considered. The admitted facts are, the obtaining of the policy, admission to the hospital, refusal of the cashless treatment. It is also admitted that the lodging of the claim form with necessary documents of hospitalization after referred to the loka Adalat and the opposite party admitted the claim and offered ₹ 15500/ the same has been deposited in the Forum. But the opposite party denies the claim of the complainant of ₹ 38000/ towards the hospitalization under the policy. It is also denied by the complainant that the sum assessed by the opposite party is correct under the policy terms and the condition. Now after considering the admissions and the denials we deem fit the deciding of the following points for resolving this dispute.
- Whether the complainant is the consumer under the Consumer Protection Act 1986?
- Whether the opposite party proved the settled amount under the policy is correct and there is no deficiency in service from their part?
- Whether the complainant is entitled for the relief prayed for?
- What order?
We have considered the documents produced and the policy conditions and evidence lead by the parties. Complainant not served interrogatories. Heard the rival party submissions and answered the above points as under.
- In the affirmative.
- In the negative
- Partly affirmative.
- As per delivered order.
REASON
POINT NO 1: The complainant had produced the copy of the policy which is issued in his name. It is not disputed the issue of the policy. Hence the opposite party is the service provider and the complainant is the consumer and hence we answered the point no 1 in the affirmative.
POINT NO 2: The prime point of dispute is the arriving at the amount offered by the opposite party. Since the opposite party admitted the claim and offered ₹ 15500/ as eligible claim under the policy, the opposite party has to prove the policy conditions and terms in arriving at the figure offered. Hence this point for discussion.
2. The opposite party offered ₹ 15500/ split into ₹ 13500/ as maximum for the particular treatment the complainant had under gone and ₹ 2000/ as pre and post hospitalization expenses and claims it is based on the policy terms and conditions. We have scanned thoroughly the policy document and the conditions. It is true as per policy condition 2.9 SCHEDULE OF PAYMENT FOR SPECIFIED DISEASES the maximum amount of ₹ 13500/ is payable for the Kidney stone/lithotripsy. But as per heading it is inclusive of Room/ICU/OT charges, Surgeons, Anesthetist, doctors’ fees, medicines internal appliances and the charges incurred during hospitalization. Ongoing through the hospital bill produced by the complainant numbered as C-3 pertaining to the period from 01.03.2014 to 05.03.2014 it is revealed that some other expenses under different head other than those inclusive list given in the above schedule. There is no proper explanation from the opposite party about the non-consideration of these expenses. The opposite party is expected to show the details of the amount calculated to justify his part in settling the claim of the complainant. The opposite party not produced any detailed report of reason for non-consideration of the items like Nursing Charges, Laboratory, pharmacy, digital X ray, oxygen & ...Nitrous oxide, post perative care and ECG charges totally amounting to ₹. 5695/ On plain reading of the inclusion clauses in the above 2.9 schedule and without proper explanation in this regard by the opposite party we are of the opinion the complainant is entitled for these expenses also. With regard to ₹ 2000/ as above for pre and post hospitalization expenses is concern it is not known how the figure arrived at but there is provision expenses in the policy for 30 days before and 60 days after the hospitalization. Hence the opposite party not paid these expenses of ₹ 5695/ even though it not expressly barred and committed the deficiency in service. The opposite party not proved that the settled amount as justifiable. Hence we answered the point 2 in the negative.
3. As for as the allegation of the cash less treatment rejected, it is in the knowledge of the complainant that the cashless benefit is administered through the TPA M/S Vidal Health and the cash less treatment is rejected by the TPA, the TPA is not made as a party. The TPA rejection letter dated 05.03.2014 states that the cashless scheme is not applicable for first two years and hence the complainant cash less treatment request is rejected. It is also important to note that the TPA is not made a party to the dispute by the complainant. Hence in our opinion the opposite party already admitted the claim and the TPA is not a party the discussion with regard to deficiency in service by the TPA is not called for.
POINT NO 3: In preceeding paras we seen the opposite party is not justifiably arrived at the settlement amount as per policy condition and we hold the opposite party liable for deficiency in service the complainant is partly entitled for the relief prayed for. The claim of the complainant is ₹ 38000/ but as per policy there is maximum limit of ₹ 13500/ for the disease the complainant under gone but some other expenses which are not covered by the inclusive clause as discussed in previous para amounting to ₹ 5695/ for which the complainant is entitled. Another ₹ 2000/ as has been offered by the opposite party the complainant is entitled for. In total ₹ 21195/ with an interest at 9% per annum. The interest will be calculated on ₹ 15500/ from the date of complaint till the date of deposit in the Forum and on remaining amount from the date of complaint till the date of payment. The complainant is also entitled to an amount of ₹ 8000/ towards compensation and ₹ 5000/ towards cost.
POINT NO 4: In the light of above discussion and adjudication of the above points we deliver the following
ORDER
The complaint is allowed in part. The opposite party shall pay the complainant an amount of ₹ 21,195/ (Rupees Twenty One thousand One hundred Ninety Five only) with an interest of 9 % per annum on ₹ 15,500/ (Rupees Fifteen thousand Five hundred only) from the date of complaint till the date of deposit in the Forum and on the balance amount from the date of complaint till the date of payment and an amount of ₹ 8,000/ (Rupees Eight thousand only) towards compensation and ₹ 5,000/ (Rupees Five thousand only) towards litigation expense within 30 days from the date of copy of the order received.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 8 directly typed by member revised and pronounced in the open court on this the 22nd February 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRIVISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Suresh Kumar
Documents marked on behalf of the Complainant:
Nil
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. Sheshappa Naik M, Authorised Administrative Officer
Documents marked on behalf of the Opposite Party:
Ex.R1: Janatha Medical Policy
Ex.R2: 12.01.2015: Letter issued by the undersigned to the opposite party
Dated: 22.02.2017 MEMBER
