In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No. 80 / 2009 1) Smt. Kanika Benerjee, 1/7, Prince Golam Mohammad Road, Kolkata-700026. ---------- Complainant ---Verses--- 1) The Divisional Manager, The Oriental Insurance Co. Ltd., 2F, Everest House, 46/C, Chowringee Road, Kolkata-700071. 2) Dr, Prof. A.R. Sahu, MBBS, DMRF, M/s. Diagnostics, X-Ray & Clinical Laboratory, 190/B, Rash Behari Avenue, Kolkata-29. 3) M/s. Diagnostics & X-Ray & Clinical Laboratory, 190/B, Rash Behari Avenue, Kolkata-29. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Sri T.K. Bhattacharya, Member Order No. 1 2 Dated 0 4 / 0 3 / 2 0 1 0 . The instant case arises out of complaint made by Smt. Kanika Banerjee of 1/7, Prince Golam Mohummad Road, Kolkata-26 against the (1) The Divisional Manager, The Oriental Insurance Co., Divisional Office-VI, 2F, Everest House, 46/C, Chowringhee Road, Kolkata-71, (2) Dr. A.R. Sahu, MBBS, DMRE of M/s Diagnostics, X-ray & Clinical laboratory at 190/B Rashbehari Avenue, Kolkata-71 and (3) M/s Diagnostics X-ray & Clinical Laboratory at 190/B Rashbehari Avenue, Kolkata-29 with a prayer to (1) make reimbursement of Rs.31,000/- towards the expenses incurred towards the treatment of the ailment of Smt. Kanika Banerjee by the O.Ps. (2) make payment of Rs.30,000/- by the O.Ps. for causing agony and mental pressures to the complainant for no fault of her by the O.Ps. and (3) make payment of litigation cost of Rs.10,000/- by the O.Ps. The specific case is that on 25.9.02 the petitioner met with an accident and sustained injury and immediately went to Dr. R. Homchowdhury of 47, Mahanirban Road, Kolkata-29 for treatment who advised her for x-ray and report thereto. As per advice of the doctor, the petitioner went to O.P. nos.2 and 3 with the advice of the doctor for x-ray and report on 25.9.09. The petitioner after making payment of due fees to O.P. nos.2 and 3, underwent the x-ray of her right leg and get the report (annex-A of the petition of complaint) in which it has been opined as ‘comminuted’ fracture” seen at lower 1/3 of shaft of right femur with displacement of bone fragments). This opinion was given by Prof. A. R. Sahu, MBBS, DMRE of Diagnostics X-ray and Clinical laboratory (annex-A). After getting the report from O.P. nos.2 and 3, the doctor of the complainant started prolonged treatment at “K.D. Cure” S.C. Das Memorial Medical & Research Centre at 52, Jodhpur Park, Kolkata-68 where the complainant was admitted on 25.9.02 and discharged on 4.10.02 and within the said period of treatment the right leg of the complainant was operated on 30.9.02 due to serious fracture of femur bone into 3 pieces (annex-B, B1 & B2). After her discharge from the nursing home, the steel plate was broken for which the complainant was again admitted at the said nursing home on 25.11.02 for further operation and after her operation she was discharged on 26.11.02 (annex-B3 & B4). Thereafter, the complainant was under the treatment of Dr. R. Homechowdhury till 11.12.03, but the complainant could not move normally and the complainant is still under the treatment. It is worth mentioning that the husband of the complainant insured his family members by purchasing a mediclaim policy from O.P. no.1 on 22.8.02 being mediclaim policy no.311600/0/583/48/MISC/463/2003 for the period from 22.8.02 to 21.8.03 by making a payment of the requisite premium (annex-E). As such, the complainant is entitled up to Rs.60,000/- for reimbursement of the medical expenses made for her from O.P. no.1. On 17.2.05, the complainant’s husbands submitted an application along with all original documents relating to medical expenses incurred for her treatment to the O.P. no.1. But the O.P. no.1 gave a reply to the complainant that there was no x-ray made by the O.P. nos. 2 & 3(Annex.-C2). As such, the O.P. No. 1 by his letter dated 01/02/2005 stated to the complainant’s husband that O.P.no.1 would not consider the complainant’s claim for Rs.31000/- for reimbursement. In their letter dt.1.2.05 the O.P. no.1 asked the complainant’s husband to submit advice of Dr. R. Homchowdhury undergoing such x-ray along with genuine x-ray report along with the money receipt against such x-ray charges on 25.9.02 within 7 days from the date of receipt of the letter dt.1.2.05 which the complainant submitted except the money receipt as the same was taken back by the O.P. nos.2 and 3 at the time of giving x-ray report (annex-C). The O.P. no.1 repudiated the claim of the complainant on the ground that there was no x-ray done by the O.P. nos.2 and 3 (annex-letter of Dr. S.K. Bose dt.14.7.04 addressed to the Divisional Manager, Oriental Insurance Co. Ltd., Divisional Office-VI, 2F, Everest House, 46/C, Chowringhee Road, Kolkata-71). Hereafter, the complainant being refused by the O.Ps., sent a lawyer’s letter dated 05/01/2009 to O.P. nos. 2 & 3 who refused to accept the letter (Annex.-D). Decision with reasons :- On perusal of the records and documents on record, it is evident that no w/v was filed by the O.Ps. in spite of several dates given, the O.P. did not care to respond to the Forum’s order. As such, ex parte order was issued vide order no.6 dt.3.8.09. Going through the records, documents on records and pleading, evidence on affidavit of the complainant and BNA of the complainant, it is evident that the letter dt.14.7.04 of Dr. S.K. Bose indicates that no x-ray was done by them for right femur of Mrs. Kanika Banerjee bearing X-Ray photo no.51 (annex-C2) though the report of the Diagnostics reveals that the complainant’s X-Ray was done by them (Annex-A). The O.P. nos.1 and 2 repudiated the claim of the complainant on the ground that no x-ray was made the “Diagnostics” on 25.9.02 of the complainant bearing x-ray photo no.51 (annex-C, C1 & C2). But the report dt.25.9.07of the Diagnostics reveals that the complainant’s right femur was x-rayed by them (O.P. nos.1 and 2) on 25.9.02 and the report was given by Prof. A.R. Sahu, MBBS, DMRE (annex-A of the petition of complaint) to the effect that comminuted fracture seen at 1/3 shaft of right femur with displacement of bone fragments. In view of this contradictory position taken by Prof. A.R. Sahu who x-rayed the complainant (annex-A) and Dr. S.K. Bose who was not associated with the x-ray in question (annex-C2), we are prone to rely on the report of Prof. A.R. Sahu who had done the x-ray of the complainant.. It is not clear to us how did Dr. S.K. Bose negate the report of x-ray of the complainant given by Prof. A.R. Sahu. The reason was best known to him. As such, the repudiation of the claim of the complainant by O.P. no.1, the Divisional Manager, The Oriental Insurance Co. Ltd. based on the letter dt.14.7.04 of Dr. S.K. Bose who was not associated with the x-ray team and not on the x-ray report of Prof. A.R. Sahu, who held the x-ray on 25.9.02, appears to be nothing but deprivation of the complainant of her legitimate claim of reimbursement of her medical expenses incurred due to fracture of her femur. This behavior of O.P. no.1 indicates not only deficiency of service but also unfair trade practices. In this connection, the observation of the Hon’ble Supreme Court in United India Insurance Co. Ltd. v. Manubhai Dharmasinghbhai Gajera and other ( Supreme Court) (CP) p.794 is worth mentioning which is as follows – “No escape from the fact the appellants are ‘State’ within the meaning of Article 12 of the Constitution of India – Being a state, they have a different role to play – Fairness or reasonableness on their part must appear in all their dealings – Functions of the insurance companies are also governed by their statute – Insurance Act applies to them – Public Sector insurance companies also bound by the directions issued by the General Insurance Corporation as also the Central Government – A contract of insurance, therefore, must serve the statutory provisions – It must also necessarily be construed having regard to the larger public policy and public interest”. The complainant by her oral averments and documentary evidences has succeeded the case beyond any doubt. Hence, it is ordered, that the O.P. no.1 is directed to (1) reimburse the expenditure incurred by the complainant towards her medical treatment amounting to Rs.31,000/- (Rupees thirty one thousand) only within 30 days from the date of communication of this order and in default, the above amount will carry an interest @ 10% p.a. till its full payment, (2) pay compensation amounting to Rs.15,000/- (Rupees fifteen thousand) only for causing mental agonies and harassment to the complainant within 30 days from the date of communication of this order and in default, the above amount will carry an interest @ 10% p.a. till its full payment and (3) litigation cost of Rs.5000/- (Rupees five thousand) only within 30 days from the date of communication of this order and in default, the amount will carry an interest @ 10% p.a. till its full payment. Fees paid are correct. The case is thus disposed of from this Forum. Supply certified copy of this order to the parties on payment of prescribed fees. _____Sd-_____ ______Sd-_____ MEMBER PRESIDENT | 
