Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 31/2020

The complainant has instituted this case against the OPs for getting compensation amount of Rs. 1,00,000/- for harassment causing mental and physical pain and for deficiency of service  and also for payment of Rs. 39,545/- which is the treatment cost of complainant No. 2 and litigation cost.

Fact of this case

Case of the complainant

The case of the complainant which is deciphered from the  complaint petition  in bird’s eye view is that the complainant No. 1 and father of the complainant No. 2 purchased an Oriental Royal Mediclaim Policy  from OP Nos. 1 to 4 through their agent ( OP Nos. 5 to 6) and as per terms of the said policy the policy holder Kunal Basu and his family members i.e. complainant Nos. 1 & 2 was under the Insurance Medical Coverage  and also premium has also been paid regularly and the said Mediclaim Policy  under the OP Nos. 1 to 4 was renewed  time to time.  In support of this point of contention the complainants have annexed documents.  It is submitted that on 04.02.2017 the complainant No. 1 paid yearly premium  of Rs. 1,781/- through Oriental Bank of Commerce  vide Cheque No. 962859 to the OP Nos. 1 to 4 through OP No. 5 to continue the said Mediclaim Policy for the year 2017-2018 and as per Bank Statement  the said cheque was cleared on 06.02.2017 but the OP No. 5  after some moths  informed the complainants that the said cheque was cancelled and then complainants immediately informed about the said incident  and they were verbally assured that the error / defect  would be rectified  very soon and the Mediclaim Certificate  would be delivered  later and the said Mediclaim Policy would continue as per previous policy date  and so on good faith  of their assurance  the complainants without obtaining  their previous Mediclaim Certificate thereafter paid their yearly premium Mediclaim Policy  for the year  2018-2019.  It is alleged  that in the month of October, 2018 the complainant No. 1 went to the office of the OP No. 1 to avail cashless  service  prior to the operation of the chronic anal Fissure and Sentinel Piles of her son i.e. complainant No. 2 and applied to the OP Nos. 1 to 4 on 24.10.2018 according to their prescribed form to obtain said cashless  service but the complainant was surprised to know that complainant No. 2 was not eligible  for that claim  because of the break of policy.  It is pointed out that the complainant immediately on 25.10.2018 had sent a letter by speed post  requested the OPs to ensure cashless facilities as the complainants paid through premiums  for the year 2017-2018 and 2018-2019.  According to the case of the complainant side  the complainant No. 2 was admitted at the Nursing Home  of OP No. 7 on 30.10.2018 for the said operation and spent the amount of Rs. 39,545/- and the complainant No. 1 again  on 13.11.2018 sent another reminder letter by speed post to the OP No. 5.  It is also submitted that thereafter the complainant No. 1 had sent letters by speed post  but solve this matter and the OP Nos. 1 to 4 after receiving the said letter had sent a letter to the complainants on 19.06.2019 and informed the complainants about their inability  to entertain  their claim  and till today  the complainants have not received any reply from OP Nos. 1 to 6.  It is asserted that the disputes arising between the complainants and OPs are a consumer which comes under the provision of Consumer Protection Act, 1986.  For all these reasons the complainants have initiated this case for getting relief as per prayer of the complaint petition.

Defence Case

The OP No. 1 has contested this case by filing W/V and denied each and every allegations of the complainant which have been highlighted in the complaint petition.  As per Defence Case of the OP this case is not maintainable and there is no cause of action for filing this case and this District Commission has no jurisdiction to try this case.  It is pointed out by the OP No. 1 that the cheque was  mishandling by the Oriental Bank of Commerce ( OP Nos. 5 & 6) and the said amount of Rs. 1,781/- never reached to the OP No. 1.  It is also stated that the OP No. 1 were never even in the scenario and they were never informed OP Nos. 5 & 6 or by the complainants regarding mishandling of the cheque.  It is stated that the complainant has failed to provide  any document to prove that the cheque was encashed in favour to the OP No. 1 and the OP Bank has not contested this case and the OP No. 1 was totally in dark about the encashment  of the said cheque  amount.   It is alleged that the complainants have failed to prove deficiency on the part of OP Nos. 1 & 2.  It is the point of contention  OP No. 1 that the OP No. 1 by following the policy terms & conditions  repudiated the claim  of the complainant.   It is asserted that the complainant did not even provide any scrap of paper to show that the OP Nos. 1 & 2 issued even a letter to the Bank for cancelling  the cheque for the premium.  As per case of the OP Nos. 1 & 2  the complainants  are not entitled to get any prayer or relief as per prayer of the complainant.  It is also pointed out by OP Nos. 1 & 2  that Oriental Bank of Commerce is not the agent of OP Nos. 1 & 2.  For all these reasons the OP Nos. 1 & 2 have prayed before this District Commission  for dismissing this case with heavy cost.  OP Nos. 2 to 7 have not contested this case and also have not filed any W/V and so this case is heard ex-parte  against the OP Nos. 2 to 7.

Points of consideration

On the basis of the pleadings of the parties this District Commission for the interest  of proper and complete adjudication of this case  and also for arriving at just and proper decision is going to adopt the following points of consideration :-

(i)        Is this case maintainable in its present form and in the eye of law?

(ii)   Has this District Commission jurisdiction to try this case?

(iii) Whether the complainants have cause of action for filing this case?

(iv)      Whether the complainants are consumer under the OP Nos. 1 & 2 or not?

 (v)   Whether the complainant is entitled to get compensation and the amount of Rs. 39,545/- and litigation cost or not ?

 (vi)     To what other relief / reliefs the complainants are entitled to get in this case?

Evidence on  record

The complainants in order to prove the case have adduced  to file evidence on affidavit and against the said evidence on affidavit the OP No. 1 has filed questionnaire  and the complainant has given reply against the said questionnaire.

On the other hand in order to disprove the case of the complainant side OP No. 1 has filed evidence on affidavit and against the said evidence on affidavit  the complainant has filed interrogatories and the  OP has given reply against the said interrogatories.

Argument  highlighted  by the parties

In course of argument the complainant side and OP No. 1 have filed their BNA.  In addition to the filing of BNA the complainant and OP No. 1 also have highlighted their verbal argument.

Decision with reasons

The first four points of consideration have been framed over the issue of maintainability, jurisdiction, cause of action and over the issue whether the complainants are the consumers under the OPs or not and all these four points of consideration are very vital points of consideration and so they are required to adjudicate at first.  For the purpose of arriving at just and proper decision in respect of these four points of consideration there is necessity of making scrutiny  of the material of this case record and also for scanning the evidence on record.

This District Commission after going through the material of this case record finds that the complainant is a resident of Salkia, Howrah and OP No. 1 is carrying on business  within the District of Howrah.  When the complainant and OP No. 1 are residing and carrying on business  within the District of Howrah and OP No. 5 is also carrying on business within the District of Howrah, this District Commission has territorial jurisdiction to try this case.  Moreover, the claim of the complainants are far below than the limit of Rs. 20,00,000/- which indicates  that this  District Commission has the pecuniary jurisdiction to try this case, so it is crystal clear that this District Commission has the jurisdiction  to try this case.  After going through the material of this case record this District Commission finds that the complainant was under the coverage  of Mediclaim Policy  under OP Nos. 1 & 2 for a long time and the complainants also have paid premium  at regular  interval.  This factor is clearly reflecting that the complainants are the consumers  under the OPs and this case is also maintainable in the eye of law.  Moreover, in this case the OP Nos. 1 & 2 have not paid the cost of medical treatment of complainant No. 2 in spite of existence of the Mediclaim Policy.  It is also revealed from the case record that the OP No. 1 repudiated  the claim of the complainants in spite of existence of the Mediclaim Policy.   This factor is clearly reflecting  that the complainants has cause of action  for initiating this case.

Thus, it is crystal clear that the complainant side has successfully prove the first four points of consideration  and so this District Commission has no other alternative  but to decide the first four points of consideration in favour of the complainant side.

The fifth point of consideration  which has been framed in this case is related with the question whether the complainants are entitled to get the cost of medical treatment of Rs. 39,545/-,  compensation  of  Rs. 1,00,000/- and litigation cost or not.  The point of consideration six is connected with the question  to what other relief / reliefs  the complainants are entitled to get in this case from the OPs.

For the purpose of deciding the fate of the above noted two points of consideration, there is urgent necessity of making scrutiny of the evidence on record and there is also necessity of going through the material of this case record.

This District Commission after going though the material of this case record and also after scanning the evidence on record finds that the complainant’s predecessor Kunal Basu  initiated the Mediclaim  Policy under the OP Nos. 1 & 2 through OP Nos. 5 & 6 for getting coverage of Mediclaim Policy for himself  and his family members i.e. Complainant Nos. 1 & 2.  It is also revealed from the case record that after the demise of said Kunal Basu on 15.09.2024  the complainant Nos. 1 & 2 continued the said Mediclaim Policy and also renewed the said policy  time to time  through OP No. 5 Bank Authority .  In spite of existence of the Mediclaim Policy  the OP No. 1 has not paid the cost of medical treatment of complainant No. 2  as per Medical Bill  provided by OP No. 7 for Anal Fissure  operation.  When there is a Mediclaim Policy the complainants are entitled to get the said cost of medical treatment as there is contractual obligation  in between complainants and OP No. 1.  The OP No. 1 whimsically cannot repudiate the claim of the complainants.  This matter is clearly depicting that the complainants are entitled to get the cost of medical treatment of Rs. 39,545/- and as the OP No. 1 unnecessarily caused mental harassment and physical harassment to the complainants,  they are liable to pay compensation for their negligence  and deficiency of service.  In this regard, it is important to note that the complainant side has failed to justify  their claim  of compensation of Rs. 1,00,000/-.  However, considering the facts and circumstances  of this case this District Commission is of the view that that compensation of Rs. 21,000/- can be awarded in favour of the complainant side.  Similarly, the complainants are entitled to get litigation cost of Rs. 5,000/-.  In the light of the observation made above  the points of consideration Nos. 5 & 6 are also decided in favour of the complainant side. 

In the result, it is accordingly,

ORDERED

         That this Complaint Case being No. 31/2020 be and the same is allowed on contest against OP No. 1 and it is dismissed against OP Nos. 2 to 7 .

It is held that the complainants are entitled to get Rs. 39,545 as cost of medical treatment, compensation of Rs. 21,000/- and litigation cost of Rs. 5,000/- from OP Nos. 1 & 2.  So, OP Nos. 1 & 2 are directed to pay the said amount of Rs. 65,545/- alongwith interest @ of Rs. 9% per annum from the date of filing of this case to the complainants within 60 days from the date of passing of this judgment. Otherwise complainants are given liberty to execute  this award as per law.

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of this District Commission immediately.

Dictated & corrected by me

  President