FINAL ORDER
Samaresh Kumar Mitra,Member.
The case of the complainant in brief is that she being an employee of Canara Bank, Serampore Branch took a mediclaim policy vide policy No.500100/48/15/41/00000441 in the name of Canara Bank, IBA from 2015 with United Insurance Company, TPA Medi Assist India Pvt. Ltd. The petitioner has been suffering from diabetic kidney ailment having single kidney with many other complication and was under domiciliary treatment as per terms of policy the O.P. No.1 to 3 are bound to pay the treatment bills along with doctor’s fees to this complainant. The complainant files claim before O.P. No.1 vide claim No.D170220161647360520 on 17.2.2016 and thereafter on 18.2.2016 she also filed two claims vide claim nos. D180220161547570980 and D180220161553120703 and thereafter on 5.9.2016 petitioner submitted another claim vide No.D090520161611590810 to the O.P. No.1 to 3. That O.P. No.1 to 3 only paid part payment of Rs.5,347/- against the claim dated 9.5.2016. But rest claim is due till date. The complainant several times requested the O.P. through mail and letters but her request has not been considered. So, she served a legal notice dated 12.8.2017 to the O.P. with a request to pay the claim amounting to Rs.54,586/- in favour of this petitioner but despite receiving notice O.P. No.1 to 3 failed to settle the claim of the complainant which tantamount to deficiency in service for which this complainant getting no alternative filed the instant complaint before this Forum praying direction upon the O.P. No. 1 to 3 to pay the total claim amount of Rs.54,586/- along with interest and Rs.50,000/- compensation for causing mental agony of this complainant and a litigation cost amounting to Rs.50,000/-.
Though the notice was served to the Opposite Parties but they did not come before this Forum to contest the case. So, the proceeding run exparte against them vide order No.6 dated 5.8.2018.
The complainant filed evidence on affidavit which is nothing but the replica of complaint petition. Heard ex-parte argument advanced by the advocate of the complainant in full. The complainant filed brief notes of argument which is taken into consideration for passing final order.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant Sukla Chakraborty is a ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.P. carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4. Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
- Whether the Complainant Sukla Chakroborty is ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant being policyholder is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The the complainant claimed the money expensed for the treatment of her disease and suffering who is covered by the said policy so she is the consumer of the OP No.3 Insurance Company, OP No.1 &2 are the TPA & Op No.4 is the bank through which the mediclaim policy done, they are the service provider, so beingconsumer she is entitled to get service from the Opposite Party.
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the direction upon the O.P. No. 1 to 3 to pay the total claim amount of Rs.54,586/- along with interest and Rs.50,000/- compensation for causing mental agony of this complainant and a litigation cost amounting to Rs.50,000/-ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
- Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people of throughout the whole nation since a long back with self generated assets i.e. goodwill of the business. So, the credibility of the OP Insurance Company is unquestionable and that is why the complainant took mediclaim policy in her name through Canara Bank Serampore Branch, before the said company Without any doubt. It is well settled proposition of law that a contract of insurance is based on the principles of utmost on good faith-uberrimae fidei applicable to both the parties. The rule of nondisclosure of material facts vitiating a policy still holds the field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts; the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which is within his/her personal knowledge or which he ought to have known had he made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non disclosure of material facts.
The case of the complainant in brief is that she being an employee of Canara Bank, Serampore Branch took a mediclaim policy vide policy No.500100/48/15/41/00000441 in the name of Canara Bank, IBA from 2015 with United Insurance Company, TPA Medi Assist India Pvt. Ltd. The petitioner has been suffering from diabetic kidney ailment having single kidney with many other complications and was under domiciliary treatment as per terms of policy the O.P. No.1 to 3 are bound to pay the treatment bills along with doctor’s fees to this complainant. The complainant filed claim before O.P. No.1 vide claim No.D170220161647360520 on 17.2.2016 and thereafter on 18.2.2016 she also filed two claims vide claim nos. D180220161547570980 and D180220161553120703 and thereafter on 5.9.2016 petitioner submitted another claim vide No.D090520161611590810 to the O.P. No.1 to 3. That O.P. No.1 to 3 only paid part payment of Rs.5,347/- against the claim dated 9.5.2016. The complainant several times requested the O.P. through mail and letters but her request comes into all in vain. So, she served a legal notice dated 12.8.2017 to the O.P. with a request to pay the claim amounting to Rs.54,586/- in favour of this petitioner but despite receiving notice O.P. No.1 to 3 failed to settle the claim of the complainant which tantamount to deficiency in service for which this complainant getting no alternative filed the instant complaint before this Forum praying for direction upon the O.P. No. 1 to 3.
After perusing the complaint petition, documents in record, evidence on affidavit of the complainant and brief notes of argument. It appears from the case record that the complainant took mediclaim policy of the OP No. 3 insurance company through the Canara bank Serampore Branch. The complainant was suffering from Kidney trouble having single Kidney along with other ailments and treating before the doctors for domiciliary treatment. Within the policy period she expensed a sum of Rs.59,933/- including all bills of medicine and fees of doctor out which the OP insurance company paid a sum of Rs.5,347/-. Immediately after the treatment, the complainant filed the documents before the OP through its TPA but his claim has not been settled for indefinite period.
There is no dispute regarding the treatment of the complainant and the treatment of Diabetic Kidney Ailment having single Kidney with many other complications and has been under domiciliary treatment within the policy period and it is not disputed by the OPs and the OP No 1-4 despite receiving notice did not turn up and filed no written version so the proceeding run ex-parte against the OP vide order no 6 dated 23.8.2018. The Xerox copy of treatment sheet as well as bills of pharmacy / medical shops and receipt of fees taken by the doctors filed by the complainant is trustworthy and the OP failed to raise any objection regarding the claim of the complainant.
It appears from the letter dated 20.10.2016 of Medi Assist i.e. the TPA of O.P. No.3 reminded this complainant that they have not received all original pharmacy bills for further processing and also requested to furnish within seven days from the date of the letter failing which they will be constrained to close the file of the complainant further averred that once closed they will not be in a position to reopen the claim for further process. Another letter dated 30.05.2016 written by this complainant to the TPA in which the complainant referred the mail dated 29.5.2016 against her domiciliary claim for the month of April, 2016 for Rs.15,824/-, she is sending the Xerox copies of the original bills which she has already sent to TPA on 9.5.2016 for payment. Other letter dated 12.9.2016 in which this complainant informed the TPA that as per mail dated 3.9.2016 sent by Mr. John Jero, Major Corporate, she is sending the Xerox copies for four months bills and the prescription verified with original and forwarded by the Branch Manager, Canara Bank, Serampore Branch and the bills are, for the month of October, 2015 of Rs.16,359/-, for the month of November, 2015 of Rs.11,944/- and for the month of December 2015 it is Rs.15,806/- and partial payment due for April, 2016 for Rs.10,477/- and the above stated bills are long pending and she requested to settle the claims as early as possible. The complainant files a few g-mails to TPA and the Insurance Company for getting her claim expensed for her treatment. Complainant also put the matter to the office of the Insurance Ombudsmen vide letter dated 7.11.2016. But all her effort comes into all in vain for which this complainant getting no alternative preferred the recourse of this Forum.
Ultimately the claim of the complainant has not been settled at the behest of negligence on the part of the OP for which the complainant getting no alternative sought the recourse of this Forum praying direction upon the OP. The claim of the complainant is unchallenged one. And it is at par, not excessive and exorbitant. So, we may infer that the complainant who is covered under the policy treated and accordingly filed the bills of medicine and fees of doctor before the O.P. insurance and TPA but the O.P. No.3 could not settle the claim of the complainant rather remained silent at the utterance of complainant which tantamount to deficiency of service on the part of the O.P. No. 3, Insurance Company.
It has been provided in the preamble of the Consumer Protection Act, 1986 as well that the objective of enacting the said legislation is to ensure better protection of the interests of the consumers. Once it is proved from the face of the case record as well as from the iota of evidence that the complainant did not receive the money which she expensed during his/her treatment from the insurer then she deserves to be given the compensation, keeping in view the facts & circumstances of the case.
Considering all the facts and circumstances we may hold that the complaint petition deserves to be allowed.
From the above discussion we can safely conclude that the complainant proved her case by producing sufficient documents.
4). whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove her case and the Opposite Party insurance company is liable to pay the amount expensed for the treatment of her alongwith compensation for mental pain and agony.
ORDER
Hence, it is ordered that the complaint case being No.215 of 2017 be and the same is allowed ex- parte against the Opposite PartyNo.1 to 4 with a litigation cost of Rs.8,000/- to be paid by op3.
The Opposite Party No.3 is directed to pay a sum of Rs.54,586/- to this complainant.
The OP no.3is further directed to pay compensation amounting to Rs.15,000/- for mental pain and agony of this complainant.
OP no.1,2 &4 are exonerated from this proceeding.
All the payments are to be made within 45 days from the date of this order.
At the event of failure to comply with the order the Opposite Party No.3 shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
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 & necessary action.
Dictated and corrected by me Samaresh Kr. Mitra, Member.
