010BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 29TH of November 2013
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.79/2013
(Admitted on 16.3.2013)
Smt.Kusuma J.Bhat,
Wo D.Jayarama Bhat,
Rat Kainthila,
Vittal Kasba, Vittal,
Bantwal. …… COMPLAINANT
(Advocate for the Complainant: Sri.D.Ishwara Bhat)
VERSUS
1. The Manager,
Vittal Vyavasaya Seva Sahakari Bank,
Vittal, Bantwal.
2. The Yashaswini Co-operative Farmers
Health Care Tust,
Government Department, Room No.603,
6th Floor, Multi Complex building,
3rd Gate, Dr.Ambedkar Vidhi,
Bangalore.
3. Medi Asst. India T.P.A. Pvt. Ltd.,
No.41, 16th Main Road, 2nd Cross Road,
2nd Stage, B.D.M. Layout,
Bangalore-76.
4) The Manager,
Mangala Hospital and Mangala
Kidney Foundation,
Vajra Hills, Kadri Road,
Mangalore. ……. OPPOSITE PARTIES
(Advocate for Opposite Party No.2: Sri Thimmayya P.)
(Opposite Party No.1 and 3: Exparte)
(Advocate for Opposite Party No.4: Sri K.S.Bhat)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant stated that he is the member of the Yashaswini Co-operative Farmers Health Care Scheme as per receipt No.509 dated 12.3.2012. It is stated that, according to the scheme the Opposite Party No.2 and 3 are liable to reimburse the medical expenses incurred. It is stated that the complainant was suffering from disease of Filroid Utrus to which she consulted in Mangalore and undergone operation in KMC Hospital for Abdominal Hysterectory with B/L Salpingeotomy done under SA on 15.5.2012 and discharged on 19.5.2012 incurred Rs.45,405/- towards hospital expenses. Opposite Party No.2 and 3 reimbursed only Rs.8,500/- as against Rs.45,405/-. It is stated that, the service rendered by the Opposite party are amounts to deficiency in service. Feeling aggrieved by the above, the above complaint is filed before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay Rs.36,935/- along with interest at 15% per annum and also claimed compensation and cost of the proceedings.
II. 1. Version notice served to the Opposite Parties No.1 to 4 by R.P.A.D. Opposite Party No.1 & 3 inspite of receiving version notice neither appeared nor contested the case before this FORA. Hence, we have proceeded exparte as against the Opposite Party No. 1 and 3. The postal acknowledgement marked as Court Doc. No.1 & 2.
Opposite Party No.2 i.e. Yashaswini Co-operative Farmers Health Care Scheme represented by its Chief Executive Officer filed version admitted the membership of the Complainant along with family members but it is contended that 1st Opposite Party is not a insurance, it is a trust formed by the Government of the Karnataka to help the Co-operative farmers in the year 2003. It is also stated that, in order to avail the benefits of the Yashaswini Co-operative Farmers Health Care Scheme, the member has to follow the procedures prescribed under the scheme. To claim any amount under the scheme, the member has to be operated in any of the network hospitals earmarked by the trust, if the member treated elsewhere this Opposite Party is not liable to pay any amount to the member for breach of the terms of the procedure prescribed under the scheme. It is stated that the Complainant was admitted in Mangala hospital for operation of Abdominal Hysterectory with B/L Salpingeotomy as per the procedure hospital had sent for preauthorization to the medi assist india limited has sanctioned Rs.8,500/- for the above surgery as per the sanction the claim amount of Rs.8,500/- was paid under the Opposite Party No.2 to the hospital i.e. Opposite Party No.4. As per the guidelines the package rates have been fixed for all surgeries under the scheme which includes all the charges. And contended that the Opposite Party hospital should not have collected the excess amount from the Complainant beyond the amount sanctioned and contended that there is no deficiency and prayed for dismissal of the complaint.
Opposite Party No.4 i.e. Mangala Hospital admitted that fibroid Uterus and underwent the procedure and also stated that the complainant was informed about the entitlement of the medical reimbursement only in case the complainant avails treatment at general ward and that in case the complainant opts special ward the patient will be entitled to pay the difference amount. The complainant had provided the required declaration forms and other details for applying for pre authorization to Opposite party No.3 on 17.5.2012. The opposite party immediately contacted the opposite party No.3 but opposite party No.3 sanctioned only Rs. 8,500/- and rest of the difference amount paid by the complainant i.e. Rs.35,395/- and contended that there is no deficiency on their part and prayed for dismissal of the complaint.
III. 1. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) to (iii): As per the final order.
REASONS
IV. 1. POINTS No. (i) to (iii):
In support of the complaint, Smt. Kusuma J.Bhat (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her and got marked Ex C1 to C6. One Sri.R.M.Nataraj (RW1), Chief Executive Officer of the Opposite Party No.2 and one Sri Rajesh Mali (RW2) filed counter affidavit and answered the interrogatories served on them and got marked Ex R1 to R10 for the Opposite Parties.
In the instant case, the facts which are not in dispute is that, the Yashaswini Scheme is a benevolent Insurance Healthcare Scheme introduced by the Government of Karnataka to provide medical assistance to poor Co-operative farmers and their family members in the year 2003. It is also admitted fact that the Complainant along with my brother members became the members of the Yashaswini Co-operative Farmers Health Care Scheme by paying Rs.640/- towards the premium amount to the 1st Opposite Party on behalf of Opposite Party No.2 as per receipt No.509 dated:12.3.2012 and the same was valid for one year (as per Ex C1). Further it is admitted fact that the 1st Opposite Party i.e., a trust formed by the Government of Karnataka undertaken to reimburse the medical expenses of the Yashaswini Healthcare Scheme members.
Now the points are in dispute between the parties before this FORA is that, the Complainant contended that, he had admitted at Mangala Hospital Mangalore for disease of Filroid Utrus on 14.5.2012 and undergone the operation of total Abdominal Hysterectomy with B/L Salpingeotomy done under SA and discharged on 19.5.2013 and spent Rs.45,405/-for the operation. But the Opposite Party No.2 and 3 reimbursed only Rs. 8,500/-. It is contended that the Complainant is entitled for the entire amount spent by her under the Yashaswini Healthcare Scheme. Hence this complaint.
The Opposite Party No.2 interalia contended that, to avail benefit under Yashaswini Scheme the beneficiary has to follow the procedures prescribed under the scheme. In order to claim any amount under the scheme, the members have to undergo operation in any of the network hospital earmarked by the trust. The receipt issued by the Opposite Party No.1 clearly discloses that the member has to take treatment only at network hospital. But in the instant case, the Complainant has taken treatment in the network hospital but the amount claimed by her was of Rs.45,405/-. But it is contended that as per the guidelines the package rates have been filed for all surgery under the scheme which includes all the charges and further contended that the Opposite Party hospital should not have collected the excess amount from the Complainant beyond the amount sanctioned i.e. Rs.8,500/-. It is argued that the Complainant is entitled only Rs.8,500/- spent towards the medical expenses and denied the payment as well as deficiency.
We have heard the counsels for the parties and perused the oral as well as documentary evidence available on record, wherein, the Ex C1 (2 in Nos) is the membership receipt issued by the Opposite Party No.1 on behalf of the Opposite Party No.2 shows that the Complainant is the member of the Yashaswini Scheme introduced by the Government of Karnataka and they are the beneficiaries under the scheme. Ex C2 are the medical bills along with discharge summary issued by the Mangala Hospital Mangalore shows that on 4.5.2012 the Complainant was admitted to the hospital and undergone treatment for Fibroid Uterus and Total Abdominal Hysterectomy with B/L Salpingectomy done under SA on 15.5.2012 and discharged on 19.5.2012. The above treatment taken during the existence of the membership under the scheme and copies of the medical and final bill issued by the said hospital shows that the Complainant has spent Rs.45,405/-, out of that only Rs.8,500/- was reimbursed by the Opposite Party No.2 and 3. The Ex.C3 to C6 are the Correspondences and registered legal notice issued by the Complainant to the Opposite Party and reply sent by the Opposite Party to the Complainant. Apart from the above, we have perused the Ex.R4 i.e. name of the Surgery list Yashaswini Co-operative Farmers Health Care Scheme. Ex. R5 is the copy of the extract of ID card. Ex. R6 and R7 are the correspondences between the Opposite Party No2 and insurance regulatory and endorsement issued by IRDA. There is no credible/convincing evidence available on record.
However, we have noted that, in Ex C1 i.e. receipt issued by the Opposite Party No.1 nowhere stated/mentioned that the name of the surgery list and the amount fixed thereon. In the repetition we would like to point out that, the Ex.C1 issued by the Opposite Parties which is the vital document in proof of the membership does not contain any terms and conditions/exclusion clauses, more specifically the list of the surgery and amount fixed for each surgery. No documents produced before this FORA to show that the list of the operations and the amount fixed for each operations was brought to the knowledge of the beneficiaries/members of the Yashaswini Healthcare Scheme herein the Complainant. In the absence of any disclosure/information it is very difficult to take the advantage/benefit of the Healthcare Scheme/Policy. That the terms and conditions must be within the knowledge of the beneficiary/member of the Yashasvini Scheme in order to avail the benefit. Even in this case Opposite Parties failed to disclose the hospitals name, list of the surgeries and the amount fixed for each surgery and other prerequisite conditions to avail benefits as claimed by them. In the absence of incorporation of the above terms and conditions either in the I.D. card or in the beneficiary receipts, the Opposite Parties cannot avoid their liability.
It is a settled law that, in case, the Opposite Parties suppresses any material information, concealment of any exclusion clauses it adversely affects the beneficiaries/members/consumers herein the Complainant. The Regulation 3 of the Insurance Regulatory and Development Authority (Protection of Policy Holder’s Interests) Regulations, 2002, framed by Insurance Regulatory and Development authority (IRDA) in exercise of powers under Section 114 (A) of the Insurance Act, 1938, read with Sections 14 and 26 of the Insurance Regulatory and Development Authority Act 1999 – the exclusion clauses - if not explained they are not binding on the insured – those exclusion clauses are required to be ignored while considering the claim of the insured. (Reported in S.C. & National Commission Consumer Law Cases 2005-2008).
In a case NATIONAL INSURANCE CO. LTD. Vs D.P.JAIN reported in III (2007) CPJ (34) the Hon’ble National Commission held that, when statues provides manner in which particular thing must be done, the same must be done in that manner only. IRDA (Protection of Policy Holders Interest) Regulation bound to be followed.
“Consumer Protection Act, 1986 – Section 21(b) – Insurance Regulatory and Development Authority (Protection of Policy Holder’s Interests Regulations, 2002 – Regulations 3 and 11(4) Insurance – Mobile phone –Stolen – Repudiation of claim – Ground, absence of ‘actual or threatened force’ – Complaint allowed by District Forum – Compensation awarded – Appeal dismissed – Hence revision – Prospectus required to state scope of benefits, extent of insurance cover and in explicit manner explain warranties, exceptions and conditions of Insurance cover – If exclusion clauses not explained, regulations not binding on insured – Said clauses required to be ignored while considering claim of insured –Exclusion clauses should be read, as they are – When statute provides manner in which particular thing must be done, same must be done in that manner only – OP bound to follow regulations – Procedure prescribed under Regulation 3, required to be followed – If said procedure not followed, Regulatory Authority free to take action under Regulation 11(4) against OP – In present case, intermediary (HCL) issued insurance cover as an agent of OP – OP bound to reimburse complainant. [Pg.37-38 (Paras 13, 16, 17,18, 20, 21), Pg. 39-41 (Paras 26, 27 and 36]
In another case Sukanta Das versus National Insurance Co. Ltd., reported in II (2009) CPJ 294 the Hon’ble State Commission West Bengal held that the exclusion clauses not incorporated in policy, not part of the policy cannot be included later.
“Consumer Protection Act, 1986 – Section 15 – Insurance – Mediclaim Policy – Exclusion Clause – Not incorporated in policy – Not part of policy at time of taking of policy or its renewal – Insurance Company cannot impose/include Exclusion Clause in later date, directing the reimbursement not entitled in case of Heart Ailment – Incorporation of Exclusion Clause highly unethical, illegal – insurance Company directed to honour terms and conditions of contract without Exclusion of Heart Ailment.”
The Hon’ble National Commission has held that imposition of restriction in exclusion clause was a unilateral action and the Complainant was not told about such clause and hence not binding (Reported in 2011 Vol-I CPJ 25 NC)
From the catena of Land mark judgments rendered by the Hon’ble National Commission, the exclusion clauses if not explained or if not incorporated in the policy then they are not binding on the insured herein the beneficiaries, those exclusion clauses are required to be ignored while considering the claim of the insured. The above judgments are self-explanatory.
However, the learned counsel appearing for the Opposite Party No.2 in this case vehemently argued that the 2nd Opposite Party is not doing insurance business, it is a trust formed by the government of Karnataka to help the co-operative farmers and also contended that as per the terms and conditions, after the receipt of the hospital bills, the Medi Assist India Ltd. recommending the same for payment and the trust i.e. Opposite Party No.2 passed the bill in meeting. In the present case, the Complainant entitled is only Rs.8,500/- spent towards the medical expenses.
However, we are not convinced with the documents and the submissions made on behalf of the 2nd Opposite Party or other Opposite Parties because in the instant case the terms and conditions/ exclusion clauses or the name of the surgery list and the amount fixed thereon are not within the knowledge of the Complainant.
However, we have referred several citations discussed in other connected judgments before this authority wherein the order dated 30.10.2012 passed in Revision Petition No.3869/2012, 3873/2012, 3875/2012, 3872/2012, 3876/2012, 3877/2012 and order passed in Revision Petition No.2001/2007 by the Hon’ble National Commission decided on merits on the same subject in dispute i.e. the treatment taken in non-network hospital. Further we observed that, even in some of the Revision Petitions the respondents taken treatments in Mangala Hospital Mangalore, i.e. non network hospitals was in dispute. Against the said order the 1st Opposite Party i.e. C.E.O. Yashaswini Co-operative Health Care Trust challenged the order in SLA(Civil)26928/2012 before the Hon’ble Supreme Court, wherein the Hon’ble Supreme Court upheld the order passed by the Hon’ble National Commission as well as Lower Courts on 3.12.2012 by passing the order on merits.
In so far the order passed in Revision Petitions No.1786 to 1789/2012, 2014, 3283 to 3288/2012 are concerned, we are of the opinion that, the order passed by the Hon’ble National Commission in the Revision Petitions i.e. No. No.3869/2012, 3873/2012, 3875/2012, 3872/2012, 3876/2012, 3877/2012 mentioned above are affirmed by the Hon’ble Supreme Court in SLA No.26928/2012 still holds final and the observations/discussions made in the above citations are self explanatory.
Further, we are of the considered opinion that, in order to safeguard consumer interest, six consumer rights were initially envisaged, the right to choice is one among them. Hence, when the health care scheme is introduced by the trust or otherwise should borne in mind that it should be inconsonance with the articles mentioned in the Indian Constitution. Therefore, it is repeatedly observed that when statute provides manner in which particular thing must be done, same must be done in that manner only. When the Government of Karnataka introduced Yashaswini Health Care Scheme for the benefit of the poor farmers, it is the bounden duty of the Opposite Parties who may be a trust or through the agent to explain/disclose the name of the network hospitals/name of the surgeries/disease covered/amount fixed thereon and other terms and conditions to the beneficiaries to get the benefits. It is to be stated that, the above said scheme is a benevolent scheme started by the Government of Karnataka to provide medical assistance to the poor farmers and to protect the interest of the members of the Yashaswini Scheme holders/members and not to make profit out of it. The Opposite Party should see that the terms of the Insurance Scheme do not operate harshly against the insured/members and in favour of the insurer/trust. A prospectus of insurance product/healthcare scheme are required to be clearly state the scope of benefits, the extent of insurance cover and in explicit manner explain the warranties, exceptions and conditions of the insurance health cover/scheme and the product shall be clearly spelt out with regard to their scope of benefits. Further it is made very clear under the regulation that insurer or its agent or other intermediary shall provide all material information in respect of the proposed cover to the insured/members herein the Complainant.
From the above, it is amply clear that, the Regulatory Authorities taken much care to protect the interest of the consumers. Under such circumstances, the scheme introduced by the Karnataka Government through the trust or agent or companies shall protect the interest of the poor beneficiary/consumer herein the Complainant. In our view, the unexplained or unnoticed information regarding name of the network hospitals and prerequisite conditions would not be binding to the insured/members of the scheme herein the Complainant. The reason being, the regulations are mandatory in nature so as to protect the consumer’s interest.
We further state that, when a statute or regulations provides for a manner in which a particular thing must be done, then that thing must be done in that manner only. The Rule of Law laid down in Taylor vs. Taylor 1876 1 Ch.D 426 has been founded on sound principle and well recognized and followed by courts in India for several decades. The principle laid down is that, “if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed”. The principle behind the rule is that if these were not so, the statutory provision might as well would have not been enacted. [III (2007) CPJ 34 (NC)].
Similarly, in the present case, though the Government introduced the benevolent scheme as stated supra, it cannot overlook the Regulation laid down under the Insurance Regulatory and Development Authority (Protection of Policy Holder’s Interest), Regulations, 2002, framed by Insurance Regulatory and Development Authority in exercise of powers under Section 114(A) of the Insurance Act, 1938 read with Sections 14 and 26 of the Insurance Regularly and Development Authorities Act, 1999. Therefore, the Opposite Party No.1 cannot contend that it is not a insurance. Under the above circumstance, it is the duty of the Opposite Parties to disclose the hospital names, surgery list and the amounts fixed thereon and other terms and conditions notified by the Government under the scheme while issuing the Identity Card or beneficiary receipt. But in the present case, the Opposite Parties failed to discharge their duty to disclose the hospital names/surgery list/exclusion clauses and other terms and conditions to bring within the knowledge of the Complainant to get the benefits while issuing the Identity Card or related documents or subsequently which amounts to deficiency in service as well as unfair trade practice. The Opposite Parties should keep in mind that the beneficiaries under the scheme are the poor farmers and they cannot avoid the benefits by taking unilateral action as the beneficiaries/members were not told about such clauses and information’s and hence the same are not binding. The Opposite Party No.1 is liable to reimburse the entire medical expenses in this case.
In view of the above discussion, we are of the considered opinion that, though the Opposite Parties received the membership fee under the Yashaswini Scheme from the poor members/Complainant herein and admitted that the Complainant is one of the member under the Yashaswini Scheme and the said scheme was valid to avail the medical benefits for one year and the Complainant taken treatment during the existence of the policy but the Opposite Party No.2 not reimbursed the entire medical expenses till this date is not justifiable and amounts to deficiency as well as unfair trade practice as stated supra.
We further observed that, whenever a trust or company or any agent who introduces health care scheme/policy under the insurance, they must borne in mind that those schemes/policy introduced under the insurance are very clear that means the terms and conditions to avail benefit should be within the knowledge of the Complainant like how the general insurance companies/private companies introduced the policy/scheme to the general public. As we know the insurance companies are managing large number of general public under the beneficiary scheme like health policy etc etc. but those companies are taken pain to introduce the terms and conditions at the time of introducing the policy. Likewise the Opposite Party trust should have taken pain to introduce the terms and conditions along with their membership receipt by mentioning all terms and conditions. We have observed that the trust formed by the government not bothered to explain the terms and conditions in detail and the intention behind the scheme introduced by the Karnataka Government to the poor members/villagers/beneficiaries are not taken care.
In view of the above discussion, we are of the considered opinion that, though the Opposite Parties received the membership fee under the Yashaswini Scheme from the poor members/Complainant herein and admitted that the Complainant is one of the member under the Yashaswini Scheme and the said scheme was valid to avail the medical benefits for one year and the Complainant taken treatment during the existence of the policy but the Opposite Party No.2 not reimbursed the medical expenses till this date is not justifiable and amounts to deficiency as well as unfair trade practice as stated supra.
As far as medical expenses are concerned, the Complainant produced the medical bills for Rs.45,405/- and opposite party No.2 and 3 have reimbursed only Rs.8,500/-. However, we observed that the Complainant is a innocent consumer paid Rs.36,935/- (Rupees Thirty six thousand nine hundred thirty five only) as demanded by the Mangala Hospital for which the Complainant is not accountable and the Opposite Party No.2 liable to reimburse the medical expenses paid by the Complainant to the hospital.
In view of the above discussion, we hereby directed the Opposite Party No.2 i.e. Yashaswini Co-operative Farmers Health Care Scheme represented by its Chief Executive Officer shall pay Rs.36,935/- (Rupees Thirty six thousand nine hundred thirty five only) to the complainant along with interest at 9% per annum from the date of complaint till the date of payment and also pay Rs.2,000/- (Rupees two thousand only) towards the cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
There is no contractual obligation on the part of the Opposite Party No.1, 3 and 4 to reimburse the medical expenses under the above scheme, hence complaint against Opposite Party No.1, 3 and 4 are hereby dismissed.
In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.
In the result, we pass the following:-
ORDER
The complaint is partly allowed. Opposite Party No.2 i.e. Yashaswini Co-operative Farmers Health Care Scheme represented by its Chief Executive Officer shall pay Rs.36,935/- (Rupees Thirty six thousand nine hundred thirty five only) to the complainant along with interest at 9% per annum from the date of complaint till the date of payment and also pay Rs.2,000/- (Rupees two thousand only) towards the cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
Complaint against Opposite Party No.1, 3 and 4 is hereby dismissed.
The copy of this order as per the statutory requirements be forwarded to the parties and therefore the file be consigned to record.
(Page No.1 to 17 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 29th day of November 2013.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Smt.Kusuma J.Bhat – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – Membership receipt issued by the O.P.No.1
Ex C2 – Hospital bills including discharge summary.
Ex C3 – 30.10.2012 Lawyer Registered notice.
Ex C4 – 3.12.2012 Reply notice of the O.P.No.4.
Ex C5 – 5.12.2012 Reply notice of the O.P.No.2 & 3.
Ex C6 – Postal Acknowledgment.
COURT DOCUMENTS:
Doc.No.1 & 2: Postal Acknowledgements.
Witnesses examined on behalf of the Opposite Parties:
RW1 –Sri.R.M.Nataraj, Chief Executive Officer of O. P. No.2.
RW2- Sri Rajesh Mali, Manager, Mangala Hospital.
Documents produced on behalf of the Opposite Parties:
Ex R1 – Notarized copy of Admission form of complainant.
Ex R2 – preauthorization extract issued by O.P.No.3.
Ex C3 – Preauthorization extract issued by O.P.No.3
Ex R4 – Copy of the list of the operation.
Ex R5 - True copy of the extract of ID card.
Ex R6 – True copy of the letter written by the O.P.No.2 to IRDA.
Ex R7 – True copy of the Endorsement issued by IRDA.
Ex R8 - true coy of the protocol issued to the Hospital.
Ex R9 – Copy of the addressed to the hospital.
Ex R10 – Judgment copy of the National Commission.
Dated:29.11.2013 PRESIDENT
