OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI-03
C.C.40/2010
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar -Member
3) Md Jamatul Islam - Member
Sri Vijay Kr Sureka -Complainant
C/O- V.K.Sureka & Co.
1st Floor, Zaman Market ,
Jail Road,Guwahati-781001
-VS-
1) The Oriental Insurance Co. Ltd. -Opp.party
Oriental House , P.B.No-7037
A-25/27, Asaf Ali Road,
New Delhi-110002
2) The Oriental Insurance Co. Ltd.
City Divisional office-II,
Christian Basti,G.S.Road,Guwahati-05
3) Heritage Health Services Pvt Ltd.
Bye Lane No- 3,Lachit Nagar,
Ulubari,Guwahati-781007
Appearance:
None appears for the complainant & Ld advocate Ms Swarnali Shyam Choudhury and Ms Piyali Mitra the Opp. Party No -1 & 2.
Date of argument - 01/10/2018
Date of judgment - 30/10/2018
JUDGMENT
This is a proceeding U/S- 12 of the Consumer Protection Act, 1986
1. The complaint filed by Sri Vijay Kr Sureka against the i) the Oriental Insurance Co.Ltd. ,Oriental House , P.B.No-7037, A-25/27 , Asaf Ali Road,New Delhi-110002, ii) the Oriental Insurance Co.Ltd. ,City Divisional Office-II, Christianbasti ,G.S. Road,Guwahati-05 & iii) Heritage Health Services Pvt Ltd. , Bye Lane No-3, Lachit Nagar,Ulubari,Guwahati-781007 was admitted on 15/03/2010 and the Opp.Party No-1 & 2 i.e. i) the Oriental Insurance Co.Ltd. , New Delhi- & ii) the Oriental Insurance Co.Ltd. ,Guwahati , accordingly filed their written statement . An exparte order was passed against Opp.Party No-3 on 03/01/2011. The complainant filed evidence on affidavit on 22/07/2011, and on 11/05/2016 CW was cross examined . The Opp.Party No-1 & 2 filed their evidence on affidavit on 08/10/2015 and OPW was cross examined on 13/02/2018. The opp. party side filed their written argument on 12/06/2018. The complainant side, on 01/10/2018, filed a petition praying for time to file written argument for the complainant , but ld advocate for the complainant was not found and it is also found that the complainant have taken several adjournments for filing written argument earlier; and in result this forum vide order dtd. 01/10/2018, ordered that no further time can be allowed to the complainant to file written argument and forward oral argument . Ld advocate for the Opp.Party No-1 & 2 Ms Piyali Mitra forwarded her oral argument on 01/10/2018 and today , we deliver the judgment which is as below:
2. The complainant’s complaint in brief is that Opp.Party No-1 is a general insurance company and the Opp.Party No-2 is the policy issuing office and the Opp.Party No-3 is the third party administrator of the Opp.Party No-1 and 2 and this complaint relates to non-payment of legitimate insurance claim under the Mediclaim Insurance Policy No-1486 of the year 2008 which was lodged with the Opp.Party No-3 on 13/10/2008. The complainant procured the said Mediclaim Insurance Policy from the Opp.Party No-1 & 2 insurance company by paying a sum of as Rs 5,266/- towards premium for hospitalization insuirance for the period from 13/01/2008 to 12/01/2009. The insured persons covered under the said policy are the complainant himself and his wife Mrs Madhu Devi Sureka. During the coverage period of the above policy , said insured Mrs Madhu Devi Sureka on 21/08/2008 consulted with Dr (Prof.) Subhas Khanna for her complain of abdominal pain . After doing all the necessary test she was administered in the Swagat Endolaproscopic Surgical Research Institute on 05/09/2008 and she was discharged from the said hospital on 10/09/2008. After discharged from the said hospital , the said insured lodged a formal claim of Rs. 57,115/- with the opp. party that the opp. party issued a cheque bearing No-000023 dtd. 29/01/2009 for Rs. 26,415/- drawn on HDFC Bank Ltd, Guwahati to the complainant against the aforesaid claim of Rs. 57,115/- which the complainant received on 06/02/2009. That after receipt of the aforesaid said cheque the complainant by letter dtd . 06/02/2009 to the Opp.Party No-2 made a protest against deduction of Rs. 30,700/- from the total claim amount of Rs. 57,115/- . That the opp. party have settled the claim to Rs. 26,415/- without giving any opportunity to establish the claim . The opp. parties have also failed to give any reply to the said letter dtd. 06/02/2009 and also of his subsequent letter dtd. 30/04/2009 . That the complainant has deposited the said cheque in his bank account on 07/02/2009, i.e. after filing a written protest to the respondents on 06/02/2009 that being aggrieved by and dissatisfied with the aforesaid action of the respondents the complainant has approached the office of the Insurance Ombudsman at Guwahati by complaint letter dtd. 04/05/2009. The ld Insurance Ombudsman by its order dtd. 26/06/2009 has closed the complainat proceedings on the ground of jurisdiction and observed inter-alia that the said authority cannot entertain the said complain in absence of any proof . The aforesaid order of ld Ombudsman was communicated to the complainant by letter dtd. 07/07/2009. The complainant has came to know from the said order that a “Self Contained Note” was submitted by the respondents before the ld Ombudsman justifying their settlement of the said claim to Rs. 26,415/- . It is stated that no copy of the said “Self Contained Note’’ was served upon the complaint by the respondents and hence the complainant did not set any opportunity to rebut the said ‘Self Contained Note’ before the ld Ombudsman . The complainant by letter dtd. 16/11/2009, has requested the office of the insurance to provide a certified copy of the said “Self Contained Note” . A photocopy of the said note was furnished to the complainant on 19/11/2009. The complainant has not yet received the certified copy by his letter dtd. 16/11/2009. Ld Insurance Ombudsman though closed the complaint on the ground of its lack of jurisdiction but has been pleased to observe a paragraph -5 of its order dtd. 26/06/2009 inter alia that on receipt of the cheque for the settled amount of Rs. 26,415/- on 29/01/2009, the complainant had encashed the cheque and thereafter vide letter dtd. 06/02/2009 written to the respondents paying for releasing the balance amount of the claim. It was also observed by the ld ombudsman that the complainant appears to have received the cheque for the settled amount of Rs. 26,415/- with consent and encashed it and thereafter only on 06/02/2009 wrote to respondents for releasing the balance amount . The observation of ld Ombudsman is not correct . The said claim was settled arbitrarily by the respondents of their own without affording any opportunity to the complainant . The complainant prays for refund of Rs. 21,300/- , interest from the date of lodging the claim damages for financial loss , harassment and mental agony , cost of the present proceeding.
3. The gist of pleading of the opp. party is that there is no cause of action against the opp. party and liable to be dismissed with cost . The complainant has no locus-standi to initiate the present proceeding . The complainant was paid vide cheque bearing No-000023 dtd. 29/01/2009 as per terms and conditions of policy and the same has been accepted and encashed by the complainant , on receipt of the cheque for the settled amount of Rs. 26,415 /- on 29/01/2009 had encashed the cheque and vide letter dtd. 06/02/2009 written to the insurer praying for releasing the balance amount of the claim. The said fact was placed before the Insurance Ombudsman for judgment .. The opp. party shows that the complainant felt aggrieved for not receiving the amount in full, complainant has not made any other allegations in protest letter dtd. 06/02/2009 and has not mentioned any other circumstances as to why he had accepted the settled amount . The opp. party states that the complainant has received the settled amount of Rs. 26,415/- with consent and thereafter only on 06/02/2009 wrote to the insurer for releasing the balance amount that claim of the complainant was settled at Rs. 26,415/- after disallowing certain items which are not covered under the policy. The opp. party states that when the matter was placed before the Insurance Ombudsman for decision , the opp. party has submitted a “Self Contained Note” justifying their settlement of claim at Rs. 26,415/- . The amount involved in the items disallowed has also been described in the “Self Contained Note” quoting the relevant policy terms and conditions . The opp. party state that the complainant has not submitted any documentary evidence to prove that the cheque was deposited in bank account after filing of written protest to the respondent . The opp. party states that Insurance Ombudsman has rightly held since the complainant has accepted the settled amount . The opp. party state that complainant is not entitled to get the amount of Rs. 21,300/- and is deducted as per terms and condition of the policy .
4. We have found that the complainant states in his evidence that the opp. parties have issued a cheque bearing No-000023dtd. 29/01/2009 for Rs. 26,415/- drawn on HDFC Bank Ltd, Guwahati to him against the aforesaid claim of Rs. 57,115/- and after receipt of the aforesaid cheque by letter dtd. 06/02/2009 from the Opp. Party No-2, he made a protest against deduction of Rs. 30,700/- from the total claim amount of Rs. 57,115/- and sought clarification from the opp. parties for doing the said deduction but found no reply . It is found that , bill dtd. 27/08/2008 for Rs. 1200/- as charge of eco-cardiology , bill dtd. 10/09/2008 for Rs. 2,100/- as consultation fees , bill dtd. 10/09/2008 for Rs. 6,500/- as surgeon fees , bill dtd 10/09/2008 for Rs.1,500/- as consultation .
5. We have perused the pleading of the parties as well as their evidence. We have found that both sides admit the fact that the complainant, Shri Vijay Kr Sureka along with his wife Smti Madhu Devi Sureka insured with the opp. party vide Ext-1 policy . We have found during the effectiveness of the policy (Ext-1) the wife of the complainant was admitted in Swagat Endolaproscopic Surgical Research Institute ,Shantipur ,Guwahati on 05/09/2008 and she was discharged from the said hospital on 10/09/2008.
6. The complainant states that after being discharged from the said hospital, his wife lodged a formal claim of Rs. 57,115/- with the respondents by letter dtd. 13/10/2008 along with all necessary vouchers , documents , test reports , cash memos and bills etc. in support of the said claim . We have perused Ext-3 and found that the wife of the complainant submitted all the documents in regard to her claim of Rs. 57,115/- under the said policy and the opp. party side received the same on 13/10/2008.
From evidence of the complainant it is found that the complainant had paid Rs. 3,000/- as charge of investigation /biochemistry vide bill dtd. 10/09/2008, Rs.1,200/- as eco-cardiology charge vide bill dtd. 27/08/2008 , Rs. 2,100/- as consultation fees vide bill dtd. 10/09/2008 , Rs.6,500/- as surgeon fee vide bill dtd. 10/09/2008 and Rs.1,500/- as consultation fees vide bill dtd. 10/09/2008 totalling Rs. 14,300/- . This amount is entitled by the complainant but the opp. parties are found to have deducted said amount illegally . But the complainant is entitled to Rs. 1,000/- as recovery-room charge and Rs.6,000/- as medical equipment charge as per Clause 4.16 of the policy . So, we hold that the complainant is further entitled to Rs. 14,300/- only but not Rs.21,300/- as claimed by him.
7. We have found the complainant in his evidence states that after receiving on 06/02/2009 Rs. 26,415/- through a cheque from the opp. parties against his total claim of Rs. 57,115/- ,he made a protest against deduction of Rs. 30,700/- from the total claim amount of Rs. 57,511/- but the opp. party side has not replied to the said letter . The opp. party side in their written statement states that they received the protest letter dtd. 06/02/2009 from the complainant and the complainant in his protest letter has not made any other allegation and the complainant has received the settled amount of Rs. 26,416/- with consent and thereafter only on 06/02/2009 wrote to the insurer for releasing thye balance amount . We have found that OPW Shri Ranabir Ganguly in his cross examination states that they sent Rs. 26,415/- to the complainant through a cheque vide cheque No-000023 dtd. 29/01/2009 and after receiving the cheque , the complainant lodged a complaint with them that he had received the cheque under objection which is dtd. 06/02/2009. Therefore , we hold that the complainant received the cheque under protest and as part payment of his claim. So, the plea of the opp. parties that the complainant received the settled amount of Rs. 26,415/- with consent stands not established, and what is established that the complainant received the cheque amount as part payment that too under protest . So, we hold in such situation that the opp. party side should have considered his protest letter but they are found to have refused to consider the said letter and as such , such act on the part of the opp. party is a clear deficiency of service towards the complainant. Therefore, the amount, we have found in our above calculation which is RS. 14,300/- is the balance amount of the claim of the complainant and the opp. parties are liable to pay the said amount with an interest @12% per annum from the date of filing the complaint i.e. 15/03/2010.
8. By illegally refusing to pay the balance amount which , we have calculated out i.e. Rs.14,300/- the opp. parties caused harassment and mental agony to the complainant and as such we are of opinion that , the opp. parties are liable to pay atleast Rs.5,000/- to the complainant as compensation for causing harassment to him . Moreover , the complainant had already incurred a handsome amount for prosecuting the opp. parties and therefore , the opp. parties are liable to pay another amount of Rs. 5,000/- to the complainant as cost of the proceeding.
9. Summing up our discussion as above we hold that , the complainant has succeeded to prove his case against the opp. parties . Hence, the complaint against the opp. parties is allowed on contest and the opp. parties are directed to pay Rs. 14,300/-, the balance amount to the complainant with interest @12% per annum from 15/03/2010, and also to pay him Rs. 5,000/- as compensation for causing harassment to him as well as Rs. 5,000/- as cost of the proceeding . The opp. parties are directed to satisfy the award within 45 days, in default, the other amounts shall carry interest in the same rate .
Given under our hands and seals today on this 30th October , 2018.
(Smt Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain) Member Member President
