The Complainant   has filed this complaint against the O.P and praying for following Order / Relief                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

1. Direction against the O.P. to pay a sum of Rs. 67,588/- (Rupees Sixty Seven Thousand Five Hundred Eighty Eight) only to the Complainant   along with interest    at  24% per annum from 18.07.2019 till the date of making payment.

2. Direction against the OPs to pay a sum of Rs. 2,00,000/- (Rupees Two Lakh) Only to the Complainant   for mental harassment, pain and agony.
3. Direction against the O.P. to pay a sum of Rs. 2,00,000/-(Rupees Two Lakh) Only to the Complainant   as compensation for negligence and deficiency in service.
4. Direction against the O.P. to pay litigation cost of Rs 25,000/- (Rupees Twenty Five Thousand) only to the Complainant.
5. Any other relief/ reliefs which the Complainant  is entitled.

                                  Brief facts of the Complaint

1.  The Complainant   took a health insurance policy under the name as Happy family floater vide policy no 313201/48/2020/290 from the OP No. 1 and 2 which was valid from 27.05.2019 to 26.05.2020 and the policy was purchased by the Complainant   from the OPs by paying a sum of Rs. 7,330/- (Insurance Policy-Annexure A)
2.  The Complainant   took the policy from the OPs with an expectation that at the time of any hospitalization, accident or any untoward incident, the OP will provide financial assistant to the Complainant   in lieu of the said insurance policy and the Complainant   had complains of piles and want to get operated for which on 03.06.2019 the Complainant   informed the OPs over mail and gave an intimation that he was going to be admitted at nursing home in Kolkata. (email dated 03.06.2019  Annexure B).
3. That during the tenure of hospitalization of the Complainant   he incurred a sum of Rs. 67,588/- as medical treatment purpose and after proper medical treatment he was discharged from the hospital on 05.06.2019.  
4. Before hospitalization the Complainant   intimated the OPs regarding the same vide email dated 13.06.2019 after he discharged from the hospital and also intimated the OPs that the doctor had advised the Complainant   for checkup after 15 days from the date of discharge which was also intimated to the OPs that the Complainant  will submit all relevant documents to the OPs after checkup (email dated 13.06.2019 Annexure C) .
5. That thereafter on 18.07.2019 the Complainant   submitted all necessary relevant medical documents relating to the treatment including hospitalization and thereafter on several occasions, the Complainant   tried to communicate with the OPs over phone regarding his legitimate claim but the OPs paid no heed to the request of the Complainant .
6. That on 16.08.2019 the Complainant   through email informed the OPs that the Complainant   had submitted all necessary and relevant documents which were required by the OPs for processing of the claim but the OPs kept silent and not whispered a word regarding the claim and the Complainant   also requested the OPs to explain the reasons for the delay for settlement of the claim but they make no reply to that email. ( Email dated 16.09.2019 Annexure D)
7. That the Complainant   had been suffering from financial loss, the Complainant   had taken the said insurance policy from the OPs by paying the premium with an anticipation that in the event of exigency to the Complainant   the OPs will render to the Complainant   assistance by providing adequate compensation but the OPs have miserably failed and neglected to render  the service to the Complainant   and due to deficiency in service the Complainant   had suffered a huge monetary loss.
8. That in the month of September 2019 the Complainant   sent legal notice to the OPs bearing Ref No. MP-LN/004/SEP/2019 dated 18.09.2019 and the OP No. 1 received the notice on 19.09.2019 and the OP No. 2 received the legal notice on 21.09.2019 (Legal Notice dated 18.09.2019 Annexure E).  
9.  That the Complainant   had been suffering from financial loss as the OPs have not given any response regarding the claim of the Complainant   nor they have replied in respect of legal notice despite receiving the said legal notice.
10. That the cause of action of this case arose on 03.06.2019 when the Complainant   was operated during the pendency of the policy, on 03.06.2019 and 16.06.2019 when the intimation was given, on 18.07.2019 when the documents were made and lastly on 18.09.2019 when the Complainant   sent legal notice to the OPs and the said cause of action is till continuing.
11. That the Complainant   is consumer under the provision of C.P. Act

In support to the complaint the Complainant   has filed the following documents

1. Photocopy of Insurance Policy as Annexure A
2. Photocopy of email dated 03.06.2019 as Annexure B
3. Photocopy of email dated 13.06.2019 as Annexure C
4. Photocopy of email dated 16.06.2019 as Annexure D
5. Photocopy of legal notice dated 18.09.2019 as Annexure E.

Notice was sent from this Commission which was duly served upon the OPs. On receipt of notice, both  the OPs have appealed before the Commission through Vokalatnama, filed W/V denied all the material allegation of the Complainant   and has stated that the Complainant   is not entitled to get any relief as prayed for on the grounds that by surpassing the actual fact the Complainant   has filed the case to extort compensation amount from the OPs . They have also stated that the case is not maintainable in law and on fact/ the claim petition is barred by limitation/ the Complainant   has no cause of action for filing the instant case against the OPs / the complaint is premature and they have denied the contents of para no. 3 to 17. They have also stated that the insurance under happy family floater policy is issued subject to the terms, condition, exclusion and definition / the Complainant   was admitted for the disease peri-anal abscess with fistula. It is also stated in the W/V that after receiving the claim documents from the Complainant   the insurance company with its TPA,  processed the claim and on scrutiny of this same it was observed that the claim was not admissible on account of the reason stated that the claim document was stating allopathic treatment was given by a Doctor of Indian System of Medicine and as per policy terms/ conditions the Medical Practitioner means a person who holds a degree or diploma from a recognized institution and is registered by Medical Council of any stated of India and the term Medical Practitioner would include physical specialist and surgeon, State Medical Council/ Medical Council of India recognizes only MBBS and such allied qualification and practitioners of Indian System of Medicine are not recognizable with SMS/ MCI and thereby the claim was not payable under the policy exclusion no. 3.28. It is also stated that as per clause no. 3.28 of the policy, Medical Practitioner means a person who holds a valid registration from the Medical Council of any State or Medical Council of India or Council for Indian medicine or for homeopathy set up by the Govt of India or  a State Govt. and is thereby  entitled to practice medicine within its jurisdiction  and is acting within this scope and jurisdiction of license. The OPs have also stated that the Complainant   was treated by Dr. Partha Sarkar BA MS, FRSTM& H registration no. 11328, University of Calcutta and the Branch Manager of Jalpaiguri Branch informed the Complainant   that the reimbursement claim raised by the Complainant   was repudiated / TPA rejected the claim by its letter dated 28.09.2019 and the insurance company finally repudiated the claim by its letter dated 06.01.2020, They have also stated that the Complainant   made correspondence through mail to TPA so it is well established that the Complainant   knew the result of the claim . They further stated that the Insurance Company was not at all failed and neglected to render the service to the Complainant   and there was no  deficiency on their part as well as unfair trade practice . By filing the W.V the OPs are praying for dismissal of this case.

 In support of the W/V both the OPs have filed the following documents

1. Happy Family Floated Policy 2015 ( Policy Terms and Conditions)
2. Rejection Letters of TPA dated 28.09.2019
3. Letter of the Branch Manager Jalpaiguri, the Oriental Insurance Company Limited dated 06.01.2020 .
4. Photocopy of Speed Post Receipt along with dispatch register of the Oriental Insurance Company Limited,  Jalpaiguri Branch Office.

 Having heard the Ld. Advocate of both the sides and on perusal of the Complaint, Written Version as well as documents filed by the parties, the following points are to be decided by this Commission.                          

Points for consideration                 

1. Whether the Complainant   is a consumer?
2. Whether the case is maintainable under the C.P. Act 2019?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant  ?
4. Is the Complainant   entitled to get any award and relief as prayed for as per the prayer of his Complaint?

                                     Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

The Complainant was given opportunity to prove its case by producing evidence before this Commission. The Complainant  himself namely Sanjib Bagchi in order to prove his case, filed written deposition in the form of an affidavit. In the written deposition the Complainant has corroborated the contents of his complaints and he specifically stated / corroborated as on which day he purchased the health insurance policy under the name as Happy Family Floater from the OPs. He also stated that the policy was valid / effective from 27.05.2019 to 26.05.2020 and during the policy period he was admitted in a hospital, incurred expenses of Rs. 67,588/- as medical treatment purpose. In the written evidence, the Complainant   has also stated that he was discharged on 05.06.2019 from

the hospital which was duly intimated to the OPs vide email dated 13.06.2019 and after discharging from the hospital the Complainant   was advised by the doctor  for checkup after 15 days from the date of discharge and the said information was given to the OPs. To prove the case, the Complainant   had also stated that he submitted all necessary medical documents relating to his treatment as well as relating to hospitalization to the OPs on 18.07.2019 and subsequently, he requested the OPs through email dated 16.08.2019,  requesting them for settlement of the claim but they did not bother to reply the mail and lastly, the Complainant   was compelled to sent the Legal Demand Notice to the OPs on 18.09.2019 and despite receiving notice, the OPs gave no reply to his legal notice.

At the time of argument Ld. Advocate of the Complainant   submits that the Complainant   has been able to prove this case against the OPs not only through written deposition in the form of an affidavit but also by producing documents.  The Complainant   has been able to prove the case and he is entitled to get relief as prayed for. In the written notes of argument, the Complainant   has stated that the OP No. 1 has failed to pay the amount of the Complainant   against his medical treatment done for the disease perianal abscess with fistula in Ano, thereby not just adding loss and injury in pecuniary terms but also adding mental agony pain to the Complainant   and the OPs are bound to pay the sum of Rs. 67,588/- (Rupees Sixty Seven Thousand Five Hundred Eighty Eight) Only for said insurance policy with interest    at  24% till realization of the same and also liable to pay compensation for mental pain and agony, trauma to the Complainant   and also entitled to get compensation for gross negligence, deficiency in service, unfair trade practice along with litigation cost. It is further argument of the Complainant   that the Opposite parties  single point of argument is that, as per clause 3.28 of the policy terms and conditions, the term Medical Practitioner means a person who holds a valid registration under the Medical Council of any State or Medical Council of India or Council  of Indian Medicine or  Homeopathy set up by the Government of India or a State Government and is entitled to practice medicine within its jurisdiction and acting within the scope and jurisdiction of license. It is further argument of the Complainant   that the operation done by the Dr. Partha Sarkar is a B.A.M.S.  F.R.S.T.M. & H from University of Calcutta and thus as per version of the OP Dr. Partha Sarkar is neither a Medical Practitioner nor his degree is recognized under the Council of Indian Medicine. Ld. Advocate of the Complainant  by filing written notes of argument argued that the proposition of the OP appearing in the clause 3.28 of the Happy Family Floater Policy 2015 is totally false and misleading. The Bachelor of Ayurvedic Medicine and Surgery (BAMS) itself contains the surgery and the doctor operating on the Complainant   is a Medical Practitioner under the policy terms and condition of OP Company but the OP No. 1 has deliberately trying to mislead this Commission. Ld. Advocate of the Complainant  also refers the Indian Medical Council Act 1970 and by referring Chapter III, submits that the OP which has stated regarding the definition of a Medical Practitioner is totally a contradictory  to the proposition as describe by the O.P. He refers the recognition of medical qualification granted by certain medical institution in India-(1) the medical institution in India which are included in the second schedule shall be recognized medical qualifications or the purposed of that act.

(2) Any University, Board, or other medical institution in India which grants a medical qualifications not includes in second schedule may apply to the Central Government to have any such qualification recognized and the Central Government after consulting the Central Council by notification in the Official Gazette amend the second schedule so as to include such qualification therein, and any such notification may also directs that an entry shall be made in the last column in the second schedule against such medical qualification declaring that it shall be a recognized medical qualification only when granted after a specified date and Sec 2 ( C ) describes the word Central Council which means the Central Council of Indian Medicine constituted under Sec 3. He also refers Sec 2 (H) of that Act 2 which reads as follows:

The recognized medical qualification means any of the medical qualification including Post Graduate Medical qualification of Indian medicine included in the 2^nd, 3^rd, 4^th schedule and the 116^th entry of the 2^nd schedule of the Indian Medical Council Act 1970 as referred in Sec 14 and Sec 2 (H) is University of Calcutta- Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery) BAMS. It is also argument of the Complainant, that,  the OP claims that Dr. Partha Sarkar is a BAMS, FRSTM & H from the University of Calcutta is neither a Medical Practitioner nor his degree is recognized under the Council of Indian Medicine but the Act 1970 clearly states that recognized medical qualification shall be those in the 2^nd schedule of the act and the defense has taken a baseless plea which is contrary to law and that s why they should be penalized. Ld. Advocate of the Complainant  has also argued that the OP insurance Company has disburse similar claims in which the operations were done by the same doctor in the same nursing home but in spite of that fact being known to the OP Company they had repudiated the claim of the Complainant  and in this regard the Complainant  had annexed 36 pages of documentation showing total 34 cases of similar operations were done by the same doctor which the Complainant  has filed through an application and copy of the said affidavit along with documents were served upon the OP who thereafter adduced their evidence but they did not deny the said fact of settling the claim amounts of those patients who were operated by the same doctor but the claim  of the Complainant  remains undisbursed which is nothing but the unfair trade practice as well restrictive trade practice on the part of the OP. Ld. Advocate of the Complainant  at the time of argument produced the Indian Medicine Central Council Act 1970 and also refers decision which is reported in (2004) 5 Supreme Court Cases 65 in GHAZIABAD DEVELOPMENT AUTHORTY – VS- BALBIR SINGH and submits that the Complainant  had been able to prove the case and is entitled to get the relief as prayed for.

Ld. Advocate of the OP 1 Oriental Insurance Company at the time of argument submits that the Complainant has failed to prove the case against the OP and he is not entitled to get the relief as he prayed for. He also argued that the Complainant was operated by Dr. Partha Sarkar who was not a Medical Practitioner as per clause no 3.28 of the policy and that s why the claim of the Complainant was rejected by the TPA which was duly communicated by the TPA on 28.09.2019 and the OP No. 1 repudiated the claim of the Complainant  by its letter dated 06.01.2020. Ld. Advocate of the OP No. 1 has also argued that the Insurance Company was not at any stage failed and neglected to render the service to the Complainant and they denied that due to deficiency in service the Complainant had to suffer a huge financial loss.  He also argued that the OP No. 1 had no deficiency in service or unfair trade practice towards the Complainant  and the disputes relates to the terms and condition of the policy which cannot be decided by this Commission. At the time of argument Ld. Advocate of the O.P. No. 1 refers one decision of CPJ507(NC) 2019. Ld. Advocate of the OP No. 1 also praying for dismissal of this case.

Having, heard the Ld. Advocates of both the sides and perusal of the Written Complaint, Written Version of the OP No. 1, questionnaires by the parties along with their reply including the documents filed by the parties as well as the Happy Home Floater Policy 2015, the following points are admitted by both the parties.

1. It is admitted fact that the Complainant  was a policy holder under the OP No. 1 and he purchased  Happy Home Floater Policy 2015.
2. It is also admitted fact that the Policy of the Complainant was effective/ valid from 27.05.2019 to 26.05.2020. 
3. It is also admitted fact that the Complainant  was admitted under Dr. Partha Sakar on 04.06.2019 and discharged on 05.06.2019 from the Nursing Home in Kolkata and the operation was done by that doctor.
4. It is claim of the Complainant that he incurred an expense a sum of Rs. 67, 588/- (Rupees Sixty Seven Thousand Five Hundred Eighty Eight) only.
5. It is also admitted fact that the Complainant claims the a sum of Rs 67588/- (Rupees Sixty Seven Thousand Five Hundred Eighty Eight) only towards medical expenditure from the OPs.
6. On the other hand it is also admitted fact that the Complainant sent several emails to the OPs and also sent Legal Demand Notice to the OPs for settlement of the claim amount.

The facts denied by the OPs are as follows:

The doctor who examined and done the operation was not having sufficient qualification .

          The claim of the O.P. is that the operating doctor Dr. Partha Sarkar is a BAMS, FRSTM & H from the University of Calcutta and Dr. Partha Sarkar is not a Medical Practitioner nor his degree is recognized under the Council of Indian Medicine. The only defence of the O.P. is that as per Clause No 3.28 of the Policy Terms and conditions the Medical Practitioner means a person who holds a valid registration under the Medical Council of any state of

Medical Council of India of Council of Indian Medicine or for Homeopathy set up by the Government and is entitled to practice medicine within its jurisdiction and is acting within the scope and Jurisdiction of the O.P. No. has also claimed that the O.P. Insurance Company was not at all failed and neglected to render service to the Complainant and there was no deficiency in service on their part for which the Complainant had to suffer a huge financial loss. Ld. Advocate of the O.P. No. 1 during argument referred decision of  C P J 507 (NC) 2019  and submits that the Complainant has failed to prove its case against the O.P. and he is not entitled to get any relief.

Now let us see whether Dr. Partha Sarkar is a Medical Practitioner or not and how far the claim of the O.P. No. 1 is correct or not. According to the Clause 3.28 of the Insurance Policy a Medical Practitioner is a person who meets the criteria mentioned therein. In the case is hand Dr. Partha Sarkar is a BAMS from the University of Calcutta and the full form of B A M S is BACHELOR OF Ayurvedic Medicine and Surgery which includes the word surgery.

           The Indian Medical Council Act 1970 defines contradictory version with the claim of the O.P. in chapter (III) of the Indian Medical Council Act 1970 defines Recognition of Medical Qualification granted by Medical Institutions in India as 1) the Medical Qualifications granted by any University or other Medical Institution in India which are included is second schedule shall be recognized Medical Qualifications or the Purposes of this Act.

2) Any University, Board or other Medical Institution in India which grants a Medical Qualification not included in the Second Schedule may apply to the Central Government to have any such Qualification Recognized, and the Central Government, after consulting the Central Council may by Notification in the Official Gazette amend the Second Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the Second Schedule against such medical Qualification declaring that it shall be a recognized Medical Qualification only when granted after a specified date.

             Section 2 ( C ) of the Indian Medicine Central Council Act 1970 defines Central Council which means-the Central Council of Indian Medicine Constituted under Section 3.

Section 2(h) of the Indian Medicine Central Council Act 1970 defines    Recognized Medical Qualification   means any of the Medical Qualifications, including postgraduate Medical Qualification, of Indian medicine included in the second, third or fourth schedule. The entry no. 116 of the second schedule of the Indian Medicine Central Council 1970 as referred in chapter III, section 14 (about the recognition of medical qualification granted by certain medical institutions in India) clearly defines in entry no. 116that, the University of Calcutta may grant the Recognized Medical Qualification Ayurvedacharya (Bachelor of Ayurvedic Medicine and Surgery (BAMS) in West Bengal from 1982 onwards.

From the provisions of Chapter III, Section 14 and entry no. 116 of the Second Schedule it is specifically proved that the person having qualification of BAMS is a recognized medical practitioner and the claim of the O.P. No. 1that Dr. Partha Sarkar is not a Medical Practitioner nor his degree is recognized under the Council of India Medicine is not correct at all.

Moreover the complainant in reply to the questionnaires of the O.P. No. 1, has specifically stated that the O.P. Insurance has considered the claim and released the claim amount in cases of operation done by the same doctor namely Dr. Partha Sarkar who had done the operation of the Complainant in the same nursing home. In the form of an affidavit the complainant supplied 21 names of policy holders along with the policy numbers in which the claims were settled by the same O.P. prior to the operation of the Complainant. The complainant in his reply to the questionnaires of the O.P. No. 1 has supplied 13 numbers of names of policy holders along with their policy numbers in which their claims were settled by the O.P. after the operation of the complainant. Ld. Advocate of the complainant in the form of an Affidavit supplied those policy holders name and their policy numbers. But the O.P. No. 1 did not file any counter Affidavit to falsify the claim of the complainant.

Considering all we are of the view that, the complainant has been able to prove its case against the O.Ps  who are jointly and severally liable to pay the awarded amount as we are also of the view that, there was clear deficiency in service as well as restrictive trade practice on the part of the OPs

Hence,

It is therefore,

                            ORDERED

 That, the instant Consumer Case No. 1/2020 is hereby allowed on contest against the O.P. No. 1 and exparte against the O.P. No. 2 but in part. Both the O.P.s are directed to pay a sum of Rs. 67588/- (Rupees Sixty Seven Thousand Five Hundred Eighty Eight) only to the complainant which the complainant incurred for medical treatment purpose along with interest    at 7% per annum with effect from 18.07.2019.

The O.Ps are also directed to pay a sum of Rs. 30,000/- (Rupees Thirty Thousand) only to the complainant for negligence, mental harassment, agony, deficiency in service on the part of the O.P.

The O.Ps are also directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only to the complainant towards the cost of legal proceedings and the O.Ps are further directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) only in the Consumer Legal Aid Account (being no. 34608025225) of this Commission.

The O.Ps are directed to pay the awarded amount within Forty Five(45) days from this day failing which they will have to pay    at 9% per annum from this day till making payment of the entire amount.

Let a copy of this order be given to the parties free of cost.