COMPLAINT RESTORED ON: 21.12.2009
DISPOSED ON: 19.03.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
19TH MARCH – 2011
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT No.2718/2009
Complainant | Jitendra M. Mehta, S/o Mansukhlal Mehta, Aged about 55 years, R/at “Sahil” No.69/1, Cunningham Road Cross, Bangalore – 560 052. Advocate: Sri. M.R. Balakrishna & Another V/s |
OPPOSITE PARTIES | 1. The Oriental Insurance Co. Ltd., City Branch Office – 16, # 401/2, F-1, Swastic Manandi Arcade, S.C. Road, Opp: Seshadripuram Police Station, Bangalore – 560 020. 2. The Branch Manager, The Oriental Insurance Co. Ltd., City Branch Office – 16, # 401/2, F-1, Swastic Manandi Arcade, S.C. Road, Opp: Seshadripuram Police Station, Bangalore – 560 020. Advocate: Sri. B.K. Ramachandran & Another |
O R D E R S
SRI. B.S. REDDY, PRESIDENT
The complainant filed this complaint u/s. 12 of the C.P. Act of 1986 seeking direction against Opposite Parties (herein after called as OPs) to pay sum of Rs.35,982/-towards balance amount with interest at 12% p.a. and compensation of Rs.20,000/- and litigation cost on an allegations of deficiency in service on the part of the OPs.
2. The case of the complainant to be stated in brief is that:-
The complainant had taken Medi Claim policy with OPs for Rs.2,00,000/- covering the period from 01.06.2008 to 31.05.2009. On 28.12.2008 the complainant met with a road traffic accident near Chalukya Circle and sustained grievous injuries; he was admitted to Mallige Nursing Home and treated as in-patient from 28.12.2008 to 29.12.2008. As advised by Doctor he was under treatment for shoulder stiffness and rest for two months from the said date. The complainant was not recovered fully and the pain aggravated, so again he was admitted to Manipal Hospital as in-patient from 30.01.2009 and discharged on 07.02.2009. During the stay in the Manipal Hospital, he has spent sum of Rs.71,642/- towards Hospital and other medical charges. The complainant has spent in all sum of Rs.84,177/- towards hospital charges and other medical charges. He has produced all the original documents pertaining to medical bills to the OP to claim the said amount. The OPs through their clearing agent Raksha TPS has cleared the sum of Rs.48,195/- to the complainant. After paying the aforesaid amount the OPs ought to have paid the balance amount of Rs.35,982/-, but despite persisted demand and request, OPs failed to settle the claim. The complainant issued legal notice dated 27.08.2009 calling upon the OPs to settle the claim, but OPs failed to settle the claim. OPs are liable to pay the balance amount, compensation and litigation expenses. Hence the complaint.
3. On appearance, OPs filed version contending that OPs have taken prompt action on the claim of complainant and claim has been settled for Rs.48,195/-. The claim in this complaint is for injury sustained in road traffic accident on 28.12.2008. The complainant has filed another complaint on the same cause of action; in that case (complaint No.2803/09) claim has been settled. Even otherwise matter constitutes dispute regarding quantum. The complainant may not be satisfied with the quantum, but that dissatisfaction cannot be termed as deficiency of service. The complaint is not maintainable, as this complaint and complaint No.2803/09 pertains to same cause of action. It is a condition of policy that dispute regarding quantum is to be referred to arbitration. It is a condition of policy that award of arbitration shall be a condition precedent to any right of action or suit. Hence it is prayed to dismiss the complaint.
4. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. The Administrative Officer of the OP-1 filed affidavit evidence in support of the defence version.
5. Arguments on both sides heard. Points for consideration are:
Point No.1:- Whether the complainant proved the
deficiency in service on the part of
the OPs?
Point No.2:- Whether the complainant is entitled
for the reliefs now claimed?
Point No.3:- To what Order?
6. We record out findings on the above points:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
7. At the outset it is not in dispute that the complainant had taken medi claim policy with OPs for Rs.2,00,000/- covering the period from 01.06.2008 to 31.05.2009. The complainant met with a road traffic accident on 28.12.2008 and sustained grievous injuries and had taken medical treatment as inpatient at Mallige Nursing Home, Bangalore from 28.12.2008 to 29.12.2008. As advised by Doctor, he was under treatment for shoulder stiffness and he was advised two months rest from the said date. Since the complainant could not recover fully, the pain aggravated, again he was admitted to Manipal Hospital as inpatient from 30.01.2009 and was discharged on 07.02.2009. During the stay in the Manipal Hospital, the complainant had incurred medical expenses to the tune of Rs.71,642/- towards hospital and other medical charges. The complainant by producing the original documents pertaining to medical bills before the OP; claimed the said amount, but OPs cleared only sum of Rs.48,195/- and failed to pay the balance amount of Rs.35,982/- without any justifiable cause. Hence the complainant is claiming the said balance amount. For the legal notice dated 27.08.2009 no reply has been given by the OPs.
8. The medical certificate issued by Mallige Nursing Home marked as Annexure – F reveals that the complainant was admitted in the said hospital on 28.12.2008 with history of road traffic accident, diagnosed to have partial tear right rotator cuff and hypertension. He was discharged on 29.12.2008 and advised rest till 05.04.2009. Further he was reviewed on 06.04.2009 and advised rest till 04.06.2009. Medical certificate Annexure – E of Mallige Medical Centre also reveals that the complainant had taken medical treatment for the injury sustained in the road traffic accident. Annexure – G copy of the internal medicine particulars issued by Manipal Hospital reveals that the complainant was admitted in the said hospital on 30.01.2009 at 1-13 pm and discharged on 07.02.2009 at 8-44 pm, the total amount towards medical treatment and other medical expenses is shown at Rs.71,642/-. Out of the total amount of medical expenses incurred OPs through their clearing agent Raksha TPA Private Ltd cleared the sum of Rs.48,195/- and failed to pay balance of Rs.35,982/-.
9. The defence set up by OPs is that the claim has been settled for Rs.48,195/-, even if the complainant is not satisfied with that quantum, that dissatisfaction cannot be termed as deficiency of service. In our view there was no any justification on the part of the OPs in refusing to reimburse the entire medical expenses of Rs.71,642/-. No reasons are assigned in refusing to pay the balance of Rs.35,982/-. It cannot be said that the complainant has accepted the partial amount of Rs.48,195/- in full and final settlement of the claim, so as to hold that complainant is estopped from claiming the balance amount.
The copy of the order passed in complaint No.2803/2009 on the file of III Additional District Consumer Disputes Redressal Forum reveals that the said complaint was filed by the same complainant claiming an amount of Rs.46,000/- with respect to the claim relating to personal accident policy and that claim has been allowed. The said claim is nothing to do with the claim made in this complaint. The claim made in this complaint pertains to medi claim policy whereas the claim made in that complaint relates to personal accident policy. Therefore there is no merit in the contention of the OPs that this complaint and the complaint No.2803/2009 pertain to the same claim and cause of action. Under these circumstances we are of the view that the act of OPs in refusing to pay the balance amount of Rs.35,982/- towards medi claim amounts to deficiency in service on their part. The principles laid down in I (1992) CPJ 292 (NC) cannot be made applicable to the fact of this case. In the said case the claim of the complainant was settled long back and the complainant had accepted the amount without protest. Under such circumstances it was held that complaint was not maintainable. In this case the complainant has not accepted the amount paid by OPs in full and final settlement. The complainant has filed this complaint claiming that the act of OPs in not paying the balance amount amounts to deficiency in service.
10. There is no merit in the contention that the matter should be referred for arbitration, as there is a clause in the policy to that effect. In our view clause to refer to arbitration is not a bar for the complainant to approach this Forum under the C.P. Act as the relief under the C.P. Act is in addition to the provisions of any other law as provided U/s 3 of the Act. Hence the existence of arbitration clause does not debar the complainant from approaching this Forum with this complaint. Under these circumstances we are of the view that the complainant is entitled for the balance amount of Rs.35,982/- with interest at 9% p.a. along with litigation cost of Rs.3,000/-. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant is allowed in part. OPs are directed to pay balance of Rs.35,982/- with interest at 9% p.a. from the date of complaint till the date of realization and pay litigation cost of Rs.3,000/- to the complainant, within four weeks from the date of this order.
Send the copy of this order to both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected and then pronounced in the Open Court by us on this the 19th day of March – 2011.)
PRESIDENT
MEMBER MEMBER
Snm:
