BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 206 of 2015

Date of Institution:01.04.2015

Date of Decision: 20.7.2016  

Shri Prem Sharma son of Shri Bal Mukand C/o M/s. Amritsar Swadeshi Textiles Corporation Private Limited (Unit Swadeshi Koreatex), Majitha Road, Amritsar

Complainant

Versus

1. United India Insurance Company Limited having its registered office at 24, Whites Road, Chhenai and one of the branch office at 35,D.S. Market, Amritsar through its branch manager/person overall incharge
2. M/s. Vipul Medicorp TPA Pvt. Limited, B-416, Ansal Chamber I, Bhikaji Cama Palace, New Delhi 110066

Opposite Parties

Complaint under section 11 & 12  of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant: Sh.Pankaj Sharma Advocate.

              For the Opposite Party No.1 : Sh. Sandeep Khanna,Advocate

For the Opposite party No.2 : Ex-parte

Coram:

Sh.S.S.Panessar President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member  

Order dictated by:

Sh.S.S.Panessar,President.

1. Prem Sharma, complainant has filed the present complaint under section 11 & 12 of the Consumer Protection Act on the allegations that  complainant is a regularly insured person with opposite party No.1 for the last many years. Originally the complainant was covered under insurance policy through one of  branch of opposite party No.1 commonly known as Divisional Office No.1 situated at Madan Mohan Malviya Road, Amritsar for a continuous period of 9 years. At present complainant was covered with opposite party No.1 through the branch situated at 35, D.S. Market, Amritsar for  the relevant period. The important facts which gave rise to the present complaint are that complainant purchased  one Mediguard Insurance policy of opposite party No.1 in the year 2005 and at the time of purchase of the insurance policy, the complainant and his wife namely Smt.Chand Rani were senior citizens and were having their age of about 65 years  approximately at that time. The policies were being renewed from time to time  and it was only in the year 2007, when Regional Office Ludhiana vide its circular No.LDRO:Tech:Misc:930:07 dated 6.11.2007 withdrew the Mediguard Insurance policy and replaced the same with individual Health Insurance Policies like Platinum/Gold/Sr.Citizen Insurance Policies.  It was clearly mentioned in  Company’s Circular dated 19.5.2008 and reiterated in circular dated 5.3.2009 that as per IRDA guidelines, all senior citizens who were existing policy holders should not be forced to migrate to the new policy terms/conditions but shall be  allowed to continue under the existing mediclaim policy terms/conditions. It was also made clear that at the time of claim also, there should not be any restriction as applicable to the revised scheme but should be processed as per old terms/conditions only. Since the complainant was a senior citizen at the time of taking of his first policy in the year 2005-2006 itself, having age of 65 years at that time, he also came in the category of senior citizens and by virtue of being above 61 years of age as on 9.7.2007  and since then the complainant is purchasing the aforesaid insurance policy regularly till date. During the entire tenure of time, as stated above, the complainant was having  continued insurance policies of opposite party No.1 through different branches as stated above. On the ill fated day i.e. on 15.9.2014, the complainant suffered a stroke of brain Hemorrhage and was admitted in Fortis Escorts Hospital,Amritsar , where he remained admitted till 26.9.2014 and was discharged thereafter. During the course of his admission, an amount of Rs. 1,04,974/- was spent in all, copies of relevant documents are attached. It is pertinent to mention here that as against the total expenditure of Rs. 1,04,974/-, cashless approval was given by TPA  of opposite party M/s/. Vipul Medicorp TPA Pvt.Ltd/opposite party No.2  to the tune of Rs.44,068/- only  while remaining amount of Rs. 60,906/- was deficient in the claim lodged with the opposite party. After the first illness/hospitalization, the complainant had to be hospitalized again from 3.10.2014 to 11.10.2014 . The complainant again spent an amount of Rs. 1,32,749/- at Fortis Escorts Hospital, Amritsar . Again opposite party No.2/TPA aforesaid  had handled the claim on behalf of the opposite party against total bill of Rs. 1,32,749/- settled the claim of Rs. 35000/- only and made short payment of Rs . 97,749/- on this occasion. Thus making a total deficiency in claim of the complainant on both the occasions to the tune of Rs. 1,41,817/-. Though complainant claimed only an amount of Rs. 1,04,094/- as he had purchased insurance policy covering health insurance plan of Rs. 2,00,000/- only , which amount of Rs. 1,04,094/- is payable by the opposite party to the complainant. The complainant has also claimed compensation to the tune of Rs. 10000/- on account of mental agony and harassment. Besides that complainant has also claimed litigation expenses to be assessed by this Forum.
2. Upon notice, opposite party No.1 appeared  and contested the complaint by filing written version taking certain preliminary objections therein inter alia that  the complainant is estopped by his own act and conduct from filing the present complaint. The complainant has already received two payments of Rs. 44,068/- and Rs. 35000/- respectively on both the occasions of hospitalization as full and final payment pertaining to the treatment in question. Hence, the complainant is not entitled to the remaining claim. As per report of Vipul Medicorp TPA Pvt.Ltd the payable liability of the opposite party was calculated at Rs. 44,068/- and Rs. 35000/- respectively on both occasions of hospitalization  and the complainant has already received both the payments. Moreover the complainant neither made any representation  nor   approached the opposite party for his alleged grievance after receiving the payments. Hence, the complainant has got no cause of action  to file the present complaint against the opposite party ; that complainant has not approached this Forum with clean hands and has tried to conceal the material facts. The complainant is guilty of misleading the opposite party by furnishing false and incorrect information pertaining to the alleged occurrence. The complainant has settled the present claim with his own freewill and consent  and had duly received both the payments in that regard. It is further submitted that if the complainant was not satisfied with the claim settled  by the opposite party, the complainant could have either refused to receive the settled amount or should have received both the payments under protest. However,  neither of the abovementioned options was exercised by the complainant which makes it clearly evident that  the payments were voluntarily accepted by the complainant. As such the complainant is not entitled  to get the relief claimed for ; that claim file of the complainant having been closed as “fully settled” by the competent authority, no consumer dispute survives. Hence, the complainant is not entitled to the relief claimed for; that on account of claim being satisfied by the opposite party, there is no question of any delay or deficiency on the part of the opposite party i.e. Insurance company. Hence, the relief of damages and costs in the present complaint is not payable. In this regard, it is submitted that there is no such provision to grant any such relief either under the Consumer Protection Act nor there is any agreed clause in the contract of insurance to pay any such claim. On merits, facts narrated in the complaint have been denied on the lines of the pleas taken in the preliminary objections and a prayer for dismissal of the complaint with cost was made.
3. Opposite party No.2 did not opt to contest the case despite due service, as such it was  ordered to be proceeded against ex-parte.
4. In his bid to prove the case, Sh.Pankaj Sharma,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-11 and closed the evidence on behalf of the complainant.
5. To rebut the aforesaid evidence Sh.Sandeep Khanna,Adv.counsel for opposite party No.1 tendered affidavit of Sh.Baldev Singh,Divisional Manager Ex.OP1/1 alongwith documents Ex.OP1/2 to Ex.OP1/6  and in additional evidence copy of the detail of approved items Ex.OP1/7 & Ex.OP1/8, copy of letter of TPA Ex.OP1/9 and closed the evidence on behalf of the opposite party No.1.
6. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments on behalf of the complainant.
7. Ld.counsel for the complainant has vehemently contended that it is an admitted fact that the complainant was holder of  Mediguard Insurance policy, copy whereof is Ex.C-3  on record. It is also an admitted fact that the complainant was admitted in Fortis Escort Hospital on two occasions w.e.f 15.9.2014 to 26.9.2014  and from 3.10.2014 to 11.10.2014 and spent an amount of Rs. 1,04,974/- & Rs.1,32,749/- respectively on his treatment.  But however, opposite party No.2 /TPA , who handled the claim on behalf of opposite party , against total bill amount of Rs. 1,04,974/-, settled the claim for Rs. 44,068/- for the first time and  against total bill amount of Rs. 1,32,749/- has settled the claim for Rs. 35000/- for the second time. As such the amount of Rs. 60,906/- & Rs. 97,749/- were made short payment respectively. Although the complainant claims only an amount of Rs. 1,04,094/- as he had purchased insurance policy covering health insurance plan of Rs. 2 lacs only yet an amount of Rs. 1,41,817/- was short on account of short payment(s) made by the opposite party to the complainant. Counsel for the complainant has vehemently contended that the opposite party was deficient in service and has indulged in unfair trade practice while making short payments to the complainant , who happen to be the senior citizen. It is, therefore, contended that opposite parties may be directed to pay a sum of Rs.l,04,094/- as short payment on account of mediclaim while he may also be granted compensation to the tune of Rs. 10000/- besides cost of litigation to be assessed by this Forum.

8.       However, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has not approached this Forum with clean hands.  On the first occasion on the basis of the mediclaim preferred by the complainant, against an amount of Rs. 1,04,974/-, complainant was allowed mediclaim to the extent of Rs. 44,068/- only which was accepted by the complainant without any protest. Similarly in the second ailment against the mediclaim  to the tune of Rs. 1,32,749/-, complainant was granted the claim of Rs. 35000/-, which was also accepted by the complainant without any grudge or protest of any sort. Since the complainant has settled the  mediclaim with his own freewill and has duly received both the payments .
If the complainant was not satisfied with the claims settled by the opposite party, the complainant could have either refused to receive the said amounts or should have received both the payments under protest. Since this is not the case in the present matter, it shall now be presumed that the complainant has acquiesced to the payment(s) made to him by the opposite party regarding both  the mediclaims in dispute.The complainant is estopped by his own act and conduct to file the present complaint. There is absolutely no deficiency in service on the part of the opposite party. The complaint is nothing but an abuse of the process of the court and the same deserves dismissal. Consequently complaint is ordered to be dismissed accordingly. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Dated: 20.7.2016                                                

/R/