BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 19th August 2010
COMPLAINT NO.12/2010
(Admitted on 8.1.2010)
PRESENT: 1. Smt. Asha Shetty, President
2. Smt.Lavanya M. Rai, Member
BETWEEN:
Ananda Gowda,
So Medappa Gowda,
Aged about 53 years,
Rat. Metha Mula House,
Ivarnadu P.O. Village,
Sullia Tq., D.K. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Sanjay D.)
VERSUS
1. Chief Executive Officer,
Yashaswini Co-Operative Farmers
Health Care Scheme,
6th Floor, M.S. Building,
Co-operative Secretariat,
Ambedkar Veedi,
Bangalore -1.
(Advocate for Opposite Party No.1: Sri.Thimmayya. P)
2. Family Health Plan Limited,
Yashaswini Co-Operative Farmers
Health Care Scheme,
No.45, Millars Road, Vasanth Nagar,
Bangalore – 52.
(Opposite Party No.2: Exparte)
3. Manager,
Ivarnadu Primary Agricultural
Co-operative Bank, Ivarnadu,
Sullia Taluk, D.K. …. OPPOSITE PARTIES
(Advocate for Opposite Party No.3: Sri.A.Nagaraj.N.)
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The Complainant is the member of Yashaswini Health Scheme of the 1st Opposite Party along with his mother and 4 children. The above said health scheme is valid for one year i.e., 16.04.2008 to 01.04.2009.
It is stated that, during the subsistence of the policy, the Complainant admitted to Mangala Hospital Mangalore for the operation of Recurrent Laryngal Papilloma on 08.12.2008 and was operated on 10.12.2008 and spent Rs.33,286/- for the medical treatment, after the operation, the claim was sent to the 2nd Opposite Party and they have sanctioned Rs.3,500/- as against Rs.33,286/- only which amounts to deficiency.
It is contended that, the Opposite Party not provided any information or not provided any terms and conditions/information in respect of the above scheme and the membership of the Opposite Party made as compulsory. It is contended that, the Opposite Party is duty bound to pay the above said amount. Hence the above Complaint is filed by the Complainant 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.29,786/- along with interest at 12% p.a. from 08.12.2008 till payment and also claimed Rs.15,000/- as compensation and costs of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.2 despite of serving notice neither appeared nor contested the case till this date. Hence we have proceeded exparte as against the Opposite Party No.2. The acknowledgement placed before the FORA marked as court document No.1.
Opposite Party No.1 and 3 appeared through their counsel filed separate version.
Opposite Party No.1 admitted the Insurance Scheme and also admitted the membership of the Complainant but it is contended that, the Complainant not followed the procedures prescribed under the scheme and hence the Opposite Party is not liable to pay any amount to the members. In this case, it is contended that the Mangala Hospital sent the documents pertaining to the Complainant for consideration. After verifying the bill the 2nd Opposite Party recommended to the 1st Opposite Party, the 1st Opposite Party approved Rs.3,500/- as he is legally entitled. The payment has been made on the basis of the treatment by the Complainant and there is no deficiency. And further contended that, the Complainant not followed the procedure and is under negligent act he lost the benefits. Further contended that, the members are entitled hospital charges if they are taken treatment in general ward. The Complainant has admitted the special ward hence the Complainant is not entitled and prayed for dismissal of the Complaint.
The Opposite Party No.3 admitted that the Complainant is a member of the Yashaswini Health Scheme and Opposite Party No.3 is not guilty of rendering service. There is no deficiency in service on the part of this Opposite Party and prayed for dismissal of the Complaint.
3. 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?
4. In support of the complaint, Sri.Ananda Gowda (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C10 were marked for the Complainant as listed in the annexure. One Sri.Poovappa (RW1), Chief Executive Officer of the Opposite Party No.1 and one Sri.N.Sheenappa (RW2) – Chief Executive Officer of the Opposite Party No.3 filed counter affidavits and answered the interrogatories served on them. The Complainant and Opposite Party No.1 produced notes of arguments along with citations.
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) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the instant case, the facts which are not in dispute is that, the Yashaswini scheme is a benevolent Insurance Health Scheme introduced by the Government of Karnataka to provide medical assistance to the farmers and to their family members. It is also admitted that, the Complainant is a member of Yashaswini Health Scheme of the 1st Opposite Party along with his mother and four children and has paid Rs.720/- as membership to the 3rd Opposite Party as per receipt No.0867464 and the same is valid for one year i.e., 16.04.2008 to 01.04.2009 (as per Ex C1). As per the insurance scheme, the 1st Opposite Party will reimburse medical expenses to the Complainant and other members.
In this case, it is proved that, the Complainant is the member of Yashaswini scheme and paid Rs.720/- as membership to the 3rd Opposite Party as per receipt No.0867464 and the same is valid as stated above. It is also proved that, the copy of the discharge summary produced by the Complainant reveals that, he had admitted to Mangala Hospital and Mangala Kidney Foundation Mangalore, for the operation of Recurrent Laryngal Papilloma. He was admitted to the said hospital on 08.12.2008 and discharged on 16.12.2008 and he was operated on 10.12.2008 for the above said disease. The bills i.e., Ex C3 produced by the Complainant shows that he has spent Rs.36,286.78.
Now the point in dispute between the parties before this Forum is that, the Complainant contended that, the Opposite Parties not reimbursed the medical expenses spent by him i.e., Rs.33,286/- out of that only Rs.3,500/- paid by the Opposite Party and rest of the amount not paid. Apart from the above, it is submitted that, the Opposite Parties are not informed the terms and conditions or other procedures as contemplated under the scheme.
The Opposite Party interalia contended that, to avail benefit under Yashaswini scheme the beneficiary has to follow the guidelines furnished to the member. In the given case, the Complainant submitted bill, after verifying the bill, it recommended as Rs.3,500/- which is legally entitled by the Complainant and the rest of the amount is not entitled by the Complainant. And further contended that, the members are entitled the hospital charges if they are taken treatment in general ward not the special ward and the Complainant not followed the guidelines in this case.
We have perused the entire oral as well as documentary evidence, wherein, the Complainant provided with a receipt issued by the Opposite Party. In the said receipt, certain information was printed as “¸ÀÆZÀ£ÉUÀ¼ÀÄ”. No doubt, in the above receipt except the “¸ÀÆZÀ£ÉUÀ¼ÀÄ” nothing has been stated/informed to the Complainant what is the terms and conditions incorporated under the policy to avail the benefits.
As we know, the above scheme is introduced by the Government to the poor farmers who can avail the benefits under the above scheme. Under that circumstances, it is the bounden duty of the Opposite Parties to produce/provide the terms and conditions along with the receipt to avail the benefits or to make the farmers to approach the concerned hospitals. It is not sufficient just issuing a receipt. Further we find that, almost all farmers are uneducated and not well-versed with the policies introduced by the Government until and unless the printed terms and conditions and other details provided to them and explained to them. In the absence of any such disclosures either in the identity card or in the beneficiary receipt or in the brochure, it is very difficult for the beneficiaries go in search of the hospitals as well as other details which includes, which disease were covered or not under the scheme.
It is a settled law that, in case, the Opposite Parties suppresses any details, concealment of any material facts, it adversely affects the policy holder to avail benefits under the said scheme. The Hon’ble National Commission held that, 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) - the above citation is self- explanatory.
Similarly in the instant case, though the Opposite Party introduced Yashasvini Scheme for the benefit of the poor farmers, it is the bounden duty of the Opposite Parties to explain/disclose the terms and conditions to the beneficiaries to get the benefits. It is to be stated that, the above said scheme is a benevolent scheme introduced by the Government of Karnataka to provide medical assistance to the poor farmers and to protect the interest of the members of the Yashasvini Scheme holders and not otherwise.
We find that, firstly, 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/Opposite Parties. A prospectus of insurance product are required to clearly state the scope of benefits, the extent of insurance cover and in explicit manner explain the warranties, exceptions and conditions of the insurance cover/scheme. That the product shall be clearly spelt out with regard to their scope of benefits. And also 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. The Opposite Party No.3 being an agent of the Opposite Party No.1, it is a bounden duty of the Opposite Party No.3 to provide all material information by obtaining from the Opposite Party No.1 while introducing the policy to the Complainant herein.
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 trust or agent or companies/Government shall protect the interest of the beneficiaries/ consumers herein the Complainant.
In our view, the unexplained or unnoticed information regarding the disease and other terms and conditions would not be binding to the insured herein the Complainant. The reason being, the regulations are mandatory in nature so as to protect the consumer’s interest. It is a well settled law 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 Tailor vs. Tailor, 1876 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.
Similarly, in the present case, though the Government introduced the benevolent scheme to help the poor farmers it should reach to the beneficiary. As per the regulations, it provides for a manner in which a particular thing must be done, then that thing must be done in that manner only. The Opposite Party cannot contend by stating that, the Opposite Party No.1 is a trust and it is not doing any business or the policy introduced by them is not an insurance policy etc. etc. Thus, it is the duty of the Opposite Parties to disclose all the particulars and also provide all terms and conditions applicable to the scheme. Just issuing an identity card or receipt of the payment or the brochure is not sufficient. But in the present case, the Opposite Party failed to discharge their duty to disclose the particulars of the disease and other terms and conditions to the Complainant to get the benefit while issuing the identity card or related documents or subsequently. No such information furnished to the Complainant except the identity card/receipt which amounts to deficiency in service.
Therefore, we are of the considered opinion that, the Complainant being a farmer not aware of the terms and conditions and availed the hospital benefits and produced the bill before the Opposite Party as stated in the complaint. When the case is filed by the Complainant, the Opposite Party came up with terms and conditions in order to substantiate their case. At the same time, we observe that, the Opposite Party should have given all the particulars i.e., terms and conditions to the Complainant at the time of issuing an identity card/receipt, then it would have been appreciated by this Forum. The Complainant being a farmer might not have noticed what are the benefits available under the scheme but in the given case, the Opposite Party paid part payment but rest of the payment not paid to the Complainant. Since the terms and conditions not brought to the notice of the Complainant, the same is not applicable to the Complainant in this case.
As far as reimbursement of the amount is concerned, the Complainant produced Ex C2 and C3. The Ex C2 is the discharge summary, wherein, it shows that he has admitted to the above said hospital on 8.12.2008 discharged on 16.12.2008 and underwent operation under general anesthesia. The Ex C3 is the receipt issued by the Doctor i.e., ENT surgeon for Rs.10,000/- and another bill issued by Dr.Ganapathy towards anesthesia for Rs.3,500/- and the inpatient bill for Rs.22,786.78 which includes room rent Rs.800/- for 9 days, in total the Complainant spent Rs.36,286.78 but the Complainant while filing the complaint in his complaint claimed Rs.33,286/- in this case.
By considering the above, we direct the Opposite Parties to pay the balance amount i.e., Rs.29,786/- (Rs.33,286 – Rs.3,500/-) to the Complainant along with interest at 10% p.a. from 08.12.2008 till the date of payment and Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Parties are jointly and severally directed to pay to the Complainant the balance amount i.e., Rs.29,786/- (Rupees twenty nine thousand seven hundred and eighty six only) along with interest at 10% p.a. from 08.12.2008 till the date of payment and also Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 12 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 19th day of August 2010.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Ananda Gowda – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 15.4.2008: Copy of the membership receipt.
Ex C2 – 8.12.2008 : Copy of the discharge summary.
Ex C3 – : Copies of the bills(4 in Nos.).
Ex C4 –6.11.2009: O/c of the regd. Lawyer’s notice.
Ex C5 – 10.11.2009:)
Ex C6 – 9.11.2009 :) Postal acknowledgements (2 in No.s.)).
Ex C7 – 26.11.2009: Reply of 2nd Opposite Party.
Ex C8 – : Copy of the Claim Form.
Ex C9 – 12.12.2009: Copy of the pre-authorization.
Ex C10 – : Copy of the Final Bill.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri.Poovappa, Chief Executive Officer of the Opposite Party No.1.
RW2 – Sri.N.Sheenappa – Chief Executive Officer of the Opposite Party No.3.
Documents produced on behalf of the Opposite Parties:
- Nil -
Dated:19.08.2010 PRESIDENT
