BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 24^th of February 2011

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.244/2010

(Admitted on 09.09.2010)

Gopalakrishna,

So. Shankara Bhat,

Aged about 45 years,

RA. Kelanja,

Sullia Taluk.                            …….. COMPLAINANT

(Advocate for the Complainant: Sri.Sanjay D).

          VERSUS

1. Chief Executive Officer,

Yashaswini Co-operative Farmers

     Health Care Scheme,

6^th Floor, M.S. Building,

Co-Op. Secretariat,

Ambedkar Veedi,

Bangalore – 1.

2. Manager,

Family Health Plan Ltd.,

No.45, Millars Road,

Vasanth Nagar,

Bangalore – 52.

(Advocate for Opposite Party No.1 & 2: Sri.Thimmayya P.)

3. Manager,

Kalenja Balila Co-operative Agricultural Bank,

Sullia Taluk,

Dakshina Kannada.                        ……. OPPOSITE PARTIES

(Advocate for the Opposite Party No.3: Sri.Rajesh K.G.)

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant along with 7 family members became the members of Yashaswini Health Scheme and the same is valid for one year i.e., 24.04.2008 to 24.04.2009.  The Opposite Parties issued an I.D. number to the Complainant as 02411112.  As per the above scheme, the Complainant is entitled for the medical expenses. 

It is stated that, on 24.07.2008 the Complainant admitted at City Hospital, Mangalore and underwent operation to left shoulder and spent a total amount of Rs.31,175/- and was discharged on 30.07.2008.

It is stated that, the hospital has sent a request for pre-authorization but the 1^st Opposite Party has sanctioned only Rs.9,000/- as against Rs.31,175/-.  Thereafter the Complainant issued Lawyer’s notice calling upon the Opposite Parties to pay the entire amount but the Opposite Parties not settled the entire amount. 

The another allegation of the Complainant is that, the Opposite Parties have not served either the policy or the conditions of the above Health Scheme and the Complainant is not aware of the terms and conditions of the above Scheme. The act of the Opposite Parties amounts to deficiency and hence the above complaint filed 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.22,175/- along with interest at 12% p.a. from 27.09.2008 till payment and also claimed Rs.30,000/- as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version.

Opposite Party No.1 and 2 admitted the membership but stated that, in order to avail the benefits of the Yashaswini Scheme, the member has to follow the procedures prescribed under the scheme.  The Complainant not followed the procedure in order to claim the medical expenses under the scheme.  As per the procedure, the Complainant has to submit the membership card to the network hospital before admitting to the hospital.  The City Hospital sent the documents pertaining to the Complainant to the 2^nd Opposite Party for consideration, after verifying the bill the 2^nd Opposite Party recommended only a sum of Rs.9,000/- which is legally entitled by the Complainant and the same has been paid to the City Hospital.  It is stated that, 1^st Opposite Party fixed the amount for each surgery and the same is paid to the Complainant and stated that there is no deficiency and prayed for dismissal of the complaint.

Opposite Party No.3 stated that, the membership of the 1^st Opposite Party is compulsory as per the Government circulars.  The 3^rd Opposite Party is only collecting agent, this Opposite Party is nothing to do regarding the reimbursement of the medical expenses of the surgical operation to the members and stated that, there is no deficiency and stated that, this Opposite Party made an unnecessary 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:

1. Whether the Complainant proves that the Opposite Parties committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Sri.Gopalakrishna (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   The Complainant produced nine (9) documents as listed in the annexure.  One Sri.Poovappa (RW1), Chief Executive Officer of the Opposite Party No.1 and one Sri.Shankara Narayana Bhat (RW3), Chief Executive Officer of the Opposite Party No.3 filed counter affidavits and answered the interrogatories served on them. One Smt.Sathyashree (RW2), Manager of the Opposite Party No.2 filed counter affidavit but not answered the interrogatories served on her.  Ex R1 to R9 were marked for the Opposite Parties as listed in the annexure.   The Complainant as well as Opposite Party No.1 and 2 filed notes of arguments.

          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):

That 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 Co-operative farmers and their family members in the year 2003.  It is also admitted that, the Complainant along with the family members obtained the membership of Yashaswini Health Scheme and holder of I.D. card bearing No.0211112 (as per document No.3).  It is also admitted that, under the above scheme, the members are entitled for reimbursement of the medical expenses. 

In the instant case, the Complainant came up with a complaint stating that, he had admitted to City Hospital, Mangalore on 24.7.2008 and underwent operation to the left shoulder and spent a total amount of Rs.31,175/- and discharged on 30.7.2009.  The hospital has sent request for pre-authorization but the Opposite Party sanctioned only Rs.9,000/- as against Rs.31,175/- which is not correct and further alleged that, the Complainant was not served either the policy or the conditions if any under the policy and he is not aware of the terms and conditions and other details. 

The Opposite Party No.1 and 2 interalia contended that, to avail benefit under Yashaswini scheme, the beneficiary has to follow the procedures prescribed under the scheme.  In order to claim any amount under the scheme, the member has to undergo operation in any of the network hospital earmarked by the trust. Further contended that, the City Hospital sent the documents pertaining to the Complainant to the 2^nd Opposite Party for consideration.  After verifying the bill, the 2^nd Opposite Party recommended only Rs.9,000/- which is legally entitled by the Complainant and stated that, the 1^st Opposite Party fixed the amount for each surgery as per Ex R2 and the same is paid to the Complainant. 

In order to prove the case of the Complainant, the Complainant filed oral evidence by way of affidavit and produced nine (9) documents.  Opposite Parties also filed evidence of RW1 to RW3 by way of affidavits and produced Ex R1 to R9.

On scrutiny of the oral as well as documentary evidence available on record, we find that, the above scheme is introduced by the Government to the poor farmers who can avail benefits under the Yashaswini Scheme.  But in the instant case, the Complainant became the member of the Yashaswini Scheme along with his family members and the Opposite Parties in turn issued identity card bearing No.0211112 (as per document No.3).  During the existence of the scheme, the Complainant admitted to the hospital.  The document No.5 is the final bill issued by the City Hospital Research and Diagnostic Centre Mangalore reveal that, the Complainant admitted to the hospital on 24.7.2008 and discharged on 30.7.2008 and spent Rs.12,747/-.  The above said final bill does not include the consultation charge of the surgeon Dr.Sudhakar Shetty and his assistants.  The Complainant produced document No.5 i.e., the receipt for Rs.19,247/- which reveals that, the Complainant paid Rs.9,000/- to the surgeon Dr.Sudhakar Shetty and his assistants paid Rs.7,500/-.

In the instant case, the Opposite Parties stated that, they have paid Rs.9,000/- to the Complainant but rest of the amount not paid to the Complainant and relied Ex R2 i.e., the surgery list mentioning the name of the surgery and the amount fixed for the surgery issued b y Chief Executive Officer, Yashasvini Co-operative Farmers Healthcare Trust.  The above document produced by the Opposite Parties for the 1^st time before this FORA during the pendency of this case.  It is not the case of the Opposite Parties that, the above document was within the knowledge of the Complainant. 

However, we have reproduced the Identity card issued by the Opposite Parties in this case, which reads thus:

0iÀıÀ¹é¤ ¸ÀºÀPÁgÀ gÉÊvÀgÀ DgÉÆÃUÀå gÀPÀëuÁ 0iÉÆÃd£É

¥sÀ¯Á£ÀĨsÀ«UÀ¼À UÀÄgÀÄw£À aÃn ªÀÄvÀÄÛ gÀ¹Ã¢

[¸ÀzÀ¸ÀågÀ G¥À0iÉÆÃUÀPÁÌV]

ªÉÄÃ¯É £ÀªÀÄÆ¢¹gÀĪÀ ªÀiÁ»w0iÀÄ ¥ÀæPÁgÀ J®ègÀÆ £À£Àß PÀÄlÄA§zÀ ¸ÀzÀ¸ÀågÁVgÀÄvÁÛgÉAzÀÄ F ªÀÄÆ®PÀ zÀÈrüÃPÀj¸ÀÄvÉÛãÉ. 

8 ¸ÀzÀ¸ÀåjAzÀ gÀÆ.816-00 UÀ¼À£ÀÄß 0iÀıÀ¹é¤ 0iÉÆÃd£ÉUÉAzÀÄ ºÁUÀÆ gÀÆ. 80-00UÀ¼À£ÀÄß UÁæ.¥À.¸ÀA. ¥ÉÇæÃvÁìºÀ zsÀ£ÀªÉAzÀÄ MlÄÖ ªÉÆvÀÛ gÀÆ. 896-00UÀ¼À£ÀÄß ªÉÄÃ¯É £ÀªÀÄÆ¢¹gÀĪÀ ¸ÀzÀ¸ÀåjAzÀ ¹éÃPÀj¸À¯ÁVzÉ.

¸ÀÆZÀ£É: £ÉÆÃAzÀt £ÀªÀÄÆ£É0iÀÄ°è £ÀªÀÄÆ¢¹gÀĪÀ ¥ÀæPÁgÀ PÀæªÀĪÁV ¸ÀzÀ¸ÀågÀ ºÉ¸ÀgÀÄUÀ¼À£ÀÄß ZÁZÀÆ vÀ¥ÀàzÉ £ÀªÀÄÆ¢¸ÀvÀPÀÌzÀÄÝ, vÀ¥ÀÅöàUÀ¼ÁzÀ°è UÁæ.¸À.¸ÀA.PÁ0iÀÄðzÀ²ðUÀ¼ÀÄ/ ªÀiÁå£ÉÃdgïgÀªÀgÀÄ dªÁ¨ÁÝgÀgÁUÀÄvÁÛgÉ ºÁUÀÆ aQvÉì ¤ÃqÀ®Ä «¼ÀA§ªÁUÀ§ºÀÄzÀÄ CxÀªÁ F gÀ²Ã¢0iÀÄ£ÀÄß ªÀiÁ£ÀåªÀiÁqÀ¯ÁUÀzÀÄ.

ªÀAwUÉ ¸ÀPÁðgÀzÀ ¸ÀÄvÉÆÛÃ¯É ¥ÀæPÁgÀ ¥sÀ¯Á£ÀĨsÀ«UÀ¼ÁUÀ®Ä ¥Àæw0iÉƧ⠸ÀzÀ¸ÀågÀÄ gÀÆ.120/-UÀ¼À£ÀÄß 0iÀıÀ¹é¤ 0iÉÆÃd£ÉUÉ ºÁUÀÆ gÀÆ.10/-£ÀÄß ¸ÀAWÀzÀ ¥ÉÇæÃvÁìºÀ ºÀtªÉAzÀÄ MlÄÖ ªÉÆvÀÛ gÀÆ.130/-£ÀÄß ¥ÁªÀw ªÀiÁqÀvÀPÀÌzÀÄÝ.

The above said I.D card does not disclose any terms and conditions to avail the benefit under the scheme.

However, 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 the terms and conditions along with the I.D. card to the members to avail the benefits.  But in the instant case, the Opposite Parties issued an I.D card which do not disclose the terms and conditions as well as other procedures to claim the amount.  Further, almost all farmers/members 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 and explained to them in the regional language known to them.  In the absence of any such disclosure either in the I.D card or in the beneficiary receipt or in the brochure, it is very difficult for the beneficiary/ members to avail the benefits. 

Further it is a settled law that, in case, the Opposite Parties suppresses any details, concealment of any material facts, it adversely affects the policy/scheme.  The Hon’ble National Commission held that, “the exclusion clauses if not explained they are not binding on the insured.  Those exclusion clauses are required to be ignored if mandatory requirement of explaining exclusion clause not adhered by insurer/agent before issuance of insurance cover. [reported in 2009 III CPJ 246 (NC)].  In another case, the Hon’ble National Commission has held that, when statute provides manner in which particular thing must be done, same must be done in that manner only.  [reported in 2007 III CPJ 34 (NC)]. 

Similarly in the instant case, though the Opposite Parties introduced Yashaswini Scheme for the benefit of the poor farmers, it is the bounden duty of the Opposite Parties to explain/disclose the terms and conditions, hospital names and details of the surgery and its amount i.e., Ex R2 to the beneficiaries/members to get the benefits.  It is to be stated that, the above said scheme is a benevolent scheme started by the Government of Karnataka to provide medical assistance to the poor farmers and to protect the interest of the members of the Yashaswini Scheme holders. Firstly, the Opposite Party should see that, the terms of the Insurance Scheme do not operate harshly against the insured and in favour of the insurer.  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 and 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.  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 with regard to the benefits which includes the name of the hospitals and other information with regard to the surgery and its amount as disclosed in Ex R2 would not be binding to the insured.  The reason being, the regulations are mandatory in nature so as to protect the member/ 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 Taylor vs. Taylor 1876 1 Ch.D 426 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”.   The principle behind the rule is that if these were not so, the statutory provision might as well would have not been enacted.  [III (2007) CPJ 34 (NC)]. 

Even in the present case, though the Government introduced the benevolent scheme, cannot overlook the Regulation laid down under the Insurance Regulatory and Development Authority (Protection of Policy Holder’s Interest), Regulations, 2002, framed by Insurance Regulatory and Development Authority.  Thus, it is the duty of the Opposite Parties to disclose the terms and conditions/procedures/hospital names and all other details notified by the Government under the scheme while issuing the Identity Card or beneficiary receipt or the brochure.  But the Opposite Parties failed to discharge their duty to disclose the above terms and conditions or failed to brought to the notice of the Complainant to get the benefit while issuing the Identity Card or related documents.  There is no material evidence produced before this FORA to show that, the terms and conditions to avail the benefit under the scheme is within the knowledge of the Complainant.  In the absence of the same, the Complainant cannot be blamed.  Non-furnishing the details/terms and conditions to the Complainant under the scheme amounts to deficiency and at the same time the terms and conditions claimed by the Opposite Parties at this stage is not binding on the Complainant.   

In view of the above discussion, we are of the considered opinion that, the terms and conditions produced by the Opposite Parties at this stage is not binding on the Complainant, hence the Opposite Parties No.1 and 2 are hereby directed to pay the balance amount i.e., Rs.22,175/- to the Complainant towards the medical expenses (as per Ex C5).  Further directed to pay Rs.5,000/- as compensation for the harassment and inconvenience caused to the Complainant  and Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

There is no contractual relationship between the Complainant and Opposite Party No.3 under the scheme, hence complaint against Opposite Party No.3 is hereby dismissed.

6.       In the result, we pass the following:                          

ORDER

The complaint is partly allowed.  Opposite Party No.1 and 2 are jointly and severally directed to pay to the Complainant the balance amount i.e., Rs.22,175/- (Rupees twenty two thousand one hundred and seventy five only) as per Ex C5.  Further directed to pay Rs.5,000/- (Rupees five thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses to the Complainant. Payment shall be made within 30 days from the date of this order.

On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party No.1 and 2 are directed to pay interest at the rate of 10% p.a. on the total amount from the date of failure till the date of payment.

Complaint against Opposite Party No.3 is hereby dismissed.

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 14 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 24^th day of February 2011.)

PRESIDENT                    MEMBER                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Sri.Gopalakrishna – Complainant.

Documents produced on behalf of the Complainant:

Doc. No.1 – 06.05.2007: Receipt No.994 for Rs.120/-.

Doc. No.2 – 25.04.2008: Receipt No.535 for Rs.112/-.

Doc. No.3 –                 : Copy of the I.D. Card.

Doc. No.4 – 24.07.2008: copy of the Self-Declaration.

Doc. No.5 – 30.07.2008: Final bills issued by the City Hospital Research and Diagnostic Centre Mangalore.

Doc. No.6 – 17.08.2009: Lawyer’s notice issued to the Opposite Parties on behalf of the Complainant.

Doc. No.7 & 8 -             : Postal acknowledgements (2 in numbers).

Doc. No.9 – 29.09.2009: Reply of the 1^st Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

RW1 – Sri.Poovappa, Chief Executive Officer of the O.P.No.1.

RW2 – Smt.Sathyashree, Manager of the Opposite Party No.2.

RW3 – Sri.Shankara Narayana Bhat, Chief Executive Officer of the Opposite Party No.3.

Documents produced on behalf of the Opposite Parties: 

Ex R1 – 10.11.2003: Copy of the Trust Deed.

Ex R2 -                 : Copy of the list of operations and charges fixed by the trust.

Ex R3 –              : Copy of the pre-authorization sent by the City Hospital.

Ex R4 – 04.09.2009: Reply by the Opposite Party No.3.

Ex R5 – 28.01.2008: Circular of the Government of Karnataka.

Ex R6 – 04.02.2008: Copy of the letter issued by SCDCC Bank.

Ex R7 – 28.02.2008: Copy of the letter issued by SCDCC Bank.

Ex R8 – 19.02.2008: Circular of the Government of Karnataka.

Ex R9 – 07.09.2010: Copy of the courier receipt.

Dated:24.02.2011                            PRESIDENT