BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                                Dated this the 31^st of January 2011

PRESENT

                                               SMT. ASHA SHETTY           :   PRESIDENT

                                                                   SMT.LAVANYA M. RAI       :   MEMBER

                                                                 SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.209/2010

(Admitted on 31.07.2010)

Mahammad,

So. Ummar,

Aged about 62 years,

RA. Mura House, Neharu Nagar,

Puttur, Dakshina Kannada.                         …….. 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-operative Secretariat,

Ambedkar Veedi,

Bangalore – 575 001.

2. Manager,

Family Health Plan Ltd.,

No.45, Millers Road,

Vasanthanagar,

Bangalore – 52.

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

3. Manager,

Bannuru Rythara Seva Sahakari Bank,

Bolwar, Puttur.

(Advocate for the Opposite Party No.3: Sri.M.Gopalakrishna).

4. Managing Director,

Chethan Hospital

Near Mahamaya Temple,

Puttur, Dakshina Kannada.          ……. OPPOSITE PARTIES

(Advocate for Opposite Party No.4: Sri.M.S.Krishna Prasad).

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

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:

Complainant along with the family members became the member of Yashaswini Health Scheme of the 1^st Opposite Party and holder of I.D. No. 2064465. The said scheme was valid from  19.06.2009 to 19.06.2010.  The 2^nd Opposite Party is the Third Party Administrator and 4^th Opposite Party is the Hospital where the Complainant was treated.  It is stated that, as per the Medical Insurance Scheme, the Complainant is entitled for reimbursement of the medical expenses. 

It is stated that, the Complainant was admitted to the 4^th Opposite Party hospital i.e., Chethana Hospital Puttur, for fracture injury due to fall on 25.08.2009 and taken treatment and spent    Rs.20,211/- towards the treatment.  The Complainant was discharged on 01.09.2009.  At the time of discharge, 4^th Opposite Party has informed the Complainant that they have sent the request for pre-authorization and claim form to the 1^st and 2^nd Opposite Party on 25.08.2009.  As per the information provided by the 4^th Opposite Party the claim was sent 8 months back but the Complainant has not received any information or claim amount till today.  Hence, the Complainant issued Lawyer’s notice dated 13.05.2010 to the Opposite Parties but the Opposite Parties not complied the demand made therein, hence the above complaint is filed 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.20,211/- along with interest at 12% p.a. from 01.09.2009 till payment and also claimed Rs.20,000/- as compensation and cost of the proceedings.

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

Opposite Party No.1 and 2 admitted the membership of the Complainant and also validity of the policy and the I.D. of the Complainant.  The Opposite Party No.1 and 2 stated that, in order to avail the benefit of the Yashaswini Health Scheme the member has to follow the procedure prescribed under the scheme.  Further to claim any amount, the member has to be operated in any of the network hospital earmarked by the trust.  If the member treated without pre-authorization, Opposite Parties are not liable to pay any amount to the Complainant.  In the instant case, no such pre- authorization was taken nor reports furnished before discharge of the Complainant.  The 2^nd Opposite Party received the pre- authorization request from the 4^th Opposite Party on 2.9.2009 i.e., after the discharge of the Complainant alleging that the probable date of admission is 11.9.2009 and probable date of discharge is 13.9.2009.  Thereafter, 4^th Opposite Party was requested to furnish x-ray report, non MLC and history of the injury.  But the 4^th Opposite Party not complied the same and also stated that, the Complainant has taken treatment in special ward which is not covered under the Yashaswini Health Scheme and stated that, there is no deficiency and they are not liable to pay any amount. 

Opposite Party No.3 submits that, this Opposite Party is a co-operative bank, wherein, the Complainant is one of the member and this Opposite Party has followed the Government circular dated 06.8.2009 and done its part of the job by informing the 1^st Opposite Party as per the request letter dated 28.7.2009 to provide necessary benefits to the Complainant.  It is stated that, this Opposite Party has nothing to do with the liability to pay – reimburse the medical expenditure incurred by the Complainant and not committed deficiency of service whatsoever and prayed for dismissal of the complaint.

Opposite Party No.4 i.e., the hospital stated that, the Complainant got himself admitted to their hospital on 25.8.2009, at the time of admission the Complainant had not submitted the proper and correct self-declaration form.  In view of the urgency, he was operated on 26.08.2009.  It is further stated that, since there was discrepancy in the self-declaration form submitted by the Complainant, he was asked to submit the same in proper form.  The Complainant had submitted the proper self-declaration form duly signed by the Society with covering letter on 27.08.2009.  The pre-authorization request letter was sent thereafter, 3 days later (i.e., on 02.09.2009) as there was computer internet server problem till then the Yashaswini server could not be contacted on internet.  Confirmation was received only on 04.09.2009 to sent O.T. Note etc.  In the meanwhile, Complainant after clearing bills was discharged on 01.09.2009.  The letter by 3^rd Opposite Party dated 27.08.2009, is self-explanatory to the effect that premium was paid on 27.08.2009, as time payment of same had been extended till 31.08.2009.

Further stated that, the facts narrated above make it clear that since there was no proper self-declaration the papers could not be sent at the initial stage.  However, the papers were sent later when the same was resubmitted by the Complainant.  Since there was no confirmation to pre-authorization request from the Opposite Party, the further papers could not be forwarded in the matter immediately or in time and stated that there is no deficiency 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, Mahammad (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C12 were marked for the Complainant as listed in the annexure.   One Sri.Poovappa (RW1), Chief Executive Officer of the Opposite Party No.1, one Smt.Sathyashree (RW2), Manager of the Opposite Party No.2, one Mr.P.D. Haroon Rasheed (RW3), Managing Director of Opposite Party No.3 and one Miss.Preethika Shetty (RW4), Office Assistant of the Opposite Party No.4 filed counter affidavits and answered the interrogatories served on them.  Ex R1 to R10 were marked for the Opposite Parties as listed in the annexure.   The Complainant filed notes of arguments along with copy of the appeal order.  Opposite Party No.1 to 3 produced 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) to (iv): 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 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 introduced by the 1^st Opposite Party and paid Rs.150/- each as membership fee.  The above said scheme was valid for one i.e., from 19.06.2009 to 19.6.2010 (as per Ex C1).  It is also admitted that, the Opposite Party issued unique I.D. number to the Complainant as 2064465.  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 the 4^th Opposite Party hospital for fracture injury due to fall on 25.8.2009 and spent a total amount of Rs.20,211/- for the treatment and discharged on 1.9.2009.  The Complainant has settled all the bills to the 4^th Opposite Party.  At the time of discharge, 4^th Opposite Party hospital has informed the Complainant that they have sent the request for pre-authorization and claim form to the 1^st and 2^nd Opposite Party.  But till this date Complainant not received the claim, hence this complaint. 

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 4^th Opposite Party has not obtained pre-authorization request.  The 2^nd Opposite Party has received the pre-authorization request from the 4^th Opposite Party with probable date of admission is 11.9.2009 and probable date of discharge is 13.9.2009.  The 4^th Opposite Party was requested to furnish the X-ray report, non MLC and history of the injury but 4^th Opposite Party not complied the same and stated that they are not liable to reimburse the claim.  Rest of the Opposite Parties denied that they are not liable to pay any claim and also denied the deficiency as alleged by the Complainant. 

In order to prove the case of the Complainant, the Complainant filed oral evidence by way of affidavit and produced Ex C1 to C12.  Opposite Parties also filed evidence of RW1 to RW4 by way of affidavits and produced Ex R1 to R10.

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 and the Opposite Parties issued identity card bearing No.2064465 (as per Ex C1).  During the existence of the policy the Complainant admitted to the hospital.  The Ex C3 is the discharge summary issued by Chethana Hospital, Puttur i.e., 4^th Opposite Party, wherein, it reveals that, the Complainant came to the hospital on 25.8.2009 with the complaint of severe pain and unable to walk with a history of fall and got injury, he has been treated as inpatient and discharged on 1.9.2009 from the hospital.    Further, the Ex C5 and C6 are the bills issued by 4^th Opposite Party reveals that, he has spent Rs.20,211/- for the treatment. 

From the above records as well as the evidence of the 4^th Opposite Party in their evidence para No.3 admitted that, in view of urgency and seriousness condition of the patient/Complainant, he was operated on 26.8.2009.  That means, the case of the Complainant was serious and treated emergently.  In the instant case, 1^st and 2^nd Opposite Party contended that, 4^th Opposite Party has sent pre-authorization request after the discharge and not before the commencement of the treatment.  But it is not disputed that, the Complainant is not at all admitted to the Chethana Hospital or spent Rs.20,211/-.  The document i.e., Ex C3 clearly reveals that, the Complainant was admitted to Chethana hospital Puttur on 25.08.2009, operated on 26.08.2009 and discharged on 01.09.2009.  The Opposite Party No.1 and 2 not reimbursed the claim just because the Complainant as well as the hospital i.e., 4^th Opposite Party not followed the procedure while processing the claim.  No doubt, in order to claim medical benefit under the Scheme, there should be a guidelines or terms and conditions to the members.  But in the instant case, the Ex C1 i.e., identity card issued by the Opposite Parties, wherein, certain information was printed as “¸ÀÆZÀ£ÉUÀ¼ÀÄ”.  Except the “¸ÀÆZÀ£ÉUÀ¼ÀÄ” nothing has been stated/ incorporated in the said receipt.  But it does not disclose the hospitals name or the procedure after admitting the hospital etc. etc.  The Yashaswini Health Scheme is introduced with the intention to get benefit to the poor farmers and not to avoid the benefit by raising technical reasons.  It is the bounden duty of the Opposite Parties to disclose/provide the terms and conditions and details of the hospitals and other particulars along with I.D. card to avail the benefits.  Just issuing an I.D. card is not sufficient, it must contain all the particulars.  In the absence of any such disclosures either in the I.D. card or in the brochure, it is very difficult for the members go in search of the hospitals as well as other procedures.  The Clause No.21 of the brochure discloses that, “0iÀıÀ¹é¤ ¥sÀ¯Á£ÀĨsÀ«UÀ¼ÀÄ ±À¸ÀÛçaQ¸Éì ¨ÉÃPÁzÀ°è vÀªÀÄä 0iÀÄƤPï L.r. ¸ÀASÉå ºÉÆA¢zÀ ªÀÄÆ® UÀÄgÀÄw£À aÃn0iÉÆA¢UÉ F 0iÉÆÃd£É0iÀÄr0iÀÄ°è CAVÃPÀÈvÀªÁzÀ D¸ÀàvÉæUÉ ¨sÉÃn ¤ÃqÀ¨ÉÃPÀÄ.  D¸ÀàvÉæ0iÀÄ ªÉÊzÁå¢üPÁjUÀ¼ÀÄ CAvÀºÀ ¥sÀ¯Á£ÀĨsÀ«UÀ¼À DgÉÆÃUÀå vÀ¥Á¸ÀuÉ ªÀiÁr ±À¸ÀÛçaQvÉì CªÀ±Àå PÀAqÀħAzÀ°è ªÀÄvÀÄÛ ¸ÀzÀj ±À¸ÀÛçaQvÉì0iÀÄÄ 0iÉÆÃd£É0iÀÄ°è M¼ÀUÉÆArzÀÝ°è «ªÀgÀUÀ¼ÉÆA¢UÉ – J¥sï.ºÉZï.¦.J¯ïUÉ EAlgï£Émï ªÀÄÄSÁAvÀgÀ ¥Àæ¸ÁÛ¥À PÀ½¸ÀĪÀgÀÄ.  J¥sï.ºÉZï.¦.J¯ï ¥Àæ¸ÁÛ¥ÀªÀ£ÀÄß ¥Àj²Ã°¹ ¥ÀǪÁð£ÀĪÀÄw ¤ÃqÀĪÀÅzÀÄ”.    When that is so, it is the duty of the Opposite Party to disclose the hospitals name notified by the Government under the scheme while issuing the I.D. card or the beneficiary receipt or the brochure.  No doubt in the instant case, the 4^th Opposite Party admitted that, the self-declaration form was received by the society i.e., 3^rd Opposite Party on 27.8.2009 with covering letter, as there was computer/ internet server problem, they have sent the pre-authorization request letter after 3 days i.e., on 02.9.2009.  The confirmation was received only on 04.9.2009 to send the O.T note etc., in the meanwhile, the Complainant after clearing the bills was discharged on 01.09.2009.  That itself shows that, there was no fault whatsoever on the part of the Complainant.  Because of the technical problem, the claim of the Complainant could not be processed by the 4^th Opposite Party in time. Just because the 4^th Opposite Party not sent the pre-authorization letter in time that too in a case of emergency, the Opposite Parties cannot avoid the claim of the Complainant by raising technical reasons.  It is not the case of the Opposite Parties that, Complainant had not taken treatment in the above said hospital.  When the complications were developed suddenly he has to undergo emergent attention by the nearby hospital.  In the instant case, the Complainant took emergent treatment in 4^th Opposite Party hospital.  Under that circumstances, the Opposite Party cannot avoid the payment of claim of the Complainant.  Apart from that, Opposite Parties also not disclosed the procedures as well as information of the hospitals to the Complainant. 

It is a settled law that, in case, the Opposite Parties suppresses any proof, concealment of any material facts it adversely affects the policy.  The Regulation 3 of the Insurance Regulatory and Development Authority (Protection of Policy Holder’s Interests) Regulations, 2002, framed by Insurance Regulatory and Development authority (IRDA) in exercise of powers under Section 114 (A) of the Insurance Act,  1938, read with Sections 14 and 26 of the Insurance Regulatory and Development Authority Act 1999 – the 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).  That means, the 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.  The above citation is self-explanatory. 

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 hospital names to the beneficiaries 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.  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. 

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 hospitals would not be binding to the insured.  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 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, it 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 in exercise of powers under Section 114(A) of the Insurance Act, 1938 read with Sections 14 and 26 of the Insurance Regularly and Development Authorities Act, 1999.  Thus, it is the duty of the Opposite Parties to disclose the hospital names 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 hospital names or to bring within the knowledge of the Complainant to get the benefit while issuing the Identity Card or related documents or subsequently.  There is no material evidence produced before this FORA to show that, the details of the network hospitals were issued/disclosed to the Complainant till this date amounts to deficiency in service. 

In view of the above discussion, we are of the considered opinion that, though the Opposite Parties received the membership fee under the Yashaswini Scheme and admitted that, the Complainant is one of the member under the Yashaswini Scheme and the said scheme is valid to avail medical benefits for one year, but the Opposite Party No.1 and 2 raising a technical reasons not reimbursed the medical expenses of Rs.20,211/- stating that the Complainant has not followed the procedures prescribed under the scheme without serving the terms and conditions/names of the network hospitals and other information is not correct which amounts to deficiency as stated supra.  Under that circumstances, we direct the Opposite Party No.1 and 2 to reimburse Rs.20,211/- to the Complainant towards the medical expenses as per Ex  C5 and C6 and also pay compensation of Rs.5,000/- for the harassment and inconvenience caused to the Complainant.  Further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

There is no deficiency on the part of the Opposite Party No.3 and 4; hence complaint against Opposite Party No.3 and 4 is hereby dismissed.

6.       In the result, we pass the following:                          

ORDER

The complaint is partly allowed.  Opposite Party No.1 and 2 are directed to reimburse the medical expenses of Rs.20,211/- (Rupees twenty thousand two hundred and eleven only) to the Complainant and 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. 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 12% p.a. on the total amount from the date of failure till the date of payment.

          Complaint against Opposite Party No.3 and 4 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 17 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31^st day of January 2011.)

PRESIDENT                     MEMBER                             MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Mohammad – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 25.08.2009 & 19.06.2009: Copy of the membership receipts (7 in numbers).

Ex C2 – 27.08.2009: Letter issued by the Opposite Party No.3.

Ex C3 – 25.08.2009: Copy of the Discharge Summary issued by Chetana Hospital, Puttur.

Ex C4 – 26.08.2009: Blood test receipt for Rs.545/- issued by Rotary – Campco Blood Bank, Puttur.

Ex C5 – 01.09.2009: Bill issued by 4^th Opposite Party for  Rs.13,931/-.

Ex C6 – 01.09.2009: Bill issued by 4^th Opposite Party for Rs.6,280/-.

Ex C7 – 13.05.2010: Lawyer’s notice issued to the Opposite Parties in favour of the Complainant.

Ex C8 to C11 –        : Postal acknowledgement (4 in numbers).

Ex C12 – 29.05.2010: Reply of the Opposite Party No.3.

Witnesses examined on behalf of the Opposite Parties:

RW1 – Sri.Poovappa, Chief Executive Officer of the Opposite Party No.1.

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

RW3 – Mr.P.D. Haroon Rasheed, Managing Director of Opposite Party No.3.

RW4 – Miss.Preethika Shetty, Office Assistant of the Opposite Party No.4.

Documents produced on behalf of the Opposite Parties: 

Ex R1 – 10.11.2003: Copy of the Trust Deed.

Ex R2 – 25.05.2008: Copy of the membership receipt.

Ex R3 –                :  Original pamphlet.

Ex R4 –                : Original Pre-authorization request report.

Ex R5 – 27.08.2009: Photostat copy of Self Declaration given by the Complainant.

Ex R6 – 27.08.2009: Copy of the letter of Opposite Party No.3.

Ex R7 – 25.08.2009: Photostat copy of the summary sheet issued by Chetana Hospital.

Ex R8 – 25.08.2009: Photostat copy of the case sheet and other treatment records issued by Chetana Hospital (it contains 14 pages).

Ex R9 –                 : Photostat copies of receipts (7 in numbers) and copy of the I.D. card issued by Opposite Party No.3.

Ex R10 – 25.10.2010: Reply letter issued by the Opposite Party No.4 to the Complainant’s legal notice dated 18.09.2010.

Dated:31.01.2011                                    PRESIDENT