BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 15th July 2010
COMPLAINT NO.62/2010
(Admitted on 20.02.2010)
PRESENT: 1. Smt. Asha Shetty, President 2.Smt.Lavanya M. Rai, Member
BETWEEN:
Manohar Acharya,
So. M. Krishnappa Acharya,
Aged about 42 years,
RA. Padibagilu House,
P.O. Sathyasai Vihara,
Alike, Dakshina Kannada. …….. 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. Manager,
Alike Service Co-operative Bank,
Alike, Bantwal Taluk,
Dakshina Kannada. ……. OPPOSITE PARTIES
(Advocate for Opposite Party No.2: Sri.H.Purushothama Bhat)
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 and paid Rs.150/- as membership to the 2nd Opposite Party as per receipt No.2066079 and it is valid for one year i.e., 04.04.2009 to 03.04.2010. When the matter stood thus, the Complainant was admitted to the City Hospital Mangalore for treatment of Crush injuries to his 3rd and 4th hand fingers on 10.06.2009 and was discharged on 17.06.2009 and spent Rs.31,639/- towards the hospital expenses. After the treatment the hospital authority has sent claim form to the 1st Opposite Party along with original discharge summary, X-ray and bills for reimbursement. The 1st Opposite Party paid only Rs.3,500/- to the Complainant. The Complainant got issued lawyers’ notice dated 11.09.2009 and the Opposite Party replied stating that if all the documents were provided the 1st Opposite Party will take necessary action to make good the remaining amount. The Complainant sent all the bills but no amount was paid till this date and hence the Complainant filed the above complaint 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.28,139/- along with interest at 12% p.a. from 10.06.2009 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 Parties appeared through their counsel filed separate version.
The 1st Opposite Party admitted that, the Complainant is a member of the Yashaswini Health Scheme and denied that he had admitted to City Hospital Mangalore for treatment of Crush injuries to his 3rd and 4th hand fingers on 10.06.2009 and discharged on 17.06.2009 and spent Rs.31,639/-. It is admitted that, the 1st Opposite Party has paid Rs.3,500/-. It is stated that, City hospital sent the documents pertaining to the Complainant to F.H.P.L for consideration. After the approval, a sum of Rs.3,500/- has paid and the Complainant is not entitled for any further payment. And further contended that, if the members are admitted in special ward, they are not entitled benefits of medical expenses except the operation charges and contended that there is no deficiency and prayed for dismissal of the complaint.
Opposite Party No.2 admitted that, the Complainant is a member of the Yashaswini Health Scheme. The 2nd Opposite Party is only the subscription/premium collection centre and there is no consideration taken from the Complainant. The Yashaswini Health Card Scheme is not a business activity of the Opposite Party No.2 and no deficiency of service committed by 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.Mahohar Acharya (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C16 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.Umesh Nayak (RW2), Chief Executive Officer of the Opposite Party No.2 filed counter affidavits and answered the interrogatories served on them. Both parties 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 the Hon'ble 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 present 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 and has paid Rs.150/- as membership to the 2nd Opposite Party as per receipt No.2066079 and it is valid for one year i.e., 4.4.2009 to 3.4.2010. As per the insurance scheme, the 1st Opposite Party will indemnify 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.150/- as membership to the 2nd Opposite Party as per receipt No.2066079 and the same is valid as stated above (as per Ex C1). It is also proved that, the original discharge summary produced by the Complainant reveals that, he had admitted to City Hospital Research and Diagnostic Centre Mangalore for the comminuted fracture of middle phalynx of 3rd and 4th digits of left hand and in the said hospital K-wire fixation and wound debridement under general anesthesia was done. He was admitted to the said hospital on 10.6.2009 and discharged on 17.6.2009. The Ex C3 to C9 i.e., the original bills (13 in numbers) proved that he has spent Rs.31,639/-.
Now the point in dispute between the parties before this forum is that, the Complainant contended that, the Opposite Party not reimbursed the medical expenses spent by him i.e., Rs.31,639/- out of that only Rs.3,500/- paid by the Opposite Party and rest of the amount not paid by the Opposite Party. Apart from that, it is submitted that, the Opposite Parties are bound to issue the membership receipt as specified by the law. The Opposite Party not issued the membership receipt nor paid the entire amount.
The Opposite Party on the other hand contended that, to avail benefit under Yashaswini scheme the beneficiary has to follow the guidelines furnished to the member and 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.
We have perused the entire oral as well as documentary evidence, wherein, the Complainant provided with a receipt and identity card issued by the Opposite Party. In the said receipt, certain information was printed as “¸ No doubt, in the above identity card except the ” nothing has been stated/ informed to the Complainant what is the terms and conditions incorporated under the policy to avail the benefits. No doubt, it is admitted by both the parties that, except the identity card and one brochure nothing has been issued to the Complainant to avail the benefit.
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 Party to produce the terms and conditions along with the identity card to avail the benefits or to make the farmers to approach the concerned hospitals. It is not sufficient just issuing an identity card. As we know, 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 disclosure 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 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. 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 Party 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 started 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. 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. The Opposite Party No.2 being an agent of the Opposite Party No.1, it is a bounden duty of the Opposite Party No.2 to provide all material information by obtaining from the Opposite Party No.1 while introducing the policy to the Complainant.
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. 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 then that which has been prescribed.
Similarly in the present case, though the Government introduced the benevolent scheme it should reached to the beneficiary. As per the regulations 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 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 i.e., Rs.31,639/-. When the case is filed by the Complainant, the Opposite Party came up with all relevant documents in order to substantiate their case. At the same time, we observed 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 then it would have been appreciated by us. 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. By considering the above, we direct the Opposite Parties to pay the balance amount i.e., Rs.28,139/- to the Complainant along with interest at 10% p.a. from 10.06.2009 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 Party No.1 and 2 are jointly and severally directed to pay to the Complainant the balance amount i.e., Rs.28,139/- (Rupees twenty eight thousand one hundred and thirty nine only) along with interest at 10% p.a. from 10.06.2009 till the date of payment and 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 11 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 15th day of July 2010.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Mahohar Acharya – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 04.04.2009: Copy of the membership receipt along with identity card.
Ex C2 – 10.062009: Discharge summary issued by City Hospital Research and Diagnostic Centre.
Ex C3 to C9 – : Original bills (7 in numbers) for Rs.31,529/-.
Ex C10 – 11.09.2009: Copy of the lawyer’s notice issued to the Opposite Parties.
Ex C11 – 28.10.2009: Reply of the Opposite Party to the above legal notice.
Ex C12 & C13 - : Postal acknowledgement (2 in numbers)
Ex C14 – 21.11.2009: Letter of the Complainant’s counsel to the Opposite Party.
Ex C15 - : Postal acknowledgement.
Ex C16 - : Pamphlet issued by the 1st Opposite Party.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri.Poovappa, Chief Executive Officer of the Opposite Party No.1.
RW2 – Sri.Umesh Nayak, Chief Executive Officer of the Opposite Party No.2.
Documents produced on behalf of the Opposite Parties:
- Nil -
Dated:15.07.2010 PRESIDENT
