BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 28th of February 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.313/2010
(Admitted on 12.11.2010)
Mr.Joseph Montero,
S/o. Late Marcel D’Souza,
Aged about 34 years,
R/A. Manila House,
Punacha Village,
Bantwal Taluk. …….. 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-Op. Secretariat,
Ambedkar Veedi,
Bangalore – 1.
(Advocate for Opposite Party No.1: Sri.Thimmayya P.)
2. Manager,
Family Health Plan Ltd.,
No.45, Millars Road,
Vasanth Nagar,
Bangalore – 52.
(Opposite Party No.2: Exparte)
3. Manager,
Punacha Service Co-operative Bank Limited,
Punacha,
Bantwal Taluk. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.3: Sri.P.Jayarama Rai).
***************
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 his wife and son became the member of Yashaswini Health Scheme and the same is valid for one year as per receipt No.2062455 for the year 2005-06. As per the above scheme, the Complainant is entitled for the medical expenses.
It is stated that, the wife of the Complainant Mrs.Preethi Manjula has underwent a surgical operation of Laparoscopic Adhesioly for abdominal pain at Dhanvanthiai Hospital Puttur on 11.5.2009 and was discharged on 15.05.2009 and spent an amount of Rs.16,223/- for the above operation. Thereafter, the Complainant has sent the claim papers to the 2nd Opposite Party on 31.05.2009 but so far the claim has not been paid by the Opposite Parties. Hence, the Complainant issued a Lawyer’s notice on 06.08.2009 to the 2nd and 3rd Opposite Party despite of receiving the above claim not honoured the claim till this date.
The further allegation of the Complainant is that, the membership receipt issued by the Opposite Party is vague and does not contain the details i.e., the name of the network hospitals, procedure of the pre-authorization, name of the diseases covered, pre-conditions and other details in order to obtain the mediclaim under the policy. It is stated that, the non-payment of the mediclaim by the Opposite Parties under the scheme till this date amounts to deficiency and 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.16,223/- along with interest at 12% p.a. from 15.05.2009 till payment and also claimed Rs.15,000/- as compensation and cost 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 membership of the Complainant and also the validity of the scheme and the I.D. of the Complainant. But it is denied that, the wife of the Complainant has underwent a surgical operation of Laparoscopic Adhesioly for abdominal pain at Dhanvanthiai Hospital Puttur on 11.5.2009 and was discharged on 15.05.2009 and spent an amount of Rs.16,223/- for the above operation.
It is submitted that, the complaint is bad for non-joinder of necessary party because the Complainant not made the hospital as party to the proceedings. It is further submitted that, the 1st Opposite Party is not Insurance, it is a trust formed by the Government of Karnataka to help the co-operative farmers in the year 2003. In order to avail the benefits of the Yashaswini Scheme, the member has to follow the procedures prescribed under the scheme. That the member has to be operated in any of the network hospital earmarked by the trust. It is submitted that, in the receipt issued to the members it is mentioned that the member has to take treatment only at Network hospital. As per the list of the network hospital, Dhanvanthari hospital Puttur is not listed hospital and hence the Complainant is not entitled for the mediclaim and prayed for dismissal of the complaint.
Opposite Party No.3 submits that, as per the directions of the Government as well as the Co-Operative Department, Opposite Party No.3 is just enrolling the membership by collecting the membership fee and sending the membership fee to the Opposite Party No.1 and stated that this Opposite Party is not liable to pay any claim amount to the members/Complainant herein 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 Opposite Parties prove that the complaint is bad for non-joinder of necessary parties?
- 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, Mr.Joseph Montero (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. The Complainant produced eight (8) documents as listed in the annexure. One Sri.Poovappa (RW1), Chief Executive Officer of the Opposite Party No.1 and one Sri.Umesh Poojary (RW2), Manager of the Opposite Party No.3 filed counter affidavits and answered the interrogatories served on them. Ex R1 and R2 were marked for the Opposite Parties as listed in the annexure. The Opposite Party No.1 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): Negative.
Point.(ii) to (iv): As per the final order.
Reasons
5. Point No. (i):
As far as point No.(i) is concerned, the Opposite Party No.1 took a contention that, the complaint is bad for non-joinder of necessary party cannot be considered because there is no contractual relationship between the wife of the Complainant and the treating hospital. The contract is with the Opposite Party No.1 not with the hospital. Hence, the question of making the hospital as necessary party does not arise. Point No.(i) held in favour of the Complainant.
Point No.(ii) to (iv):
As far as deficiency is concerned, 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 Co-operative farmers and their family members in the year 2003. It is also admitted that, the Complainant along with his wife and son obtained the membership of Yashaswini Health Scheme as per receipt No.2062455 (as per document No.1) and the same is valid for one year. It is also admitted that, as per the above Insurance Scheme, the 1st Opposite Party i.e., a trust formed by the Government of Karnataka undertaken to reimburse the medical expenses to the members by introducing Yashaswini Scheme.
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 under the scheme and also contended that, the Opposite Parties are not issued the insurance policy which containing all the details which includes the name of the network hospital or the information with regard to pre-authorization procedure, diseases covered and pre-conditions etc. etc. The membership receipt issued by the Opposite Parties does not give any vital details of mediclaim insurance policy and they are not aware of the name of the network hospital.
The Opposite Party No.1 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. In the receipt issued to the members clearly mentioned that, the member has to take treatment only at network hospital. In instant case, Dhanvanthari Hospital is not listed hospital hence the claim is not entertainable.
In order to prove the case of the Complainant, the Complainant filed oral evidence by way of affidavit and produced 8 (eight) documents. Opposite Party No.1 and 3 also filed oral evidence by way of affidavit and produced Ex R1 and R2.
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, Complainant became the member of the Yashaswini Scheme along with his wife and son and the Opposite Parties in turn issued identity card bearing No.2062455 (as per document No.1). During the existence of the scheme, the wife of the Complainant admitted to the hospital. Document No.2 is the discharge summary dated 11.05.2009 shows that, the wife of the Complainant underwent surgical operation of Laparoscopic Adhesioly for abdominal pain at Dhanvanthari Hospital on 11.05.2009 and discharged on 15.05.2009. The document No.3 is the consolidated bill issued by Dhanvanthari Hospital, Puttur reveals that, the Complainant has spent Rs.16,333/-. The document No.4 is the letter written by the Complainant to the Opposite Party No.3, document No.6 is the registered lawyer’s notice dated 06.08.2009 calling upon the Opposite Parties to reimburse the medical expenses spent by the wife of the Complainant. Document No.8 is the reply of the Opposite Parties to the Complainant’s advocate. However, the Ex R2 is the trust deed shows that, the member has to follow certain procedure i.e., to avail the benefit one has to undergo treatment in network hospitals. The Ex R1 produced by Opposite Parties reveals certain names of the hospitals i.e., 19 in numbers. No doubt, in the above said list the name of the Dhanvanthari Hospital Puttur is not reflecting. The above said notification/circular produced before the FORA for the 1st time but there is no material evidence produced before the FORA to show that the above notification/circular issued by the Opposite Party No.1 was brought to the knowledge of the Complainant. Just retaining the documents with the Opposite Parties is not sufficient it must bring into the notice of all the members to avail the benefits.
We have noticed that, the Opposite Parties failed to disclose the hospital names either in the brochure or in the identity card or in the beneficiary receipt issued by the Opposite Parties. Mere mentioning in the trust deed is not sufficient but it has to reach to the member’s knowledge. But, the document No.1 i.e., the I.D. card which is the vital document issued by the Opposite Party in proof of the membership does not contain any particulars which includes the name of the recognized hospital or does not say how pre-authorization is to be obtained, which are the diseases covered, what are the pre-conditions and who has to obtain pre-authorization. In the absence of the same, it is very difficult for the beneficiaries to go in search of the network hospitals when they fell sick. It is significant to note that, the Opposite Parties failed to disclose the hospital names either in the brochure or in the I.D. card or in the beneficiary receipt issued by the Opposite Parties. In the absence of any disclosure of the hospitals to the beneficiaries herein the Complainant or the wife of the Complainant, they cannot take advantage/ benefit of the policy. It is pertinent to note that, the terms and conditions must be in the knowledge of the beneficiary/member of the Yashasvini Scheme that they should go or avail service only under the notified hospitals. In the absence of any such disclosure either in the I.D. card or in the beneficiary receipts or in the brochure, it is very difficult for the beneficiaries go in search of the hospitals as stated supra.
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 Yashasvini 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 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 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 i.e., Yashaswini Health 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. Thus, it is the duty of the Opposite Parties to disclose the terms and conditions/procedures/hospital names and 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 or wife 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 or his wife. 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, though the Opposite Parties received the membership fee under the Yashaswini Scheme and admitted that, the wife of 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 Parties not reimbursed the medical expenses stating that, the Complainant/wife of the Complainant has not followed the procedures prescribed under the scheme without serving the terms and conditions amounts to unfair trade practice and deficiency as stated supra. Under that circumstances, we hereby direct the Opposite Party No.1 and 2 to pay Rs.16,333/- to the Complainant towards the medical expenses and also pay compensation of Rs.5,000/- for the harassment and inconvenience caused to the Complainant. And 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 contractual relationship between the Complainant/wife of 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. We hereby direct the Opposite Party No.1 and 2 to pay Rs. 16,333/- (Rupees sixteen thousand three hundred and thirty three only) to the Complainant towards the medical expenses as per document No.3. We further direct the Opposite Party No.1 and 2 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 we hereby direct the Opposite Party No.1 and 2 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 thereafter the file be consigned to record room.
(Page No.1 to 14 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 28th day of February 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Joseph Montero - Complainant.
Documents produced on behalf of the Complainant:
Doc. No.1 – 11.05.2009: Copy of the membership receipt.
Doc. No.2 – 11.05.2009: Discharge summary issued by Dhanvanthari Hospital Puttur.
Doc. No.3 – 11.05.2009: Consolidated bill issued by Dhanvathari Hospital, Puttur for Rs.16,333/-.
Doc. No.4 – 30.05.2009: Letter of the Complainant to the Opposite Party No.3.
Doc. No.5 - : Postal acknowledgement.
Doc. No.6 – 06.08.2009: Lawyer’s notice issued to the Opposite Parties on behalf of the Complainant.
Doc. No.7 : Postal acknowledgements (2 in numbers).
Doc. No.8 – 15.08.2009: Reply of the 3rd 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 Poojary, Manager of the Opposite Party No.3.
Documents produced on behalf of the Opposite Parties:
Ex R1 - : Xerox copy of the name of the Network hospitals.
Ex R2 – 10.11.2003: Copy of the Trust Deed.
Dated:28.02.2011 PRESIDENT
