BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 28^th of February 2011

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT                

                        SMT.LAVANYA M. RAI       :   MEMBER                  

           SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.302/2010

(Admitted on 12.11.2010)

Mrs.Geetha M.R.

Wo. Raghava Gowda M,

Aged about 49 years,

Manibail House,

Yenekallu Village, Post Devarahalli,

Via Subrahmanya,

Sullia Taluk, 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-Op. Secretariat,

Ambedkar Veedi,

Bangalore – 1.

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

2. Manager,

Family Health Plan Ltd.,

No.11, ‘C’ Block, Niton 2^nd Floor,

Palance Road, Bangalore – 52.

(Opposite Party No.2: Exparte).

3. The Chief Executive Officer,

Yenekallu Primary Agricultural Credit

    Co-operative Bank Limited,

Yenekallu Village and Post,

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 her husband and two sons are the members of Yashaswini Health Scheme and the same is valid for one year i.e., 2009-10.  As per the above scheme, the Complainant is entitled for the medical expenses. 

It is stated that, the Complainant had admitted to City Hospital Research and Diagnostic Centre Kadri Mangalore due to breakdown of the repaired open injury to the left leg TA when activity was resumed and has taken treatment as an inpatient from 10.06.2009 to 16.06.2009 and undergone TA repair under S.A. on 11.06.2009 and paid entire bill amount to the hospital on 16.06.2009.  After the discharge for dressing of the suture she visited Yenepoya Hospital Kodialbail, Mangalore three times and again for the removal of the bandage she visited to Puttur Dhanvanthari Hospital and paid Rs.845/- in total a sum of Rs.29,746.72 spent for the medical expenses and operation.  After the discharge, she received only Rs.5,000/- towards the medical expenses from the Opposite Parties. It is stated that, the membership receipt issued by the Opposite Parties is vague and it does not contain or mentioning with regard to the diseases covered and stated that the service rendered by the Opposite Parties amounts to deficiency and filed the above complaint 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.24,746.72 along with interest at 12% p.a. from 10.06.2009 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 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. It is stated that, in a trust deed it is clearly mentioned the procedure for availing medical benefits.  That the Complainant had admitted to City Hospital and Diagnostic Centre Kadri Mangalore due to breakdown of the repaired open injury to left leg TA when activity was resumed and she has taken treatment from 10.6.2009 to 16.6.2009 and undergone TA repair under SA on 11.6.2009.  The hospital has send pre-authorization to the 2^nd Opposite Party and as per the agreed tariff fixed in a list the 1^st Opposite Party has paid a sum of Rs.5,000/- to the hospital directly and stated that this Opposite Party is not liable to pay any amount 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, this Opposite Party made as 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, Mrs.Geetha M.R. (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her.   Ex C1 to C17 were marked for the Complainant as listed in the annexure.  One Sri.Poovappa (RW1), Chief Executive Officer of the Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him.  Ex R1 was marked for the Opposite Parties as listed in the annexure.   The Complainant and 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): 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.1593353 (as per Ex C1).  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, she had admitted to City Hospital, Mangalore on 10.06.2009 due to breakdown of the repaired open injury to the left leg TA when activity was resumed and has taken treatment as an inpatient from 10.06.2009 to 16.06.2009 and undergone TA repair under S.A. on 11.06.2009 and paid the entire bill amount to the hospital.  After the discharge for dressing of the suture she visited Yenepoya Hospital Kodialbail, Mangalore three times and again for the removal of the bandage she visited to Puttur Dhanvanthari Hospital and paid Rs.845/- in total a sum of Rs.29,746.72 towards the operation and medical expenses.  After the discharge she received Rs.5,000/- from the hospital i.e., the portion of the amount spent by her in hospital.  The Complainant stated that, the membership issued by the Opposite Party is vague and do not disclose/mention the diseases covered and stated that she is not aware of any terms and conditions. 

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. 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.5,000/- which is legally entitled by the Complainant and stated that, the 1^st Opposite Party fixed the amount for each surgery as per the list of operations and charges fixed by the trust. 

In order to prove the case of the Complainant, the Complainant filed oral evidence by way of affidavit and produced Ex C1 to C17.  Opposite Parties also filed evidence of RW1 by way of affidavit and produced Ex R1.

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 her husband and two sons and the Opposite Parties in turn issued identity card bearing No.1593353 (as per Ex C1).  During the existence of the scheme, the Complainant admitted to the hospital.  Ex C3 is the discharge summary dated 10.06.2009 shows that, the Complainant has undergone TA Repair under SA on 11.06.2009 at City Hospital Research and Diagnostic Centre, Mangalore.  The Ex C4 to C13 are the bills and receipts issued by the City Hospital Research and Diagnostic Centre Mangalore reveals that, the Complainant has spent Rs.23,576.72 for the medical treatment.  The above said receipt also includes the consultation charge of the surgeons Dr.Rohan Shetty and his assistants.  The Ex C14 to C17 are the receipts issued by the Yenepoya Hospital and Dhanvanthari Hospital reveals that the Complainant has spent for Rs.1,170/- for removal of bandage and dressing charges. 

In the instant case, the Opposite Parties stated that, they have paid Rs.5,000/- to the Complainant but rest of the amount not paid to the Complainant and relied the surgery list mentioning the name of the surgery and the amount fixed for the surgery issued by 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:

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¸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 or name of the hospitals or the diseases covered and the amount fixed for surgery 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 does 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 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 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 we direct the Opposite Party No.1 and 2 to pay the balance amount i.e., Rs.24,746.72 (as per Ex C4 to C17) to the Complainant towards the medical expenses.  We further direct the Opposite Party No.1 and 2 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.  We direct the Opposite Party No.1 and 2 to pay to the Complainant the balance amount i.e., Rs.24,746.72 (Rupees twenty four thousand seven hundred forty six and paise seventy two only)) as per Ex C4 to C17.  Further we 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 to the Complainant. Payment shall be made within 30 days from the date of this order.

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 room.

(Page No.1 to 14 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 28^th day of February 2011.)

PRESIDENT                    MEMBER                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mrs.Geetha M.R. – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 16.06.2009: True copy of the certificate issued by the 3^rd Opposite Party to the Complainant.

Ex C2 -                   : Original pamphlet issued by the 3^rd Opposite Party to the Complainant while joining the Scheme.

Ex C3 – 16.06.2010: Original discharge summary issued by the City Hospital, Mangalore.

Ex C4 to C11 -         : Bills issued by the City Hospital, Mangalore.

Ex C12 – 16.06.2009: Final bill.

Ex C13 to C17 -       : Bills and receipt issued by hospitals. 

Witnesses examined on behalf of the Opposite Parties:

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

Documents produced on behalf of the Opposite Parties: 

Ex R1 – 10.11.2003: Copy of the Trust Deed.

Dated:28.02.2011                            PRESIDENT