BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th of September 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.142/2010
(Admitted on 07.05.2010)
Smt. Sheelavathi,
Wo. Late Muthappa Poojary,
Aged about 53 years,
Ra. Periyadka House,
Narimogru Village,
Puttur Taluk,
Dakshina Kannada. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Sanjay D).
VERSUS
1. Chief Executive Officer,
Yashaswini Co-Operative Farmers
Health Care Scheme,
Now at 6th floor, M.S Building,
Co-Operative Secretariat,
Ambedkar Veedi,
Bangalore -1.
2. Manager,
Narimogru Vyavasaya Seva Sahakari Bank,
Narimogru,
Puttur Taluk,
Dakshina Kannada. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Sri.Thimmayya P).
***************
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 submits that, her husband was the member of Yashaswini Health Scheme of the 1st Opposite Party and has paid Rs.120/- as membership to the 2nd Opposite Party as per receipt No.2074244 dated 07.07.2009 and it is valid for one year.
When the matter stood thus, the Complainant’s husband underwent enlarged prostate operation at Dhanvanthari hospital Puttur on 10.7.2009. The Complainant has spent Rs.23,661/- for the operation. Thereafter she has gone to the 2nd Opposite Party with the receipt, discharge summary and consolidated bill. The 2nd Opposite Party refused to receive the claim of the Complainant. Hence the Complainant has sent the claim papers through Lawyer’s notice dated 13.8.2009 to the 1st Opposite Party but there was no response from the Opposite Parties.
The another allegation of the Complainant is that, the membership receipt issued by the Opposite Party is vague and does not contain the following details i.e., the name of the network hospitals, how the pre-authorization is obtained, which are the diseases covered, what are the pre-conditions and who has to obtain pre-authorization and the Opposite Party not issued the policy certificate and the receipt issued by the Opposite Party does not give or contains vital details of the mediclaim insurance policy. Hence it is stated that, the non-payment of the claim by the Opposite Parties amounts to deficiency. And 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.23,661/- along with interest at 12% p.a. from 09.07.2009 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 version.
The 1st Opposite Party is not insurance. It is a Trust formed by the Government of Karnataka to help the farmers in the year 2003. In order to avail the benefits of the Yashasvini Scheme, the member has to follow the procedures prescribed under the scheme. In order to claim any amount, 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. The 2nd Opposite Party has issued the receipt which contains the conditions and also stated that, along with this receipt one pamphlet also issued to the Complainant which shows the terms and conditions of the scheme and stated that, the Complainant has not followed the procedure and hence not entitled for any claim and prayed for dismissal of the complaint.
Opposite Party No.2 adopted the version of the 1st Opposite Party.
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, Smt.Sheelavathi (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C7 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 affidavits and answered the interrogatories served on them. Ex R1 to R4 were marked for the Opposite Party as listed in the annexure. 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 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 the farmers and to their family members. It is also admitted that, the Complainant’s husband was the member of Yashaswini Health Scheme of the 1st Opposite Party and has paid Rs.120/- as membership fee to the 2nd Opposite Party as per receipt No.2074244 and the same was valid for one year i.e., 07.07.2009 to 06.07.2010 (as per Ex C1). As per the insurance scheme, the 1st Opposite Party will reimburse medical expenses to the members of the 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. Apart from the above, it is also contended that, the Opposite Parties are not informed the terms and conditions or other procedures as contemplated under the scheme.
The Opposite Party 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 be operated 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 the instant case, Dhanvantatri hospital is not listed hospital and no pre-authorization before conducting the operation is taken nor reports furnished before discharge of the Complainant’s husband.
We have perused the Ex C1 and C2 and also the Ex R1, R3 and R4 i.e., the identity card and receipt issued by the Opposite Party and other documents produced by the Opposite Parties. Those documents do not disclose the name of the hospitals where the beneficiaries has to go, get admitted and to take treatment. The Ex R2 produced by the Opposite Party 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 issued by the Opposite Party No.1, there is no document to show that the above said notification was brought to the knowledge of the beneficiaries herein the Complainant’s husband is not forthcoming. In other words, the notification issued by the 1st Opposite Party was not brought into the knowledge of the Complainant. We have noticed that, the Opposite Parties failed to disclose the hospital names either in the brochure or in the identity card or the beneficiary receipt issued by the Opposite Parties. In the absence of any disclosure of the hospitals to the beneficiaries herein the Complainant/Complainant’s husband, definitely the beneficiaries cannot take advantage of the policy. It 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.
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. The National Commission decided the case on 15th May 2007 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. 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 hospitals name 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. 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)].
Similarly in the present case, though the Government introduced the benevolent scheme it should reached to the beneficiary. Thus, it is the duty of the Opposite Party to disclose the hospitals name notified by the Government under the scheme while issuing the Identity Card or beneficiary receipt or the brochure. But in the present case, the Opposite Party failed to discharge their duty to disclose the hospital names to the Complainant to get the benefit while issuing the Identity Card or related documents or subsequently. No such information furnished to the Complainant which amounts to deficiency in service. Hence in our considered opinion, there is no mistake on the part of the Complainant, the Opposite Parties are hereby directed to reimburse the entire amount to the Complainant i.e. Rs.23,661/- towards the medical expenses and further Rs.9,000/- awarded as compensation towards the harassment and inconvenience 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 Parties are jointly and severally hereby directed to reimburse the entire amount to the Complainant i.e. Rs.23,661/- (Rupees twenty three thousand six hundred and sixty one only) towards the medical expenses and further Rs.9,000/- (Rupees nine thousand only) awarded 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 Parties are directed to pay interest at the rate of 8% p.a. on the total amount from the date of failure till the date of payment.
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 30th day of September 2010.)
PRESIDENT
MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Smt.Sheelavathi – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 07.07.2009: Copy of the receipts.
Ex C2 – 03.07.2009: Original consolidated bill.
Ex C3 – 03.07.2009: Original discharge summary.
Ex C4 – 24.07.2009: Copy of the death certificate.
Ex C5 – 13.08.2009: Copy of the registered notice.
Ex C6 – 29.09.2009: Reply of the 1st Opposite Party.
Ex C7 – 20.08.2009 Reply of the 2nd Opposite Party.
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.
Ex R2 – 27.01.2010: Copy of the list of network hospitals.
Ex R3 - : Original pamphlet.
Ex R4 - : Copy of the receipt issued to the beneficiary.
Dated:30.09.2010 PRESIDENT
