BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                                     Dated this the 30^th of September 2010

PRESENT

                                                  SMT. ASHA SHETTY           :   PRESIDENT

                                                                      SMT.LAVANYA M. RAI       :   MEMBER

                                                                    SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.143/2010

(Admitted on 07.05.2010)

Sri. Narashima Bhat,

So. K.N. Shyam Bhat,

Aged about 42 years,

Rat. Shanthinadu post,

Puttur 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-Operative Secretariat,

Ambedkar Veedi,

Bangalore -1.

2. Family Health Plan Limited,

    Yashaswini Co-Operative Farmers,

  Health Care Scheme,

  No. 45,  Millers Road,

  Vasanthanagar,

   Bangalore -52.

3. Manager,

    Narimogru Vyayasaya

    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 Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submits that, he is the member of Yashaswini Health Scheme of the 1^st Opposite Party and has paid Rs.140/- as membership to the 3^rd Opposite Party as per receipt No.1597420 and it is valid for one year i.e., 07.08.2009 to 07.08.2010. 

When the matter stood thus, the Complainant was admitted to the Yenepoya Medical College Hospital, Mangalore on 14.9.2009 for Lumbar Radiculopathy Disease and operated on 15.9.2009 and was discharged on 21.09.2009 and spent Rs.23,557/- towards the hospital expenses.  After the treatment the hospital authority has sent claim form to the 2^nd Opposite Party, thereafter Rs.12,000/- was sanctioned to the Complainant. 

It is submitted that, as per the information provided and the pamphlet issued by the 1^st Opposite Party the entire medical expenses is to be paid by the 1^st Opposite Party but the Opposite Parties have not paid the entire amount to the Complainant which amounts to deficiency of service. 

The another allegation of the Complainant is that, the Opposite Parties have not followed the rues and regulations while issuing the membership receipt which contains no information and they are duty bound to issue the membership receipt as specified by the rues and regulations.  The Complainant issued a legal notice dated 06.03.2010 calling upon the Opposite Parties to pay the amount but the Opposite Parties failed to comply 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.23,557/- along with interest at 12% p.a. from 21.09.2009 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 and filed similar version and admitted that, the Complainant is a member of the Yashaswini Health Scheme.  It is denied that, the Complainant was admitted to the Yenepoya Medical College Hospital Mangalore on 14.9.2009 for Lumber Radiculopathy Disease and operated on 15.9.2009 and the Complainant discharged on 21.09.2009.  It is stated that, Yenepoya Specialty Hospital Kodialbail Mangalore sent pre-authorization request letter on 24.9.2009 and pre-authorization was issued on 25.9.2009 by sanctioning a sum of Rs.12,000/- to the Complainant.  It is stated that, it is a trust created by the Government to help the farmers and the same is fixed by the Government for different surgery and treatment through network hospital.  And further stated that, the 2^nd Opposite Party is implementing agency and it works in accordance with the rules framed by the 1^st Opposite Party.  In order to avail the benefits, the member has to follow the procedures prescribed under the scheme.  The Complainant failed to follow the procedures hence he is not entitled for the entire amount.  It is stated that, obtaining pre-authorization is mandate in nature in order to verify whether the patient is genuine member of the scheme or not.  It is clear in pre-authorization I.D dated 25.9.2009 a sum of Rs.12,000/- is sanctioned to the Complainant.  The Yenepoya Medical College Hospital, Nithyananda Nagar, Deralakatte, Mangalore is not within the list of network hospitals hence this Opposite Party is no way liable to pay the amount claimed in the complaint and contended that there is no negligence on the part of 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:

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, Sri.Narasimha Bhat (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C8 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 Smt.Sathyashree (RW2), Manager of the Opposite Party No.2 filed counter affidavits and answered the interrogatories served on them. Ex R1 to R3 were marked for the Opposite Parties 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 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):

In the instant case, the facts which are not in dispute are 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 the member of Yashaswini Health Scheme of the 1^st Opposite Party and has paid Rs.140/- as membership fee to the 3^rd Opposite Party as per receipt No.1597420 and the same was valid for one year i.e., 07.08.2009 to  07.08.2010 (as per Ex C1).  As per the Insurance Scheme, the 1^st 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, according to the Complainant, that the Opposite Parties not reimbursed the entire medical expenses spent by him i.e., Rs.23,557/-.  The 2^nd Opposite Party was sanctioned only Rs.12,000/- out of the above said amount.  Since the Opposite Parties not paid the entire amount, he came up with this complaint. 

 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, the Complainant has taken treatment not in network hospital.  Hence he is not entitled. 

We have perused the entire oral as well as documentary evidence, wherein, the Complainant provided with a receipt issued by the Opposite Parties.  In the said receipt, certain information was printed as “¸ÀÆZÀ£ÉUÀ¼ÀÄ”.  In the above receipt except the “¸ÀÆZÀ£ÉUÀ¼ÀÄ” nothing has been stated/informed to the Complainant with regard to the terms and conditions and other informations incorporated under the policy to avail the benefits.  As admitted by the parties that, 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 provide/produce the terms and conditions along with the receipt to avail the benefits or to make the farmers to approach the concerned hospitals.  It is not sufficient just issuing a receipt.  As we know, majority of the farmers are not educated and not well-versed with the terms and conditions of the policies introduced by the Government until and unless the printed terms and conditions and other details/policy provided to them and explained to the language known to them.  In the absence of any such disclosures either in the I.D. 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 other details when they are fell ill. 

          In the instant case, the Opposite Party issued a pre-authorization I.D. No. 26397 dated 25.9.2009 as per Ex C4 and Rs.12,000/- was sanctioned to the Complainant.  But it is not forthcoming why the entire amount of Rs.23,557/- i.e., the bill issued by the hospital authority is not considered.  There is no explanation forthcoming by the Opposite Parties.  In para No.4 of the version of the 1^st Opposite Party, it is stated that, the pre-authorization to the network hospital indicating the ceiling amount for surgical procedure.  But we do not understand what is the ceiling amount for surgical procedure without there being the details of those ceiling amount determined by the Opposite Parties.  Nothing has been disclosed to the Complainant/member by the Opposite Parties in this case.  Just sanctioned Rs.12,000/- without there being any explanation is not acceptable in this case. 

We have noticed that, the Opposite Party produced document, wherein, it contains certain names of the hospitals i.e., 19 in numbers.  In the above said list the name of the Yenepoya Medical College Hospital, Deralakatte, Mangalore is not forthcoming but Yenepoya Specialty Hospital Mangalore is reflected in the list.  We have noticed that, the pre-authorization was given to the Yenepoya Specialty Hospital Kodialbail Mangalore and the operation was conducted at Yenepoya Medical College Hospital, Mangalore.  Both the hospitals are run by the same management, under that circumstances, the Complainant is entitled for the reimbursement of the insurance amount.  Further, the above said notification issued by the Opposite Party No.1 dated 27.1.2010 (i.e., Ex R2), there is no document to show that the above said notification was brought to the knowledge of the beneficiaries herein the Complainant/member is not forthcoming.  In other words, the notification issued by the 1^st 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.  It must be within the knowledge of the beneficiary/member of the Yashaswini 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 when they are ill.  The purpose behind the policy introduced by the Government should be served through the implementing agency/trust/organization.

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 Holders’ 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 15^th 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 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)]. 

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 Parties to disclose the hospitals name notified by the Government under the scheme while issuing the Identity Card or beneficiary receipt or the brochure or the policy.  It should contain all vital details.  But in the present case, the Opposite Parties 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. 

In view of the above discussion, we hold that the Opposite Parties in the instant case, not reimbursed the entire amount despite of taking treatment in the network hospitals as notified by them.  Hence the Opposite Parties are hereby directed to reimburse the entire amount to the Complainant i.e. Rs.23,557/- 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.23,557/- (Rupees twenty three thousand five hundred and fifty seven 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 12 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 30^th day of September 2010.)

     PRESIDENT

 MEMBER                                                                   MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Sri.Narasimha Bhat – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 07.08.2009: Copy of the receipt issued by 3^rd Opposite Party.

Ex C2 – 14.09.2009: Copy of the discharge summary.

Ex C3 – 21.09.2009: Copy of the cash receipt with bills (11 in numbers).

Ex C4 – 29.09.2009: Authorization report of the 2^nd Opposite Party.

Ex C5 – 06.03.2010: Copy of the Lawyer’s notice issued to the Opposite Parties.

Ex C6 to C8 -            : Postal acknowledgement (3 in numbers).

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.

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 the network hospitals.

Ex R3 –              :  Original pamphlet.

Dated:30.09.2010                            PRESIDENT