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Judgement against Yashaswini DK District Forum Before the Dakshina Kannada District Consumer Disputes Redressal Forum at Mangalore
Dated this the 15th July 2009
Complaint No. 17/2009
(Admitted on 6.2.2009)
Present: 1. Smt. Asha Shetty, B.A., L.L.B.,
2. Sri K. Ramachandra, Member
Between:
Mr. Ahammed Nazeeb
S/o Late of
Age 43 years, Bombila House,
Vogga Post, Bantwal Taluk
D. K. District ……….Complainant
(Advocate: Sri Deenanath Shetty)
Versus
Authorized Signatory,
Yeshaswini Co-operative Farmers Health Care Scheme Society:
Pilatha Bettu SSBN
Punjalakatte,
Bantwal Taluk
D. K. District …….Opposite Party
(Advocate: Sri. G. K. Parameshwara Jain)
ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT:
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 as against the Opposite Party claiming certain reliefs.
The Complainant is one of the member of the Yeshaswini Health Care Scheme and issued a Membership Identity Card bearing No.206. It is submitted that the Complainant undergone surgery for obstructed Bilateral Inguinal Hernia at S.C.S. Hospital, Mangalore and undergone surgery and spent Rs.24,000/- towards the hospitalization. It is submitted that after the discharge from the said hospital, the Complainant submitted the Claim Form to the Opposite Party, the Opposite Party orally repudiated the claim without giving any reasons. It is submitted that, the service rendered by the Opposite Party amounts to deficiency in service and the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 ( herein after referred to as `the Act’) seeking direction from this Hon’ble Forum to the Opposite Party to pay Rs.44,000/- and Rs.50,000/- towards the medical expenses and the compensation and cost of the proceeding.
2. Version notice issued to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version submitted that in order to claim benefits under Yashaswini Scheme, must get treated in the hospital notified by the Government of Karnataka. The Opposite Party did not get admitted to a notified hospital and hence a beneficiary under the above scheme is not entitled by the Complainant. Further submitted that the beneficiary under Yashaswini scheme must tender his identity card and receipt to the hospital and such hospital must confirm the same with trust before admitting the patient for treatment. But the Complainant failed to approach a notified hospital and not followed the procedure cannot take advantage under the scheme and denied that the Complainant spent Rs.20,000/= towards the medical expenses. Furter submitted that the relationship between the Complainant and the Opposite Party is not of a beneficiary and Service provider as stated in the complaint and the disputes between beneficiary and Yashaswini Trust are to be settled by the arbitrator appointed by the Government 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:
(i) Whether the Complainant is a consumer and the complaint is maintainable?
(ii) Whether the Complainant proves that the Opposite Party committed deficiency in service?
(iii) If so, whether the Complainant is entitled for the reliefs claimed?
(iv) What order?
4. In support of the complaint Mr. Ahammed Nazeeb (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C42 were marked for the complainant as listed in the annexure. One Sri K. Booba, Manager of Opposite Party filed counter affidavit – (RW-1) and answered the interrogatories served on him. Ex R1 and R2 were marked for the Opposite Party as listed in the annexure. Complainant produced Written Notes of Arguments.
We have heard arguments, perused the pleadings, documents and evidence placed on record. We answer the points here as follows:
Point No. (i) : Affirmative
Point No. (ii) and (iv): As per the final order.
REASONS
5. POINT NO. (i):
In the present case, the facts which are not in dispute are that Yeshaswini Scheme is a benevolent scheme started by the Government of Karnataka to provide medical assistance by collecting a premium of Rs.130/- form family subject to certain formalities.
In this case it is proved that the Complainant is the member of Yashaswini Scheme and paid Rs.130/- i.e., a premium to become a member of the Yashaswini Scheme (as per Ex. C4, i.e., receipt dated 5.4.2008 for Rs.130/-) and he has been issued with a Identity Card bearing No.DKA072002945 by the authorized signatory of the Yashaswini Co-operative Farmers Health Care Scheme and the said scheme is valid for 2007-08 as per Ex C3 Identity Card. From the above documents it is proved that to become member of the Yashaswini Health Care Scheme the complainant paid the premium of Rs.130/- and the Opposite Party received the consideration, hence the Complainant is a consumer.
Further the Section 3 of the Consumer Protection Act is very clear that the provisions of Consumer Protection Act shall be in addition, not in derogation of provisions of any other law for the time being in force. From the above it is very clear that the Act is in addition and not in derogation of the provisions of any other law. Under such circumstances, the Complainant has got every right to approach this Forum by filing a complaint. That the contention taken by the Opposite Party that disputes are to be settled by the arbitrator appointed by Government has no merits. The complaint is maintainable. The Point No. (i) is held in favour of the Complainant.
PONITS NO.(ii) to (iv):-
As far as point No. (ii) to (iv) are concerned, as we discussed herein, the above complainant admittedly paid the premium and became the member of the Yeshaswini Health Care Scheme and the Policy was valid for the period 2007 to 2008 and he has been issued with the Identity Card bearing No. DKA072002945.
In the present case, the Discharge Summary issued by the S.C.S. Hospital reveals that the Complainant got admitted to the Hospital on 6.4.2008 with obstructed Bilateral Inguinal Hernia as an emergency case and discharged on 10.4.2008. There is no dispute as far as the admission to the hospital and the treatment taken by the Complainant in the hospital.
The only point in dispute is that according to the Opposite Party, to avail the benefit under the Yashaswini Scheme, the beneficiary has to follow the guidelines furnished to the member in the backside of the receipt issued to him, i.e., Ex.C2 Identity Card and receipt of the Beneficiaries. It is contended that the Complainant has not taken treatment in the hospital notified by the Government of Karnataka. The complainant took treatment at S.C.S. Hospital and that the said hospital is not a notified hospital to claim the benefit of the Yashaswini Scheme.
We have perused the Ex C1 to C3, those documents do not reveal the names of the hospitals where the beneficiaries have to get admitted and take treatment. The Ex. R1 produced by the Opposite Party dated 30.8.2006 i.e., a notification issued by the State Government reflects certain hospital names, in other words the State Government notified 16 hospitals in the above notification. No doubt in the above notification the name of S.C.S. Hospital is not reflected. Admittedly, the notification issued by the State Government was on 30.8.2006 but there is not material to show that the above notification was brought to the knowledge of the beneficiaries, herein to the Complainant. This fact is not forthcoming. In other words the notification issued by the State Government was not brought to the knowledge of the Complainant. And further it could be seen that the Opposite Party failed to disclose the hospitals names either in the brochure or in the Identity card or the beneficiary receipt issued by the Opposite Party. In the absence of any disclosure of the hospitals to the beneficiaries, herein to the Complainant, definitely the beneficiaries can not take advantage of the policy. It must be in the knowledge of the beneficiary that they should go or avail service only under the notified hospitals. 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 to the beneficiaries to go in search of the hospitals. It is a settled law that in case the Opposite party suppresses any proof, conceal any material facts it adversely affects the policy. Under the Insurance Act 1938 Section 114 (A) Insurance Regulatory and Development Authorities Act 1999, Section 14 and 26 – Insurance Regulatory and Development Authority (Protection of Policy Holders Interest Regulations -2002), Regulation 3 – Exclusion Clauses if not explained they are not binding to the insured – those exclusion clauses are required to be ignored while considering the claim of the insured. (Reported in SC and 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 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 Yashaswini 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 Yashaswini Scheme holders. Firstly the Opposite Party to 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 is 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 the insurer or its agent or other intermediaries 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 have 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 consumers’ interest. It is a well settled law that when a statute or regulation 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 than that which has been prescribed.
Similarly in the present case, though the Government introduced the benevolent scheme it should reach the beneficiary. The clause 20 of the above said scheme reads as under:
`F AiÉÆÃd£ÉAiÀÄrAiÀÄ°è CAVÃPÀÈvÀªÁzÀ ¸ÁzsÀåªÁzÀµÀÄÖ
vÀªÀÄäf¯ÉèAiÀÄ°è£À D¸ÀàvÉæUÉ ¨sÉÃn ¤ÃqÀ¨ÉÃPÀÄ’
Thus it is the duty of the Opposite Party to disclose the hospitals names notified by the Government under the Scheme while issuing the Identity Card or Beneficiary Receipt or the Brochure. But in the present, 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 Party is hereby directed to reimburse the entire amount to the Complainant i.e., Rs. 24,000/- towards the medical expenses and further Rs.5,000/- awarded as compensation towards the harassment and inconvenience and Rs. 100/- 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. The Opposite Party is hereby directed to pay a sum of Rs. 24,000/- and further Rs.5,000/- awarded as compensation to the Complainant and Rs.1000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
President Member
Smt. Asha Shetty Sri. K. Ramachandra
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