FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35(1) (a) of the Consumer Protection Act, 2019 by the complainant stating that the complainant had been taking a mediclaim policy through the agent of the National Insurance company Ltd. and the said company issued a policy vide policy no. 153602501910000166 and initially the said policy was effective from 02.05.2016 to 01.052017 and thereafter the said policy was renewed time to time without any objection on part of the said company and as suchthe policy is effective till 06.05.2020.  As per the policy the sum insured was Rs.100000/- plus certain percentage of cumulative bonus.  Thus the total sum insured comes to Rs.1,15,000/- during the period effective from 07.05.2020 to 06.05.2020.  At the time of initiation and renewal of the said policy, the complainant was given an assurance by the agent of the said company that in case of hospitalization of any of the insured person during the term of the policy, the company would bear the expenses of the treatment up to the amount of Rs.1,15,000/-.

The complainant obtained treatment from the Dr. Samrat Bandyopadhyay suddenly  for nasal bleeding and after medical examination namely CT SCAN OF PNS it was detected that Acute on chronic left maxillary and ethmoid sinusitis polyps in maxillary and left frontal sinuses and the concerned Doctor opined for immediate surgical operation considering the gravity of life threatening problem. Thereafter as per advise of the treating Doctor, the complainant was admitted on 17.10.2019 in the Genesis Hospital of 1470 Rajdanga Main Road, Kolkata-700107 for the bilateral endoscopic sinus surgery and was discharged on 19.10.2019 from the said hospital and during the period i.e. from 17.10.2019 to 19.10.2019 the Insurance company made payment of Rs.28,000/- out of total expenses incurred of Rs.53,892/-.  And after discharge, post operational medical expenses was incurred and all the necessary original documents and bill regarding the treatment were submitted and delivered to the concerned officials claiming of reimbursement of medical bill of Rs.25892/- including the post operational medical expenses and the said claim has not been denied rather the concerned officials allowed and settled the said claim vide claim no.153602501994054355  for a partial sum of Rs. 1540/- out of Rs. 25,892/- in a very arbitrary manner and deposited the same in the bank account of the complainant on 30.12.2019 towards final payment of the claim and even no reasoned order in respect of the claim was given to the complainant for the partial payment of Rs. 1540/- towards final payment of the claim.

Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 5,00,000/- along with interest @ 18% with effect from 30.12.2019 for mental agony, pain, anxiety and unnecessary harassment and to pay a sum of Rs. 100,000/- as litigation cost.

Defense Case:-The opposite party Nos.1 and 2contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the complainant had raised a bill of Rs. 53,892/- as against the procedure he had undergone at one Genesis Hospital and the said hospital is a Preferred Provider Network (PPN) and as per the Clause 3.23 of the Insurance Policy contract to which the parties are bound by, the reimbursement of the expenses incurred in PPN for the procedures shall be subject to the rates applicable to the PPN package pricing and the said clause reads as follow: “Clause 3023 preferred provider Net work (PPN) means a network of hospitals which have agreed to a cashless packaged pricing for certain procedures for the insured person.  The list is available with the company and subject to amendment from time to time. Reimbursement of expenses incurred in PPN for the procedures shall be subject to the rates applicable to the PPN package pricing”.

The claim amount that has been settled by the OP Insurance Co., has been in accordance to the PPN Package pricing for the particular procedure which the complainant had undergone and further it is to be mentioned that the complainant himself had opted for better facility than had been provided as per the PPN package pricing and had given the following declaration which is described in the written version indetail. In view of the above declaration signed by the complainant before the hospital authority, it is crystal clear that the patient had very knowingly opted for a treatment which was over and above the PPN and he was also in full knowledge of fact that when he would go for reimbursement of the final bill from the insurance company, the said insurance company would reimburse only the pre-agreed PPN tariff rates and that he would have to bear the balance amount and the PPN tariff rates are inclusive of all charges except the cost of implant which should be charged extra.  Op has accordingly settled the claim of the complainant in adherence to the contract of insurance to which the parties are bound by. As per settled law in a contract of insurance rights and obligations are governed by the terms of the insurance contract. Thus, terms of a contract of insurance have to be strictly constructed and no exception can be made on the grounds of equity. So, there is no deficiency of service on the part of the op and the case should be liable to be dismissed.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party nos. 1 and 2.

            The answering opposite party nos. 1 and 2 filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party nos. 1 and 2 filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party nos. 1 and 2 heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Dhaniakhali, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the complainant had mediclaim policy under the op insurance company.
2. It is also admitted fact that the said policy no. is 153602501910000166.
3. There is no controversy over the issue that the said policy was effective from 2.5.2016 to 1.5.2017.
4. There is no dispute over the issue that thereafter the said policy was renewed time to time by the op insurance company.
5. It is admitted fact that the op insurance company renewed the said insurance policy on payment of the premium by the complainant.
6. It is also admitted fact that the said policy was effective till 6^th May, 2020.
7. There is no controversy over the issue that the sum assured in respect of the said policy was Rs. 1,00,000/- with certain percentage of cumulative bonus.
8. There is no dispute over the issue that the total sum assured for the period 7.5.2019 to 6.5.2020 was Rs. 1,15,000/-.
9. It is admitted fact that the complainant was under medical treatment under Dr. Samrat Bandhyopadhyay.
10. It is also admitted fact that the complainant was under medical treatment under the above noted doctor for nasal bleeding and after medical examination namely CT SCAN OF PNS.
11. There is no controversy over the issue that the complainant was admitted to Genesis Hospital on 17.10.2019 for the bilateral endoscopic sinus surgery.
12. There is no dispute over the issue that the complainant was discharged from the said hospital on 19.10.2019.           
13. It is admitted fact that during the period of medical treatment the complainant was under the coverage of insurance policy.
14. It is also admitted fact that the complainant had incurred medical expenses of Rs. 53,892/- and he had to bear medical expenses during post operational period.
15. There is no controversy over the issue that the complainant submitted reimbursement medial bill of Rs. 25,882/- to the op insurance company vide claim no. 153602501994054355.
16. There is no dispute over the issue that the insurance company made payment of Rs. 28,000/- only.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

                On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant is claiming that inspite of valid insurance coverage the op insurance company had not made full payment of medical expenses of the complainant and so there was negligent approach and deficiency of service on the part of the op insurance company but on the other hand the op insurance company adopted the defense alibi that they had made payment of Rs. 28,000/- as per terms and conditions of the said policy and so there is no deficiency of service on the part of the op insurance company.

   For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds thatthe op insurance company had only paid Rs. 28,000/- out of the total medical expenses of Rs. 53,892/- and this matter is clearly indicating that the complainant is entitled to get Rs. 25,892/- from the op insurance company and the op insurance company is bound to pay the said amount as it is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del). Over this issue it is the settled principle of law that service under Section 2(o) of the Consumer Protection Act, 1986 is wide enough to comprehend service of every description and the District Forum has the jurisdiction to entertain and try such complaint. This legal principle has been laid down by Hon’ble Apex Court and it is reported in 2022 (2) CPR 249 (SC). Thus, it is crystal clear that the ops have their fault, negligence and deficiency of service in the matter of not granting claim of Rs. 25,892/-. So, the above noted issues and/ or points of consideration nos. 4 and 5 which have been adopted in this case are decided in favour of complainant of this case.

In the result it is accordingly

ordered

that the complaint case being no. 12 of 2021 be and the same is allowed on contest against op nos. 1 and 2 but in part.

It is held that the complainant is entitled to get the claim of Rs. 25,892/- from op nos. 1 and 2 and also entitled to get compensation of Rs. 15,000/- and litigation cost of Rs. 5000/- from op nos. 1 and 2.

Opposite party nos. 1 and 2 are directed to pay the said amount within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.