State Consumer Disputes Redressal Commission
State Of Punjab Health And Family ... vs Harbans Kaur And Another on 6 October, 2020
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Misc. Application No.1612 of 2020
In/and
First Appeal No.272 of 2020
Date of institution : 28.09.2020
Date of Decision : 06.10.2020
State of Punjab Health and Family Welfare Department, Chandigarh,
through Deputy Medical Commissioner, Patiala.
....Appellant/Opposite Party No.4
Versus
1.Harbans Kaur W/o Sh.Bant Singh, R/o House No.607, Harinder Nagar, Sirhind Road, Patiala.
........Respondent No.1/Complainant
2. Oriental Insurance Company Limited, SCO No.109-110-111, Surendra Building, Sector 17-D, Chandigarh-160017, through its Incharge/Manager.
3. Oriental Insurance Company, Divisional Office, Sai Market, Patiala, through its Incharge/Manager.
4. The Manager Incharge, MD India Health Insurance TPA Private Ltd., Maxpro, Infa Park, D-38, 1st Floor, Industrial Area, Phase-1, Mohali, (Pb.) 160056.
........Respondents No.2-4/Opposite parties No.1-3 Miscellaneous Application for condonation of delay of 316 days in filing the appeal.
IN/AND First Appeal against the order dated 20.09.2019 of the District Consumer Disputes Redressal Forum, Patiala.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President Present:-
For the appellant : Sh.B.S.Kanwar, Advocate JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT This appeal, alongwith Miscellaneous Application for condoning the delay of 316 days in filing the appeal, has been filed against the M.A.No.1612 of 2020 2 In/and F.A.No.272 of 2020 order dated 20.09.2019 passed by District Consumer Disputes Redressal Forum (now Commission), Patiala (in short, "District Commission"), whereby the complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986, was partly accepted with Rs.10,000/- as costs of the litigation and OP No.4 was directed to reimburse the claim of the complainant as per scheme/rules and regulations of the State Govt., within 45 days from the date of receipt of copy of the order.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
Facts of Complaint
3. Brief facts of the complaint as taken from impugned order are that the complainant is the employee of Chief Electrical Inspector to Govt. of Punjab, Patiala. The Punjab Govt. vide notification dated 20.10.2015 introduced cashless health insurance scheme (in short 'PGEPHIS') on compulsory basis for Punjab Govt. employees and pensioners. ID card No.MD15-09779168575 under PGEPHIS was issued to the complainant. The scheme remained in operation till 31.12.2016.
Husband of the complainant namely Bant Singh had to be admitted in Patiala Heart Institute, Patiala on 31.12.2016 in emergency. He was treated by the institute for CAD/AC/AWMI/LVD/EF-30%/CAG and was discharged on 02.01.2017. He was advised to continue to take medicine with follow up treatment even after discharge and during post- hospitalization treatment. During the post-hospitalization treatment the doctor recorded on the prescription slip that there is no fresh complaint. Thereafter, the complainant got the Essentiality Certificate signed from doctor and submitted the same to OP No.3 on 28.2.2017. It is alleged M.A.No.1612 of 2020 3 In/and F.A.No.272 of 2020 that OP No.3 had mechanically rejected the claim on the erroneous and unlawful plea that the claim has not been submitted within 30 days from the date of discharge. As per alleged tender clause No.11.6 this condition of OP No.3 is against the provisions of State Services (Medical Attendant Rules) (CSMA) Rules,1940. Vide notification dated 20.10.2015, it is clearly stated that the PGEPHIS will cover all the entitlements as specified under the Rules of 1940 and these rules have the overriding effect on provisions of PGEPHIS and the tendered clause 11.6. The PGEPHIS was made compulsory applicable in the case of complainant and her husband. The OPs cannot take away the pre- existing right of the complainant or her husband to claim the reimburse charges. It is also asserted that as per Govt. notification dated 20.10.2015, the reimbursement of medical expenses incurred by any employee or pensioner who is admitted in the hospital on or before 31.12.2016 and continues to receive treatment after 31.12.2016 are to be borne by OPs No.1 to 3. She also got served legal notice to the OPs through her counsel but the response to the notice was not received. On this background of the facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the OPs. Hence, she filed Consumer Complaint seeking directions to OPs to reimburse medical expenses amounting to Rs.2,17,781/- with interest @15%, and to pay Rs.2 lac as compensation for mental agony, harassment, humiliation besides Rs.20,000/- as costs of the litigation. Defence of the Opposite Parties
4. Upon notice, OPs No.1 to 3 filed their joint written statement wherein they have raised preliminary objections that the complaint is not maintainable as claim has already been declined on the ground that M.A.No.1612 of 2020 4 In/and F.A.No.272 of 2020 the complainant has submitted claim after expiry of 30 days from the date of discharge. Husband of the complainant was discharged from the hospital on 02.01.2017 and she submitted claim after expiry of 30 days. It was declined as per terms and conditions of the policy. The OPs floated the insurance scheme for public in general after prior approval of the Insurance Regulatory and Development Authority (in short 'IRDA'). All the terms and conditions of the policy are set by the IRDA under the IRDA Act, 1999 and Insurance Act, 1938.The insurance is a contract of indemnity. It has to be viewed as normal contract as per Indian Contract Act of insurance. Any violation of the contract by the parties to the contract of insurance becomes void. The company will not be able to answer the claim of the other party; that the complainant does not qualify the ingredients of a valid complaint as envisaged in Section 2(1) (c) of the Consumer Protection Act. There is no allegation of any deficiency of service or unfair trade practice on their part and lastly the complainant has no cause of action or locus standi to file the complaint. On merits, OPs No.1 to 3 have reiterated their stand as taken in the preliminary objection and prayed for dismissal of the complaint.
5. OP No.4 filed its written statement and raised preliminary objections that the complaint is not maintainable, the scheme was for cashless claim. According to the Govt. notification, the Govt. entered into an agreement with OP No.3 to provide cashless insurance scheme from 01.01.2016 to 31.12.2016. Bant Singh-husband of the complainant was admitted in Patiala Heart Institute on 31.12.2016. He took treatment there and finally discharged on 02.01.2017. He was to get M.A.No.1612 of 2020 5 In/and F.A.No.272 of 2020 medical claim from OP No.3. The complainant was to submit bills within a period of 30 days from discharge but she had deposited her medical bills after 57 days. Therefore, the complaint is liable to be dismissed. On merits it is admitted that the complainant is regular employee. The scheme vide notification dated 20.10.2015 is also admitted. It is admitted that Husband of the complainant was admitted on 31.12.2016 and was discharged on 2.1.2017 and he was eligible to get medical claim from OP No.3. All the other averments of the complaint have been denied and it is prayed for the dismissal of the complaint. Evidence of the parties and Finding of the District Commission
6. The complainant tendered in evidence her affidavit as Ex.C-A, copy of notification as Ex.C-1, copy of ID card as Ex.C-2, copy of letter as Ex.C-3, copy of discharge summary as Ex.C-4, copy of medical reimbursement/treatment certificate as Ex.C-5, copy of letter as Ex.C-6, copy of certificate as Ex.C-7, copy of scheme as Ex.C-8, copy of legal notice as Ex.C-9, copy of reply to legal notice as Ex.C-10, copy of letter/circular as Ex.C-11, copy of circular as Ex.C-12, copy of newspaper cutting Ex.C-13. On the other hand, OPs No.1 to 3 tendered into evidence affidavit of Mukesh Malhotra as Ex.OP-A, copy of discharge summary as Ex.OP-1, copy of repudiation letter as Ex.OP-2, copy of policy as Ex.OP-3. OP No.4 tendered into evidence affidavit of Dr.Manjit Inder Singh as Ex.OP-B. The District Commission after going through the same partly accepted the complaint against OP No.4 in the terms referred to above. Hence, OP No.4 has filed this appeal, along with a Miscellaneous Application for condonation of delay of 316 days in filing the same.
M.A.No.1612 of 2020 6
In/and F.A.No.272 of 2020 M.A.No.1612 of 2020(Grounds for Condonation of Delay)
7. Brief facts, as averred in the application, are that the delay in filing the appeal has occurred due to the fact that order dated 20.09.2019 was received from the Civil Surgeon, Patiala on 07.01.2020 which was forwarded to the office of the appellant on 07.01.2020. The appellant forwarded the order to the appropriate authority i.e. the Managing Director, Punjab Health Systems Corporation (in short 'PHSC'), SAS Nagar vide letter No.DMC/Patiala/2020/09 dated 07.01.2020 for further directions in the matter. The concerned dealing hand in the PHSC after examining the orders sought some documents and the proposal was put up to the authorities on 17.01.2020 for filing the appeal. In view of the order being contrary to the provisions of the scheme certain queries were posed by the authorities which were satisfied. The file was finally forwarded on 22.01.2020 to the Managing Director, PHSC for further orders in the matter. On 23.01.2020 permission was granted to file an appeal and the proposal was received in the branch on 24.01.2020. The case was forwarded to the counsel for drafting the appeal on 28.01.2020. The counsel sought certain documents and complete record/pleadings filed before the District Commission. The same were arranged and furnished to the counsel on 03.02.2020. The appeal was received on 22.02.2020 and on approval of the same stands filed on 20.07.2020. In this way delay of 316 days has occurred in filing the appeal. It is averred that delay is neither willful nor intentional. It has been prayed that the application be accepted and the delay in filing the present appeal be condoned, in the interest of justice.
M.A.No.1612 of 2020 7
In/and F.A.No.272 of 2020
8. I have heard learned counsel for the applicant/appellant and have gone through the application/appeal file carefully. Contentions of the Appellant
9. Learned counsel for the applicant/appellant has vehemently contended that the delay in filing the appeal is neither willful nor intentional, but due to the reason narrated above. It is averred that as the delay has occurred due to the circumstances mentioned above, which is not intentional delay on the part of the applicant/appellant, rather, happened due to bonafide reasons and prayed that the same may be condoned and the appeal be admitted to be heard on merits.
10. I have given my thoughtful consideration to the contentions raised by the learned counsel for the applicant/appellant.
11. No cogent reasons and grounds have come forward to explain the huge delay of 316 days in filing the appeal. Chain of sequence of events, which caused the huge delay of 316 days in filing the appeal, has not been properly described in order to co-relate the various events which allegedly took place from time to time. Furthermore, the application has been filed in a casual manner, without disclosing the detailed explanation about the delay. The applicant/appellant has adopted a careless and casual approach in filing the application. The law is settled that the delay can only be condoned when it has been properly explained, but the delay due to casual approach cannot be condoned, at the asking of the applicant.
12. It was held by the Hon'ble Supreme Court in "Anshul Aggarwal Vs. New Okhla Industrial Development Authority", 2011 (14) SCC 578 that while deciding an application for condonation of delay in the M.A.No.1612 of 2020 8 In/and F.A.No.272 of 2020 cases under the Consumer Protection Act, 1986, the Court has to keep in mind that special period of limitation has been prescribed under the Act for filing the appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated, if the highly belated petitions are to be entertained.
13. Hon'ble Supreme Court in case "Kamlesh Babu and Ors. Vs Lajpat Rai Sharma and Others", 2008(3) The Punjab Law Reporter- 455, while interpreting and explaining the scope of Section 3(1) of the Limitation Act, observed as follows:-
"It is well settled that Section 3(1) of the Limitation Act casts a duty upon the court to dismiss a suit or an appeal or an application, if made after the prescribed period, although, limitation is not set up as a defence".
14. The Hon'ble Supreme Court in case "Lanka Venkateswarlu (D) By LRs. Vs State of A.P. & Others", 2011 (2) RCR Civil-880 (SC), after considering the entire case law on the point of delay, in Para- 26(relevant portion) observed as under:-
"Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly".
15. Similarly, the Hon'ble Supreme Court in case "Oriental Arora Chemical Industries Limited Vs Gujarat Industrial Development Corporation", (2010) 5 SCC-459 observed as follows:-
"We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which M.A.No.1612 of 2020 9 In/and F.A.No.272 of 2020 legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time".
16. Hon'ble Punjab & Haryana High Court in case reported as "Union of India & Ors. Vs Hari Singh", 2009(4) RCR (Civil)-654, declined to condone the delay for taking the matter in casual manner. In Para-7, it was observed as follows:-
"Even otherwise, no explanation is forthcoming from 15.09.2004 to 18.01.2005 for not filing the appeal. The pleadings in application itself show that the matter was being taken in most casual manner, without bothering for the law of limitation".
17. The Hon'ble Supreme Court in case SLP (Civil) Diary No.(s)13348 of 2019 "The State of Bihar & Ors. Vs. Deo Kumar Singh & Ors.", decided on 09.05.2019 observed (relevant portion) as follows:-
".......We are of the view that a clear signal has to sent to the Government Authorities that they cannot approach the Court as and when they please, on account of gross incompetence of their officers and that too without taking any action against the concerned officers. No detail of this delay of 728 days have been given as if there is an inherent right to seek condonation of delay by State Government. The law of limitation apparently does not apply to the State Government according to its conduct.
That such condonation of delay is no more admissible on the pretext of Government working lethargy is clear from the judgment of this court in The Chief Post Master General vs. Living Media India Ltd. [2012(3) SCC 563] We strongly deprecate the casual manner in which the Division Bench was approached and also this Court has been approached; the objective possibly being to get a certificate of dismissal from this Court. This is complete wastage of judicial time and the petitioners must pay for the same........."
18. In view of above discussion and the law laid down, it is clear that the delay has to be explained properly and sufficient cause for causing delay must be disclosed and the delay caused on account of dilatory tactics, inaction and casual approach cannot be condoned. In the present case, as discussed above, no valid reasons or the explanations have been given for condonation of delay of 316 days and each day's M.A.No.1612 of 2020 10 In/and F.A.No.272 of 2020 delay is required to be explained/justified. Thus, I do not find any ground to condone the huge delay of 316 days in filing the appeal.
19. In view of the above discussion, the application for condonation of delay is dismissed, being without any merit.
Main Case
20. As the application for condonation of delay has been dismissed, therefore, appeal also stands dismissed, being barred by time.
21. The appellant had deposited a sum of Rs.25,000/- + Rs.17,753/- at the time of filing of the appeal. Above said amounts, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The respondent No.1/complainant may approach the District Commission for the release of the above amount and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT October 06, 2020 Rupinder 2