Bangalore District Court
Lions Club Of Bangalore vs T.T.K. Healthcare Tpa Pvt Ltd on 9 March, 2015
C.R.P.67} Government of Karnataka
Form No. 9 TITLE SHEET FOR JUDGEMENTS IN SUITS
(Civil) IN THE COURT OF THE SMALL CAUSES AT
Title Sheet for
Judgement in
BENGALURU.
DATE : THIS THE 9th DAY OF MARCH 2015.
PRESENT :
SMT.B.PUSHPANJALI, B.A., LL.M.
II Addl. Small Causes Judge &
XXVIII ACMM, Bengaluru.
S.C.No.3106/2011.
Plaintiffs: 1. LIONS CLUB OF BANGALORE
WEST TRUST, No.5, Lions Eye Hospital
Road, (H.Siddaiah Road),
Bengaluru-560 002.
Represented by its Managing Trustee
Sri.B.L.S.Murthy,
Aged about 75 years,
S/o Batchu Lutchmaiah Setty
2. BANGALORE WEST LIONS EYE
HOSPITAL AND CORNEA GRAFTING
CENTER, No.5, Lions Eye Hospital
Road (off JC Road),
Bengaluru -560 002,
Represented by Sri.B.L.S.Murthy.
vs.
Defendants: 1. T.T.K. HEALTHCARE TPA PVT LTD.,
No.2, H.B.Complex,
Next to Confident Group Building,
Hundred feet Ring Road
First Stage, BTM Layout,
Bangalore -560 068
Represented by its Managing Director
SCCH-13 2 SC.3106/2011
2. Smt.R.Obalamma,
W/o late Ranga Swamy, Major,
No.1267, Ninth Cross, N.T.Ship,
HAL Colony, Marathalli,
Bengaluru -560 037.
3. CHOLAMANDALAM MS GENERAL
INSURANCE CO.LTD.,
Represented by its Authorised
Signatory, 6th floor, Golden Heights
Building. 5 N Block, Near Rajajinagar
Entrance, Bengaluru-10.
-o0o-
Date of Institution of
11.11.2011
the Suit:
Nature of the Suit (Suit on Recovery of Money
Pronote, Suit for Declaration
and Possession Suit for
injunction etc.,)
Date of the commencement of 05.07.2012
Recording of the evidence:
Date on which judgment was 09.03.2015
Pronounced:
Total Duration: Year/s Month/s Day/s
-3- -3- -28-
JUDGMENT
Plaintiff has filed this suit for recovery of Rs.40,550/- along with current and future interest at the rate of 12% p.a. from the defendants.
2. The plaintiff is a Trust, represented by its Managing Trustee, running a reputed Eye Hospital under the name and style Bangalore West Lions Super Speciality SCCH-13 3 SC.3106/2011 Eye Hospital, catering the needs of general public and it is also running Eye Bank and conducting eye surgeries for various types of eye ailments that are required and advised by qualified eye Surgeon.
2nd Defendant approached the plaintiff to undergo a cataract surgery with Phaco with Acrylic Foldable Tecnis Intraocular Lens for the Right Eye and further represented that the 2nd defendant have Insurance facility with the first defendant under policy No.HWT-00001000-000- 00/00013 and the first defendant has issued Identity Card vide No.TTK ID-BLR-CM-B291-01-00013B to the 2nd defendant. Accordingly, plaintiff sent a proposal dt.13.06.07 to the 1st defendant through Fax Message in the Pre-Authorisation Request form (Form No.7) prescribed by the 1st defendant and the said proposal was approved by the 1st defendant and sent an authorization letter dt.13.06.07 to the plaintiff through fax message duly signed by the authorised signatory, agreeing to pay a sum of Rs.15,000/- towards cost of the surgery of 2nd defendant. After receiving the said approval from the 1st defendant, 2nd defendant was admitted as an inpatient on 13.06.07 and she has undergone cataract surgery on 14.06.07 at the plaintiff's hospital Phaco with Acrylic SCCH-13 4 SC.3106/2011 Foldable Tecnis Intraocular Lens for the Right Eye and the plaintiff has used IOL sticker bearing No.SN-4336270612 and after surgery, she was discharged on 15.06.07. The plaintiff had raised Invoice dated 18.06.2007 vide No.LEH/TTK/1589/2007 for a sum of Rs.15,000/-. After satisfying the medical facilities and successful eye surgery for the right eye, the 2nd defendant again approached the plaintiff to undergo a cataract surgery Phaco with Acrylic Foldable Tecnis Intraocular Lens for the Left Eye, by representing that she had insurance facility with the 1st defendant and accordingly, it has sent proposal to the 1st defendant which was approved by it and after receiving the said approval from the 1st defendant, 2nd defendant admitted to the hospital on 28.02.2008 as an inpatient and cataract surgery to the left eye was done on 28.02.08 at the plaintiff's hospital and the plaintiff has used IOL Sticker bearing No.SN-5391040708 and was discharged on 29.02.08. On 03.03.2008, the plaintiff raised invoice for Rs.15,500/- under Invoice No.LEH/TTK/215/2008 and forwarded to the 1st defendant for payment. In spite of several requests and communications, the 1st defendant did not discharge it obligation by paying the claim of the 1st defendant as per the invoices above referred. However, SCCH-13 5 SC.3106/2011 at the request of the 1st defendant, the plaintiff has sent original IOL Stickers related to the 2nd defendant on 01.10.08, but inspite of several repeated demands, the defendants failed to pay the amounts. Therefore, it has sent a Notice dt.25.05.2010 to the defendants through registered post with acknowledgement due and also under certificate of posting. The notice sent under RPAD was returned with shara 'Left'. 1st defendant has sent reply to the said notice on 02.06.10 to the plaintiff, wherein it categorically admitted the claim, but, it has contended that the IOL Stickers have not been sent and therefore, the file is closed. Plaintiff has sent rejoinder dt.05.06.2010 to the 1st defendant in response to the reply dt.02.06.10 stating that the IOL stickers have been sent to the 1st defendant on 30.09.08. Inspite of receipt of rejoinder, the 1st defendant failed to pay the claims of the plaintiff with regard to the surgeries undergone by the 2nd defendant. Hence, this suit.
3. 1st Defendant in its written statement denied all the averments made by the plaintiff in its plaint and contended that the suit is not maintainable for want of cause of action as there is no privity of contract between the plaintiff and the 1st defendant. 1st defendant at no SCCH-13 6 SC.3106/2011 point of time, has approved or has given any approval to any pre-authorisation request form sent through fax message dt.13.06.07. The plaintiff at no point of time sent IOL Stickers, which is mandatory in order to ascertain the proof of implant despite reminder sent to the Bangalore West Lions Eye Hospital and Cornea Grafting Center and inspite of repeated reminders, it has failed to produce the said IOL Stickers. It has further contended that at any point of time, 1st defendant has agreed in any capacity under any agreement to pay the amount as claimed by the plaintiff. These among other grounds the defendant prays for dismissal of suit.
4. By virtue of the above facts and circumstances of the case the points that would arise for my consideration are :
1. Whether the plaintiff proves that the defendants are due of Rs.30,500/- as per invoices dt.18.06.07 and 03.03.2008?
2. Whether the plaintiff is entitle for suit claim Rs.40,550/- together with future and current interest?
3. What order or decree ?
5. In order to prove the suit claim, the Administrator of the plaintiff examined himself as PW.1 and 7 documents are marked as Exs.P.1 to P.13 and 1st SCCH-13 7 SC.3106/2011 defendant got examined its consultant Risk Officer as DW.1 and no documents are goy marked
6. My answer on the above points are as under:
POINT NO.1 : In the affirmative
POINT NO.2 : In the affirmative
POINT NO.3 : As per final order, for
the following;
REASONS
7. POINT NOs.1 & 2: These points are inter
related to each other hence, they are taken together for common discussion to avoid repetition and appreciation of evidence on record.
The plaintiff's Trust had filed a suit for recovery of a sum of Rs.40,550/- together with current and future interest at 12% p.a. Initially, the 1st plaintiff has filed a suit against the defendants No.1 and 2 and subsequently, after filing of the written statement by the 1st defendant, the defendant No.3 and Plaintiff No.2 were impleaded as parties. The records reveals that though the 3rd defendant appeared before the court, despite sufficient opportunity, neither led evidence SCCH-13 8 SC.3106/2011 nor filed its written statement. Even, the 3rd defendant has not cross examined the plaintiff and the 1st defendant witness. Before adverting discussion on rival controversy amongst the parties, let us recaplate the admitted facts of the case.
1st plaintiff is a trust running a Eye hospital under the name and style-Bangalore West Lions Super Speciality Eye Hospital in Bengaluru, i.e. 2nd plaintiff in this case. Besides, 1st petitioner is also running Eye Bank and conducting eye surgeries for various types of eye ailments that are required and advised by qualified Eye Surgeon. Similarly, the 1st defendant is a Health Care Services provider Organisation, providing health care related services to its beneficiaries and clients through net work of service providers, wherein plaintiffs No.1 and 2 is one of the service provider as per MOU dt.23.10.2003. The 2nd defendant is a beneficiary took treatment under the health card with the plaintiff's hospital. Similarly, the 3rd defendant is an Insurance company, which issued health policy to the 2nd defendant.
SCCH-13 9 SC.3106/2011
Now, in the light of these admitted facts, let us ascertain the rival controversy. According to the plaintiffs, the 2nd defendant approached to under go the cataract surgery with Phaco with Acrylic Foldable Tecnis Intraocular Lens for the right eye and further represented that the 2nd defendant have insurance facility with the 1st defendant under policy No. policy No.HWT-00001000-000- 00/00013 and the first defendant has issued Identity Card vide No.TTK ID-BLR-CM-B291-01-00013B to the 2nd defendant. 2nd defendant has under gone said surgery on 14.06.2007 at the plaintiff's hospital. The plaintiff has raised Invoice dt.18.06.07 vide No.LEH/TTK/1589/2007 for a sum of Rs.15,000/-. After satisfying the medical facilities and successful eye surgery for the right eye, the 2nd defendant again approached the plaintiff to undergo a cataract surgery Phaco with Acrylic Foldable Tecnis Intraocular Lens for the Left Eye, by representing that she had insurance facility with the 1st defendant and accordingly she undergone the said surgery on 28.02.08. On 03.03.2008, the plaintiff raised invoice for Rs.15,500/- under Invoice No.LEH/TTK/215/2008 and forwarded to the 1st defendant for payment. In spite of several requests and communications, the 1st defendant did not discharge SCCH-13 10 SC.3106/2011 it obligation by paying the claim of the 1st defendant as per the invoices above referred. However, at the request of the 1st defendant, the plaintiff has sent original IOL Stickers related to the 2nd defendant on 01.10.08, but inspite of several repeated demands, the defendants failed to pay the amounts. Therefore, it has sent a Notice dt.25.05.2010 to the defendants through registered post with acknowledgement due and also under certificate of posting, but the said notice returned with shara "Left". Inspite of issuance of notice, 1st defendant failed to comply the demands of the plaintiff but, it has sent reply to the said notice on 02.06.10 to the plaintiff, wherein it categorically admitted the claim, but, it has contended that the IOL Stickers have not been sent and therefore, the file is closed.
In order to substantiate its specific assertion, the plaintiffs examined its Administrator as PW1, who filed affidavit evidence,, reiterating the same. Apart from oral evidence, he has produced documents marked at Exs.P.1 to P13. Though, he was subjected to lengthy cross examination, noting worth is elicited. On the other hand, 1st defendant in support of its specific assertion examined SCCH-13 11 SC.3106/2011 its Consultant Risk Officer as DW1, who also filed affidavit evidence reiterating the same. He had not produced any documents. However, in his cross examination, he has denied the suggestions posed by the plaintiff. A careful perusal of the records, it reveals that the plaintiff has raise a bill pertaining to the operation of right eye of the 2nd defendant under health care. It is also not in dispute that the 3rd defendant had issued Insurance policy to the 2nd defendant. A careful scrutiny of the evidence of the plaintiff, 1st defendant has not issued insurance policy to the 2nd defendant and also not disputed the operations underdone in the plaintiff's hospital. However, it only disputed that IOL Stickers are not sent to its office despite remainders as it was time barred claim, it is not liable to pay the dues. A careful perusal of the documents placed before the court, the plaintiff has sent a letter to the 1st defendant as per Ex.P1 dt.30.09.2008 along with enclosures and also Courier Receipt marked at Ex.P2. Soon after the operation of the 2nd defendant, plaintiff has raised Invoices dt.18.06.2007 & 03.03.2008 at Exs.P7 & P8 and submitted to the 1st defendant to the tune of Rs.15,000/- and Rs.15,500/-. After the receipt of the invoices by the 1st defendant, the 2nd defendant had SCCH-13 12 SC.3106/2011 replied to the plaintiff, calling upon to produce IOL Stickers pertaining to the 2nd defendant. It is true that the plaintiff has not submitted IOL Stickers along with Exs.P7 and P8 initially, but as per the reply of the 1st defendant, the plaintiff wrote a letter to the 1st defendant at Ex.P1 dt.30.09.2008 along with enclosures. The Courier Receipt at Ex.P2 clinchingly evidenced that the receipt of letter dt.30.09.2008. The contents of Ex.P1 reveals that the plaintiff has stated in Ex.P1 about the enclosures of original IOL Stickers of 2nd defendant. The seal and signature of 1st defendant on Ex.P2 reflects that the 1st defendant has received the same. However, after the receipt of this letter, the 1st defendant has not replied to the plaintiff stating that no such IOL stickers enclosed along with Ex.P1. The enclosures produced before the court along with Ex.P1, discloses that the copy of the original IOL Stickers of 2nd defendant which was submitted to the 1st defendant. Ex.P3 is the notice of the 1st defendant dt.02.06.2010. That means, after the receipt of Ex.P1, nearly after the lapse of 1 ½ years, from the date of receipt of Ex.P1, the 1st defendant has given reply to the plaintiff as per Ex.P3, stating that IOL Stickers are not submitted. Again, the plaintiff replied to the 1st defendant SCCH-13 13 SC.3106/2011 as per Ex.P4 stating that they have already submitted the original bills along with IOL Stickers as sought. So, from these records, it reveal that if at all, 1st defendant has not received the IOL Stickers of the under Ex.P1, it ought to have been replied immediately. However, it was replied to the plaintiff after 1 ½ years from the date of receipt of Ex.P1. The copy enclosed along with Ex.P1 discloses that the enclosure of IOL Stickers. Therefore, when the 1st defendant has not replied immediately after the receipt of Ex.P1 the notice of the 1st plaintiff with regard to the enclosures as stated in the letter, definitely raise to suspect the reply notice of the 1st defendant at Ex.P3. If at all, 1st defendant had replied immediately, after the receipt of Ex.P1 notice, stating that it has not received the original IOL stickers, it would have been viewed in different angle. The copy of enclosures placed before the court along with Ex.P1 clinchingly evidenced that it was sent to the 1st defendant. The enclosures reflects at the end of Ex.P1 shows that five original stickers enclosed along with Ex.P1. Further, though the 1st defendant has received IOL Stickers under Ex.P1, after 1 ½ years, has replied stating that the original IOL stickers are not received. Though, the 1st defendant has taken several contention with regard SCCH-13 14 SC.3106/2011 to its law, but, it was not suggested to PW1. The only defence taken during the course of cross examination of PW1 is with regard to the non receipt of IOL Stickers and it is time barred debt. With regard to the receipt of IOL Stickers, the Letter at Ex.P1 and the enclosures are clinchingly evidenced that under Ex.P1, the plaintiff has sent IOL stickers of the beneficiary including 2nd defendant. With regard to the time barred debt as alleged by the 1st defendant is concerned, the delay in claiming the amount is on account of 1st defendant only. Because, if 1st defendant has replied to the plaintiff to Ex.P1 immediately, after the receipt, then the plaintiff could have taken action immediately. Since, it was replied to the plaintiff after the lapse of 1 ½ years from the date of receipt of Ex.P1, as per Ex.P3, this delay only on account of 1st defendant. The 1st defendant is estopped from raising contention before the court that the claim is barred by limitation. A careful perusal of the records, though the 3rd respondent has issued policy to the 2nd defendant, that the service of Ex.P1, it has not denied the claim of the plaintiff. Since, there is a mutual understanding between the plaintiff and 1st defendant and insurance contract entered between the defendants NO.2 and 3, they are SCCH-13 15 SC.3106/2011 jointly liable because, 1st defendant is a service provider, under 1st defendant service only, the 3rd defendant has issued policy to the 2nd defendant. Besides, there is a mutual understanding between the plaintiff ad the 1st defendant with regard to the payments. Therefore, 1st defendant cannot avoid its liability under Insurance Regulatory and Development Authority (Health Insurance) Regulations, 2013. Since, the defendants No.1 and 3 have not paid the operation expenses of the plaintiff, they are jointly and severally liable to pay to the plaintiff. As per the notice itself, it is clinchingly evidenced that the defendants have not paid the operation charges to the plaintiff. Hence, they are jointly and severally liable to pay the suit claim.
8. The plaintiff claimed current and future interest at 18% p.a. Taking note of nature of the suit transaction, this court is of the opinion that current and future interest at 6% p.a. on principle amount of Rs.30,500/- would meet the ends of justice. Accordingly, I answer both the points in affirmative.
9. POINT No.3: In view of the above discussion, reasons stated and findings given to the point Nos. 1 & 2, I proceed to pass the following SCCH-13 16 SC.3106/2011 ORDER The suit of the plaintiff is decreed for Rs.40,550/- with costs.
Defendant is liable to pay current and future interest @ 6% p.a. on principal amount of Rs.30,500/-.
Draw a decree accordingly.
(Computerised to my dictation, corrected and pronounced in the open court on this the 9th day of March 2015.) (B.PUSHPANJALI) II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru.
ANNEXURE List of witnesses examined for plaintiff :
PW.1 Sankarappa M. List of documents marked on behalf of plaintiff :
Ex.P.1 : Letter dated 30.09.2008 along with enclosures Ex.P.2 : Courier receipt Ex.P.3 : Letter of defendant dt.02.06.2010 Ex.P.4 : Letter of plaintiff to the defendant dt.05.06.2010 Ex.P.5 : Postal acknowledgement Ex.P.6 : Resolution extract dt.29.05.2010 Ex.P.7 : Letter of plaintiff to defendant dt.18.06.207 along with invoice/credit bill Ex.P8 : Letter of plaintiff to defendant dt.03.03.2008 along with invoice/credit bill Ex.P9 : Legal notice dt.25.05.2010 Ex.P10 : Postal acknowledgement Ex.P11 : Unserved postal cover Ex.P12 : COP acknowledgement Ex.P13 : Postal acknowledgement SCCH-13 17 SC.3106/2011 List of witnesses & documents for defendants :
DW.1 : Prasad Rao
-NIL-
(B.PUSHPANJALI)
II Addl. Small Causes Judge
& XXVIII ACMM, Bengaluru.