M.THANIKACHALAM J. - (1.) The third opposite party is the appellant.2. The 1st and 2nd respondents, in this appeal are the complainants, being father and son. The first complainant is a Credit Card Holder of the first opposite party. The second opposite party, with the aid of the third opposite party introduced a group medical plan, for the first opposite party?s credit card holders in which the first complainant joined in the Group Medical Plan on 01.08.2000, paying premium, regularly having the sum assured originally at Rs.1 lakh, which was enhanced to Rs.1,50,000/- in the year 2001, enhancing the premium also. The Member and his family members are entitled to the benefits and service under domiciliary hospitalization, under the Group Medical Plan. On that basis, the second complainant got certificate on 15.7.2002 to 17.7.2002 for ailment suffered by him, namely Umbilical Granuloma. The complainants approached the second opposite party, as well as the Head Office for the claim based upon the policy on the basis of the certificate, which was not honoured, showing some medical literature, as if, disease does not require any surgery, thereby they have committed, unfair trade practice and deficiency in service, causing sufferings and mental agony. Despite repeated requests and legal notice, the deficiencies committed by the opposite parties were not rectified and therefore, the complainant is entitled to a total sum of Rs.4 lakhs, out of which, regarding the medical expenditure of Rs.50,000/- has been waived by the complainant, restricting the claim at Rs.3,50,000/-. Thus claiming the amount, a consumer complaint came to be filed before the District Forum, Chennai [South].3. The first and third opposite parties by filing separate Written Versions, opposed the claim, inter alia contending that though the first complainant was the credit card holder, covered under the medical insurance cover, he has not availed the treatment for the second complainant, that too, for a disease when surgery is not required, based upon the estimate alone when claim was made, that too, for not hospitalization, it was repudiated, cannot be termed as deficiency in service.4. The District Forum without considering the terms and conditions of the policy, as well as the claim namely, main claim and consequential claim, even without recording a finding, how the opposite parties 2 and 3 had committed deficiency in service, awarded a sum of Rs.50,000/- as compensation for mental agony and Rs.3,000/- as costs, dismissing the claim against the first opposite party, as per the order dated 10.02.2009, which is under challenge at the instance of the third opposite party.5. The facts, beyond the controversy are that the first complainant is the credit card holder of the first opposite party, who is covered under the Group Insurance Scheme, having the maximum limit of Rs.1,50,000/- during the relevant period. The Group Insurance covers, not only the credit card holder-Member, but their family members also. It appears, the second complainant was suffering from Umbilical Granuloma, for which, the second complainant attempted to take treatment, for which, Certificates were obtained on 15.7.2002 and 17.7.2002 from Apollo Cancer Hospital. Probably, as seen from the reading of the complaint without undergoing any treatment, they have claimed medical expenditure of Rs.50,000/- claiming hospitalization also. The Insurance Company who had undertaken to reimburse the medical expenses, considering the nature of disease, which does not required any surgery, whereas it can be cured by giving medicines, informed under Ex.A12 that they cannot extend direct payment facility, and if at all the member will have to submit all the papers and claim on a reimbursement basis. Aggrieved of this conduct, as if, the complainants were put to untold sufferings etc., quantifying loss at Rs.4 lakhs, restricting to Rs.3,50,000/-, a consumer complaint was lodged, ended in favour of the complainant partially, where a direction has been issued as said above.6. The learned counsel for the appellant urged before us, that when the complainants have not taken any treatment or when the complainants have not been admitted in any hospital for treatment, there is no question of extending direct payment cash facilities, which was not at all properly considered by the District Forum, resulting erroneous conclusion, which requires to be erased, for which submission, we are unable to differ, though it is opposed. 7. In Paragraph 17 of the complaint, under four headings, amounts are claimed and they are: (1). Deficiency in service ? Rs.1,50,000/-; (2). Pain and suffering ? Rs.1,00,000/-; (3). Mental agony ? Rs.1,00,000/- and (4). Medical Expenditure - Rs.50,000/-. Subsequently, the claim of Rs.50,000/- that is 4th item, has been waived, thereby showing that the complainants have not claimed the medical expenditure, in view of the fact that they have not incurred any medical expenditure. The policy is to extent medical facilities, on the basis of direct payment or on the basis of reimbursement. If direct payment [DP] is to be claimed, one should be hospitalized should take treatment. In case, the Direct payment facilities is not possible, to be extended under the policy, they have to incur the expenditure and seek for reimbursement and that is the information, furnished under Ex.A12 to the complainant, when they sought to claim a sum of Rs.50,000/- towards medical expenditure. In this case as pointed out, medical expenditure is not claimed, and therefore, the non-settlement of that claim or not extending direct payment benefit, when the second complainant was not admitted in the hospital, the question of deficiency, pain and suffering, mental agony will not at all arise for consideration and these are all figment of imagination, emanated from the mind of the complainant, for which, no assurance was given by the opposite parties, for imbursement and the repudiation is fully justified, which was not at all considered by the District Forum.8. Under the brochure issued by the second opposite party, in respect of Group Medical Plan, Medicare Service Club shall only be responsible for making direct payment to the Hospital when there was pre-hospitalization and post hospitalization expenditures including Doctor/Surgeon/Private Nurse?s fees either on the basis of direct payment or on the basis of reimbursement, which is not in dispute.9. The second complainant though it is said, that he was suffering from Umbilical Granuloma, has not taken treatment, admittedly. Under Ex.A8, the first complainant informed that his son was advised to take surgery, for which only, a Certificate was obtained as seen from Ex.A9, where the doctor had said probable expenses of Rs.44,000/- and based upon the Certificate, no treatment had been taken, no hospitalization also had taken place. Because of the non-incurring of the above said expenses alone, the complainants have themselves waived or have not claimed the medical expenses as said above, though the said expense was quantified at Rs.50,000/-. When the second complainant, being the son of the first complainant-credit card holder-member, has not taken any treatment from the empanelled hospitals and nursing homes of medicare, no question of direct payment would arise and the non-payment of the said expenses [not incurring] will not arise for consideration. That is why, when a claim was made as indicated above, in Ex.A12, the complainant was advised to seek reimbursement basis, in which, we cannot find any deficiency or negligent act as the case may be. Unfortunately, the District Forum, not understanding, what are the terms and conditions of the policy, whether the complainants had incurred the expenses or not, that too, forgetting the fact that the complainants themselves have not claimed the medical expenses, unfortunately slapped an erroneous order against the opposite parties to pay a sum of Rs.50,000/- which should be uprooted. When the main relief, for which, assurance was given, not claimed, than the non-payment of the said amount, cannot be treated as negligent act or deficiency in service and this is the basic and fundamental principles, not taken into consideration by the District Forum, it is most unfortunate. For these reasons, we are constrained to interfere, unavoidably to up set the finding, since admittedly the complainants have not taken any treatment.10. Appeal is allowed, the order of the District Forum in C.C.385/2004, dt.10.02.2009 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, we make no order as to cost, throughout. 11. The Registry is directed to handover the Fixed Deposit Receipt made by way of mandatory deposit, to the appellant / 3rd opposite party, duly discharged.;