HYDERABAD
F.A.No.1071/2005 against O.P.No.179/1996, Dist.Forum, Karimnagar .
Between
United India Insurance Company,
Rep. by its Branch Manager,
Hanmakonda, Warangal Dist. … Appellant/
Opp.party no.4
And
1.Bejjanki Venkata Rajan, S/o.Balaiah,
Aged about 55 years, Occ:Mannepu,
R/o.Singapoor V/o.Huzurabad Mandal,
Karimnagar District. … Respondent/
Complainant
2.Anumandla Laxminarayana
S/o. Chandra Mouli, aged about 42 years,
Occ:Doctor , R/o.Vani Maternity Nursing Home,
Huzurabad, Karimnagar Dist.
3. Ponnuri Venkateshwar Rao,
S/o.Tirupathaiah, aged about 36 years,
Occ:Doctor, R/o.Vani Maternity Nursing Home,
Huzurabad, karimnagar Dist.
4. Gandra Leela Rao, W/o.Prabhakar Rao,
Aged about 40 years, Occ:Doctor Owner of
Nursing Home, R/o.Vani Maternity Nursing Home,
Huzurabad, Karimnagar Dist. …. Respondents/
Opp.parties 2 to 3
Counsel for the appellant : Mr.T.K.Sreedhar
Counsel for the respondents : Mr.Praveen Kumar –R1
M/s.Sailaja Bandari –R2
M/s.K.Ranga Rao-R3 & R4
CORAM : THE HON’BLE JUSTICE SRI D.APPA RAO , PRESIDENT,
SMT.M.SHREESHA, HON’BLE MEMBER,
AND
SRI G.BHOOPATHI REDDY , HON’BLE MEMBER.
MONDAY, THE TWENTY FIFTH DAY OF AUGUST, TWO THOUSAND EIGHT.
Oral Order : (Per Sri G.Bhoopathi Reddy, Hon’ble Member)
******
This is an appeal filed by the appellant/opp.party no.4 under Section 15 of the Consumer Protection Act ,1986 to the set aside the order passed by the District Forum , Karimnagar in O.P.No.179/1996 dt. 7.3.2005.
The respondent no.1 herein is the complainant before District Forum. He filed complaint to direct the opp.parties to pay Rs.2 lakhs on account of the death of his wife which occurred due to negligence of the opp.parties in the treatment given to her.
The case of the complainant is as follows:
The complainant’s wife Lasmamma approached the opposite party no.1 on 28.5.1995 as she was suffering from stomach ache and the opp.party no.1 advised for operation stating that she was having stones in her kidneys and demanded Rs.5000/- for removal of the stones. The complainant’s wife paid Rs.4000/- as advance to the opp.party no.1 and was admitted in the nursing home of opp.party no.3 by name Vani Maternity Nursing Home on 29.5.1995 and she was taken into the operation theatre at 8 a.m. by the opp.party no.1 and she was brought out at 3 p.m. and at that time her condition was serious . The opp.party no.1 told that her condition would be alright and he has gone to Jammikunta to treat some other patients and when he returned to the nursing home patient’s condition become very serious. The complainant’s wife was shifted to Rohini Hospital at Warangal and X-ray was taken in the hospital and from there she was referred to M.G.M. Hospital by opp.party no.1 and after admitting in M.G.M. hospital the complainant’s wife died on 2.6.95 in the said hospital. The post mortem report issued by the Forensic Expert revealed that the deceased was operated for hysterectomy and her uterus was removed during surgery and opp.party no.1 did not conduct for multiple visical caliculator of kidney as he stated earlier after his provisional diagnosis . The medical authorities issued death certificate stating that the deceased died due to post anesthetic cardiac arrest. The said certificate revealed that the opp.party no. 2 did not take proper care during the operation in maintaining the anesthetic level on vital organs. There is also negligence on the part of the opp.party no.3 in not maintaining and not taking proper care and running the Nursing Home. The opp.party no.1 performed the operation, the opp.paryt no.2 had injected anaesthesia, the opp.party no.3 is the owner of the nursing home and the opposite party no.4 is the insurer of the opp.party no. 1 having valid insurance policy bearing no.05060/46/34/018/94 valid from 1.7.94 to 30.6.95. Due to sudden demise of his wife the complainant lost companionship, love and affection and is under mental agony . Alleging deficiency in service on the part of the opp.parties the complainant approached the District Forum to direct the opp.parties to pay Rs.2 lakhs on account of the death of his wife which occurred due to negligence of the opp.parties in the treatment given to her.
The opp.party no.1 filed counter denying all the facts except the operation performed on the deceased. The opp.party no.1 stated that the wife of the complainant was admitted in the nursing home of opp.party no.3 on 29.5.1995 and on the same day he had performed the operation and during the surgery the patient had cardiac respiratory problem and she was resuscitated by the opp.partyno.2 and after the operation as she did not regain consciousness she was shifted to Rohini Hospital , Hanamkonda and from there to the M.G.M. hospital, Warangal and the patient died four days after the operation and there was nothing attributable to the cause of death as surgery and surgeon. The opp.party stated that there was no negligence on his part in taking care of the patient during the post operative period and prayed for dismissal of the complaint against him.
The opp.party no.2 filed counter denying the allegations made by the complainant. The opp.party no.2 denied that he failed to maintain proper anaesthetic level. It is stated that he took all possible care in post operative period till the deceased was shifted to the Warangal Hospitals. The complainant is silent that he paid any amount to the opp.party no.2 and in the absence of any such payment on behalf of the deceased, the provisions of C.P.Act does not attract against the opp.party no.2 and he is not liable to pay compensation . The opp.party no.2 prayed for dismissal of the complaint.
The opp.parfty no.3 filed counter admitting that the deceased underwent surgery on 29.5.1995 in their hospital and later was shifted to Warangal hospitals, in the first instance Rohini hospital and later to the MGM hospital , Warangal. The complainant has not furnished the particulars of the treatment given to the deceased in the said two hospitals and complications resulting the death could have been developed in the treatment she was given in those two hospitals. Hence the opp.party no.3 is not liable for any deficiency of service. The complainant is silent that he paid any amount to the opp.party no.3 and in the absence of any such payment on behalf of the deceased the provisions of C.P Act does not attract against the opp.party no.3 and she is not liable to pay any compensation. The opp.party no.3 prayed for dismissal of the complaint.
The opposite party no.4 filed counter contending that the complainant is not a consumer of the opp.party no.4 and there is no privity of contract between them and the complainant and hence the complaint is not maintainable against them. The inquiries made by the opp.party no.4 revealed that the allegations made by the complainant against the opp.party no.1 are not true and are fabricated for the purpose of the case The opp.party no.4 prayed for dismissal of the complaint.
Exs.A1 to A9 documents are filed on behalf of the complainant and Exs.B1 & B2 documents are filed on behalf of the opp.parties. The District Forum based on the evidence adduced and pleadings allowed the complaint directing the opp.parties 1 to 4 to pay an amount of Rs.1,50,000/- towards compensation with interest @ 9% p.a. from the date of filing of the compliant till realisation and to pay Rs.1000/- towards costs .
Aggrieved by the said order the opp.party no.4 preferred this appeal contending that the District Forum failed to appreciate that the opp.party no.1 has not committed any negligence and hence they are not liable to pay any insurance claim amount. The District Forum failed to appreciate that the deceased expired due to heart failure resulting out of improper administration of anaesthesia as urged by CW.1. The Dist.Forum having eschewed the evidence of opp.party no.1 and on that ground fixed the liability on the opp.party no.4 on the ground that it cannot make out a case as not established by the opp.party no.1. Such contention of the Dist.Forum is contrary to principles of natural justice and well framed legal principles. The question of indemnity will arise only when there is palpable negligence on the part of the opp.party no.1 as per the policy , by such observation the complainant is being made entitled to enrich on the funds of appellant without there being any proper cause of action. There is no medical negligence on the part of the opp.party no.1 as such insurance company is not liable to pay any insurance claim amount . The appellant prayed to set aside the order of the District Forum.
The point for determination arises in this appeal is 1. Whether the insurance company is having insurance policy against opp.parties 1 and 2 ?. 2.Whether the insurance company is liable to pay insurance claim amount? and 3. Whether the order passed by the District Forum is sustainable?
There is no dispute that the opp.party no. 1 performed surgery on the complainant’s wife and she died after operation. The appellant firstly contended that there was no medical negligence on the part of the opp.party no.1 and as the medical negligence is not proved against opp.party no.1 they are not liable to pay the insurance claim amount. The respondent no.1 resisted the plea that there was medical negligence on the part of the opp.parties 1 to 3 and order passed by the District Forum may be confirmed. The complainant has taken a specific pleading in the complaint, evidence affidavit and other documentary evidence that his wife suffered stomach ache and she approached the opp.party no.1 on 28 .5.1995 who has advised for an operation stating that there were stones in her kidneys and demanded Rs.5000/- for removal of stones and Rs.4000/- was paid by the complainant and thereafter she was admitted in Vani Nursing Home of opp.party no.3 on 29.5.1995 and on the same day operation was conducted. After operation condition of the deceased became serious and she was taken to Rohini hospital , Warangal and MGM hospital , Warangal and while undergoing treatment in MGM hospital she died on 2.6.1995 . The report of Post Mortem examination discloses that hysterectomy was performed on the deceased and uterus was removed without she being informed . We have gone through the documentary evidence filed by the complainant and it discloses that the opp.party no.2 did not take proper care during the time of operation in maintaining anesthetic level on vital organs and there is negligence during the post operative period and the opp.party no.3 is not maintaining and not taking proper care in running the nursing home.
The appellant contended that there was no medical negligence on the part of the opp.party no.1 and they are not liable to pay insurance claim amount. The respondent no.1 submits that there was medical negligence on the part of the opp.parties 1 to 3. The documentary evidence filed by the complainant discloses that on 28.5.95 wife of the complainant approached the opp.party no.1 with a complaint of stomach ache and the opp.party no.1 diagnosed that she is having stones in kidney and she was admitted in the nursing home of the opp.party no.3 where operation was conducted. As the patient’s condition was not improved she was shifted to Rohini Hospital, Warangal and from there to MGM hospital , Warangal where she died. The report of forensic expert discloses that the deceased was undergone hysterectomy operation. Instead of removal of the stones in the kidney the opp.party no.1 conducted hysterectomy operation on the complainant. The consent was obtained by the hospital authorities for removal of the stones in the kidney but they have conducted hysterectomy operation without taking the consent of the complainant for the same . . The opposite party no.1 had not performed the operation for Multiple Vasical Caculator of Kidney which after provisional diagnosis he informed to be performed The District Forum has elaborately discussed and given finding that there was medical negligence on the part of the hospital authorities in performing the operation due to which wife of the complainant died.
The opp.party no.2 in his affidavit has stated that opp.party no.3 was suffering with fever and she could not assist in any way during the time of operation. The opp.party no.1 alone has advised the deceased to undergo operation and admitted in the hospital of the opp.party no.3 and hired the services of opp.party no.2 and conducted the operation without any assistance of opp.party no.3.
We have gone through the terms and conditions of Ex.B2 Doctors’ and Medical Practitioners’ Professional Indemnity Policy issued by the opp.party no.4 which stipulates that “the indemnity applies only to the claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission or negligence in professional service rendered or which should have been rendered by the insured or qualified assistants named in the schedule or any nurse or technician employed by the insured.” The said clause of insurance policy goes to show that the appellant is liable for the negligent service rendered by the opp.party no.1 . The opp.party no.1 has not filed any appeal and on the other hand opp.party no.4 i.e. insurance company has filed appeal stating that there was no negligence against opp.party no.1 and they are not liable to pay the insurance claim amount. The opp.party no.1 performed operation upon the deceased ,during the surgery the deceased had cardiac respiratory problem and she was resuscitated by the opp.parytno.2 . Ex.A7 discloses that the type of operation was Hysterectomy .. In Ex.A3 it is mentioned that the uterus of the deceased was removed during surgery. The opp.party no.1 has not mentioned in his counter about the removal of the uterus. The opp.party no.1 had removed the uterus without taking consent from the patient or from the complainant or from the relatives of the complainant who were present there at the nursing home violating the norms of medical jurisprudence .
The appellant further submits that the deceased expired due to heart failure resulting out of improper administration of anesthesia as urged by CW.1 and it excludes the liability of opp.party no.1 from the negligence aspect. The submission made by the appellant is not sustainable. The death certificate of the deceased discloses that the patient died due to post anesthetic cardiac arrest showing negligence on the part of the opp.party no.2 in not taking proper care during the operation in maintaining the anaesthetic level on vital organs. There is also negligence on the part of the opp.party no.3 in not maintaining and not taking proper care and running the nursing home. The opp.party no.1 is only a civil asst. surgeon and by himself is not competent to do any major operation such as hysterectomy , removal of stones that too in a remote place, in the absence assistance of experts in the related fields such as urology & Gynecology etc. and the village in which the nursing home is located is also not an urban place to get the facilities and timely surgical infrastructure and more so without structured/sound operation theatre . The District Forum has elaborately discussed all the documentary evidence and given finding that the medical negligence is proved against the opp.party no.1 along with opp.parties 2 and 3 . and the insurance policy was valid on the date of death of the deceased and as per the indemnity clause of the insurance policy the opp.party no.4 is liable to pay the insurance claim amount There are no reasonable grounds to interfere with the order passed by the District Forum.
In the result order of the District Forum is confirmed . Appeal is dismissed . In the circumstances without costs. The appellant is directed to comply the order of the District Forum within six weeks from the date of this order.
PRESIDENT LADYMEMBER MALE MEMBER
Pm* Dt.25.8.2008
