F.A.No.653/2010 against C.D.No.51/2002, District Forum, WARANGAL

Between

The Oriental Insurance Co. Ltd.,

Rep. by its Divisional Manager,

J.P.N.Road, Warangal.                                                  Appellant/

                                                                                       O.P.2

        And

1.  Dr.C.Sharath Babu, M.S.,

     Sharath Laser Eye Hospitals,

     H.No.3-1-190, Kakatiya Colony

     Hanamkonda.

2. Smt.U.Saritha W/o.Srinivas

    Age 24 years, Occ:Household

   R/o.Beemaram Village of Hanamkonda

   Mandal of Warangal District.                                    Respondents/

                                                                             Complainant/O.P.1

Counsel for the Appellant               :Mr M.Hari Babu

Counsel for the Respondents         M/s .M/s.C.A.R.Seshagiri Rao-R1

                                                         R2-served.                                                 

QUORUM:  THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,

                                                AND

                    SMT.M.SHREESHA, HON’BLE  MEMBER.

  TUESDAY, THE THIRTEENTH DAY OF DECEMBER

TWO THOUSAND ELEVEN

 (Typed to the dictation of Smt.M.Shreesha, Hon’ble Member)
                                                          ****

        Aggrieved by the order in C.D.No.51/2002 on the file of District Forum, Warangal, opposite party No.2 preferred this appeal.

The brief facts as set out in the complaint are that the complainant, a tailor, filed the complaint seeking compensation against  opposite party nol1 who treated and performed surgery upon her left eye and the appellant insurance company who had issued professional insurance policy in favour of  opposite party no.1.  Opposite party no.1 performed surgery for I.O.L Surgery and IL.A. upon the complainant on 14-06-2001. The same day, the complainant was discharged from opposite party No.1 hospital and  on 18-06-2001, she immediately approached him with complaint in the operated eye and  the first opposite party informed her that the operated eye was infected and referred the complainant to L.V. Prasad Eye Institute where she was treated and  on 20-10-2001 and 21-10-2001 the doctors at Hyderabad performed surgery by removing the earlier lens which was irregularly and negligently fixed by opposite party and again fixed the lens on 23-10-2001.  The complainant was discharged  after surgery from L.V. Prasad Eye Institute and prescribed medicines and the complainant again approached on 27-10-2001, 7-11-2001, 7-12-2001, 4-1-2001 and 8-1-2002 and the doctors at Hyderabad opined  to rectify the negligent surgery of I.O.L. by opposite party proved futile and yielded no result.  Ultimately on 08-1-2002, the doctors at LV Prasad Eye Institute having no hope, removed the lens by admitting the complainant and after removal of the lens discharged him on 10-1-2002 and again as advised by the doctors, the complainant approached the doctors at Hyderabad on 16-1-2002 and on 30-1-2002 and the doctors advised that there is no possibility of getting clear vision to the left eye as the very surgery performed by opposite party is not in accordance with medical jurisprudence.  The complainant submitted that she was made to run from pillar to post and spent more than 50,000/- towards medicines, doctors fee etc. and she had lost her sight  in the left eye to an extent of 90% and is not able to see anybody and identify anything.  The complainant got issued a legal notice to the opposite party on 01-12-2001 for which a reply was issued on 04-12-2001 with false allegations to which the complainant issued a rejoinder on 26-12-2001.  Hence the complaint for a direction to the opposite parties to pay an amount of Rs.3,00,000/-towards compensation and damages, award pendent-elite interest on Rs.3,00,000/- at 18% p.a. till full and final realization together with compensation of Rs.25,000/- and costs of Rs.5,000/-.

        Opposite party no.1  filed counter denying the allegations made in the complaint.  He submitted that when the complainant approached  him with poor vision and in view of her age, he explained her all the required details and as desired by the complainant performed the operation during June, 2001 with all prudency and skill.  He denied that the complainant spent huge amounts for that operation.  He submitted that she approached him after two months and complained of blurried vision and he checked her thoroughly and referred her to L.V.Prasad Eye Hospital.  She was attended there by the doctors and after treatment  was advised  to come back after six weeks, for review. He had contended that it is due to improper precautions to the vital organ by the patient that led to the infection and that he had taken all precautions and exercised due care in  the course of treatment.  He submitted that the complainant got the other eye operated earlier by him without any complaint whatsoever.  He submitted that any unanticipated contingencies through him are indemnified by the Indian Medical Association under professional protection and welfare scheme for the period  from 09-2-2001 to 8-2-2006 and they are also necessary parties to the petition and that opposite party hospital is covered by Oriental Insurance Company for the period from 14-9-2000 to 13-9-2002 and it is also a proper and necessary party and prayed for dismissal of the complaint against him.

        Opposite party No.2 filed written version  contending that the alleged notice from the complainant was replied by opposite party No.1 without forwarding the same to it and as such opposite party No.1 had violated the terms of the policy and prayed for dismissal of the complaint against it.

        Based on the evidence adduced i.e. Exs.A1 to A4 and B1 and the pleadings put forward, the District Forum allowed the complaint in part directing opposite parties to pay Rs.1,50,000/- to the complainant jointly and severally along with interest @ 7.5% p.a. from the date of filing of the complaint till the date of deposit together with costs of Rs.500/-.

        Aggrieved by the said order, opposite party No.2 preferred this appeal.

        The facts not in dispute are that the complainant  underwent surgery on 14-6-2001 for her left eye and IOL surgery and IL.A. conducted by opposite party No.1 and was suffering with swelling of the left eye along with watering from the next day itself.  It is the complainant’s case that she approached opposite party No.1 again on 18-6-2001 and 21-6-2001 with severe pain and opposite party No.1 continued the same treatment. Thereafter on his advise she approached LV Prasad Eye institute and Ex.A2 is the medication instructions issued by LV Prasad Eye institute in which she was asked to use eye drops and other drugs to prevent infection.   Ex.X1 case sheet evidences that the patient was diagnosed to have Endophthalmitis and Pseudophakic which are post operative after IOL                                                                                                                                                                                                                                                                                                                                                                             explantation plus PPV.  The complaint in Ex.X1 is stated to have blurred vision, pain, redness, watering which are all post operative.  The complainant  in her affidavit submitted that she lost vision in her left eye and had to visit LV Prasad Eye institute several times as shown in the case sheet and spent more than Rs.75,000/- towards medical expenses. 

        It is the first opposite party’s case that four operations were done on 19-6-2001 and one particular batch of medicines was used on that day which could have contributed to the complications and that there is neither negligence nor lack of professional care by opposite party No.1.   

It is pertinent to note that from the material on record, it is evident that the complainant  was operated on 14-6-2001.  A brief perusal of the Chief Examination of P.Avinash, Retina Specialist and faculty Member of L.V.Prasad Eye Institute evidences that the patient developed inflammation in operated eye which is infective Etiology.  It is very rare i.e. 0.1% to 0.4% and the patient was operated thrice. He also deposed before the Forum that the last review was on 18-10-2003 and the complainant’s  vision was 20/400 in the left eye. He deposed that opposite party No.1 had taken all care and adopted the line of treatment as what is required and that infection can also because of improper care of the operated eye.  From the aforementioned deposition, it is established that the patient had inflammation in the operated eye and she was operated three times and her last vision was 20/400 in the left eye.   The same doctor deposed that generally if the surgeon performing the surgery is either negligent or inefficient, complications would develop.  At the same time, opposite party no.1 in his counter, submitted that the batch of medicines used by him in the operation theatre could be the cause for infection.  These medicines were also sent to Microbiology Lab, KMC and got a report that there was a bacteria which grew in the culture.  Taking Ex.X1 and the deposition of the doctor and also the other material on record, we are of the considered view that there is negligence on behalf of opposite party No.1 in treating the complainant.

It is pertinent to note that opposite party No.1 doctor did not prefer any appeal and this appeal has been preferred by opposite party No.2, insurance company, whose main contention is that the policy holder did not intimate the notice of the claim as per clause 8 and that it is a ‘medicine’ which caused the loss of vision and the insurance company indemnifies only professional negligence and in the instant case, it is the medicine which caused the loss of vision and not the doctor’s treatment.

We rely on the judgement of the National Commission in 2000 NCJ (NC) 406 wherein it was held by the National Commission that

 “merely because the claim is not made within the stipulated period, it is not void”.

The learned counsel for the appellant drew our attention to the limit of indemnity in the Professional Indemnity Policy, filed before this Commission, issued to opposite party No.1 doctor.  The AOY limit is Rs.10,00,000/- and AOA limit is also Rs.10,00,000/- and the District Forum  has awarded only Rs.1,50,000/- to be paid jointly and severally.  We are of the considered view that the complainant  was able to establish negligence on behalf of opposite party No.1 and opposite party No.1 did not prefer any appeal  and the amount awarded by the District Forum  is well within the indemnity limits. We see no reason to interfere with the well considered of the District Forum.

In the result this appeal is dismissed confirming the order of the District Forum.  There shall be no order as to costs.  Time for compliance four weeks.

 Sd/-PRESIDENT.

                                                        Sd/-MEMBER.

JM                                                     Dt.13-12-2011