West Bengal

Birbhum

CC/14/126

Jaba Das D/O Dhiren Das W/O Mithun Das - Complainant(s)

Versus

General Manager ICICI GIL Co. Ltd. - Opp.Party(s)

Achinta Chattopadhya and D.Banerjee

28 Feb 2017

ORDER

The case of the complainant Jaba Das, in brief, is that she and her husband are casual day labourer.  They have two issues viz. Rajen (male baby aged 4 years) and Tithi (female baby aged two years).

            It is the further case of the complainant that for the purpose of family planning she got tubectomy operation on 09.10.2010 by Dr. Sadhan Let, MBBS, Mini Lap trained surgeon, M.O, Suri Sadar Hospital at Sultanpur Primary Health center and said operation was under coverage of insurance by O.P No.1 ICICI Lombard General Insurance Co. Ltd. under the scheme “failure of sterilization leading to child birth having compensation Rs. 30,000/-”.

It is the further case of the complainant that inspite of such sterilization operation she became pegnent and gave birth of a male child viz. Rajkumer and she informed the matter to the O.P No.2 CMOH, Suri and O.P No.3, BMOH, Sultanpur.

It is the case of the complainant that she submitted proper claim application along with relevant papers before the authorities but in vain.

Hence, this case for directing the O.Ps to pay Rs. one lakh as compensation.

The O.P No.1 ICICI Lombard Gen Ins. Pvt. Ltd, has contested the case by filing written version denying all material allegations of the complaint contending, inter alia, that the case is not maintainable and barred by limitation.

It is the specific case of the O.P No.2 that after enquiry they came to know that a male child was born after ligation of the lady and she is under insurance policy which issued in favour of CMOH, Birbhum and under said policy O.P No.1 is only liable to pay compensation of Rs. 30,000/- to the complainant and she is not entitled to get Rs one lakh as compensation.

 

Ultimately the O.P No.1 prayed for dismissal of the case.

O.P No.2 CMOH Suri and O.P No.3 BMOH, Sultanpur have contested the case by filing written version denying all material allegation of the complaint contending, inter alia, the complainant has no cause of action, the complaint case is not maintainable and the complainant is not consumer under O.P No.2 and 3.

It is the specific case of the O.P No.2 and 3 that after failure of sterilization O.P No.1 filled up insurance form to give compensation amounting to Rs. 30,000/- to the petitioner but it is unknown to them till today the petitioner has not received the same from the O.P No.1 and due to unfaithful activities of the O.P No.1 she has been suffering financial problem as a result she is claiming Rs. one lakh for compensation and after lodging written complaint on 04.03.11 and even after submission of all the original documents and on repeated request the O.P No.1 has not paid the compensation as a result she has been facing physical and mental harassment.

It is the further case of the O.P No.2 and the 3 that the petitioner appeared before O.P No.3 for her ligation operation and it was done by expert surgeon for tubactomy operation successfully by way of mini laparoscopic sterilization (permanent sterilization) in the National Family Planning Programme. The overall failure rate intuble-sterilization is about 0.7%, the Pomeroy’s technic is the lowest 0.1 to 0.2%, in contrast to the Madlener’s being 1.5 to 3%. And for that reason O.Ps Govt. of West Bengal made agreement with O.P No.1 and paid premium to O.P No.1, for such type of operation and in such failure case O.Ps (Govt.) will not be liable and no way reasonable to pay any compensation to the petitioner.

It is the further case of the O.P No. 2 and 3 that O.P No.2 CMOH, Birbhum sent several reminder letter dated 18.07.11 and 29.11.13 and repeatedly requested the O.P No.1 to settle the claim but the O.P No.1 deaf ear to the O.P’s request.

So, from above activities it is clear that present O.P No. 2&3 always tried to settle the claim but due to latches and negligence of the O.P No.1 the matter has not been settled.

Ultimately the O.P No.2 and 3 prayed for dismissal of the case.

Considering the complaint and other materials on record with think following points are to be decided in this case.

1.  Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service or unfair trade practice on the part of the O.Ps?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant Jaba Das has been examined as PW-1, cross examined and discharged.

The OPW1 Dr. Britti Sunder Mallik, Medical Officer of O.Ps No.2&3, has examined, cross examined and discharged.

Both parties have filed some documents.

Argument of the Ld. Advocate/Agent of both parties has been heard.

Point No.2:: Total valuation of the case is Rs. 1,00,000/- which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.

            Office of the O.Ps No.2 & 3 are situated within jurisdiction of the Forum.

So, this Forum has jurisdiction.

Point No. 1, 3 and 4:- All points are taken up together for convenience of discussion as they are related to each other.

The complainant Jaba Das in her complaint and evidence stated that they have two issues viz. Rajen (male baby aged 4 years) and Tithi (female baby aged two years).

She further stated that for the purpose of family planning she got tubectomy operation on 09.10.2010 by Dr. Sadhan Let, MBBS, Mini Lap trained surgeon, M.O, Suri Sadar Hospital at Sultanpur Primary Health Center and said operation was under coverage of insurance by O.P No.1 ICICI Lombard General Insurance Co. Ltd. under the scheme “failure of sterilization leading to child birth having compensation Rs. 30,000/-”.

Attested copy of the application for sterilization operation and informed consent form and medical record and check list for female/male sterilization show that sterilization operation was rendered to the complainant.

The O.P No.1 and 2&3 have not denied the factum of sterilization operation of the complainant, which was done in the Govt. Hospital.

The complainant further stated that inspite of such sterilization operation she became pregnant and gave birth of a male child viz. Rajkumer and she informed the matter to the O.P No.2 CMOH, Suri and O.P No.3, BMOH, Sultanpur.

            Original vaccine card and birth certificate filed by the complainant show that she gave birth of a male child viz. Rajkumer on 16.06.11 i.e. after sterilization operation.

            The O.Ps also have not denied the fact of giving birth of a child by the complainant after sterilization.

            It is the case of the complainant that she submitted proper claim application along with relevant papers before the Authority but in vain.

            Copy of the claim application shows that she has duly submitted the claim form with documents.

We find that in the present case sterilization operation was render to the complainant on 09.10.10 by Govt. Hospital, Sultanpur, giving birth of a male baby after such suzerain operation and failure of operation everything are admitted.

            We find that in the present case the complainant has been claiming Rs. one lakh as compensation but according to O.P No.1 Insurance Company she is entitled to get only Rs. 30,000/- as compensation.

            It appears from the notification No. 23011/68/2011-FW(ply), Govt. of India, Ministry of Health and Family Welfare, Family Welfare policy section dated 27.12.11 in case of failure of sterilization operation the victim is only entitled to get Rs. 30,000/- as compensation.

            We find that it is the case of the O.P No.1 that the complainant has failed to submit necessary papers in due time and they compelled to close the case. But it appears from the evidence of PW1 Jaba Das (complainant) and OPW1 Dr. B. Mallik, (O.P No.3) and copy of the letters that they submitted necessary papers before the O.P No.1 in due time but they have illegally close the case, which amounts to deficiency in service and the O.P No.1 is liable to pay Rs. 30,000/- to the complainant as compensation with interest as per notification dated 27.12.11.

            During hearing of the argument Ld. Advocate/Agent of the complainant submitted that the O.P No. 2&3 are also liable to pay compensation to the complainant as failure cropped up in sterilization operation rendered to complainant by them and she compelled to give birth of third issue and heavy financial burden has been casted upon her for maintaining her said newly born baby.

            But we find that as there is every chance of failure of sterilization operation, the Govt. has introduced a scheme for providing insurance to the victim/complainant and the operation in question was under coverage of the insurance of the O.P No.1.

            We further find that the sterilization operation in question was rendered to the complainant in Govt. Hospital at free of cost.

In land mark judgment reported in AIR 1996 Supreme Court 550, Hon’ble Apex Court pleased to hold that doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of “service” u/s 2(1)(o) of the C.P Act. The payment of token amount of registration purpose only would not alter the position in respect of such doctors and hospitals. Hon’ble Apex Court also pleased to hold that hospitals and nursing homes whether non-government or government rendering free of charge service to everybody availing the service would not fall within the ambit of “service” under sec. 2(1)(o) because of mere fact that the medical officer received emoluments by way of salary for employment in the hospital.

            So, in view of the facts and circumstances stated above and relying upon the ruling of the Hon’ble Apex Court cited above we have no hesitation to hold that the medical service rendered to the complainant at B.O.M.H, Sultanpur does not come under the purview of “service” as defined in Sec. 2(i)(o) of the C.P Act and she is not consumer U/s 2(i)(d) of the C.P Act. Of the O.P No. 2&3.

            Considering overall matter into consideration and materials on record we are constrained to hold that the complainant is entitled to get compensation of Rs. 30,000/- only with 8% interest from the date of filing claim application from the O.P No.1 Insurance Co. and she is not entitled to get any compensation from O.P No. 2&3.

            Thus all these points are decided in favour of the complainant in part.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 126/2014 be and the same is allowed in part on contest against O.P No. 1 and dismissed on contest against O.P No.2 and 3.

            The O.P No.1 is directed to pay Rs. 30,000/- as compensation with 8% interest from the date of filing claim application to the complainant  till realization within one month from the date of this order failing which the complainant shall be at liberty to execute the order as per law and procedure.

 Copy of this order be supplied to the parties each free of cost.