DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 34 of 2018

 

Dr. Pratap Sanyal

S/O. Late R. C. Sanyal,

Resident of Radhanagar,

P.O.-Agartala, Pin-799001,

P.S.-West Agartala,

Dist.-West Tripura    .…..............…..........................Complainant.

 

 

  VERSUS

 

1. National Insurance Company Limited,

3, Middleton Street, Kolkata-700071,

Represented by its General Manager,

Notice to be served through the O.P. No.2 

 

2. Divisional Manager,

National Insurance Company Limited,

Agartala Division, 

42, Akhaura Road, P.O.-Agartala,

P.S.-West Tripura,

District-West Tripura, Pin-799001 …................... Opposite parties.

 

 

      __________PRESENT__________

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

SMT. Dr. G. DEBNATH

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

SRI U. DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

C O U N S E L

 

For the Complainant : Sri  Sankar Bhattacharya,

  Mrs. Archana Reang,

  Advocates. 

For the O.P. : Sri Rajib Saha,

  Advocate.                                                                                                                                  

  

JUDGMENT  DELIVERED  ON:15/02/2019

 

J U D G M E N T

The complainant Dr. Pratap Sanyal set the law in motion by presenting the petition U/S 12 of the Consumer Protection Act 1986 complaining deficiency of service committed by the O.Ps. 

  The complainant's case, in brief, is that the Complainant is a General Surgeon practicing in the said field since long. He used to undertake surgery upon his patients. As his service involves various hazards and as such in order to avoid any eventualities he had insured his services with the O.Ps. under an insurance policy namely “professional indemnity doctors”. He used to pay premium against the Insurance Policy time to time. Similarly in the year 2005 he had purchased insurance policy namely “professional indemnity doctors” vide policy No.203000/46/05/8700000347 having validity from 28/11/2005 to midnight of 27/11/2006 on payment of premium of Rs.1,000/-. The assured amount was Rs.5 lac.

  The Complainant has stated in his complaint that on 08/01/2006 he had performed laparoscopic cholecystotomy upon one patient namely Smt. Srabani Deb at the Care and Cure Polyclinic and Research Centre, Agartala. The patient was then complaining pain in her abdomen. The patient was discharged from the nursing home on 12/01/2006. As Smt. Deb was stated to be not relived from her abdominal pain, she had visited Dr. Pradip Bhowmik on 27/07/2006 who prescribed her medicines. The medicines also did not give her relief. On 09/10/2017 she again visited Dr. Bhowmik who then referred her to the complainant(Dr. Pratap Sanyal). The Complainant then advised her to go for C.T. Scan. She has also taken second opinion in the matter from Dr. Pradip Sarkar, Surgeon. On the advise of Dr. Pradip Sarkar she had under gone C.T. Scan on 15/10/2007 in Govt. Hospital. In the C.T. Scan for the first time a foreign body was detected in her right  lower abdominal wall. She was ultimately operated upon by Dr. Om Tantia of ILS Hospital, Kolkata on 29/10/2007 with the expenses borne by her. 

  Smt. Srabani Deb ultimately filed a case vide No.CC-69/2011 before the District Consumer Disputes Redressal Forum, West Tripura, Agartala as complainant against the present Complainant Dr. Pratap Sanyal as O.P. No.1 and the Care and Cure Polyclinic and Research Centre, Agartala as O.P. No.2 alleging medical negligence. The District Forum by it's judgment dated 13/11/2015 passed an award directing the present complainant to pay Rs.1 lac  in lump sum to the complainant as compensation towards medical expenses incurred by her for under going second surgery in the ILS Hospital, Kolkata including miscellaneous expenses. It was further directed to pay Rs.50,000/- to the complainant as compensation for mental agony and harassment with another sum of Rs.50,000/- as cost of litigation. It was directed to pay the compensation within 45 days failing which the amount payable would carry interest @9% P.A. from the date of the judgment till the payment was fully made. The complainant alleged that on 25/03/2016 he had paid Rs.2 lac in full satisfaction of the judgment passed in case No.CC-69/2011. 

  In order to get the amount paid by him to the complainant as compensation reimbursed from the O.P. Insurance Company by virtue of the Insurance Policy purchased by him from the O.Ps. which was valid during the period the operations was performed, the Complainant submitted a letter to the O.Ps. on 27/07/2016 enclosing therewith copies of the judgment dated 13/11/2015 passed in case No.CC-69/2011, money receipt and the Insurance Policy. On 08/08/2016 the O.P. No.2 in reply sent a letter to the complainant requesting to him furnish certified copy of the judgment dated 13/11/2015 passed in case No. CC-69/2011, original money receipt and other relevant papers. The complainant by his letter dated 16/03/2017 furnished all the documents as asked for by the O.P. No.2 but till the filing of the present complaint the O.Ps. did not make any payment towards reimbursement as prayed for by him. 

  The complainant in his complaint alleged that as he had insured with the O.Ps. under the scheme of professional indemnity of doctors under policy No.203000/46/05/8700000347 dated 28/11/2005, he was under the expectation that O.Ps. would indemnify the eventualities faced by him consequent upon the surgery performed by him upon Smt. Sarbani Deb, the Complainant in case No. CC-69/2011. But the O.Ps. have failed to make payment / reimburse the amount of compensation which he had paid in compliance with the judgment dated 13/11/2015 passed in case No. CC-69/2011. 

Hence the Complainant has filed the present complaint against the O.Ps. praying for awarding him Rs.4 lac as compensation along with 9% interest till the payment is made on account of deficiency of service committed by the O.Ps. 

    The O.P. National Insurance Company Ltd. have contested the claim raised by the Complainant by filing written statement refuting the allegations of the Complainant. The O.Ps. have admitted that the complainant had purchased an Insurance Policy namely professional indemnity of doctors from them. The O.Ps. have however alleged that as per the terms and conditions of the policy the complainant had to inform about the claim case CC-69/2011 as soon as the complainant had received notice in connection with the said case but the complainant in violation of the terms and conditions of the policy had informed the O.Ps. about the said case for the first time on 27/07/2016 that too after satisfying the compensation amount which was awarded by the Forum in case No. CC-69/2011. It is also stated by the O.Ps. in their written statement that upon inquiry made by the O.Ps. it was found by them that a criminal case was pending before the Ld. Court of Chief Judicial Magistrate, Agartala vide No.G.R.1209 of 2007 against the complainant and the Care and Cure Nursing Home which had arisen on the basis of an FIR lodged by Sri Bapi Roy Chowdhury, husband of the victim Smt. Srabani Deb and that due to the pendency of the criminal case the O.Ps. could not settle the claim of the complainant even after receipt of notice dated 27/07/2016 sent by the complainant. 

  The O.Ps. have denied any deficiency of service committed by them towards the complainant. Thus they have prayed for dismissal of the complaint of the Complainant. 

 2. EVIDENCE ADDUCED BY THE PARTIES:

In support of the Complaint, the Complainant has Examined himself as PW-1 and produced 06 documents. The documents are marked  Exhibit-I series. 

On behalf of the O.Ps. one witness namely Sri Biswajyoti Bora, Administrative Officer, National Insurance Company Limited has been Examined. The said witness has adduced one document which has been marked Exhibit-A series. 

 POINTS TO BE DETERMINED:- 

3.  Based on the contentions raised by both the parties the following issues are made for determination:  

   (I). Whether  there was  any deficiency of service committed by the O.Ps. towards the Complainant?

     (ii). Whether the Complainant is entitled to get any  compensation/relief ?

 

 4. DECISION AND REASONS FOR DECISION:

  It is evident from the pleadings of the parties that the Complainant's purchase of  insurance policy namely “professional indemnity doctors” from the O.Ps for the relevant period of the occurrence has not been denied by either side. It is also established fact that during the period of the said policy laparoscopic surgery was conducted by the present complainant Dr. Pratap Sanyal(the insured) upon Smt. Srabani Deb and that on the allegation of medical negligence about the surgery and for compensation Smt. Srabani Deb had filed case No.CC-69/2011 against the present complainant Sri Pratap Sanyal and the Care and Cure Polyclinic and Research Centre, Agartala. The District Forum had passed judgment on 13/11/2015 in the said case directing Dr. Pratap Sanyal to pay Rs.2 lac as compensation for the negligent and careless surgery conducting on Smt. Srabani Deb. Ld. District Forum however did not ascribe any criminal liability on  Dr. Sanyal. 

  We find from Exhibit-I series (money receipt) that in compliance with the judgment passed in CC-69/2011 the Complainant Dr. Pratap Sanyal has satisfied the decreetal amount by paying Rs.2 lac to Sri Bapi Roy Chowdhury, husband of Smt. Srabani Deb who had received the amount on 25/03/2016 on behalf of his wife Smt. Deb. The Complainant in his evidence has stated that on 27/07/2016 he submitted a request letter to the O.Ps. for reimbursement of the amount Rs.2 lac which he had paid in compliance with the judgment passed in CC-69/2011 and that along with the request letter he had sent copies of the judgment, money receipt & copy of the Insurance Policy. He further stated in his evidence that on a query made by the O.Ps. and in compliance with their letter dated 08/08/2016 he had furnished to the O.Ps. on 16/03/2017 certified copy of the judgment passed in case No. CC-69/2011, original money receipt and other relevant papers. But till the date of filing of this complaint the O.Ps. did not make any response. So he has filed the instant complaint praying for compensation on account of deficiency of service committed by the O.Ps. In cross examination by the O.Ps. the complainant has admitted that one criminal case vide No.GR.1209/2007 is pending against him before the court Ld. C.J. M., West Tripura Agartala. He also admitted that he did not take any step for making the O.Ps. as party to the case No. CC-69/2011 as he was unaware about such conditions having been stipulated in the Insurance Policy. 

    The O.Ps. on the other hand have adduced the oral evidence of one Sri Biswajit Bora, who is the Administrative Officer of their Company. The said witness has stated in his evidence that as per the terms and conditions of the policy the complainant ought to have informed the O.Ps. (Insurer) as soon as he had received the notice in connection case No.CC-69/2011 which was filed against him by the complainant praying for compensation on account of medical negligence and that as the complainant had violated the terms and conditions of the insurance policy the O.Ps. are not liable to reimburse the compensation amount(award) as claimed in the present case. The said witness further deposed that as there is admittedly a criminal case pending against the present complainant on the issue of medical negligence, the O.Ps. are unable to settle the claim of the complainant. The witness has denied committing of any deficiency of service by the O.Ps. In cross examination by the Complainant side this witness has denied the complainant having not been informed by the O.Ps. about terms and conditions of the Insurance Policy.  

 

5.   During hearing of arguments Learned Advocate for the complainant by drawing our attention to the copy of the Insurance Policy (Exhibit-I series) which has been filed by the complainant asserted that the complainant had not been furnished with the terms and conditions of the Insurance Policy. Had the Complainant been aware / informed about the terms and conditions he would have taken appropriate steps for making the insurance company as party to the case No.CC-69/2011. The complainant had honestly contested the case CC-69/2011 and having regard to the judgment passed in that case complied with the judgment by praying the awarded amount to the Complainant Smt. Srabani Deb. Regarding pendency of the criminal case against the complainant, Learned Advocate for the complainant argued that Learned District Forum in his judgment dated 13/11/2015 passed in case No.CC-69/2011 made observation about medical negligence and there is no imputation regarding criminal liability on the present complainant. So Learned Advocate for the complainant has prayed for allowing the complaint of the Complainant. 

    On the other hand Learned Advocate appearing for the O.Ps. opposing the submission of Learned Advocate for the complainant argued that the complainant is not entitled to be reimbursed of the compensation amount which was paid by him to the Complainant Smt. Srabani Deb in connection with case No. CC-69/2011 as the Complainant had violated the terms and conditions of the Insurance Policy vide condition No.10.1 by not intimating the O.Ps. about the claim case No. CC-69/2011 which was filed against him by Smt. Srabani Deb. Learned Advocate has thus prayed for dismissal of the complaint. In support of this argument he has referred to a decision of the Hon'ble National Commission passed on 02/04/2013 in revision petition No.1341 of 2010 (Dr. Tarundip Datta Roy Vs. New India Assurance Company and Others). 

On consideration of the arguments placed by both sides Advocates, we are of the opinion that the Complainant's version that he was unaware of the terms and conditions of the insurance policy appears to be most probable. The O.Ps also have failed to adduce rebutting evidence specifically indicating that the Complainant was informed about the terms and conditions of the insurance policy, rather the O.Ps. have adduced system generated copy of insurance policy (Under Exhibit-A). They have not produced the original policy or the proposal form duly filled in by the Complainant for obtaining the insurance policy to support their plea that the terms and conditions were duly explained and made known to the complainant. More so the complainant's insurance policy copy(Exhibit-I series) does not in any way reflect that the O.Ps. had made attempts to enlighten the complainant with the terms and conditions as the copy of the policy does not appear to include the provisions perse.    

    The conduct of the complainant according to us seems to be an innocent ignorance of his rights to be informed of the terms and conditions of the insurance policy. It seems peculiar that the complainant happens to be a man of prudence but was not aware of the nitty-gritties of the terms and conditions of  the insurance policy. His right however was more dependent upon the duties of the O.Ps. to make him aware of it. Hence, we can not debar him from getting him the protection under the policy. Coming to the second point where the O.Ps. have taken the plea that pendency of the criminal case against the complainant shall make him forgo his claim for indemnification seems to us unacceptable and unjustified as Learned District Forum in its judgment dated 13/11/2015 passed in Case No. CC-69/2011 does not hold the Complainant Dr. Pratap Sanyal criminally liable for the surgery performed on Smt. Srabani Deb, rather the Learned Forum had found Dr. Pratap Sanyal guilty of medical negligence. 

    The judgment referred to by Learned Advocate for the O.Ps. does not appear to us applicable to the case in hand as the factual matrix in the case in hand does not match with referred case. 

    In view of the discussion made above we find and hold that the complainant has succeeded in establishing his case U/S 12 of the Consumer Protection Act, 1986. 

6. In the result, the Complainant U/S 12 of the Consumer Protection Act, 1986 filed by the Complainant is allowed on contest. It is hereby directed that the O.Ps. shall reimburse the Complainant Rs.2,00,000/- being the amount awarded by the Learned District Forum, West Tripura, Agartala which was passed by its judgment dated 13/11/2015 in case No. CC-69/2011 the amount of which had already been paid by the Complainant to the victim Smt. Srabani Deb, the complainant in case No. CC-69/2011 in compliance with the policy which the complainant had purchased from the O.Ps. It is further directed that both the O.Ps. shall pay to the Complainant litigation cost of Rs.3,000/- . We are not inclined to give any amount as compensation under the head of mental harassment to the Co9mplainant.  The O.Ps. are to pay the aforesaid amount of Rs.2,03,000/-(Rs.2,00,000/- + Rs.3,000/-) in total within a period of 2 months from the date of judgment failing which the amount shall carry interest @ 9% P.A. till the payment is made. 

 

ANNOUNCED

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA

 

 

 

 

 SMT. DR. G. DEBNATH,

 MEMBER, 

DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA

 

SRI U. DAS

MEMBER,

DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, 

 WEST TRIPURA,  AGARTALA.