DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM

WEST TRIPURA : AGARTALA

 

CASE NO:  CC – 113  of   2017

 

 

The Care and Cure Polyclinic

and Research Centre,

Palace Compound, Agartala, 

P.O. Agartala, P.S. West Agartala, 

District- West Tripura.

Represented by its Proprietor 

Smti. Madhabi Sanyal. ...........…...Complainant.

 

               -VERSUS-

 

 

1. National Insurance Company Limited,

3, Middleton Street, Kolkata- 700071,

Represented by its

General Manager.

 

2. Senior Divisional Manager,

National Insurance Company Ltd.,

Agartala Division, 42 Akhaura Road, 

P.O.- Agartala, P.S. West Agartala,

West Tripura. ............. Opposite Parties.

 

 

__________PRESENT__________

 

 

 SRI A. PAL,

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,

  Advocate.

 

For the O.Ps : Miss Rajarshree  Purkayastha, 

  Advocate.   

 

JUDGMENT  DELIVERED  ON:  10.04.2018.

J U D G M E N T  

  This case arises on the petition filed by one Madhabi Sanyal, Proprietor of Care and Cure Polyclinic and Research Centre, Agartala, U/S 12 of the Consumer Protection Act. Petitioner's case in short is that she being the owner of the nursing home Care and Cure had to pay compensation Rs.3 lacs for medical negligence along with Rs.5,000/- as cost. She preferred appeal but compensation enhanced to Rs.5 lacs from Rs.3,05,000/- with the cost to Rs.10,000/-. She paid the amount of compensation. But the nursing home was insured to protect her business interest. She insured the nursing home by purchasing insurance policy covering Errors and Omission for the amount of Rs.10 Lacs. So after making payment as per direction of State Commission, petitioner being the owner of the nursing home and insurer claimed the amount from the respondent insurance company. She also sent letter to the Grievance Redressal Officer in the year 2016. Finally on 22.02.17 O.P. No.2, Senior Divisional Manager of the National Insurance Company rejected the claim  petition. Being aggrieved and dissatisfied by the deficiency of service of the O.P. petitioner prayed for the amount of Rs.5,05,000/- as paid by her and also Rs.1 lac as compensation and cost.

 

2. O.P., National Insurance Company appeared, filed written statement denying the claim. It is stated that there is no cause of action for filing the petition. As per terms of the policy no liability of the O.P. arises if the claim arises out if deliberate, willful or intentional non-compliance of statutory provision. The petitioner did not maintain any facility for pathological investigation and radiological investigation in the nursing home. Care and Cure Nursing home has been doing business in the heart of Agartala city without any proper infrastructure only to earn the money. Such medical negligence occurred due to their fault only and it is not covered by the insurance. Therefore, the petition is liable to be dismissed.

 

3. On the basis of contention raised by the parties following points cropped up for determination:

(I) Whether the petitioner violated the terms and conditions of the policy and not covered for getting the redress in connection with medical negligence?

(II) Whether the petitioner is entitled to get reimbursement and also compensation as claimed for the deficiency of service of National Insurance Company?

 

4. Petitioner produced the Insurance Policy,  Certificate of Registration, letters, Demand Draft & Notice, Reply, copy of Judgment passed by the District Forum and State Commission. 

 5. Petitioner also produced the Statement of Affidavit of one witness i.e., Madhabi Sanyal, complainant of this case. 

 

6. O.P. on the other hand produced letter, Professional Indemnity/ Errors & Omission, Compliance Certificate, Judgment dt. 22.11.2014.

7. O.P. also produced the Statement on Affidavit of one witness, Biswa Jyoti Bora, Administrative Officer of National Insurance Company Ltd.

8. On the basis of evidence as produced by both the parties and written argument submitted by the O.P. we shall now determine the above points.

Findings and decision:

9. We have gone through the Policy Certificate. It is admitted fact that the nursing home was under insurance coverage. O.P.W.1, Biswa Jyoti Bora in the cross examination also admitted it. He could not say whether any inspection was done before issuance of Insurance Policy.  In the cross examination he admitted that he could not say about the existence of pathological laboratory in the Care and Cure Nursing home. 

10. From the Judgments in the records it is found that petitioner paid Rs.5,35,000/- in different times for medical negligence as per direction of Hon'ble State Commission. Rs.5,05,000/- was paid on 14.09.2015 by cheque. Thereafter Rs.30,000/- was paid. It is also admitted fact that petitioner claimed for reimbursement from the O.P. Insurance Company which was denied on the ground that petitioner could not maintain any pathological laboratory, infrastructure in the nursing home at the time of opening it. 

11. From the Policy Certificate it is found that Insurance policy was purchased on 01.12.2003. Date of proposal was  25.08.2003. Yearly premium was Rs.8,192/- with service tax. Policy coverage period from 26.08.2003 to 25.08.2004.  The policy was renewed time to time. There is no dispute over the point that at the time of alleged medical negligence in the nursing home on 05.01.2004, morning the policy coverage was active. There is also no denying that the matter was finally decided in the State Commission by the Judgment dt. 22.11.2014. After finalization of the matter petitioner claimed the amount as reimbursement from the O.P. The letter was sent on 02.11.2015 to Divisional Manager, National Insurance Company for reimbursement. Several time reminders sent for reimbursement. Claim was finally repudiated by the letter dated 22.02.2017 on the ground of Errors and Omission Insurance Policy does not cover liability arising out of deliberate, willful and non-compliance of statutory provision.

 

12. O.P.W.1, Biswa Jyoti Bora stated in the deposition that complainant did not have proper infrastructure to carry the nursing home business so, policy condition was violated. Smt. Madhabi Sanyal complainant stated that policy was Error and Omission Insurance Policy. In the cross examination she stated that it was a profit making commercial organization. There is no laboratory for pathological test. 

 

13. In the written argument, Learned Advocate for the O.P. argued that policy condition No.9(2)(ii) and (x) was violated. He referred the decision of the National Commission in Larsen & Tourbo Ltd. Vs. Pophale Nursing Home & Anr. In the case of First Appeal No.208 & 212/1991 was decided on 05.08.1992. But that case was related to Electronic Telephone System in the nursing home.

 

14. Main contention in this case for repudiation of the claim by the Insurance company is that petitioner did not maintain any pathological laboratory in the nursing home. This was in the violation of the terms and conditions. But the details of the terms and conditions, policy papers not produced before us. It is not clear whether the maintenance of pathological laboratory inside the nursing home was mandatory or not. Nursing home was licensed one and an appropriate authority allowed to continue the business. For willful non compliance of statutory provision the claim was denied. What are the statutory provision not projected before us. In absence of it we can not conclude that petitioner violated the terms and condition of the policy. Before issuance of the policy certificate O.P. Insurance company had to make clear inspection to the establishment. After 12 years Insurance company stated that infrastructure was not proper. Without inspection of the nursing home the policy certificate should not have been issued, renewed time to time after receiving premium and if issued then liability goes to the Insurance company. Petitioner claimed the reimbursement not any profit. As per policy certificate petitioner is entitled to get  the reimbursement in connection with the compensation she had to pay for medical negligence. After going through all the evidence it is found that the petitioner paid the premium and she being the policy holder was entitled to get the reimbursement amounting to Rs.5,05,000/- from the Insurance company as coverage of policy was upto Rs.10 Lac. Insurance company refused to pay it which is unfair trade practice and also have deficiency of service.

 

15. We are of the considered view that Insurance company knowing fully well insured the nursing home and allowed it to do business. The coverage was up to Rs.10 lacs so the compensation that the nursing home owner had to pay for medical negligence is to be paid by the O.P. Insurance company. Petitioner is also entitled to get compensation and cost of litigation. We therefore direct the O.P. Insurance company to pay the amount paid by the petitioner for medical negligence total Rs.5,35,000/- and also direct to pay Rs.15,000/- as compensation to the petitioner and Rs.5,000/- as  cost of litigation. Both the points are decided accordingly.

 

16. In view of our above findings over the points, we direct the O.P. National Insurance Company Ltd. to reimburse the cost amounting to Rs.5,35,000/-(Rupees Five Lac Thirty Five Thousand) and also pay Rs.15,000/-(Rupees Fifteen Thousand) as compensation and Rs.5,000/-(Rupees Five Thousand) for cost of litigation. Payment is to be made within 2(two) months, if not paid it will carry interest @ 9% P.A. 

   

     Announced.

 

 

 

SRI A. PAL

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