BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. 285/2007 against C.C. 161/1998, Dist. Forum, Karimnagar
Between:
M/s. National Insurance Company Ltd.
Rep. by its Divisional Manager
Karimnagar. *** Appellant/
O.P. No. 2
And
1. Kanaparthy Satyanarayana Rao
S/o. Papa Rao, Age: 35 years
Agriculture, R/o. Bankur Village
Gollapalli Mandal,
Karimnagar Dist. *** Respondent/
Complainant.
2. Dr. D. B. Bikshapathi
Bone & Joint Specialist
C/o. Shivasai Orthopaedic Hospital
Vidyanagar, Jagitial
Karimnagar Dist. *** Respondent/
O.P. No. 1
Counsel for the Appellant: M/s. Katta Laxmi Prasad.
Counsel for the Respondent: M/s. C. V. Narasimham – R1.
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
&
SRI SYED ABDULLAH, MEMBER.
MONDAY, THIS THE NINETEENTH DAY OF JULY TWO THOUSAND TEN
ORAL ORDER: (Per Hon’ble Sri Justice D.Appa Rao, President.)
***
1) R2 insurance company preferred this appeal against the order of the Dist. Forum directing it pay Rs. 2 lakhs together with interest @ 9% p.a., and costs of Rs. 1,000/- along with R1.
2) The parties are described as arrayed in the complaint for felicity of expression.
3) The case of the complainant in brief is that when he had sustained grievous injury on his right leg, he was admitted in R1 hospital on 12.7.1996 after paying consultation and admission fee. R1 had conducted minor operation on the same day. He also conducted open reduction and plating of tibia and bone grafting on 1.8.1996. Though he was discharged he had severe pain, and unable to walk and there was shortening of right leg by one inch with foot drop. He was walking with stretches. The operation was conducted negligently. Later there was swelling. Now he was unable to walk and bedridden. He lost his source of livelihood. Though he consulted Shiva Ram Hospital, Karimnagar for improvement they informed that the operation was too expensive. He being poor unable to undergo the said operation. He is having three children and wife who depend on him. He could not attend to his agricultural works and therefore he claimed compensation of Rs. 3 lakhs.
4) R1 doctor resisted the case. While admitting that the complainant approached him on 12.7.1996 for preliminary examination, he found that there was lacerated wound over right leg at mid and lower 1/3. About 5 to 6 cms bone came outside and the wound was full of sand and dust. X-Ray revealed compound fracture of tibia and fibula of right leg at lower 1/3rd portion. Paresis of right leg and foot was also found. In view of the fact that there was possibility of infection leading to Osteomyelitis and chances of non-union of bones, he never assured the patient that he would regain his normal position. In fact he advised him and his family members to go to NIMS, Hyderabad for better management. However, he stated that he was poor and unable to go there. There upon on humanitarian grounds he conducted the surgery under spinal anaesthesia given by Dr. P. Nagaraj, Anaesthetist. Fracture was reduced and stabilized with pins and plaster technique. Two pins were applied in the proximal fragment and one pin in the distal. Wound was closed partially. He also conducted elective operation for open reduction, plating and bone grafting with the help of Dr. P. Nagaraj, Anaesthetist on 1.8.1996. All the pins were removed, fracture site was exposed and tibia was mobilized. Approximately 1 cm from each fragment was removed. Fracture was reduced and fixed with plate and screws. The fracture site was packed with plate and screws. The fracture site was packed with bone graft obtained from right iliac crest. Wound was closed and long leg PoP was applied. The trimming of avascular ends of bone was necessary. Finally he was discharged on 25.8.1996 with an advice to go to NIMS, Hyderabad for check up by Neuro physician or Neuro Surgeon for necessary investigation and evaluation. The complainant in all paid Rs. 9,500/- which includes Rs. 700/- towards pins and nails, Rs. 1,070/- towards plates and screws, and Rs. 800/- towards Anaesthetist charges besides room rent etc. He has followed the approved line of treatment while treating the complainant. He did his best in the circumstances. He also relied Campbell’s Operative Orthopaedics in order to justify the procedure adopted by him while conducting the operation. He had taken professional indemnity policy covering the risk from 30.12.1995 to 29.12.1996 from the appellant which had to indemnify in case compensation is allowed. There was no negligence on his part, and therefore prayed for dismissal of the complaint with costs.
5) R2 filed a memo adopting the counter of R1.
6) The complainant in proof of his case examined himself as PW1 and got Exs. A1 to A4 marked while R1 examined himself as RW1 and got Exs. B1 to B4 marked.
7) The Dist. Forum after considering the evidence placed on record opined that there was negligence on the part of R1 doctor in performing the surgery and therefore awarded an amount of Rs. 2 lakhs with interest @ 9% p.a., from the date of complaint till realization together with costs of Rs. 1,000/- to be paid by R1 doctor as well as appellant insurance company.
8) Aggrieved by the said decision, the insurance company preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It did not consider expert opinion and without there being any expert opinion available on record that there was negligence on the part of R1 doctor in conducting the operation it ought not to have awarded compensation. At any rate impleading it in the claim between the complainant and R1 is not correct. There was no privity of contract between it and the complainant. As per the conditions of the policy it has to indemnify R1 only after payment of compensation by R1 and it would compensate on its own terms. The compensation awarded is too high. The complainant did not take proper treatment. When he was directed to take treatment in a government hospital instead he approached a private hospital. He ought to have gone to a government hospital. The line of treatment given by R1 is on correct lines there is no expert opinion contrary to evidence spoken by RW1. There is no vicarious liability that could be fastened against it, and therefore prayed that the complaint against it be dismissed.
9) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
10) At the outset, we may state that on the complaint made by the complainant alleging negligence on the part of R1 doctor in conducting the operation a compensation of Rs. 2 lakhs was awarded. R1 doctor did not prefer any appeal against the said order. Curiously the insurance company did not raise the contentions that were raised in the grounds of appeal by filing a separate counter. Simply it has filed a memo adopting the counter of R1. R1 doctor in his counter categorically stated that he had obtained Professional Indemnity Policy covering the risk from 30.12.1995 to 29.12.1996 from National Insurance Company. Further he averred that it has to indemnify R1 if any compensation is allowed in the case. On that the appellant insurance company was impleaded.
11) At the cost of repetition, we may state that it did not dispute its liability in case R1 was found professionally negligent and consequential payment of compensation awarded by the Dist. Forum. It did not say that there was no privity of contract between it and R1. Instead of having multiplicity of proceedings and un-necessary litigation, at the instance of R1 appellant was impleaded. If really it intends to deny the benefits of policy to the doctor since its liability would arise only on payment of the amount by the doctor, it ought to have contested the case before the Dist. Forum instead of filing a memo adopting the counter of R1. It cannot take a different stance that the policy does not cover the liability. In fact it could have taken all the defences raised at this juncture when it was impleaded. We do not see any flaw when insurance company was impleaded as party before the Dist. Forum. After all under the Consumer Protection Act strict rules of procedure are not applicable.
12) In fact it is clear from the statement of objects and reasons of the Act that it is to provide a forum for speedy and simple redressal of consumer disputes. It has to observe the principles of natural justice and have been empowered to give reliefs of a specific nature and to award wherever appropriate compensation to consumers. When such is the intendment of the enactment, hyper technical rules need not be taken into cognizance. The contentions that were raised in the grounds of appeal could have been raised before the Dist. Forum for consideration, more so, when the doctor had taken a plea that in case if he were found to be guilty the compensation that was awarded could be realised from the appellant. The appellant was given an opportunity to contest the matter and take whatever pleas that was available to it. When it did not take all these pleas and on the other hand filed a memo adopting the counter of R1, it does not lie in its mouth to state that only after amounts are paid by R1 it would pay to the doctor.
13) We reiterate that the insurance company having accepted the contentions taken by the doctor and when the complainant could prove that the doctor was negligent in conducting the operation, we do not see how the insurance company could raise a plea that there was no negligence on the part of doctor. Obviously this contention was taken to deny the benefit of insurance policy taken by the doctor and that too belatedly.
14) Even otherwise, a perusal of record would show that the complainant is a poor agriculturist had sustained grievous injury to his right leg. An emergency debridment operation was conducted on 12.7.1996 under spinal anaesthesia. Later on 1.8.1996 R1 conducted elective operation for open reduction, plating and bone grafting with the help of Anaesthetist. All the pins were removed, fracture site was exposed and tibia was mobilized. Finally the complainant when he was discharged had foot drop besides there was one inch shortening of right leg. The very doctor both in his counter as well as in his affidavit evidence had categorically stated that:
“After explaining the facts to the complainant and his family members this respondent advised the complainant to get admitted in NIMS or Appollo hospital at Hydrabad for better management. But the complainant and his family members stated that their financial position is not sound enough to bear the expenses of Hyderabad hospitals and requested the respondent to accept the case on humanitarian grounds.”
If really he was of the opinion that post operative treatment needs the services of Neuro physician or Neuro surgeon for foot drop and shortening of leg etc., he should have summoned the Neuro surgeon or Neuro physician. It is not as though the complainant did not pay. In fact he had paid Rs. 9,500/- which fact was admitted by the very doctor. The doctor himself admitted that “It is true that there is one inch shortening of right leg with foot drop.” To that effect he gave certificate Ex. A3. He also admitted that” It is true that as per Ex. B1 and B3 that there was a parasis of right leg at L5 S1 root. It is true that the parasis of right leg involving L5 and S1 root has to be treated by Neuro surgeon or Neuro physician.”
15) When questioned whether he was qualified, he gave answer stating that: “I am not supposed to treat for the above injury. We have advised the patient to go to concerned specialist for proper evaluation and treatment of the parasis of right leg. I have referred the patient on another prescription.”
Except stating that he had referred the patient to another doctor no document was filed. He did not make a mention in the discharge summary mentioning about it. He admitted that as per the prescription dated 3.8.1997 the condition of the patient was swelling of right leg and some watery discharge was there from the wound. He further admitted that “I have not filed any proof about the request made by the attendants of the complainant for the admission of the patient in spite of I referred the patient.” He denied that as per the report of medical board of NIMS there was a sensory neuropathy which is the consequence of his operation. No medical officer or expert was examined to confirm that the treatment given by him was on correct lines and as per accepted procedure. Ex-facie the treatment shows that he did not conduct surgery properly and there was negligence on his part. The Dist. Forum has rightly awarded a compensation of Rs.2 lakhs considering the nature of disability, loss of income and the amount spent towards medical expenses etc.
16) Learned counsel for the appellant relied a decision of High Court in W.P. No. 25061/2006 contending that no liability can be fastened on the insurance company when there was no adherence to the conditions of the policy. No doubt that was also a case of Oriental insurance company. However, it looks as though there was condition No. 5B of the policy, a notification of claim should be made by the policyholder within 90 days and since the same has not been made, it is not under obligation to pay the amount and that the policy was also not renewed by the respondent subsequently. We do not see how the said decision is applicable to the facts. The conditions enclosed herein do not prescribe the same. Clause 5(b) has not been couched in the same words. It was altogether different policy. It pertains to Professional Indemnity Policy for doctors and medical practitioners. It is in regard to 5(a) Notification extension clause (b) extended claim reporting clause. The operation was conducted within the period for which policy was taken.
17) In fact the learned counsel for the appellant contended that the complainant was stranger to the policy, and therefore it need not indemnify any claim made by him against the doctor. It is for the doctor to approach, on which it would enquire and then compensate on its own terms.
18) Learned counsel for the complainant relied a decision of National Commission in New India Assurance Company Ltd. Vs. Naik Wadhumal Alimchandani reported in IV (2003) CPJ 76 (NC) where the National Commission had occasion to consider this aspect of the matter where fire broke out due to leakage of gas from cylinder in the premises of the insured customer. When property was damaged due to water to extinguish the fire the contention of the insurance company was that the complainant was stranger to the policy and that it need not indemnify. If at all it has to indemnify it has to indemnify the company which had taken the policy. The said contention was not accepted.
19) Since the insurance company was already impleaded and for any liability of the doctor, it is too late a day to contend that only on payment of compensation by the doctor it would compensate on enquiry and on its own terms. This contention is not permissible in the light of the fact that the appellant did not choose to contest the matter before the Dist. Forum; on the other hand, it had adopted what all the entire doctor had stated. In a way admitting its liability if the doctor found liable to compensate. We have perused the record in its entirety and we are of the opinion that the Dist. Forum by giving cogent reasoning directed the insurance company the appellant herein to pay compensation along with R1. It is needless to say that the insurance company is liable to indemnify the doctor within the limits of assured amount. On that score it cannot avoid. We do not see any merits in the appeal.
20) In the result the appeal is dismissed with costs computed at Rs. 5,000/-. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 19. 07. 2010.
*pnr
“UP LOAD – O.K.”
