Madhya Pradesh

StateCommission

A/09/1243

M/S SARRAF NURSING HOME - Complainant(s)

Versus

KU. SHASHIKALA GAUTAM - Opp.Party(s)

23 Aug 2022

ORDER

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

PLOT NO.76, ARERA HILLS, BHOPAL

                              

                                    FIRST APPEAL NO. 1243 OF 2009

(Arising out of order dated 14.05.2009 passed in C.C.No.811/2008 by the District Commission, Gwalior)

 

M/S SARAF NURSING HOME, THROUGH

1. DR. SANDEEP SARAF

2. DR. K. L. SARAF

BEHIND OLD HIGH COURT,

NEAR KALI MATA MANDIR,

GWALIOR (M.P.)                                                                                         …          APPELLANT.

 

Versus                

1. KU. SHASHIKALA GAUTAM,

    D/O SHRI R. R. GAUTAM,

    R/O LIC HOUSES

    CITY CENTRE, GWALIOR (M.P.)

 

2. NEW INDIA ASSURANCE CO.LTD.

    THROUGH DIVISIONAL MANAGER,

    DIVISION OFFICE-SACHDEVA BHAWAN,

    STATION ROAD, GWALIOR (M.P.)                                                          …         RESPONDENTS.                                     

 

BEFORE :

            HON’BLE SHRI A. K. TIWARI                : PRESIDING MEMBER

            HON’BLE DR. SRIKANT PANDEY        :          MEMBER

                                  

COUNSEL FOR PARTIES :

                Shri Mohan Chouksey, learned counsel for the appellant.

           Shri Neelesh Khare, learned counsel for the respondent no.1.

           Ms. Preetima Shrivastava, learned counsel for the respondent no.2.

 O R D E R

(Passed On 23.08.2022)

                        The following order of the Commission was delivered by A. K. Tiwari, Presiding Member:   

 

                         This appeal filed by the opposite party against the order dated 14.05.2009 passed by the District Consumer Disputes Redressal Commission, Gwalior (For short ‘District Commission’) in C.C.No.811/2008

 

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whereby the complaint filed by the complainant/respondent has been allowed.

3.                Brief facts of the case as stated by the complainant/respondent before the District Commission are that on 15.08.2007 she was having pain in her right wrist, consulted opposite party doctor who administered an injection negligently in her wrist due to which melting of bones increased in wrist joint.  The opposite party doctor referred the patient to Dr. D. K. Gupta on 07.10.2007. It is alleged that due negligently administration of injection by the opposite party doctor, the movement of wrist restricted which was also not recovered even after physiotherapy.  Thereafter she consulted Indraprastha Appollo Hospital, New Delhi where she got admitted on 14.11.2007 and surgery was performed and thereafter she discharged on 17.11.2007.  The complainant therefore filed a complaint before the District Commission alleging deficiency in service on part of opposite party doctor and the insurance company seeking relief of Rs.6,00,000/- along with costs of Rs.10,000/-

4.                The opposite party doctor resisted the complaint stating that the complainant consulted the opposite party no.1 doctor with complaint of pain in wrist and restricted wrist joint and after clinical examination it was found that she was suffering from Ganglion cyst, at the time the wrist joint was restricted and there was pain in her wrist. He administered Injection Astoride

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at the Ganglion site which is the only treatment. Thereafter he regularly dressed the wound and when it was found from the X-ray that the bone joint was restricted, she was referred to Dr.D.K.Gupta, an orthopedic surgeon. It is therefore prayed that the complaint be dismissed.

5.                The District Commission after appreciation of evidence available on record found that the opposite party doctors negligent in performing operation committed deficiency in service. The District Commission therefore directed the opposite parties jointly or severally to pay to the complainant Rs. 4,00,000/- towards compensation, Rs.1,00,000/- towards expenses incurred in treatment along with costs of Rs.1,000/- Hence this appeal by the opposite party doctors.

6.                Heard learned counsel for the parties. Perused the record.

7.                During pendency of appeal, the appellant doctors had moved an application along with appeal for impleading the New India Assurance Company Limited as a party to the case as both the doctors were insured under the Professional Indemnity policy.  The said application was allowed by this Commission on 22.07.2009.

8.                On going through the impugned order, we find that the District Commission in paragraph 8 of the impugned order had mentioned that the opposite parties doctors took a preliminary objection that they are insured under the Doctor’s Indemnity Policy and since the insurance company was

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not made a party, therefore, the complaint is not maintainable. However, we find that the District Commission has not dealt this issue in the impugned order nor had given any finding in this regard.

9.                On due consideration of the aforesaid application filed by the appellant doctors that insurance company is a necessary party, we are of a considered view that the said insurance company ought to have been made a party before the District Commission. At the appellate stage if the insurance company is impleaded as a party, and the insurance company filed reply, it was deprived of right of first appeal.

10.              In this view of the matter, without going into the merits of the case, we are of a considered view that the matter deserves to be remanded to the District Commission for decision afresh after giving opportunity to the insurance company to contest the claim.

11.              In view of the aforesaid, it is directed that the matter be remanded back to the District Commission. Record of the case be sent to the District Commission at the earliest. Copy of application filed under Order 1 Rule 10 of CPC along with documents be also sent to the District Commission along with record in original and copies be retained in this appeal.   

12.              Parties are directed to appear before the District Commission on 16.09.2022.

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13.              The District Commission is directed to proceed further in the matter, in accordance with law.  Needless to mention that observations made hereinabove shall not come in way of the District Commission, while passing the order. Parties are at liberty to contest their respective claims.

14.              With the aforesaid observations and directions, this appeal stands disposed of. However, no order as to costs.

 

1. K. Tiwari)                (Dr.Srikant Pandey)     

                       Presiding Member                       Member