This C.D coming on before us for final hearing, on 14-11-2007 in the presence of Sri. K.Koteswar Rao, Advocate for Complainant, and in the presence of Sri.K.Satyanarayna, Advocate  for Opposite Party No-1 & 2, and in the presence of Sri. G.Sita Rama Rao, Advocate for opposite party No-3;on perusing the material papers on record; upon hearing arguments, and having stood over for consideration, this Forum passed the following:-

ORDER

(Per Smt.V.Vijaya Rekha, Member )

1.       This complaint is filed under section 12(1) (a) of the Consumer Protection Act, 1986 with the following averments;

2.        The brief facts of the complaint are that the complainant No.2  is the wife of complainant No.1 and they are residents of  Khammam Town, the complainant No.2 who got second pregnancy, admitted in the hospital of opposite party No-1 for safe delivery and the opposite party No-2 gave treatment  in this regard by conducting scanning and other necessary investigation and at any point of time no problem was expressed by the opposite party No-2 till the sterilisation operation was conducted.  On the date of delivery i.e., on 11-8-2004 caesarian  operation and sterlisation operation was conducted and the complainant  No-2 gave birth to a male child and the opposite party No-2 informed them that the child was hale and healthy, but they were not allowed to take custody and immediately the child was kept in ICU for administering oxygen and the opposite parties  even not allowed the complainants and the relatives  to see the child and on 12-8-2004  in the morning 8.30 hours, they were informed about the death of the child  and the complainants alleged that due to the negligence  in doing investigation,  management of delivery  the death was resulted.  The complainants further alleged that due to the negligence in pre-operative care    and due to the conducting of operation without adequate preparation, they lost their child and during the caesarian operation sterilization  was also done, and also stated that  they lost the hope of subsequent child and they are very much fond of a male child and as they lost their hopes due to the treatment provide by opposite parties 1 & 2,  they approached the Forum by claiming compensation of Rs.4,00,000/- from the opposite parties for the negligence in the treatment and also claimed Rs.10,000/- towards expenses of medicines and other expenses and also prayed to award cost of Rs.1000/-.  The complainant before filing the present complaint got issued  a legal notice to the opposite parties 1 & 2 and they replied that they obtained insurance policy from the  opposite party No-3 towards Medical Indemnity and the said policy was in existence and as such the complainant claimed relief against all the opposite parties by alleging that they are liable jointly and severally to pay damages.

3.       Along with the complaint the complainant No-1 filed his affidavit  and also filed (1) Prescription dated 22-1-2004(ii) Urine analysis report, dated 18-8-2004 (iii) Blood test report, dated 2-8-2004 (iv) Blood report, dated 20-5-2004 (v)Urine analysis report, dated 27-4-2004(v) Report of ultrasonography, dated                  27-4-2004.(vi)Medical check up card , issued by opposite parties No-1 & 2 (vii)  Payment receipt  for Rs.70/- issued by Quest X-ray and E.C.G., Khammam.      (viii) Prescription dated 11-8-2004 prescribed on blank paper  (ix) Prescription dated         11-8-2004 prescribed on blank paper (x) Application for sterilization (xi) Certificate of operation issued by opposite party No-2 (xii) xerox copy of N.I.C.U. case sheet  (xiii) Findings of children’s specialist  (xiv) x-ray of baby of complainant No-2.(xv) Findings of Quest diagnostic center on x-ray (xvi) Office copy of legal notice  along with courier receipts (xvii) Reply notice dated 30-10-2004.

4.       After receipt of notices from this Forum the opposite parties appeared through their counsels and filed counters by denying the allegations leveled in the complaint.

5.       The counter of the opposite parties 1 & 2 contains the objection regarding the status given to the opposite party No-1 by mentioning M/s.Yalamanchili Poly Clinic and further mentioned that there is no entity at all in the name and style of opposite party No-1 and further  the opposite parties No-1 & 2 contended that on the request of complainants only sterilization  was conducted on 11-8-2004 and that at the time of delivery the baby was hale and healthy as such the complainants expressed  their gratitude towards opposite party No-2 for a risk less  and happy delivery and further contended that the death of male child was not due to any medical negligence and as such  they are not liable to pay any medical expenses or any damages as claimed by the complainants and prayed to dismiss the complaint, they further mentioned that they have obtained insurance policy from the opposite party No-3  towards medical indemnity  and as such the complainants  can claim the damages from the opposite party No-3 and they are not liable to pay any amounts to the complainants.

6.       The opposite party No-3 filed their counter by admitting the issuance and existence of the policy and as per their counter the opposite parties No-1 & 2 shall pay all reasonable precautions to prevent injury, illness which may give raise to claim under the policy, and it is the duty of the insured to inform within 7days of any   occurrence to give notice of the same in writing to the company and further alleged that  the opposite parties No.1 &2 did not performed their obligations in this regard and as there is no privity of contract between the opposite party No-3 and  the complainants, they are not liable to pay any compensation and further mentioned that as the case was involved with complicated questions  of law and facts, only the civil court can adjudicate  the matter and as such prayed to dismiss the complaint accordingly.

7.       In the present case on hand the complainants who filed their chief  examination affidavits, did not choose to mark the documents as exhibits on their behalf.  The opposite party No-3  who filed chief examination affidavit, got marked Ex B1 is the policy copy, issued infavour of the opposite parties No-1 &2 .  

8.       The complainants and the opposite party No-3 filed their written arguments

9.       Inview of the above submissions made by  both the  parties now the point for consideration before the Forum is whether the complainant is entitled to any relief as prayed or not.

10.     As seen from the above averments  it is an admitted fact that the complainant No-2 was admitted in Yalamanchili Poly Clinic for her second delivery and it is also admitted that on 11-8-2004 caesarian and sterilization procedures  were performed and it is also admitted by both the complainants  and the opposite parties No-1 &2 regarding the  birth of male child.  It is the  allegation of the complainant due to the negligence of the opposite parties No-1 &2 the child was  died after 22 hours i.e., on 12-8-2004 at 8-30a.m. and they further alleged that the male child was not even shown to them and  immediately after the delivery the opposite parties No-1 & 2 kept the child in I.C.U. and they did not allowed to see the child  and claimed damages, and it is the  case of the opposite parties No.1 & 2 there is no negligence on their part  and as such they are not liable to pay any damages.  The complainant who alleged the negligence on the part of opposite parties No.1& 2 , did not choosed to file any material to prove their negligence and also failed to examine  an expert in this regard.  In the absence of any such material before this Forum regarding the deficiency of service or negligence,  this Forum cannot held liable the opposite parties to pay damages  to the complainants and as such  this point is answered  accordingly against  the complainants, by holding that the complainants are not entitled to any relief as prayed.

11.     In the result  the C.C. is dismissed without any costs.

Typed to dictation, Corrected and pronounced by us, in this Forum on this 21th  day of November, 2007.

                                                                   President         Member             Member

                                                             District Consumers Forum, Khammam

APPENDIX OF EVIDENCE

WITNESS EXAMINED FOR

Complainant                                                                        Opposite parties

Nil                                                                                                        Nil

DOCUMENTS MARKED FOR

Complainant 

          Nil                                                        Opposite parties

                                                                           ExB1: Policy copy

                                                             President         Member             Member                                                             District Consumers Forum, Khammam