THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR
Complaint No. 223-13
Date of Institution : 18.3.2013
Date of Decision : 10.2.2015
Saini Hospital, Model Town, G.T. Road, Amritsar through its partner Dr. J.S. Saini
.....Complainant
Vs.
The New India Assurance Company Ltd., through its Rayya Branch through its Divisional Office At 80, Court Road, Amritsar through its Divisional Manager
.....Opp.party
Complaint under section 12/13 of the Consumer Protection Act, 1986
Present : For the complainant : Sh.Updip Singh, Adv
For the opposite party : Sh. P.N.Khanna,Adv.
Quorum : Sh. Bhupinder Singh, President,
Ms.Kulwant Kaur Bajwa,Member
Order dictated by :-
Bhupinder Singh, President
1. Present complaint has been filed by Saini Hospital through its partner Dr. J.S. Saini under the provisions of the Consumer Protection Act alleging therein he had been insured with the opposite party during the period 28.8.1999 till 27.8.2000 for Error and Omission Insurance for the sum insured Rs. 15 lacs. The said policy also continued in subsequent years . On 28.12.2000 during the subsistence of the policy period, one patient Rajinder Singh during the course of treatment died. The legal heirs of the patient namely Rakha Sharma widow alongwith others filed
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complaint No. 20 of 2002 before this Forum on 8.1.2002 alleging medical negligence during the course of treatment of the said patient in the complainant's hospital. The complainant was directed by this Forum to pay compensation of Rs. 3 lacs to the complainant . The complainant filed appeal before the Hon'ble State Commission which was subsequently transferred to Hon'ble State Consumer Disputes Redressal Commission, UT, Chandigarh and the said appeal was dismissed with cost of Rs. 20000/- by the Hon'ble State Commission, UT Chandigarh vide order dated 4.3.2011 . Complainant has alleged that on receiving the order from the Hon'ble State Commissioin, UT Chandigarh , the complainant approached the opposite party to make payment of the decreed amount as per terms and conditions of the policy. The decree holder also filed execution application before this Forum i.e. Execution Applicatio No. 100/11 and vide order dated 12.6.2012 the complainant was directed by this Forum to tender drafts in the name of decree holders of complaint No. 20 of 2002 as per decreed amount. These drafts totalling Rs. 3,20,000/- were tendered before this Forum by the complainant vide application dated 14.6.2012. After payment of the decreed amount of complaint No. 20/2002 on 14.6.2012 , complainant made claim with the opposite party as per terms and conditions of the policy . But the opposite party vide letter dated 15.10.2012 repudiated the genuine claim of the complainant on the flimsy ground (a) declaration in the proposal form is totally wrong and misconceived in the light of the concurrent findings of the District Forum and Hon'ble State Commission (b) There is violation of exclusion clause (ii) & (x) according to which the opposite parties are not liable to pay the claim.....
2. Alleging the same to be deficiency in service complaint was filed seeking directions to the opposite party to make payment of the claim amount of Rs. 3,20,000/- with interest @ 18% p.a. Compensation of Rs. 50000/- alongwith litigation expenses were also demanded.
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3. On notice opposite party appeared and filed written version in which it was submitted that claim preferred by the complainant's hospital authorities with the opposite party was duly considered as per terms and conditions of the Errors & Omission Policy obtained by the complainant and as per directions of the Hon'ble State Commission, UT Chandigarh and the same was rightly repudaited by giving detailed reasons in the repudiation letter dated 15.10.2012 which was duly sent to the complainant hospital . It was submitted that while disposing of the complaint, the Forum held that basically the hospital authorities are liable to pay the compensation to the complainant. However, thereafter the hospital authority shall be entitled to indemnification from opposite party No.2 i.e. Insurance company in accordance with terms and conditions of the Insurance Policy issued by opposite party No.2 in favour of opposite party No.1. The hospital authorities preferred appeal against the orders of this Forum before the Hon'ble State Commission, UT Chandigarh and the Hon'ble State Commission, UT Chandigarh vide its order dated 4.3.2011 dismissed the appeal and the same rider was made that compensation amount shall be paid in first instance by Saini Hospital as ordered by this Forum and thereafter they may get indemnification from the Insurance company in accordance with terms and conditions of the Insurance Policy. Inspite of passing order by the Hon'ble State Commission, the complainant hospital authorities did not discharge their liability and as such complainant filed proceedings u/s 25 of the Consumer Protection Act and in the said proceedings, the hospital authorities made payment as ordered by the Hon'ble District Forum and confirmed by the Hon'ble State Commission . Then complainant hospital authorities raised claim against the opposite party on the basis of the policy demanding reimbursement of the amount paid by them. The said claim case of the complainant was considered by the opposite party in appeal and it was found that the amount in question cannot be refunded to the hospital authorities as per terms
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and conditions and exclusion clauses of the policy in question on the following grounds:-
That declaration in the proposal form submitted by the complainant hospital authorities at the time of getting of insurance policy is totally wrong and misconceived in the light of concurrent findings of the District Consumer Forum and Hon'ble State Commission and as such as agreed in the said declaration, the Insu.co is not liable to reimburse any amount because the said declaration has been proved as wrong one.
Besides that there is also violation of exclusion clause No.(ii) and (x) according to which it has been clearly agreed that the insurance company is not liable to pay or reimburse any claim to the hospital authorities if it has been arisen out of deliberate,willful and intentional non-compliance of statutory provisions as well as deliberate conscious or intentional disregard of insured's technical or administrative management of need to take all reasonable steps to prevent claim.
4. The said repudiation was duly conveyed to the complainant hospital authorities vide letter dated 15.10.2012. It was submitted that when the claim is preferred by the hospital authorities and the same was considered as per terms and conditions of the policy as well as findings given by the Forum. In this regard Dr. J.S. Saini has himself admitted that he is only BAMS and did not even possess degree of MBBS but presented himself as MD and as such he is not eligible to prescribe allopathic treatment but he had given pre and post medical treatment of allopathy to the patient who had undergone surgical operations. Moreover, no pre-requisite medical test was carried befgore surgery. Similarly Dr. Atul Mittal who performed the operation claimed to be MS holding degree of M.Ch but he did not produce any such proof regarding such medical qualification. All these facts have also been incorporated in the repudiation letter itself and there is no deficiency of service on
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the part of the opposite party. While denying and controverting other allegations dismissal of complaint was prayed.
5. Complainant tendered into evidence his affidavit Ex.C-1, repudiation letter dated 15.10.2012 Ex.C-2, copy of application dated 14.6.2012 Ex.C-3, copy of order of DCF in complaint No. 20/2002 Ex.C-4, copy of order of Hon'ble UT State Commission Ex.C-5, copy of insurance cover note Ex.C-6, copy of registration certificate of Dr. J.S.Saini Ex.C-7, copy of affidavit of Dr. Atul Mittal MS,MCh Ex.C-8, copy of notification of Govt.of Punjab,Department of Health and Family Welfare dated 18.6.2004 Ex.C-9.
6. Opposite party tendered into evidence affidavit of Sh.Sunil Mahajan,Sr.D.M Ex.OP1, letter dated 7.4.2011 Ex.OP2, repudiation letter dated 15.10.2012 Ex.OP3, certified copy of the insurance policy alongwith terms and conditions & exclusion clauses Ex.OP4, copy of order of the District Consumer Forum Amritsar dated 1.1.2003 Ex.OP5, copy of order of the Hon'ble State Commission dated 4.3.2011 Ex.OP6.
7. We have carefully gone through the pleadings of the parties arguments advanced by the ld.counsels for both the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsels for both the parties.
8. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant hospital got insurance policy from the opposite party for the period from 28.8.99 till 27.8.2000 i.e. Error and Ommission Insurance with sum assured Rs. 15 lacs and the said policy continued in subsequent years. The complainant submitted that when the aforesaid policy was operative, on 28.12.2000 one Rajinder Singh patient died at the complainant's hospital during the course of treatment. The legal heirs of the patient namely Rakha Sharma widow alongwith others filed complaint No. 20 of 2002 before this Forum
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on 8.1.2002 alleging medical negligence during the course of treatment of the said patient in the complainant's hospital. The complainant's hospital, who was opposite party in that complaint appeared and contested that complaint. However, said complaint was allowed and the opposite party hospital was directed by the District Forum to pay compensation of Rs. 3 lacs to the complainant vide order dated 1.1.2003 Ex.C-4. The present complainant who was the opposite party in that complaint filed appeal before the Hon'ble State Commission which was subsequently transferred to Hon'ble State Consumer Disputes Redressal Commission, UT, Chandigarh and the said appeal was dismissed with costs of Rs. 20000/- by the Hon'ble State Commission, UT Chandigarh vide order dated 4.3.2011 Ex.C-5., After receiving the order from the Hon'ble State Commissioin, UT Chandigarh Ex.C-5, the complainant approached the opposite party to make payment of the decreed amount as per terms and conditions of the policy. The complainant in the original complaint also filed execution application before this Forum i.e. Execution Applicatio No. 100/11 and vide order dated 12.6.2012 the present complainant was directed by this Forum to tender drafts in the name of decree holder of original complainant of complaint No. 20 of 2002 as per decreed amount. These drafts totalling Rs. 3,20,000/- as per order of the Hon'ble UT State Commission,Chandigarh were tendered before this Forum by the complainant vide application dated 14.6.2012 and the payment was made to the original complainant i.e. legal heirs of Rajinder Singh Sharma. Opposite party did not compensate this amount to the complainant hospital as per terms and conditions of the insurance policy rather they repudiated the claim of the complainant hospital vide letter dated 15.10.2012 Ex.OP3 on the ground of declaration given by the complainant in the proposal form has been proved wrong as well as on the ground of deliberate conscious or intentional disregard of insured's technical or administrative management of the need to take all reasonable steps to prevent claim. Ld.counsel
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for the complainant submitted that all this amounts to deficiency of service on the part of the opposite party as the opposite party was bound to pay compensation amount paid by the complainant to the legal heirs of Rajinder Singh Sharma as per terms and conditions of the policy.
9. Whereas the case of the opposite party is that claim preferred by the complainant's hospital authorities with the opposite party was duly considered as per terms and conditions of the Errors & Omission Policy obtained by the complainant and as per directions of the Hon'ble State Commission, UT Chandigarh vide their order Ex.C-5 and the same was rightly repudaited by giving detailed reasons in the repudiation letter dated 15.10.2012 Ex.OP3 which was duly received by the complainant and this fact has been admitted by the complainant's hospital authorities in para 5 of the complaint. Opposite party further alleged that as per the orders of the District Forum Ex.C-4 the Forum has held that basically the hospital authorities are liable to pay the compensation to the complainant. However, thereafter the hospital authority shall be entitled to indemnification from opposite party No.2 i.e. Insurance company in accordance with terms and conditions of the Insurance Policy issued by opposite party No.2 in favour of opposite party No.1. The hospital authorities preferred appeal against the orders of this Forum Ex.C-4 before the Hon'ble State Commission, UT Chandigarh and the Hon'ble State Commission, UT Chandigarh vide its order dated 4.3.2011 Ex.C-5 dismissed the appeal and the same rider was made that compensation amount shall be paid in first instance by Saini Hospital and thereafter they may get indemnification from the Insurance company in accordance with terms and conditions of the Insurance Policy. The hospital authorities made payment to the original complainant i.e. legal heirs of Rajinder Singh Sharma and the complainant's hospital authorities raised claim against the opposite party on the basis of the policy demanding reimbursement of the amount paid by them. The said
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claim case of the complainant was considered by the opposite party in appeal and it was found that the amount in question cannot be refunded to the hospital authorities as per terms and conditions and exclusion clauses of the policy in question on the following grounds:-
(i) That declaration in the proposal form submitted by the complainant hospital authorities at the time of getting of insurance policy is totally wrong and misconceived in the light of concurrent findings of the District Consumer Forum and Hon'ble State Commission and as such as agreed in the said declaration, the Insu.co is not liable to reimburse any amount because the said declaration has been proved as wrong one.
(ii) Besides that there is also violation of exclusion clause No.(ii) and (x) according to which it has been clearly agreed that the insurance company is not liable to pay or reimburse any claim to the hospital authorities if it has been arisen out of deliberate,willful and intentional non-compliance of statutory provisions as well as deliberate conscious or intentional disregard of insured's technical or administrative management of need to take all reasonable steps to prevent claim.
The repudiation letter dated 15.11.2012 Ex.OP3 was duly served upon the complainant . In the proceedings before the District Forum Dr. J.S. Saini,Prop. Of Saini Hospital himself admitted that he is only BAMS and did not even possess degree of MBBS but presented himself as MD and as such he is not eligible to prescribe allopathic treatment but he had given pre and post medical treatment of allopathy to the patient who had undergone surgical operations. Moreover, no pre-requisite medical test was carried befgore surgery. Similarly Dr. Atul Mittal who performed the operation claimed to be MS holding degree of M.Ch but he did not produce any such proof regarding such medical qualification. All these facts have also been incorporated in the repudiation letter itself. Ld. Counsel for the opposite
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party submitted that opposite party has rightly repudiated the claim of the complainant, as such there is no deficiency of service on the part of the opposite party.
10. From the entire above discussion, we have come to the conclusion that complainant hospital got insurance policy from the opposite party for the period from 28.8.99 to 27.8.2000 i.e. Error and Ommission Insurance and this policy continued in subsequent years and this fact is not disputed by the opposite party. On 28.12.2000 complainant Rajinder Singh Sharma , patient who was under the treatment at complainant hospital, expired during the course of treatment. The legal heirs of patient Rajinder Singh Sharma namely his widow Rekha Sharma and others filed complaint No. 20/2002 before this Forum alleging medical negligence during the course of treatment of said patient at complainant hospital. In the said complaint opposite party i.e. New India Assurance Company Ltd was also a party . The said complaint was allowed and the complainant who was opposite party in that complaint , was directed by the District Forum to pay compensation Rs. 3 lacs to the complainant, vide order dated 1.1.2003 Ex.C-4. The complainant went in appeal before the Hon'ble State Commission, Punjab which was subsequently transferred to Hon'ble State Commission , UT , Chandigarh and the said appeal was dismissed with cost of Rs. 20000/- by the Hon'ble State Commission vide order dated 4.3.2011 Ex.C-5. Resultantly in execution application filed by the complainant i.e. legal heirs of deceased Rajinder Singh Sharma, the complainant hospital had to pay Rs. 3,20,000/- as per the order of the Hon'ble State Commission, UT, Chandigarh to the legal heirs of Rajinder Singh Sharma on 14.6.2012. The complainant hospital lodged claim with the opposite party for the reimbursement of the aforesaid amount paid by the complainant hospital to the legal heirs of Rajinder Singh Sharma . But the opposite party repudiated the claim of the complainant vide letter dated 15.10.2012 Ex.OP3 on the ground that the
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declaration given by the complainant in the proposal form has been proved wrong as well as on the ground of deliberate conscious or intentioinal disregard of insured's technical or administrative management of need to take all reasonable steps to prevent claim. We have gone through the terms and conditions of the policy as well as the order passed by the Hon'ble State Commission, UT ,Chandigarh Ex.C-5. In that order Ex.C-5 the Hon'ble State Commission in para 16 held that complainant hospital authorities i.e. Dr. J.S. Saini, Prop of hospital is only BAMS. Rajinder Singh was examined by Dr. J.S.Saini, BAMS. Dr. J.S. Saini of complainant hospital has admitted that there is no doctor who is their permanant employee. Dr. J.S. Saini personally examined and diagnosed the patient and found him suffering from Prostrate enlargement. He claims to have consulted Dr. Atul Mittal on telephone. Dr. J.S. Saini also claimed that Dr. Mittal told him the treatment on phone which he mentioned on the treatment chart. Dr. J.S. Saini has also mentined that the blood sugar level of patient Rajinder Singh was not tested on 24.12.2000 before admitting him for operation. Not only this Dr. J.S. Saini further admitted that the tests of the patient were not performed by any qualified doctor but by the Laboratory technician. But no affidavit of Lab Technician was produced nor he was examined as a witness nor even his qualification were placed on the file. So the Hon'ble State Commission considered that the tests on the patient were also not perofmred by any competent person . Apart from this Dr. Atul Mittal, who performed the operation claims to be MS holding degree of M.Ch. He has not produced any proof thereof. He has never worked regularly in any hospital. He also did not produce any certificate about his medical qualification or competence to conduct the operation. Said Dr.Atul Mittal was called from Jalandhar for operation only and who after conducting operation went back to Jalandhar with the result that there was none to look after the patient after his operation. Even no written consent of the patient or his relative was taken by the complainant hospital before
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conducting the operation of Sh. Rajinder Singh Sharma, patient. The District Forum as well as Hon'ble State Commission, UT, Chandigarh vide their orders Ex.C-4 and C-5 respectively have category held that the opposite party has intentionally fully knowing that Dr. J.S. Saini was not competent to examine and administer Allopathic medicines to the complainant and he did so and Dr. Atul Mittal was not competent to perform surgery, had performed surgery on patient Rajinder Singh Sharma and that too without getting written consent from the patient or the attendants of the patient. All this proves that the complainant hospital authorities has given wrong declaration in the proposal form and have also violated the exclusion clause (ii) & (x) of the policy whereby the Insurance company is not liable to pay or reimburse any claim to the hospital authorities if it has arisen out of deliberate ,willful and intentional non-compliance of statutory provisions as well as deliberate conscious or intentional disregard of insured's technical or administrative management of need to take all reasonable steps to prevent claim. Opposite party was,therefore, justified in repudiating the claim of the complainant on the aforesaid grounds.
11. Consequently we hold that complaint is without merit and the same is hereby dismissed with no order as to costs. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
12. Case could not be disposed of within the stipulated period due to heavy
pendency of the cases in this Forum.
10.2.2015 ( Bhupinder Singh )
President
/R/ ( Kulwant Kaur Bajwa)
Member
