Rajasthan

StateCommission

A/2443/2010

Oriental Insurance Company Ltd. Through Manager - Complainant(s)

Versus

Phool Chand S/O Shri Lalaram - Opp.Party(s)

Ravendra Sharma

23 Mar 2017

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 2443/2010

 

The Oriental Insurance Co. Ltd., Regional Office, Anand Bhawan, Sansar Chandra Road, Jaipur.

Vs.

1.Phoolchand s/o Lala Ram

2.Pradeep Kumar s/o Phoolchand

3.Anil Kumar s/o Phoolchand all r/o village Pingawa Distt. Gurgaon

4. Mittal Hospital, Near Krishi Upaj Mandi, Alwar

5. Dr.S.C.Mittal, Sr.Physician, Mittal Hospital, Alwar

6. Dr.Sudhir Gupta, Surgeon, Mittal Hospital, Alwar.

7. National Insurance Co. Alwar through Divisional Manager.

 

FIRST APPEAL NO. 2438/2010

 

National Insurance Co. Ltd. Alwar through Regional Mnager, Regional Office, Jivan Nidhi, LIC Building, Ambedkar Circle, Jaipur.

 

Vs.

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1.Phoolchand s/o Lala Ram

2.Pradeep Kumar s/o Phoolchand

3.Anil Kumar s/o Phoolchand all r/o village Pingawa Distt. Gurgaon

4. Mittal Hospital, Near Krishi Upaj Mandi, Alwar

5. Dr.S.C.Mittal, Sr.Physician, Mittal Hospital, Alwar

6. Dr.Sudhir Gupta, Surgeon, Mittal Hospital, Alwar.

1. 7. Oriental Insurance Insurance Co. Alwar through Divisional Manager.

       

Date of Order 23.3.2017

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Hon'ble Mrs. Meena Mehta -Member

 

Mr. Prashant Mantri counsel for Oriental Insurance Co.

Mr. Amarnath Pareek counsel for National Insurance Co.

Mr.Ajayraj Tantia counsel for complainants respondents no. 1 to 3

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

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Both these appeals have been preferred against the common judgment hence, are decided by this common order.

 

Complaint was filed on the ground that Vijaylakshmi was admitted at Mittal Hospital, Alwar and consulting doctor was Dr.S.C.Mittal. On 2.10.2001 gal bladder surgery was conducted and in surgery while removing the gal bladder clip which has to be put in cystie duct was put in common bite duct and hence the bile which was to be travel from liver to duodenum was obstructed and it was collected in paritoneal cavity which is resulted into damage to the intestine. She was discharged from Mittal Hospital. Thereafter she consulted Pushpawati Singhania Research Institute,New Delhi and AIIMS New Delhi and in Pushpawati Singhania Research Institute the investigation report suggest that complete mid CBD block with clips which clearly shows the negligence on the part of respondent. After hearing the District Forum, Alwar allowed the claim. Appeal was preferred in State Commission which was dismissed but matter was remanded back by the National Commission vide its order dated 21.7.2016.

 

Heard the counsel for the parties and perused the impugned judgment as well as original record of the case.

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The contention of the appellant that it is not in dispute that Vjaylakshmi remain hospitalized with respondents and gal bladder surgery was conducted but after operation she was having complaint of pain in abdomen, vomiting etc. She was further treated at Pushpawati Singhania Research Institute,New Delhi and AIIMS, New Delhi, documents of the same has also been submitted. An Endoscopy report dated 27.10.2001 speaks that there is complete mid CBD blocks clips. Further MRI report also gives finding that there is post operative free fluid in peritoneal cavity.

 

After considering the documents on record the Forum below has rightly held that respondents no. 1 to 3 were negligent while conducting the operation of Vijaylakshmi and further more these findings have not been assailed by respondents no. 1 to 3. Hence, in view of the above it could be concluded that respondents no. 1 to 3 were negligent in conducting the gal bladder operation of Vijaylakshmi.

 

The contention of the insurance company is that the doctor has not submitted any claim before them. Hence, they have no liability. Policy was for the hospital hence, they are not

 

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liable for negligence of the doctor and even the negligence has also been assailed but as considered earlier negligence on the part of respondents no. 1 to 3 has been established by the documents of Pushpawati Singhania Research Institute, New Delhi and AIIMS New Delhi.

 

If doctors have not file claim before the insurance company, the present complainant cannot be penalized and policy has been issued for error and omission on the part of the hospital which covers negligence on the part of the hospital which also consist the doctors working in the hospital. It may also noted that appellant National Insurance Company has admitted his liability upto Rs.1,25,000/- in para no. 1 of additional plea of reply. Hence, the contention of the appellants are not sustainable.

 

The counsel for the complainant has also submitted that respondent no.4 Oriental Insurance Co. has already complied their part of the claim.

 

The contention of the appellant is that as per prepositions held by the apex court the case of Martin F.Dsouza Vs. Mohd.Ishfaq reported in I (2009) CPJ 32 (SC) before issuing

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notice to the doctor or hospital the matter should have been referred to a competent doctor or a committee of doctors specialized in the field relating to which the medical negligence is attributed and on finding of the committee that there is a prima facie case of medical negligence the notice should be issued to the concerned doctor or hospital.

 

There is no dispute about the preposition but this preposition has been lead by the apex court in 2009 where the matter relates to the incident occurred in 2001. Hence, this preposition could not help the appellants and further more it could be noted that now the matter is before the first appellate court.

 

Further reliance has been placed on III (2009) CPJ 17 (SC) Malay Kumar Ganguly Vs. Sukumar Mukherjee (Dr.) & ors. where general preposition have been lead as regard to medical negligence which cannot be disputed. Further reliance has been placed on IV (2014) CPJ 113 (NC) Consumer Protection Council Vs. Tiruchi Speciality Hospital where the principle regarding burden of proof has been propounded which cannot be disputed. Hence, in view of the above the Forum below has rightly held that respondents no. 1 to 3 were

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negligent and as they were insured by respondent no. 4 & 5 liability has rightly been fastened on them. Hence, no interference is needed.

 

In view of the above both these appeals are dismissed.

 

(Meena Mehta) (Nisha Gupta)

Member President

 

 

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