Date of Filing: 14.07.2011
Date of Order: 30.11.2011
BEFORE THE BANGALORE URBAN 4th ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
No. 8, Sahakara Bhavan, Cunningham Road, Bangalore – 560 052
Dated 30th NOVEMBER 2011
PRESENT
Sri. J.N. HAVANUR ….. PRESIDENT
Sri. GANGANARASAIAH ….. MEMBER
Smt. ANITA SHIVAKUMAR ….. MEMBER
COMPLAINT NO. 1301/2011
M/s. Chinmaya Mission Hospital,
CMH Road, Indiranagar,
Bangalore – 560 038.
Represented by its Medical Director ….. Complainant
V/s.
1. Regional Manager,
United India Insurance Company Ltd,
Krishi Bhavan, Hudson Circle,
Near City Corporation,
Bangalore.
2. The Divisional Manager,
United India Insurance Co. Ltd,
487/1, CMH Road,
Indiranagar 1st Stage,
Bangalore - 560 038. ….. Opposite Parties
COMPLAINT NO. 1302/2011
Dr. Malthesh. H.G,
In house Consultant in Orthopeadic,
Chinmaya Mission Hospital,
CMH Road, Indiranagar,
Bangalore – 560 038. ….. Complainant
V/s.
1. Regional Manager,
Oriental Insurance Company Ltd,
Regional Office,
Residential Cross Road,
44/45 Leo Shopping Complex,
Bangalore.
2. The Divisional Manager,
Division office No.4,
Oriental Insurance Co. Ltd,
No.49, 2nd Floor, Jothi Mahal,
St. Marks Road,
Bangalore - 560 001 ……… Opposite Parties
ORDER
By Sri. J.N. HAVANUR, PRESIDENT
These 2 Complaints are arising out of order passed in Complaint No. 3008/2009. So they are clubbed and disposed off by common order.
2. Complainant in Complaint No. 1301/2001 is a Charitable Hospital started as Out-patient Dispensary in 1969 by Swamy Chinmayanandhaji with a vision to establish an affordable Hospital, which has now become 250 bedded Multi Speciality Hospital providing health care in almost all specialties.
3. Complainant in CC No. 1302/2011 is a consultant Doctor at Chinmaya Mission Hospital, Bangalore who being OP2 in CC No. 3008/2009. Complainant in CC No. 1302/2011 has been working from 19.02.2007 in Chinmaya Mission Hospital and rendered satisfactory service without any remarks. One Master Ritesh represented by his mother and natural guardian Smt. Mary Sharmila filed Complaint No. 3008/2009 against Chinmaya Mission Hospital and Dr. Malthesh.H.G. who being the Complainants in the present cases on hand alleging medical negligence in treating Master Ritesh, causing injury suffering and deformity in the right arm. The Bangalore Urban 1st Additional District Consumer Disputes Redressal Forum examined the case, heard the parties and passed orders for payment of compensation of Rs.9.00 Lakhs to Master Ritesh within 30 days from the date of order, failing which OPs should pay interest @ 12% P.A. from 21.08.2008 until payment within 60 days from the date of order and to pay Rs.2,000/- as costs of litigation to the Complainant in the said case. Forum has also ordered that 80% of the said amount shall be kept in FD in the name of the Complainant in any Nationalized Bank or scheduled Bank till the Complainant attains the age of 21 years and during that period, Complainant’s mother on behalf of the Complainant is entitled to withdraw interest quarterly from the FD and shall not be alienated / encumbered any extent in any manner during the said period. The Complainants of present cases on hand have obtained professional indemnity Policy bearing No. 072500/46/09/32/00000/198 & 42400/48/2008/1069 dated 30.07.2009 from 01.01.2010 to 31.12.2010 and 30.07.2007 to 29.07.2008 respectively. Complainant in CC No. 1302/2011 has obtained Policy for a period from 30.07.2008 to 30.07.2009, 31.07.2009 to 30.07.2010 and from 31.07.2010 to 30.07.2011 on payment of the insurance premium.
4. Complainant in CC No. 1301/2011 has been obtaining the insurance policy every year from 31.12.2007. Complainants have submitted Letter on 13.11.2010 and 16.11.2010 to the OPs to pay compensation amount of Rs.9.00 Lakhs & Rs.8.00 Lakhs covered under the indemnity Policy and also in view of the Policy obtained from OP which covered payment of such compensation, OP has sent reply dtd. 07.12.2010 and 19.01.2011 respectively stating that Consumer Forum has not made them as parties and neither the Complainants informed earlier nor they received any Consumer Forum notice to take all the defence at their end. As per condition No. 8(1) of the Policy, the insured shall give written notice to the Company as soon as reasonably practicable of any claim made against insured and sought clarification. On account of the delay in payment of compensation, Complainants have filed Execution Petition No. 3/2011 before the 1st Additional District Consumer Disputes Redressal Forum. In order to avoid distress proceedings against Complainants, compensation amount was kept in F.D. in State Bank of Mysore, Sampangiramanagar Branch. Since the OPs refused to pay the compensation, legal notices were issued to Ops to pay the amount ordered by the 1st Additional District Consumer Disputes Redressal Forum, failing which Complainants will take recourse to legal action. Even after lapse of one month from the date of issue of the legal notice, no action has been taken by the OPs to pay / reimburse the compensation amount paid by the Complainants. Hence, Complainants were constrained to file these Complaints against OPs. Complainants have prayed to pay / reimburse Rs.9.00 Lakhs & Rs.8.00 Lakhs respectively to the Complainants which amount is covered under Medical Indemnity Doctor Policy along with interest @ 18% and costs.
5. After service of notice, Ops have appeared through their Counsel and filed common objection contending inter-alia as under:
6. Complaints are not maintainable either in Law or on facts. Complainants are not consumers as defined u/s. 2(d) of the C.P. Act. Complainant in CC No. 1301/2011 is a Hospital and Complainant in CC No. 1302/2011 is a Doctor practicing as Consultant in the said Hospital and they are not treating the patients on free service and they are indulging in running the Hospital for commercial purpose. So, they cannot maintain the Complaint and if they have any dispute or grievance as regards the terms of policy or claim under such policy, the same will have to be worked before the competent Civil Court. OP2 herein had issued Policy and the liability if any is strictly in terms of the terms & conditions and exclusions mentioned in the policy wordings. The present complaints are filed by the insured seeking reimbursement of the amount paid by them in view of the compliance order dtd. 11.10.2010 in CC No. 3008/2009 by the 1st Additional Consumer Disputes Redressal Forum, Bangalore. The victim by name Master Ritesh represented by his mother preferred the said Complaint claiming compensation against the present Complainants for deficiency in service in treating the said patient. The medical negligence issue was held against the Complainant in CC No. 1302/2011 and in the said Order it is categorically mentioned by the Karnataka Medical Council (KMC) that Dr. Malthesh has committed medical negligence and Complainant Hospital instead of warning the said Doctor, it is trying to protect him. Since the medical negligence issue has been held against the said Doctor by KMC, 1st Additional District Forum held that the said Doctor has no experience and he did the treatment negligently and directed both the Hospital and the Doctor to pay Rs.9.00 Lakhs from 21.08.2008. Subsequently, the Complainant Hospital requested OP2 on 13.11.2010 to pay that amount in view of the existence of the policy. OP2 has replied to the letter of the Complainant explaining the reason for not considering their claim. Subsequently, Complainant has paid the ordered amount in Execution Petition No. 3/2011 to the victim. Since the Complainants did not comply the condition of the Policy, their claim could not be settled. So, they cannot be held deficiency of service in not settling their claim. So, Complaints are not maintainable and the same are liable to be dismissed. The claim of the Complainants under the Policy have been repudiated on the ground that Ops were not made as parties by the victim who filed the Complaint in CC No. 3008/2009 against present Complainants. Policy condition No. 1 clearly states that insured shall give written notice to the Company as soon as reasonably practicable of any claims made against insured which forms the subject of indemnity under this policy and shall give all such additional information as the Company may require. Every claim writ, summons or process and all documents relating to the event shall be forwarded to the Company immediately they are received by the insured. The Complainants having received the summons in Complaint No. 3008/2009 have not intimated the same to the Ops and they engaged Advocate and contested the claim. Complainants have not chosen to implead Ops as necessary parties to dispose off the said Complaint. On merit, the District Forum directed the Complainants to pay the compensation amount in favour of the victim. Only after receipt of certified copy of the order in Complaint 3008/2009, Complainant wrote a letter requesting the Ops to honour the said order by depositing the compensation amount. As per the professional indemnity policy, insurer is required to indemnify only to the claims arising out of the bodily injury or death of any patient caused by or alleged to have been caused by error, omissions or negligence in professional service rendered or which should have been rendered by the insured or qualified assistants named in the schedule or any nurse or technician employed by the insured. In the present case, Dr. Malthesh who is working in Complainant Hospital in CC No. 1301/2011 is not a qualified Doctor and after due investigation both the KMC and 1st Additional District Consumer Forum have held that the said Doctor was not in the field of Orthopaedic surgery for 13 years and he was in administration for 10 years and only for the past 3 years he is in Orthopaedic field and he has no experience and no specific knowledge and even then he treated the victim in negligent manner. Therefore, the question of indemnifying a Doctor who committed breach without holding proper qualification and experience will not arise. In addition to that, as per the Policy, the Ops are required to pay compensation if any ordered by District Forum or Court of Law. Nowhere in the Policy it is mentioned that the amount that is paid by the insured is required to be paid by the Ops and no amount is required to be payable to the insured by the insurer under the Policy. Therefore, there is no cause of action for the Complainants to file present Complaints. It is true that the Complainants sent letter to the OP and the OP has sent reply to the letter of the Complainants narrating the grounds for non consideration of the request of the Complainants. Ops were nothing to do with the act of the Complainants in the said Complaint and Ops were not made as parties to the criminal case and Complainants failed to inform the Ops immediately after receipt of notice from the 1st Additional District Forum in the said Complaint. Therefore, prayer of the Complainants could not be looked into. If the claim is not payable as per terms & conditions of the Policy, the insured cannot allege deficiency of service against Ops. Since the District Forum directed the Complainants to deposit the award amount of Rs.9.00 Lakhs with costs, they complied the same. Complainants only with a view to claim compensation from the Ops have drawn all these baseless averments without forwarding the documents received by them in the said Complaint to the Ops immediately as mentioned in the condition of the Policy. It is pertinent to note that 1st Additional Consumer Forum has not directed the Ops to pay compensation of Rs.9.00 Lakhs to the Complainant. In additional to that, clause 2 of the policy speaks in respect of indemnity and in the said clause it is nowhere mentioned that the award amount has to be paid to the insured. As per the said clause, the insurer is required to indemnify the insured if the claim is in order. In the present case, the Complainant has engaged the services of Dr. Malthesh who being the Complainant in CC No. 1302/2011 who was not competent enough to treat Master Ritesh who has become disable after obtaining treatment from the said Doctor and failed to intimate the notice rendered by them in the said Complaint to the Ops. Therefore, Complainants cannot be claimed reimbursement of the amount ordered by the 1st Additional District Forum. As per the Policy and Order of the 1st Additional District Forum, Complainant and their Doctor are required to make good the payment in favour of the victim Master Ritesh. Therefore, the question of claiming compensation from the Ops does not arise. The same is contrary to the condition No. 8 of the Policy. Since the claim could not be paid to the insured, their claim has been rightly repudiated by giving the reasons. There is no cause of action to file the Complaints. Complainants failed to oblige the basic condition of the Policy. Therefore, their claim could not be settled. In the Order of 1st Additional District Forum in Complaint No. 3008/2009, Ops were not the parties and no order was passed directing the Ops to pay compensation to the victim. Therefore, the question of filing the Appeal against that order will not arise. As per the Policy issue, Ops are not required to pay / reimburse any amount to the insured. The present Complaints are not maintainable in the eyes of Law and they are liable to be dismissed by imposing exemplary cost.
7. On the above pleadings of the parties, following points arise for our consideration.
(1) Whether the Complainants of both the cases proved that not paying the compensation by the Ops ordered by the Forum is illegal, unlawful & unjustified and it amounts to deficiency in service?
(2) If point No. 1 is answered in favour of the Complainants, whether the Complainants are entitled to seek reimbursement of Rs.9.00 Lakhs & Rs.8.00 Lakhs respectively along with cost as prayed for?
(3) What order?
8. Our findings on the above points are as under:
Point No.1 – Negative
Point No.2 – Negative
Point No.3 – As per final order
9. So as to prove the case, Dr. M.R. Chandrashekar has filed affidavit by way of evidence on behalf of Complainant in CC No. 1301/2011 and produced 11 documents with list dtd. 07.07.2011. On the other hand, one Smt. Indira who is working as Administrative Officer in OP2 Company has filed her affidavit by way of evidence and produced copy of insurance policy.
10. Complainant in CC No. 1302/2011 has filed his affidavit by way of evidence and produced 14 documents with list dtd. 07.07.2011. On the other hand, one T.M. Narayanaswamy, authorized signatory has filed affidavit on behalf of Ops and produced 25 documents with list dtd. 29.09.2009. We have heard the arguments of both sides and we have gone through the oral & documentary evidence of both the parties with more than ordinary care & precision. Complainants in both the cases have stated in their evidence in conformity with the recitals of the Complainants. Let us have a look at the relevant documents of the Complainants. Annexure-A of the document of the both cases is copy of order passed in CC No. 3008/2009 dtd. 11.10.2010 by the 1st Additional District Consumer Disputes Redressal Forum, Bangalore. Form the said Order, it discloses that one Master Ritesh, aged about 9 years, represented by his mother, had filed Complaint against Ops 1 & 2 who being the Complainants in the present cases on hand for medical negligence before the 1st Additional District Consumer Forum, Bangalore and in that case present Complainants have appeared through their Counsels as Ops 1 & 2 and filed objection and led evidence and after hearing the arguments, Learned President of 1st Additional Consumer Forum has allowed the Complaint in part and Ops were directed to pay Rs.9.00 Lakhs to the Complainant within 30 days from the date of the order, failing which they shall pay the said amount with interest @ 12% from 21.08.2008 until payment within 60 days from the date of order and Ops were also directed to pay Rs.2,000/- as costs of the litigation to the Complainant and also ordered that 80% of the said amount shall be kept in F.D. in the name of the Complainant in any nationalized Bank or scheduled Bank till Complainant attains age of 21 years with a liberty to minor guardian i.e., mother to withdraw the interest quarterly and this order was passed on 11.10.2010. As could be seen from the cause title of the order dtd. 11.10.2010, Ops of present cases were not made as necessary parties either by Master Ritesh who being the Complainant in that case or by the Ops. Though the present complainants who contested the Complaint in CC No. 3008/2009, they did not choose to implead their insurer i.e., Ops of the present cases. More so, 1st Additional District Consumer Forum has not passed any order directing the Ops of the present cases to pay compensation of Rs.9.00 Lakhs to the Complainant. No proper explanation was given by the Complainants of present cases either in the Complaint or in their evidence as to why they did not implead their insurer as proper parties in the previous Complaint. Without impleading the insurer of the Complainants in the earlier Complaint, the Complainants of the present cases on hand are disentitled to claim any amount from the Ops. There is latches on the part of the Complainants of present cases on hand in not impleading their insurer i.e., Ops of the present cases in CC No. 3008/2009. Annexure-B is one Insurance Policy, and as per condition No. 1 of the said policy, it is made clear that insured shall give written notice to the Company as soon as possible which forms the subject of indemnity under the policy and shall give all such information and every claim of the writ, summons or process and all documents relevant to the event shall be forwarded to the Company. But, it is worthy to be noted that the Complainants having received the summons or notice in CC No. 3008/2009 have not intimated the same to the OPs. As per the Policy, Ops are required to pay compensation if any ordered either by the District Forum or Court of Law indemnifying the insured, but nowhere in the Policy copy it is stated that the amount paid by the insured is required to be paid by the Ops. In fact, Complainants have not acted as per the terms of the Policy. They have violated the terms & conditions of the Policy and they approached the Forum with unclean hands. So Complainants are not entitled to claim any amount from the Ops. Oral evidence of the Complainants claiming amount from the Ops is not corroborated by clear & tangible documentary evidence and as such oral testimonies of the Complainants of both the cases are unworthy of belief. Rest of the documents of the parties are not so relevant. So, we have not made any discussions on the other documents of the parties. Viewing the cases of the Complainants on the background of the Order copy in CC No. 3008/2009 and conditions of insurance policy, it is emerged that Complainants who come to Forum have failed to prove their case placing acceptable evidence and as such both the Complaints of the Complainants are not sustainable. Accordingly, we answer Point No. 1 in negative.
11. In view of the negative finding on Point No.1, Complainants are not entitled to claim any amount from the Ops. Hence, we answer this Point also in negative. In the result, we proceed to pass the following:
ORDER
Complaints of the Complainants in CC No. 1301/2011 & 1302/2011 are dismissed. So, under the circumstances, parties to bear their own costs.
Send free copy of the order to both the parties.
It is ordered to place original Order in CC No. 1301/2011 and copy thereof in CC No. 1302/2011.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the open Forum on this the 30th day of November 2011.
MEMBER MEMBER PRESIDENT
SSS
