Haryana

Yamunanagar

CC/877/2011

Narinder Kumar S/o Ishwar Dayal - Complainant(s)

Versus

State Of Haryan - Opp.Party(s)

N.K.Sharma

01 Sep 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                         Complaint No. 877  of 2011.

                                                                                         Date of institution: 18.08.2011.

                                                                                         Date of decision: 01.09.2016.

Narinder Kumar aged about 41 years son of Shri Ishwar Dayal, resident of village & P.O. Devdhar, Tehsil Chhachhrauli, Distt. Yamuna Nagar.                                                                                                                                                                                      

                                                                                                                                                                      …Complainant.

                                    Versus

1. State of Haryana through Secretary, Health Department, Govt. of Haryana, Civil Secretariat, Chandigarh.      
2. Director Health Services, Haryana, Chandigarh.
3. Director, Family Welfare, Sector-6, Panchkula.
4. Chief Medical Officer, Yamuna Nagar.
5. Dr. S.K.Rathi, Civil Hospital, Jagadhri, now posted at Trauma Centre, M.L.G.H, Yamuna Nagar.
6. I.C.I.C.I. Lombard General Insurance Company Ltd. Ist Floor, SCO No.24-25, Sector 8-C, Madhya Marg, Chandigarh-1600171 through its Manager.
7. United India Insurance Company Ltd. 60 Jan Path, Connaught Place, New Delhi-110001 through its professional Indemnity Dr. Surinder Kumar Rathee (Policy No. 040100/4607/35/00000500 w.e.f. 16.05.2007 to 15.05.2008).     

                                                                                                                                                                    …Respondents.  

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. N.K.Sharma, Advocate, counsel for complainant.   

              Sh. Ramneek Sharma, Advocate, counsel for OPs No.1 to 4.

  Sh. Sushil Garg, Advocate, counsel for Op No.5.

  Sh. Parmod Gupta, Advocate, counsel for OP No.6.

              Sh. Karnesh Sharma, Advocate, counsel for OP No.7.

 

ORDER

 

1.                     Complainant filed the present complaint under section 12 of the Consumer Protection Act, 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant intended to get himself operated upon for the purpose of Family Planning, so he contacted respondent No.5 Dr. S.K.Rathee who was posted in Civil Hospital, Jagadhri at that time (herein after referred as Op No.5) and told that a family planning operation is required to be conducted upon him to avoid any further child. For this purpose, on 28.03.2008 complainant underwent NSV operation at Family Planning Association of India, Centre Yamuna Nagar (FPAI Yamuna Nagar Branch) and operation was done by Dr. S.K. Rathee (OP No.5). After that some complications developed due to which complainant went to family welfare hospital Adarsh Nagar Near Kanahiya Sahib chowk, Yamuna Nagar on 19.04.2008, wherefrom the complainant was referred to Civil Hospital. Accordingly, the complainant consulted the doctor i.e. OP No.5 who advised some medicines but the condition of the complainant did not improve. The condition of the complainant was diagnosed as stitch granuloma and he was again operated on 18.10.2008 at Civil Hospital, Yamuna Nagar. Even after second operation his condition went to deteriorating and there was severe pain and discharge from the wound. Thereafter, the complainant consulted Dr. Harsh Sharma of Vishal Hospital and he was operated again at Vishal Hospital on 08.11.2008 and after that the condition of the complainant slightly improved. The complainant has incurred a lot of expenses near about to the tune of Rs. 30,000/- and also suffered mental trauma and agony.  

3.                     The services of OPs No.1 to 5 are insured with the Op No.6 i.e. I.C.I.C.I. Lombard General Insurance Company Ltd. so, the complainant approached all the OPs and requested for payment of compensation and also made written requests vide letter dated 03.12.2009 but no compensation has been released to the complainant. The complications so arisen to the complainant after operation stands admitted by the Civil Surgeon in so many letters, as Civil Surgeon, Yamuna Nagar had written letter dated 15.06.2009, 03.08.2010 and 06.03.2011 to the OP No.6 for awarding compensation to the complainant but the claim of the complainant has been denied by Op No. 6 on the ground that complications have occurred after 60 days of the operation, whereas the Op No.6 was informed through letter dated 26.07.2010 that the complication had occurred within 60 days of the operation. Inspite of that genuine claim of the complainant has not been released by the OPs. Even there is also gross negligence on the part of Op No.5 in conducting the operation of the complainant and it amounts to deficiency in service. Lastly, complainant through his counsel also sent a legal notice dated 09.06.2011 but all in vain. Hence this complaint.

4.                     Upon notice, OPs appeared and filed their written statement separately. OPs No. 1 to 5 filed their written statement jointly by taking some preliminary objections such as present complaint is not maintainable and the complainant does not come within the definition of consumer as the complainant did not hire any service of OPs No.1 to 5 against any payment. The NSV operation was conducted on the complainant free of costs and on the other hand, the complainant was given incentive of Rs. 1100/- for under going vasectomy operation. Hence, the complaint is liable to be dismissed. There is no negligence of deficiency on the part of Op No.5 in performing NSV Operation; complainant has no locus standi to file the present complaint; the true facts are that on 28.03.2008, the complainant was operated for No Scalpel Vasectomy (NSV) at family planning Association of India, Centre Yamuna Nagar ( FPAI) and the NSV operation was done successfully. However, post operatively he had developed epididymo Orchitis and granuloma formation which is a known complication of this operation, which occurs in up to 5% of such cases. Thereafter, the complainant attended OPD on different occasions and he was advised appropriate treatment. On 17.10.2008, the complainant was admitted in General Hospital, Jagadhri for surgery with a provisional diagnosis of chronic epididymal absess/ stitch granuloma and he was operated on 18.10.2008 free of costs and he was discharged on 24.10.2008 in a healthy state. After that, complainant never visited the General Hospital, Jagadhri with any further complication or problem. As such, there is no deficiency or negligence on the part of OP No.5 or the Government. It has been further mentioned that in case of any complication arising out of NSV, the complainant was at liberty to make an application for staking his claim for payment of compensation from OP No.6 i.e. ICICI Lombard General Insurance Company but in this case the claim of the complainant was rejected by the Op No.6 on the ground that complication arose after 60 days and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint.

5.                     OP No.6 filed its written statement by taking some preliminary objections such as OP No.6 is not liable in any manner to pay the compensation as the contract of the ICICI Lombard General Insurance Company was with the President of India w.e.f. 01.01.2008 to 31.12.2008 and there was no privity of contract between the complainant and OP No.6; there is no deficiency in service; no claim was lodged with the Op No.6 by the complainant within time and as such also the present complaint is liable to be dismissed; as per section 1(D) of the terms and conditions of the policy entered into between the complainant and the President of India, the cost of treatment up to 60 days arising out of complication as a result of sterilization operation from the date of discharge, not exceeding the limit of liability stated in the item 4(ID) of the schedule and as such Op No.6 is not liable. Moreover, the limit of Op No.6 has already been exhausted to the extent of which the premium is received; complaint is bad for non-joinder and mis-joinder of the necessary parties and on merit it has been mentioned that complainant never approached the OPNo.6 as alleged and further the complainant is not entitled for any compensation or amount. Rest contents of the complaint are also denied and lastly prayed for dismissal of complaint qua Op No.6.

6.                     OP No.7 also appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, complaint is vague, malafide and illegal, no locus standi, bad for non-joinder and mis-joinder of necessary parties, complainant has not come with clean hands and on merit it has been stated that complainant was operated by OP No.5 successfully and there was no negligence or carelessness on the part of Dr. S.K. Rathee who is a competent doctor. Lastly, prayed for dismissal of complaint.

7.                     To prove the case, complainant tendered into evidence his affidavit as Annexure CX and documents such as photo copy of legal notice dated 09.06.2011 as Annexure C-1, Photo copy of slip of Family Welfare Hospital as Annexure C-2, Photo copy of letter written by Dr. C. Vijayendra Medical Officer as Annexure C-3, Photo copy of letters dated 15.06.2009, 03.12.2009, 03.08.2010 and 06.03.2011 as Annexure C-4 to C-7,  Photo copy of prescription slip of Vishal Hospital as Annexure C-8, Photo copy of discharge card as Annexure C-9, Photo copy of receipt of Rs. 800/- received by Dr. Rajesh Singh as Annexure C-10, Photo copy of medicine bills as Annexure C-11 to C-14, Photo copy of prescription slip of Dr. Shivam Imaging & Diagnostic Centre as Annexure C-15, Photo copy of ultrasound as Annexure C-16 and closed his evidence.

 8.                    Counsel for OPs No.1 to 4 tendered into evidence affidavit of Dr. Poonam Chaudhary, Medical Superintendent Civil Hospital, Jagadhri as Annexure RW/A and closed the evidence on behalf of Ops No.1 to 4.

9.                     Counsel for OP No.5 tendered into evidence affidavit of Dr. S.K.Rathi, Ex. Medical Superintendent, General Hospital, Jagadhri as Annexure RW5/A and closed the evidence on behalf of OP No.5.

10.                   Counsel for OP No.6 tendered into evidence affidavit of Gurpreet Bhullar, Manager (Legal) ICICI Lombard as Annexure RW6/A and documents such as photo copy of risk assumption letter dated 07.01.2008 as Annexure R6/1, Photo copy of Professional Indemnity Policy Schedule as Annexure R6/2, Photo copy of operative clause of insurance policy as Annexure R6/3 and closed the evidence on behalf of Op No.6.

11.                   Counsel for OP No.7 tendered into evidence affidavit of Ajay Sarin Assistant Manager, UIIC as Annexure RW7/A and document such as Photo copy of insurance policy as Annexure R7/1 and closed the evidence on behalf of OP No.7.

12.                   We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

13.                   The only plea of the complainant is that complainant developed some complications on 19.04.2008 after NSV operation conducted on 28.03.2008 at Family Planning Association of India Branch Yamuna Nagar, which was conducted by Op No.5 Dr. S.K. Rathee, Civil Hospital, Jagadhri and he was again operated on 18.10.2008 at Civil Hospital, Yamuna Nagar. Even after the second operation, his condition went on deteriorating and due to which the complainant consulted Dr. Harsh Sharma of Vishal Hospital and again he was operated on 18.11.2008 at Vishal Hospital, Yamuna Nagar. he has incurred a lot of expenses to the tune of Rs. 30,000/- and suffered much mental trauma and agony for which he lodged the claim with OPs No.1 to 5 as there was a scheme of Government of India to compensate the patients on account of complications arising out of NSV or tubectomy sterilization operation through ICICI Lombard General Insurance Company as the Government of India through Ministry of Health and Family Welfare Government of India Nirman Bhawan, New Delhi has taken insurance policy bearing No. 4021/0000344 covering the risk under so many heads detailed mentioned in the policy in question valid from 01.01.2008 to 31.12.2008 but the claim of the complainant was rejected by the OP Insurance Company on the ground that complication has occurred after 60 days of the operation. Further, the complainant has also alleged that he is also entitled to get compensation from OP No.1 to 5 as there was medical negligence on the part of Op No.5 who was serving under the control of OPs No.1 to 4.

14.                   On the other hand, counsel for the OP No.5 hotly argued at length that there is no negligence or carelessness on the part of OP No.5 during conducting the operation of NSV of the complainant. The NSV operation was done successfully, however, post operatively, complainant had developed epididymo Orchitis and granuloma formation which is a known complication of this operation, which occurs up to 5% of such cases and further argued that complainant was operated free of costs under the scheme of Government under Family Planning, rather, the complainant was given incentive of Rs. 1100/- for undergoing vasectomy operation. Lastly, argued that complainant does not fall under the definition of Consumer as there was no negligence or careless on the part of the OP No.5, so, the complaint qua OPs No.1 to 5 are liable to be dismissed.

15.                   Learned counsel for the OP No.6 also argued at length that there was no privity of contract between the complainant and Op No.6 even with the OP No1 to 5. The insurance policy in question was obtained in the name of President of India w.e.f. 01.01.2008 to 31.12.2008 and further no claim was lodged with the OP Insurance Company by the complainant within a stipulated period of 60 days. As such, there is no deficiency in service or unfair trade practice on the part of OPs. As per terms and conditions of the insurance policy section 1(D), the cost of treatment up to 60 days arising out of complication as a result of sterilization operation from the date of discharge, not exceeding the limit of liability stated in the item 4(ID) i.e. Rs. 25,000/- of the schedule attached to the insurance policy in question can be paid to the insured by OP No.6 insurance company. As the claim was not lodged within a period of 60 days, so, the claim of the complainant was not payable. Moreover, the limit of OP No.6 has already been exhausted to the extent of which the premium was received. Lastly prayed for dismissal of complaint qua OP No.6.

16.                   Learned counsel for Op No.7 Sh. Karnesh Sharma also argued at length that no cogent evidence has been placed on file by the complainant to prove that Op No.5 was negligent in conducting the NSV Operation of the complainant. Hence, in such a situation, no liability arises against Op No.7 being insured of Op No.5 and prayed for dismissal of complaint against Op No.7.

17.                   After hearing both the parties at length and going through the documents very minutely and carefully, we are of the considered view that there is deficiency in service on the part of OP No.6 as the genuine claim of the complainant has been wrongly withheld  by the OP No.6 Insurance Company whereas from the perusal of insurance policy in question, it is clearly evident that Government of India through Ministry of Health and Family Welfare, New Delhi has obtained a professional indemnity insurance policy bearing No. 4021/000344 valid from 01.01.2008 to 31.12.2008 covering the risk under various heads as per schedule mentioned in the policy in question. As per clause 2(D) under the head Insuring Agreement at page No.2 of the policy in question, it has been specifically mentioned that insured will indemnify the beneficiaries as per benefits stated therein i.e. (D) “Cost of treatment up to 60 days arising out of complication as a result of sterilization operation from the date of discharge not exceeding the limit of liability stated in the item 4(ID) of the schedule.” Further, under clause 3 Definitions sub clause (e) “Proposer/insured means” “The Department of Health and Family Welfare” under the Ministry of Health & Family Welfare, Government of India. For the purpose of section-II of the policy, the doctors performing sterilization operations & health facilities shall be deemed to be insured.”  Even, under the clause 5 Head General Condition Sub Clause 6, it has been mentioned that “if the person undergoing sterilization operation subsequently develops medical complications due to the sterilization (certified by the CMO/QAC) reported within 60 days from the date of sterilization operation, the insurer shall reimburse the cost of treatment of such medical complication, as per the limit of amount specified in item 4 of the schedule”.

18.                   From the above noted contents mentioned in the policy reproduced above, it is clearly evident that there was an insurance policy issued by OP No.6 ICICI Lombard General Insurance Company covering the complications arising out of sterilization operation for whole of the India under the Family Planning Association of India (FPAI), so the arguments advanced by the counsel for OP No.6 that there was no privity of contract between the complainant and OP No.6 or OPs No.1 to 5 have no weightage and the same is not tenable.

19.                   The next plea of Op No.6 Insurance Company is that no claim was lodged with the OP No.6 Insurance Company within a period of 60 days arising out of complications is also not tenable as it is admitted case of OP No.1 to 5 that NSV operation was conducted upon the complainant on 28.03.2008 and complainant visited the Family Welfare Hospital, Kanhiya Sahib Chowk, Yamuna Nagar on 19.04.2008 with the complaint of complications arising out of NSV done on 28.03.2008 which is also duly evident from the OPD slip (Annexure C-2) vide which the complainant was referred to the Civil Hospital. Even, from the letter issued by Civil Surgeon, Yamuna Nagar to the Manager ICICI Lombard General Insurance Company on dated 03.08.2010 (Annexure C-6), it is also clear that CMO, Yamuna Nagar has duly clarified this fact that complications had been arisen within a period of 60 days and the operation of the complainant was conducted under the FPAI, Yamuna Nagar during the currency of insurance policy. It is not the case of the OP No.6 Insurance Company that a false record has been prepared by the OPs No1 to 5. Moreover, no cogent evidence has been placed on file by the OP No.6 Insurance Company to controvert the version of the complainant as well as Ops No. 1 to 5 that the complication had not occurred within a period of 60 days. As such, the plea of the insurance company that no claim was lodged within stipulated period of 60 days and OP No.6 Insurance Company is not liable to pay compensation is also not tenable.

20                    The arguments advanced by the counsel for the complainant that there was negligence and carelessness on the part of OpNo.5 i.e. Dr. S.K.Rathi and he is also liable to pay compensation is also not tenable as the complainant has totally failed to prove that what type of negligence was done by the treating doctor as no expert opinion has been placed on file to prove that treating doctor was negligent in treating the complainant. Moreover, the operation of the complainant was conducted under the free medical services rendered under the scheme of Family Planning Association of India and in this respect the complainant was also given an incentive of Rs. 1100/- for undergoing sterilization operation and in case titled as Nivedita Singh Versus Dr. Asha Bharti & Others, 2010 (1) Law Herald (CPJ) (UP) page 131, it has been held that Government Hospital rendered services free of charges- complainant provided only registration fees and maintenance charges- complaint held, not maintainable.

21                    In the circumstances noted above, we are of the considered view that the genuine claim of the complainant has been wrongly withheld by the OP No.6 Insurance Company. Now the next question arises to what extent the complainant is entitled to get the relief. As per terms and conditions of the insurance policy reproduced above under clause 2(D) cost of treatment up to 60 days arising out of complication as a result of sterilization operation from the date of discharge not exceeding the limit of liability stated in item 4 (ID) of the schedule i.e. Rs. 25000/- can be paid to the complainant. As such, the complainant is only entitled to get cost of treatment only. To prove this thing the complainant has tendered only some medical bills amounting to Rs. 8652/- which is evident from Annexure C-10 to C-14. Besides this, he might have borne some expenses on account of Ultrasound, OPD etc. and in this account an additional amount of Rs. 3000/- will be sufficient.

22.                   Resultantly, we partly allow the complaint of complainant and direct the OP No. 6 to pay Rs. 8652/- + Rs.3000/- = Rs. 11,652/- alongwith interest at the rate of 9% per annum from the date of filing of complaint till its realization. Further, the OP No.6 is also directed to pay Rs. 5000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs. File be consigned to the record room after due compliance. 

Announced: 01.09.2016.

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

                                                                                         (S.C.SHARMA)

                                                                                           MEMBER