Presented by Sri P.K.Dash, Member:- The complaint pertains to deficiency of service enumerated under the provision of Consumer Protection Act-1986, the brief facts of which comprised here under:-
The Complainant being the wife of a poor labourer and victim of abject poverty undergone sterilization operation on Dt.17/12/2007 at Barpali C.H.C. (Camp). The sterilization operation was done by specialist doctors of District Heard quarter's Hospital, Bargarh under the assistance of doctor of C.H.C., Barpali. This being a scheme launched by Govt. Ministry of Health and Family Welfare under which privileges and insurance benefit is provided with an object to control population.
The Opposite Party No.1(one) and Opposite Party No.2(two) represent the Govt. where as Opposite Party No.3(three) and No.4(four) represent the insurance company, taken the contract for insurance of patients undergoing family planning operations.
In the process the insurance of Complainant was done by Opposite Party No.3(three).
The Complainant after sterilization operation discharged without providing her any post operation care, caution and medicine by doctors. To the quarry of the Complainant about her operation, the doctors assured of a successful operation and the insurance benefit for any failure or complexity. The Complainant has to spent thousands of rupees on medicine and for other health expanses accrued out of the sterilization operation from her own pocket.
The Complainant after some days felt unbearable pain on the operated portions and immediately complaint was made about this at C.H.C Barpali by the Complainant but the administrative staff of the C.H.C., Barpali without providing any treatment referred her to D.H.H., Bargarh.
The Complainant went to D.H.H., Bargarh and as per the advice of the doctors, she was admitted there for another operation and for days together she was not attended by any surgery doctor and when this fact was brought before the higher official of D.H.H., Bargarh, directed her to go to Burla for treatment and solution.
The Complainant made her grievance before the Collector, Bargarh i.e. the Opposite Party No.1(one) and a direction is issued by Collector, Bargarh to the authority of D.H.H., Bargarh for her proper treatment. The Complainant again admitted into D.H.H., Bargarh but this time also she was not treated in any manner and ultimately she was compelled to leave the hospital. Even no insurance money was also provided to her by the Opposite Party No.3(three).
Being harassed by the doctors at C.H.C., Barpali and D.H.H., Bargarh, the Complainant had no option except to take the shelter of private nursing home. Accordingly she was admitted in private nursing home and operation was done by the surgery specialist Dr. Dingar Meher at Rampur, Patnagarh and she became cure and fit.
For the afore said act and conduct of the Opposite Parties, the Complainant sustained physical pain and mental agony besides monetary loss which is negligence and deficiency of service on the part of Opposite Parties towards Complainant.
The Complainant prays before the Forum to pass an order to direct the Opposite Parties to pay Rs.50,000/-(Rupees fifty thousand)only towards compensation and insurance amount to her.
In evidence of her claim, the Complainant relies on the following documents:-
Pleader Notice Dt.24/07/2009 served on Opposite Party No.1(one) and No.2(two) by the Complainant. (Xerox copy).
Postal receipts (two sheets in Original).
Acknowledgment due (two sheets in original).
Medical papers like prescriptions, medicine bills, pathological test reports including ultrasounds etc (xerox copy).
Grievance letters before Opposite Party No.1(one) by the Complainant and her husband(two sheets, xerox copies).
On being noticed the Opposite Party No.1(one) and No.2(two) appeared and filed version through their legal counsel and denied to have cause any deficiency in service to the Complainant.
The Opposite parties substantiate their case as follows:-
There was an undertaking signed by the Complainant Smt. Kshitisuta Meher prior to the conduct of the sterilization operation by the Obstetrics and Gynaecology Specialist Dr. Bighnaraj Pradhan, by virtue of which she is not entitle to claim any compensation or relief from the concerned doctor or from the Govt. in any manner nor can she file any case in any court of law, save and except insurance claim under the “Family Panning Insurance Scheme” in case of any failure in sterilization operation.
The Opposite Parties contend that family planning programme is being adopted by the Govt. for the smooth control of the population and every individual ought to adopt the procedure for the interest of the Nation.
The Opposite Parties contend that procedural measures like (i) pre-operation screening (ii) Payment of approved compensation money to the Complainant (iii)Post operative aids and (iv) Treatment after detection of problem out of the sterilization had been adopted on the Complainant as was necessary.
The further contention of the Opposite Parties is that an enquiry was conducted by Dr. Barun Behera, Sr. O & G Specialist of D.H.H., Bargarh and the then A.D.M.O. (Family Welfare I/C) and reported the matter with an remarks that “the swelling at BTL side might be due to calcified haematoma resulting during BTL operation” and advised the Complainant to appear before the Surgery Deptt. of D.H.H, Bargarh for another operation.
That on Dt.21/04/2008, Dr. B.B. Naik, Surgery Specialist, D.H.H., Bargarh admitted, observed and advised the patient for surgery after summer vacation and the Complainant agreed to it.
As the grievance made by the Complainant before the Opposite Party No.1(one), i.e. Collector, Bargarh, the Opposite Party No.1(one) directed the authority of D.H.H., Bargarh to take necessary step for her treatment.
The Opposite Parties further contends that, the Complainant was again admitted on Dt.05/08/2008 by Dr. Bhima Sahu, M.S. Surgery and after discussion with a penal of doctors, it was decided to operate the case on Dt.11/08/2008 as Dr. Bhima Sahu had to leave the D.H.H., Bargarh on Dt.06/08/2008 for attending Court at Bhawanipatana on Dt.07/08/2008 and the patient agreed to come after few days i.e. on Dt.10/08/2008 but she did not come there after to the D.H.H., Bargarh for her operation and without informing Opposite Party No.2(two), treated herself in the private Nursing Home of Dr. Dingar Meher at Rampur, Patnagarh.
The matter was discussed in Dist. Quality Assurance Committe meeting held on Dt. 10/11/2008 under the Chairman ship of the Collector, Bargarh and the Complainant was as ked to produce the Bills, Cash Memo and other Medical papers if treated else where for reimbursement from I.C.I.C.I. Lombard General Insurance Company Ltd.. The Complainant prosented her claim of Rs.6,859/-(Rupees six thousand eight hundred fifty nine)only for treatment and the claim submitted to the Insurance Company vide letter No. 6563 Dt.25/12/2008 by C.D.M.O., Bargarh. Also a resolution was passed by the Dist. Quality Assurance Committee requesting the Opposite Party No.3(three) for early payment of insurance amount.
The Opposite Parties No.1(one) and No.2(two) specifically denied the allegation of deficiency in service by them in any manner to the Complainant and pray for dismissal of the Complaint.
The Opposite Party No.1(one) and No.2(two) rely on the following documents in support of their contention:-
Xerox copy of letter Dt.03/03/2008 of M.O., PH.C., Agalpur to the C.D.M.O., Bargarh.
Xerox copy of the application made by the Complainant to Family Planning Operation.
Xerox copy of Money receipt issued by M.O., P.H.C., Agalpur infavour of the Complainant.
Xerox copy of examination report of Complainant by Dr. Barun Behera, Sr. O & G Specialist, D.H.H., I/C, A.D.M.O. (F.W.), Bargarh
Xerox copy of the minutes of the Dist. Quality Assurance Committee meeting Dt.21/10/2009.
Xerox copy of bed head ticket for admission of the Complainant is surgery ward Dt.21/04/2008
Xerox copy of Grievance letter Dt.31/07/2008 made to the Collector, Bargarh by the Complainant.
Xerox copy of bed head ticket for admission of the Complainant in the F.S.W. ward Dt.05/08/2008.
Xerox copy of letter No. 3947(3) Dt. 04/08/2008 issued by C.D.M.O., Bargarh to Dr. B.B.Naik, Dr. Barun Behera and Dr. Bhima Sahu, D.H.H., Bargarh.
Xerox copy of prescription Dt.02/08/2008 by A.D.M.O. (F.W.) D.H.H., Bargrh.
Xerox copy of the minutes of the Dist. Quality Assurance Committee meeting Dt.10/11/2008.
Xerox copy of letter No.5948 Dt.06/12/2008 issued by C.D.M.O., Bargarh to the Complainant Smt. Khitisuta Meher for the admission in the D.H.H. for operation.
Xerox copy of letter No.6563 Dt.25/12/2008 issued by C.D.M.O., Bargarh to O.M., I.C.I.C.I., Lombard along with Insurance claim proposal form for payment of the insurance money.
Xerox copy of compliance letter No.6318 Dt.26/10/2009 and report by C.D.M.O, D.H.H., Bargarh to the advocate of the Complainant.
Xerox copy of letter 6348 Dt.27/10/2009 sent by C.D.M.O., Bargarh to the Sr. Relationship Manager, I.C.I.C.I., Lombard General insurance Company Ltd..
Xerox copy of Memorandum of understanding between Ministry of Health and Family Welfare Govt. of India and I.C.I.C.I Lombard General Insurance Company Ltd.,
Xerox copy of letter No.7046 Dt.20/11/2009 sent by C.D.M.O., Bargarh To the Sr. Relationship Manager, I.C.I.C.I. Lombard General Insurance Company.
Xerox copy of claim status and pending claims of Family Planning Insurance Scheme sent by C.D.M.O., Bargarh to Sr. Relationship Manager, I.C.I.C.I Lombard General Insurance company.
Xerox copy of Original Sterilization Certificate of Smt. Kshitisuta Meher submitted by Opposite Party No.2(two) vide letter No. 1095 Dt.28/02/2012.
The Opposite Party No.3(three) and No.4(four) received notice appeared through their advocate and filed their written version as follows:-
The contention of these Opposite Parties is that the Complaint is lodged to harass and blackmail the Opposite Parties and to tarnish their good will and reputation. Being barred by different provisions of law, the Complaint is not maintainable under the provision of Consumer Protection Act-1986.
The present Opposite Parties contend that if any problem has been faced by the Complainant that is due to the negligence of Opposite Party No.1(one) and No.2(two). More over if the Complainant had been given proper treatment in due time, she would not have faced the problem as alleged.
Further contention of these Opposite Parties is that as per terms and condition the medical authority and insured both are liable for not sending the documents like claim form, sterilization certificate, consent form, proof of failure of sterilization etc to the Opposite Party No.3(three) and No.4(four) i.e. the insurer within in the prescribed limitation to process the claim in spite of registered letter Dt.27/02/2009 and letter of reminder Dt.27/03/2009 and Dt.19/05/2009 sent by these Opposite Parties to Opposite Party No.2(two) and having no intimation closed the case as “No Claim”.
Further contention of these Opposite Parties is that the Complainant has suppressed the material facts in order to get an illegal claim by way of false fabrication of the case.
These Opposite Parties contend that there is no deficiency in service on the part of the Opposite Party No.3(three) and No.4(four) to the Complainant and pray for dismissal of the complaint with cost under the provision of Sec. 26 of the Consumer Protection Act-1986.
Close scrutiny of the pleadings of the Parties and evidence tendered by them, issues likely to be answered:-
Whether the Complaint is maintainable or not.
Is there any negligence in service by the Opposite Parties which amounts to deficiency in service.
Answer to Issue No.1(one).
Let us consider the complaint and its maintainability for want of law.
There is an undertaking taken from the patient before conducting any surgical operation on him or her which works as a defense provided by the medical rules and laws to the conducting doctors, staff and even Govt. against any penal or compensation for the failure of the operation. In the instant case an under taking is signed by the Complainant by virtue of which she is not entitle to claim any compensation or relief from the concerned doctor or from the Govt. in any manner nor she can file any case in any court of law save and except insurance claim under the “Family Planning Insurance Scheme”.
Here in this case the concerned doctor Bingharaj Pradhan, Obstetrics and Gynaecology specialist who had conducted sterilization operation of Complainant has not been made party by the Complainant. Opposite Party No.1(one), the Collector, Bargarh and Opposite Party No.2(two), the C.D.M.O., D.H.H., Bargarh being he public officers appointed and on behalf of the Govt. and by virtue of the undertaking signed by the Complainant prior to her sterilization operation are exempted from all allegations levelled against them.
More over in the reported case of Indian Medical Association Vrs V.P. Shantha and others in III (1995) C.P.J. 1 (S.C.) has held that Govt. or Private Hospital where services are rendered free of charge to every body availing the said services are not liable for deficiency in service and are out of purview of Consumer Protection Act-1986 and no complaint is maintainable against them. In the instant case the conducting doctors and C.D.M.O. are Govt. doctor and the services rendered by them are also free of charge. Hence no complaint is maintainable against them.
Hence from the above discussion it is ascertained that no complaint is maintainable against Opposite Party No.1(one) and No.2(two).
The memorandum of understanding between Ministry of Health of Family Welfare, Govt. of India and the I.C.I.C.I Lombard General Insurance Company, the Opposite Party No.3(three) and No.4(four) the insurer has undertaken the liability of insurance for the operations under the “Family Planning Insurance Scheme” and has been paid for the said liability and in case of any deficiency for providing insurance service to the patient or insured, the consumer complaint is well maintainable against them. In the instant case the Complainant Smt. Khitisutra Meher is registered insured under the Opposite Party No.3 and No.4(four) and consideration is paid on behalf of her by the Govt. of India to the insurer i.e. Opposite Party No.3(three) and No.4(four). The contention of Opposite Party No.3(three) and No.4(four) regarding bar imposed by different provisions of law for institution of complaint is not sustainable which is supported by decision reported in this case of Geeta Jethani and others Vrs Airport authority of India and others 2004 C.T.J. 1048 (NC) where in it is held that “Consumer Protection Act-1986 does not provide for CPC/Evidence Act. A consumer dispute is to be decided on the yard stick of reasonable probability on the basis of facts brought on by the Parties.
Hence it is concluded that consumer complaint is maintainable against Opposite Party No.3(three) and No.4(four).
Answer to Issue No.2(two).
Admittedly when the fact of non attendance and treatment of the Complainant at D.H.H., Bargarh was brought to the notice of Collector, Bargarh i.e. Opposite Party No.1(one) by the Complainant and her husband the Opposite Party No.1(one), Collector, Bargarh immediately directed the authority of D.H.H., Bargarh for proper treatment of the Complainant. Besides in Quality Assurance Committee meeting held on Dt.10/11/2008 and Dt.29/010/2009, being the Chairman submitted all the documents and claim forms of the insured Complainant to the Insurer, i.e. Opposite Party No.3(three) and No4(four) and requested early settlement of the insurance claim.
Moreover the Opposite Party No.1(one), Collector, Bargarh being the administrative head of the district responsible for any defect or failure in carrying out liabilities imposed on the different wings of the district administration, but having such heavy burden, it is not possible on his part to personally present in all occasions and look into all the matters concerning all the department. In the instant case he has acted accordingly the matter or problem brought to his notice. Hence Opposite Party No.1(one), Collector, Bargarh is no way liable for any deficiency in service to the Complainant.
The Opposite Party No.2(two), C.D.M.O., D.H.H., Bargarh instructed vide its order Dt.15/04/2008 to Dr. Barun Behera, Sr. O & G, Specialist, D.H.H. and I/C A.D.M.O. (F.W) Bargarh to examine and submit report as to cause of alleged complicacy to the Complainant out of sterilization operation. In obedience of order Dr. Barun Behera examined the Complainant and submitted his report on Dt.18/04/2008. Letter issued to the Complainant for admission and surgical operation at D.H.H., Bargarh and official order had been issued to Dr. B. B. Naik, Dr. B. Behera, Dr. Bhima Sahu for operation of Smt. Kshitisuta Meher. But due to exigencies out of circumstance the operation of Complainant could not be done and the date posted for operation, the Complainant did not turned up to the D.H.H., Bargarh and treated her self in the Private Nursing Home without noticing the fact to the Opposite Party No.2(two).
In respect of settlement of insurance claim of the Complainant the Opposite Party No.2(two) wrote series of letters to the Opposite Party No.3(three) and No.4(four) but to no response. The Opposite Party No.2(two), had exercised his utmost effort to help and solve the problem of the Complainant but for in action of Opposite Party No.3(three) and No.4(four) he is not liable.
In the instant case no specific act of negligence is alleged or proved against the Opposite Party No.2(two) and in the reported decision of K.S. Bhatia Vrs Jeevan Harprit in 2003 (4) C.P.J 9, it has been explained that if not able to prove the specific act of negligence against the Opposite Party, no deficiency in service.
Hence the Opposite Party No.2(two) is not liable for any deficiency in service to the Complainant.
The Opposite Party No.2(two) submitted Insurance claim proposal with related documents of the Complainant to the Opposite Party No.3(three) and No.4(four) and sent reminder letters to settle the insurance claim of the Complainant. But Opposite Party No.3(three) and No.4(four) did not turn up to pay heed to the request of the Opposite Party No.2(two) to settle the insurance claim of the Complainant as yet. But alleges Opposite Party No.2(two) of late submission of claim form and documents and responsibility shifted to Opposite Party No.2(two). The Opposite Party No.3(three) and No.4(four) as per the memorandum of under standing entered into between him and Govt. of India totally liable for settlement of insurance claim of the Complainant in spite of throwing liability upon the Opposite Party No.2(two) and playing tacts to escape from liability. Hence Opposite Party No.3(three) and No.4(four) are completely liable for deficiency of service against the Complainant.
- O R D E R -
Considering all the facts and with a lucid discussion over the matter this forum order as follows:-
The Opposite Party No.1(one), Collector, Bargarh and Opposite Party No.2(two), C.D.M.O., D.H.H., Bargarh are exonerated of the allegation of deficiency in service made against them in this complaint case.
The Opposite Party No.3(three) and No.4(four) are directed jointly and severally to pay to the Complainant Smt. Kshitisuta Meher, the insurance claim amount of Rs. 6,859/-(Rupees six thousand eight hundred fifty nine)only along with interest @ 9%(nine percent) per annum from the date of filing the complaint i.e. Dt.04/11/2009 and compensation of Rs.1,000/-(Rupees one thousand)only for harassment within 30(thirty) days from the date of Order failing which interest @ 18% (eighteen percent) per annum shall be calculated thereafter.
The Complaint is allowed and disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree,
(Sri Pradeep Kumar Dash) ( Smt. Anjali Behera) (Miss Rajlaxmi Pattnayak)
M e m b e r. M e m b e r. P r e s i d e n t.
