State Consumer Disputes Redressal Commission
Dr. M.V. Sushhanth, L.K. Hospital Pvt. ... vs 1.M. Narotham Munumakulu Narotham, Son ... on 21 September, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. FA/114/2014 (Arisen out of Order Dated in Case No. of District State Commission) 1. Dr. M.V. Sushhanth, L.K. Hospital Pvt. Limited, Sri Venkateshwara Hospital, 4.159, Maruthinagar, Malkajgiri, Hyderabad, R.R. District 500 047 ...........Appellant(s) Versus 1. 1.M. Narotham Munumakulu narotham, Son of M. Chandrakanth, Aged about 21 Years, R.o. 13.115 by 2, Brundhavan Colony, Malkajgiri, Hyderabad, R.R. District 2. 2.L.K. Hospitals Pt. Ltd., Sri Venkateshwara Hospital, 4.159, Maruthi Nagar, Malkajgiri, Hyderabad, R.R. District 500 047 3. 3.Yashoda Hospital, Raj Bhavan Road, Somajiguda, Hyderabad 500 047 4. 4.Dr. Devender Singh, M.S.DNB Vascular FIVS UK, Consultant Vascular and Endo Vascular Surgeon, Yashoda Hospital, Raj Bhavan Road, Somajiguda, Hyderabad 5. 5.Dr. Manoj Chakravorthy, M.S Ortho, Consultant Trauma, Arthroscopy and Joint Replacement Surgeon, Yashoda Hospital, Raj Bhavan Road, Somajiguda, Hyderabad 82 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 21 Sep 2017 Final Order / Judgement BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD F.A.No. 114 OF 2014 AGAINST C.C.NO.86 OF 2012 DISTRICT CONSUMER FORUM RANGA REDDY Between Dr.M.V.Sushanth L.K.Hospital Pvt.Ltd., Sri Venkateshwara Hospital, 4-159, Marthinagar, Malkajgiri Hyderabad, R.R.Dsitrict-500 047 Appellant/opposite party No.2 A N D M.Narotham @ Munumakulu Narotham S/o M.Chandrakanth, Aged aobut 21 years R/o 13-115/2, Brundavan Colony Malkajgiri, Hyderabad, R.R.District Respondent/complainant L.K.Hospitals Pvt Ltd., Sri Venkateshwara Hospital 4-159, Maruthinagar Malkajgiri, Hyderabad R.R.Dist. -500047 Yashoda Hospital Rajbhavan Road, Somajiguda Dr.Devender Singh, M.S.DNB(Vascular)FIVS (UK) Consultant Vascular and Endo Vascular Surgeon Yashoda Hospital, Raj Bhavan Road Somajiguda, Hyderabad Dr.Manoj Chakravorthy, M.S.(Ortho) Consultant Trauma, Arthoscopy & Joint Replacement Surgeon, Yashoda Hospital Raj Bhavan Road, Somajiguda Hyderabad-500 082 Respondents/opposite parties no.1, 3 to 5 United India Insurance Co., Ltd., Shankar Nagar Square West, High Court Road Dharampeet, Nagpur-440101, Maharashtra Rep. by its Managing Director (R6 is impleaded as per orders made in IA 1377/2014) Respondent/opposite party no.6 Counsel for the Appellant Sri V.Gourisankara Rao Counsel for the Respondent No.1 Sri Naveen Kumar Counsel for the Respondent No.2 Sri Dr.P.Ramaswamy Counsel for the Respondent No.6 Sri V.Sambasiva Rao Counsel for the Respondent Nos.3,4&5 Served QUORUM : HON'BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT & SRI PATIL VITHAL RAO, MEMBER
THURSDAY THE TWENTY FIRST DAY OF SEPTEMBER TWO THOUSAND SEVENTEEN Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** The opposite party no.2 has filed appeal F.A.No.114 of 2014 challenging the order of the District Forum, Ranga Reddy dated 07.02.2014 wherein the Forum directed the opposite party no.2 to pay a total compensation of Rs.8,00,000/- within 30 days failing which the amount carries interest at 12% per annum till the date of realization and the complaint was dismissed against the other opposite parties.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant in brief is that, the complainant on 15.01.2012 while proceeding on his two wheeler along with his friend fell down and sustained injury on his left leg. His friends took the complainant to Opposite Party No.1 hospital for treatment. After conducting certain tests the doctor confirmed that the left leg of the complainant is fractured and advised for operation. As the parents of the complainant is having white ration card andRajiv Aarogya Sri Card made application to Rajiv Araogya Sri for expenses of treatment. Accordingly, opposite party no.2 operated on 18.01.2012 along with duty doctor, staff and Anesthetist and Bone Grafting was also done. They observed the complainant for five days and discharged him on 23.01.2012. They advised the complainant to come after one week for review after prescribing some medicines.
4. On 30.01.2012, the complainant complained to Opposite Parties 1 and 2 that his left leg has no sense and it is becoming black in colour. The Opposite Party No.2 after conducting test advised the complainant to go to NIMS and meet Dr.Ram Murthy, Department of Radiology with a letter dt.31.01.2012. But as Dr.Ram Murthy was busy the complainant and his parents went to opposite party no.3 who after conducting tests admitted in Opposite Party No.3 hospital. Thereafter, Opposite Party No.3 diagnosed LEFT LOWER LIMB ADVANCE ISCHEMIA WITH GANGRENOUS CHANGES, FOOT DROP, HISTORY OF RTA (BOTH FRACTURE - OPERATED) and Opposite Party No.4 stated that the left lower limb is totally dead and it has to be amputated to save the life of the complainant. The case of the complainant is that as the previous doctor did not conduct the operation properly with the help of a Neuro Surgeon and they have not joined the nerve which was cut. On 03.02.2012, the Opposite Party No.4 conducted the operation along with Opposite Party No.5 in Opposite Party No.3 hospital and amputated the lower limb of the complainant.
5. The brother in law of the complainant gave a complaint to the police of Malkajgiri on 04.02.2012 about the above incident and the same was registered as FIR vide crime No.58/2012. The left leg of the complainant was removed due to the negligence of Opposite Parties 1 and 2. The complainant who is aged about 21 years was working in Raja Furnitures at Malkajgiri as a marketing executive and earning an amount of Rs.12,000/- besides 1% commission on sales prior to the incident. The Opposite Parties 1 and 2 totally failed to take minimum care by keeping necessary surgeons at the time of the operation along with Neuro surgeon. Consequently, it resulted the amputation of the left lower limb of the complainant. Hence the complaint praying to direct the opposite parties no.1 and 2 to pay damages and compensation of Rs.15 lakhs besides an amount of Rs.2,50,000/- towards mental agony and medical expenses of Rs.1,08,000/- with costs.
6. Opposite party no.1 resisted the case and contended that the complainant was brought to their hospital at about 11:40 PM on 14.01.2012. He was admitted on 15.01.2012 at 12:15 AM. At the instance of the relatives of the complainant, the Opposite Party No.2 who is the surgeon of their hospital came and provided first aid. The Opposite Party No.2 suggested the complainant for admission in their hospital and conducted the operation on 18.01.2012. The complainant was discharged on 23.01.2012. The Opposite Party No.2 suggested Doppler test of left leg as there is no such facility in their hospital. There is no negligence or deficiency of service on the part of their hospital. Hence, it is prayed to dismiss the complaint.
7. Opposite party no.2 equally resisted the case contending that he is an Orthopaedic surgeon and working as consultant for the Opposite Party No.1 hospital whenever required. He received a phone call at about 11:30 hours on 14.01.2012 from Opposite Party No.1 hospital about the complainant who met with a road accident and suffering with pain and swelling of the left leg. On examination, pain and swelling was present in left knee and proximal leg tenderness was present and foot drop was present (neuropraxia). There were no open wounds or cut lacerated wound around the knee or the leg and no displaced of fracture of fibular head. The dorsalis pedis was felt normally and there was no distal vascular deficit. Immediately, in the causality, under aseptic precautions left knee haemarthosis was aspirated, above knee pop slab was applied. He prescribed Inj. Diclofenac besides oral antibiotic and pain killers. He explained about the possible complications that may crop up in some cases and the same was accepted by the complainant and gave his written consent for conducting operation. He operated the complainant on 18.01.2012 under spinal anesthesia, OR & IF and bone grafting was done. The operative period was uneventful and above knee pop slab was retained. The vascularity was fine and the patient stayed in Opposite Party No.1 hospital for five days. The complainant was given antibiotics and low molecular weight heparin, pain killers during those five days. The complainant was discharged on 23.01.2012 in good condition and the post operative x-ray was fine and the vascularity of the left limb was fine. The complainant was advised not to walk and weight bare on left leg. The patient was given oral antibiotics and pain killers and advised to come after a week. The complainant was satisfied about his condition after the surgery and gave satisfaction letter as per the Aarogyasri norms.
8. The complainant came back on 30th January for review and the dressing was done. Then, he observed that there were some vascular changes. Immediately, he advised the complainant to undergo Doppler ultra sound test as the USG machine in Opposite Party No.1 hospital was under repair. The complainant undergone Doppler ultra sound test on 31.01.2012 at Kalinga Diagnostic Services, Secunderabad and brought the result report. As per the said report "there is venous type flow below the popliteal and no flow is seen in anterior tibial and dorsalis pedis arteries, and the radiologist advised a CT Peripheral Angio". On seeing the report, he advised the complainant to go for CT Peripheral Angio test at NIMS as such facility was not available in Opposite Party No.1 hospital. Thereafter, the attendants of the complainant informed him that there was a strike going on in NIMS and the appointment for Angio was not available till another two days. Then he advised the complainant to go to any private hospital and get it done as it was an emergency not only to the limb but also to the life of the patient. Thereafter, he came to know that the complainant was taken to Yashoda hospital, Somajiguda and the needful was done. He was informed by the attendants about the amputation surgery done to the complainant. Then he explained to them that it was not due to the surgery and the squeal developed after the discharge. There is no chance of injuring the popliteal artery during the surgery. The cause of the ischemia was due to the formation of the thrombus (blood clot) in the popliteal artery above the knee which must have occurred following discharge which is a very rare complication. He did the best possible treatment for the fracture of the complainant and the complication occurred after the discharge which is very unfortunate. The other allegations of the complaint are not true. It would be wrong to malign his reputation by false allegations of negligence. He is covered by the Error and Omissions Insurance Policy vide policy No.230200/46/11/35/00000111 of United India Insurance Company Ltd for the period from 09.04.2011 to midnight of 08.04.2012. Therefore, he prays to dismiss the case with exemplary costs.
9. In proof of the complainant's case, he filed his evidence affidavit and also opposite party no.5 his evidence affidavit on behalf of the complainant and got Exs.A1 to A28 marked. While on behalf of the opposite party no.1, Dr.A.Purushotham Reddy, working as RMO and also the opposite party no.2 have filed their respective evidence affidavits and got Exs.B1 to B4 marked.
10. The District Forum after considering the material available on record, allowed the complaint bearing CC No.86 of 2012 by orders dated 07.02.2014 granting the reliefs, as stated in paragraph No.1, supra.
11. Aggrieved by the said decision, the opposite party no.2 preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The appellant contended that the ischemia of the left leg was due to a block in the popliteal artery above the knee which is present on the posterior of the knee, the surgery was done at and below the knee anteriorly so there is no chance of injuring the popliteal artery during the surgery and if there was any injury during the accident or during the surgery the limb should have shown signs of ischemia within few hours upto 48 hours. The patient's limb vascularity was absolutely fine at the time of admission and on the day of discharge 5 days after the surgery. The nerve injury was aneuropraxia as there was no open wound nor any direct fracture fragment in the common perennial nerve area around the knee and also nerve injury does not cause ischemia of the limb and the cause of the ischemia was the formation of the thrombus in the popliteal artery above the knee which must have occurred following discharge which is a very rare complication. The appellant had acted according to the prescribed procedure and had conducted adopting necessary diagnosis in accordance with the practice widely accepted. Hence, the appellant prayed to allow the appeal and dismiss the complaint.
12. This appeal is posted under the caption for being mentioned since the appellant in FA 672 of 2014 has filed memo seeking permission to withdraw the appeal and permission is accorded. Counsel for the appellant present. Heard. No representation for the respondents' no.2 to 6. The complaint against the respondents' no.3, 4 and 5 was dismissed by the District Forum as they are not necessary parties. Written arguments of the appellant/opposite party no.2, respondent no.2 and respondent no.6 are filed. Heard.
13. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief.
14. It is the case of the appellant/opposite party no.2 that the complainant was brought to their hospital on 14.01.2012 who met with the accident on his left leg. The appellant after examination found that there was pain and swelling in left knee and proximal leg tenderness was present and foot drop was present. There were no open wounds or cut lacerated wound around the knee or the leg and no displaced of fracture of fibular head. Immediately in the causality under aseptic precautions left knee haemarthosis was aspirated above knee pop slab was applied. He awas opeated on 18.01.2012 under spinal anesthesia, OR & IF and bone grafting was done. The operative period was uneventful and above knee pop slab was retained and the complainant was stayed in opposite party no.1 hospital for five days. The complainant was discharged on 23.01.2012 in good condition and the post operative X-ray was fine and the vascularity of the left limb was fine. When the complainant came back for review on 30th January for review the appellant noticed some vascular change and immediately he advised the complainant to undergo Doppler ultra sound test on 31.01.2012 and in the report it was found that there is venous type flow below he popliteal and no flow is seen in anterior tibial and dorsalis pedis arteries. He was advised to undergo for CT peripheral angio test immediately as it was an emergency not only to the limb but also the life of the patient. Thereafter the appellant came to know that the amputation surgery done to the complainant. Thereafter the appellant explained to the complainant and their family it was not due to the surgery and the sequel developed after the discharge. The appellant contended that he did the best possible treatment for the fracture of the complainant and the complication occurred after the discharge which is very unfortunate.
15. On the other hand the allegation of the complainant is that he visited the opposite parties no.1 and 2 after the discharge on 30.01.2012 with a complaint that his left leg has no sense and it is becoming black in colour. The Opposite Party No.2 after conducting test advised the complainant to go to NIMS and meet Dr.Ram Murthy, Department of Radiology with a letter dt.31.01.2012. But as Dr.Ram Murthy was busy the complainant and his parents went to opposite party no.3 who after conducting tests admitted in Opposite Party No.3 hospital. Thereafter, Opposite Party No.3 diagnosed LEFT LOWER LIMB ADVANCE ISCHEMIA WITH GANGRENOUS CHANGES, FOOT DROP, HISTORY OF RTA (BOTH FRACTURE - OPERATED) and Opposite Party No.4 stated that the left lower limb is totally dead and it has to be amputated to save the life of the complainant. The case of the complainant is that as the previous doctor did not conduct the operation properly with the help of a Neuro Surgeon and they have not joined the nerve which was cut. On 03.02.2012, the Opposite Party No.4 conducted the operation along with Opposite Party No.5 in Opposite Party No.3 hospital and amputated the lower limb of the complainant.
16. The only question is whether there is any negligence in conducting the surgery without the help of neuro surgeron and that the appellant had not joined the nerve which was cut, as a result of which, he suffered left foot drop (paralysis). It was argued that the surgery performed by appellant on 18.01.2012 was uneventful and without any intra operative complications the ischemia of the left leg was due t a block in the popliteal artery above the knee and the surgery was done at and below the knee anteriorly so there is no chance of injuring the popliteal artery during the surgery. It is also argued that if there was an injury during the accident or during the surgery the limb should have shown signs of ischemia within few hours upto 48 hrs. The District Forum has failed to interpret and appreciate the medical record and evidence placed on the record. The findings of the District Forum in the order that there might be some negligence on the part of opposite party no.2 during the surgery and that the was nerve injury was caused, due to that left foot drop (paralysis) was caused to the left leg of the complainant.
15. It is not the version of the appellant that he did not observe any foot drop of the complainant at the time of his admission. Ex.A1 is the discharge card issued by the doctor wherein it is clearly mentioned by the duty doctor that the complainant was treated for the fracture of tibia with foot drop. In Ex.B3, the case sheet of the opposite party no.1 wherein the duty doctor suspected foot drop which is a neuro problem. Ex.A3 is the discharge summary issued by the opposite party no.1 wherein it is clearly mentioned in the clinical history that the patient complained pain and swelling in the left leg and he is unable to stand and walk and unable to bear the weight. It is clearly stated in the affidavit of the appellant that on examination, pain and swelling was present in the left knee and proximal leg tenderness was also present and also stated that foot drop was present but there were no open wounds or cut lacerated wound around the knee or the leg. In his cross examination, he stated that the X-ray revealed multiple fractures of tibia bone. He went to the extent of saying that he advised surgery for the fractures and foot drop. The doctor admitted in his cross examination that the patient informed him before and after surgery that he had no sense below the knee of left leg in the front part. He also deposed that in the beginning he suggested the patient to go to NIMS for CT Peripheral Angio. He admits that there may be post operative changes in the limb. It is the version of the doctor that the vascular which was cut/block is on the back side of the leg while he operated the front portion of the leg.
16. He further stated that he had no sense of his left leg. The doctor knows very well that the patient fell from a two wheeler due to which the entire left leg was compressed. Being an Orthopaedic surgeon, the doctor must have knowledge about the foot drop. The complainant is not an old man and there is no scope to suspect any paralysis at that stage. He simply applied pop slab above knee and discharged the patient. He clearly admitted in his cross examination that the complainant was not able to move from the date of operation for five days i.e. till the date of discharge. The doctor did not produce any medical literature to show that thrombus is one of the causes for causing foot drop. There is no basis for the doctor to say that there was no distal vascular deficit in the leg.
17. The subject of medical negligence has been discussed in a number of landmark judgments given by the Hon'ble Supreme Court of India and the National Commission from time to time. Some basic principles in dealing with the cases of medical negligence have been enunciated by the Hon'ble Apex Court in the case "Kusum Sharma &Ors. vs. Batra Hospital & Medical Research Centre &Ors. [(2010) 3 SCC 480]" as follows:-
"I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. .............
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
18. In "Jacob Mathew versus State of Punjab &Anr." [(2005) 6 SCC 1], the Hon'ble Apex Court while dealing with negligence as tort referred to the Law of Torts, Ratanlal & Dhirajlal (24th Edn. 2002, edited by Justice G.P. Singh), in which it is noted as follows:-
"Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.....the definition involves three constituents of negligence : (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
19. The well-known 'Bolam Test' as stated in Bolam vs. Frien Hospital Management Committee [(1957) 1 WLR 582], has been followed in a number of judgments by the courts in India and abroad. It was stated by Hon'ble Justice Mc Nair in his address to the Jury that a Doctor is not guilty if he has acted in accordance with a practice adopted by a responsible body of medical men skilled in that particular art. However, in the Judgment given in the famous Bolitho case as contained in Bolitho vs. Citi and Hackney Health Authority [(1997) 4 All ER 771], it has been brought out that such body of opinion should have a logical basis and the courts are free to carry out a risk analysis and have a more inquiry approach into the facts and circumstances of the case. In this case, it was stated by Lord Browne - Wilkinson as follows:-
"The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."
20. Principle of Res Ipsa Loquitur has been elaborately discussed in the case "V. Kishan Rao vs. Nikhil Super Specialty Hospital" [(2010) 5 SCC 513] and it has been observed by the Hon'ble Apex Court as follows:-
"In a case where negligence is evident, the principle of Res Ipsa Loquitur operates and the complainant does not have to prove anything as the thing (Res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to rebel the charge of negligence."
21. It has been held in a number of landmark judgments rendered by the Hon'ble Supreme Court of India and this Commission that in the cases involving medical negligence, the standard of care expected from medical professionals has to be that of ordinary persons, possessing ordinary skills, as reported in Jacob Mathew Vs State of Punjab, (2005) 6 SCC 1; their lordships carried out a detailed analysis of the doctrine of negligence in the context of medical profession. They also referred to the principle of res ipsa loquitur in the said case. In the facts and circumstance of the present case also, applying the principle of res ipsa loquitur, it is very clear that the patient was discharged by the opposite party no.2 simply conducting surgery to the fractures of tibia. He ignored the serious problem of foot drop only on the ground that there were no open wounds or cut lacerated wounds around the knee. The patient when he was brought to the hospital he complained that he had no sense below the knee of left leg in the front part. It is the duty of the doctor to provide some treatment when he observed foot drop of the left leg. He did not conduct any nerve tests nor called any neuro surgeon for detailed examination. He did not choose to conduct any other tests which may include MRI, MRN or EMG to assess the surround areas of damaged nerves. The doctor knows very well that the patient fell from a two wheeler due to which the entire left leg was compressed. Being an Orthopaedic surgeon, the doctor must have knowledge about the foot drop. The complainant is not an old man and there is no scope to suspect any paralysis at that stage. He simply applied pop slab above knee and discharged the patient. He clearly admitted in his cross examination that the complainant was not able to move from the date of operation for five days i.e. till the date of discharge. The doctor did not produce any medical literature to show that thrombus is one of the causes for causing foot drop. There is no basis for the doctor to say that there was no distal vascular deficit in the leg.
22. The aforesaid discussion clearly establishes the medical negligence and deficiency in service on the part of the opposite party no.2-Doctor and hence, the opposite party no.2-Doctor cannot escape his liability. In our view, however, Hospital would be even liable when negligence is alleged against consultants. Patient would not know the arrangement between the doctor and the hospital when he is being treated in the Hospital by the doctor concerned. It is settled law that hospital is vicariously liable for the acts of the doctor vide Savita Garg Vs. National Heart Institute, (2004) 8 SSC 56, it was also followed in case of Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 . Here the role of the hospital is also very important. We are seeing that the opposite party no.1 hospital cannot be escaped from the liability of such a deficiency of service. We are seeing that he is also liable to pay compensation along with the opposite party no.2 because they are having master and servant relationship. In other words the complainant is a consumer of the opposite party no.1 then only the opposite party no.2. Therefore, it is very clear, that the allegation of medical negligence against the doctor of opposite party no.1 hospital stand amply proved from the evidence on record.
23. During the pendency of the appeal, the appellant/opposite party no.2 filed petition FAIA No.1377 of 2014 to implead United India Insurance Company Limited as the respondent no.6/opposite party no.6 because it has issued the Professional Indemnity Dr.(Other) Insurance Policy in favour of the appellant which is valid from 09.04.2011 to 08.04.2012 for a sum insured of Rs.5,00,00/-. The respondent no.6/insurance company filed written arguments contending that the appeal is not maintainable against the said respondent as the appellant failed to implead this respondent before the District Forum. It is further contended that as per the terms and conditions of the policy, the respondent no.2 insured shall give written notice to the respondent no.6 as soon as any claim being made against the insured out of the policy in question and admittedly not given any notice and the claim is barred by limitation.
24. Keeping in view the discussions held above, this appeal is allowed and the order of the District Forum is upheld to the extent of liability of opposite party no.2 and its order is set aside dismissing the complaint against the opposite party no.1. The order of the District Forum in dismissing of the complaint against the opposite parties no.3 to 5 is confirmed. Accordingly the appeal is allowed holding the opposite parties no.1 and 2 jointly and severally liable to pay the compensation of Rs.8 lakhs to the complainant as awarded by the District Forum. It is legally proved that the opposite party no.2 had taken the professional indemnity insurance policy from respondent No.6 which was valid for an amount of Rs.5 lakh in one instance. Out of the amount of Rs.8 lakhs, a sum of Rs.5 lakh shall be paid by the United India Insurance Company Limited i.e., respondent no.6 who had issued professional indemnity insurance policy for appellant/opposite party No.2 which was valid and subsisting as on 18.01.2012. The remaining amount of Rs.3 lakh shall be payable by the opposite parties no.1 and 2 jointly and severally.
In the result appeal is allowed directing the opposite parties no.1 and 2 to pay compensation of Rs.8 lakhs to the complainant and out of the said amount of Rs.8 lakhs, a sum of Rs.5 lakhs shall be paid by the M/s United India Insurance Company Limited i.e., respondent no.6 and the remaining amount of Rs.3 lakhs shall be payable by the opposite parties no.1 and 2 jointly and severally. The order of the District Forum in dismissing of the complaint against the opposite parties no.3 to 5 is confirmed. There shall be no order as to costs.
PRESIDENT MEMBER 21.09.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER