State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Pawan Sai & Anr. on 10 April, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR(C.G.)
Appeal No.FA/12/729
Instituted on : 14.12.2012
The Oriental Insurance Company Limited,
Through : Senior Divisional Manager,
Divisional Office No.1,
Madina Manzil, Kutchery Chowk,
Raipur (C.G.) ... Appellant.
Vs.
1. Pawan Sai, S/o Bhangu Ram,
R/o : Village - Kevra, Tahsil - Pratappur,
District - Sarguja (C.G.)
2. State of Chhattisgarh,
Through : Collector,
Ambikapur, District - Sarguja (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SMT. VEENA MISRA, MEMBER
HON'BLE SHRI V.K.PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Shishir Bhandarkar, for appellant.
Shri Mukesh Sharma, for respondent No.1.
None for respondent No.2.
ORDER
Dated : /04/2013 PER: - HON'BLE SMT. VEENA MISRA, MEMBER This appeal arises out of the order dated 16.11.2012 passed in Complaint No.44/2010 by the District Consumer Disputes Redressal Forum, Sarguja, Ambikapur (hereinafter referred to as 'District // 2 // Forum' for short) whereby the complaint was allowed and necessary directions were issued in favour of the complainant against the OP 2 and 3 i.e. the insurer.
2. In nutshell facts of the case as per pleadings are that the complainant's wife was operated for sterilization (L.T.T.) on 25.01.2007 in the camp held at Primary Co-operative Health Centre, Pratappur, District Sarguja (C.G.). Her sterilization operation was covered under Special Contingency Policy for the period from 29/11/2006 to 31/12/2007 obtained by OP No.1. Due to complications on account of sterilization operation conducted by the surgeon Dr. A. K. Jayaswal, Sonkunwar wife of the complainant suffered great problems and remained under treatment for a long time and ultimately died on 16.03.2007 at Ambedkar Hospital, Raipur. As per averments of the complaint two days after sterilization there was distention of abdomen of Sonkunwar and she could not pass urine and stool. She was taken to Primary Health Centre, Pratap Pur and was given primary treatment but as there was no improvement in the condition of the patient she was advised to be admitted to District Hospital, Ambikapur.Her condition further deteriorated so she was referred to Ambedkar Hospital, Raipur where during course of treatment the patient died on 16.03.2007. Post mortem was done. The complainant gave due intimation of death of his wife to OP no.2 and // 3 // completed the formalities of submitting Claim Form and documents yet the claim was not paid hence after serving legal notice dated 04.11.2009. Complaint was filed before District Forum seeking direction for payment of an aggregate sum of Rs.4,00,000/- with interest @9% per annum from the Ops.
3. The opposite parties resisted the claim and filed written versions denying their liability of paying any amount to the complainant. It has been averred that neither the deceased nor her husband had paid any amount for sterilization operation of the deceased hence the complainant is not a consumer. The OP No.1averred that from time to time sterilization camps are organized under the scheme of the government and suitable couples are motivated for undergoing sterilization without charging any money. From time to time insurance is obtained from some insurance company or the other for compensating the person in case of failure of sterilization operation, immediate health complications arising due to such operation or for immediate death of the person undergoing the operation. So the insurance company only is liable to pay compensation. It was prayed that the complaint against the OP no.1 be dismissed subject to payment of cost.
4. The OP No.2 and 3 had in written version averred that normally the patient is discharged from the hospital after one or two // 4 // days but the complainant has suppressed the fact of actual date of first admission and discharge of his wife and has not filed any documents in that regard. There is no document to show as to for how many days the deceased remained admitted to hospital after sterilization operation. It was averred that as per Section 1 A (2) of Special Contingency Policy the claim is payable in case of death of the patient within a period of 8 to 30 days but in the present case wife of the complainant was operated on 25.01.2007 and she died on 16.03.2007i.e. after more than 40 days from the date of operation hence the claim of the complainant is not payable under terms of the policy.
5. Learned District Forum had come to the conclusion that the complainant is consumer of OP No.2 and 3 and allowed the complaint against them and directed them to pay Rs.2,00,000/- to the complainant together with interest @6% per annum from 18.02.2010 till actual payment with Rs. 5000/- towards inconvenience and mental harassment and Rs.1000/- towards cost of proceedings. Hence this appeal.
6. Final arguments of the parties heard and record perused.
7. Learned counsel for the appellant submitted that the learned District Forum has miserably failed to interpret the clauses of the policy. As per S.1 of the policy Rs. 2,00,000/- can be paid only in case // 5 // the death occurs due to sterilization while in hospital or within 7 days after discharge. Rs.50,000/- is payable if the death occurs between 8 to 30 days from the date of discharge from the hospital and Rs.25,000/- if sterilization operation failed. Learned counsel for appellant further submitted that the District Forum has failed to consider the fact that the deceased died after nearly 50 days from the date of her operation hence her death was not covered under terms of the policy. Moreover Sonkunwar died not due to complications of sterilization but due to some other problem related to digestive system. Learned counsel for appellant submitted that the impugned order is apparently erroneous and hence he prayed that it be quashed and the appeal may be allowed.
8. Learned counsel for respondent No.1 submitted that though the patient was discharged from the Camp on the same day but due to complications arising as a result of sterilization operation she was required to be admitted to hospital just after 2 days. Learned counsel submitted that it is detailed in the complaint itself that as the patient developed distension of abdomen and could not pass urine and stool she was first taken to Primary Health Centre but after giving preliminary treatment was advised to be shifted to District Hospital where she remained admitted for quite some time but as her condition did not improve she was referred to Ambedkar Hospital, Raipur // 6 // where she died on 16.03.2007 during her treatment. Learned counsel for respondent no.1 submitted that the patient suffered due to wrong and defective sterilization operation and ultimately died. He submitted that the District Forum has passed the award after considering all the aspects so no interference therein is necessary.
9. None appeared before us for respondent no.2.
10. The District Forum had held that the complainant is consumer of the insurer and the appellant has not challenged this finding. Otherwise also for welfare of general public and for compensating any loss suffered due to sterilization operation Special Contingency policy was obtained by the government as such Sonkunwar who underwent sterilization operation as well as her husband were beneficiary under the policy. Hence there remains no doubt that the complainant is a consumer.
11. The question to be considered is whether the death of the complainant's wife was due to complications of sterilization operation and was covered under terms of the Special Contingency Policy? Learned counsel for the appellant submitted during course of arguments that it is not covered. At the most the complainant may be entitled to a maximum of Rs.25,000/- towards expenses incurred in treatment of the deceased.
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12. In the written version it was mentioned that normally a patient is discharged after sterilization operation in a day or two and a plea was taken by the insurer that the complainant has not filed any documents to show on which date the deceased was initially admitted to the hospital and when was she discharged. We find that the complainant has filed certificate which shows that she was operated on 25.01.2007. There is no document relating to admission or discharge. Probably as the operation was done at the Camp no such document was required to be issued otherwise the complainant would have filed it. It is important to note that the insurer has stated in written version that normally after L.T.T. operation the patient is discharged after one or two days. However it appears from the material on record that the patient was at home when after two days there was distention of abdomen and she was unable to pass urine and stool this means that she was permitted to go home after being operated at the Camp and that is the reason why admission and discharge certificate has not been issued, simply a certificate was subsequently issued. Learned counsel for the appellant submitted that the complainant would have been eligible for getting Rs.2,00,000/- only in case the death of his wife would have been while in hospital after sterilization operation or within 7 of her discharge after operation. However we feel that this plea would not be tenable in the // 8 // present case. As noted earlier the appellant insurer has stated in written version that normally a patient is discharged after such operation after a day or two but in this case the patient appears to have been discharged on the same date. Had she been permitted to remain admitted the complication would have been during admission itself. As she was discharged, she was required to be taken to Primary Health Centre and after giving basic treatment the doctor advised to take the patient to The District Hospital, Ambikapur. From that time onwards she remained admitted to some hospital or the other and ultimately she died on 16.03.2007 at Ambedkar Hospital, Raipur. It is a matter of common knowledge that some complications arising out of operation may be noted after lapse of sometime because even if there is some pain or uneasiness normally it is believed that such pain or uneasiness is normal and temporary consequence of the surgery and would subside within a short period of a few days. When major problem of distention of abdomen with inability to pass urine and motion was noted, she was rushed to primary health centre and from there to District Hospital, Ambikapur where she was treated for quite a long time but as her condition further deteriorated she was referred to Ambedkar Hospital, Raipur. All this goes to show that the patient had developed complications from the time of operation itself and it hardly makes any difference that she was not kept admitted to the hospital but was permitted to go home.
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13. Post mortem Report, Treatment papers of Raghunath District Hospital, Ambikapur and B.R.Ambedkar Memorial Hospital, Raipur have been produced on record by the complainant to show that his wife was constantly under treatment after L.T.T. operation. During course of arguments learned counsel for the appellant submitted that there is no material to show that the complication that led to the death of the patient was on account of L.T.T. operation. He submitted that in the Post Mortem Report the doctor has opined that 'Death was due to Cardio respiratory failure due to septicemia. Evidence of tubectomy also present.' Learned counsel for appellant submitted that death of the patient was on account of complications resulting due to septicemia. The doctor conducting postmortem only found evidence of tubectomy but has nowhere mentioned that any complication was noted due to such operation. Diagnosis mentioned in Death Summary is faecal fistula with post-operative L.T.T. with repair of jejunal perforation with septicemia with severe anaemia. Learned counsel for appellant submitted that there is no material to show that septicemia or jejunal perforation had resulted due to L.T.T. We would like to refer to the Summary as mentioned in Death Summary at page 85 of the record of District Forum-
'Summary:Pt. was admitted in Hospital on 9.3.7 with complaint of -faecal matter coming out from the main abdominal wound.
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- Pt. was operated- Laproscopic T.T done on 25.1.7 then develops perforation peritonitis for which she was again operated - Exploratory Laprotomy - Repair of Perforation done at mesenteric border of jejunum. After that she develops faecal fistula with burst abdomen (which was repaired.
But faecal fistula still persisted ----' We would also like to refer to Diagnosis as mentioned on Indoor Patient Summary Sheet Department of Surgery Dr. B.R.Ambedkar Memorial Hospital, Raipur.
- 'DIGNOSIS : Faecal fistula due to post-operative complication of LTT with severe Anaemia with severe Septicemia.'
14. In view of afore-quoted portion of medical record certain clarifications are necessary regarding medical terminology but as none of the parties have produced any material to clarify various medical terms we will ascertain the meaning with help of Taber's Encyclopedic Medical Dictionary, Edition 17, published by F.A. Davis Company, Philadelphia. Relevant words and their meaning as given in the aforesaid dictionary are given hereinbelow:
Septicemia- 'Presence of pathogenic bacteria in the blood. If allowed to progress, the oprganisms may multiply and cause an overwhelming infection and death.Symptoms and signs usually // 11 // include chills and fever,petechiae, purpuric pustules, and abscesses. Shock may be present.' Perforation- 1. The act or process of making a hole, such as that caused by ulceration. 2. The hole made through a substance or a part.' Jejunum - The second portion of the small intestine extending from duodenum to the ileum.
Fistula- An abnormal tubelike passage from a normal cavity or tube to a free surface or to another cavity. May be due to congenital incomplete closure of parts or may result from abscesses, injuries, or inflammatory processes.
Fecal fistula- Fistula in which there is a discharge of feces through the opening.
Feces- Stools; excreta; dejecta; excrement. Body waste such as food residue, bacteria, epithelium, and mucus discharged from the bowels by way of anus.
Mesenteric- pertaining to mesentery.
Mesentery- Aperitonial fold encircling the greater part of the
small intestines and connecting intestine to the posterior abdominal wall.
15. After ascertaining the meaning of various terms the picture has become pretty clear. As noted above that perforation means the act or process of making a hole, such as caused by ulceration as well as the // 12 // hole made through a substance or a part. It is matter of common knowledge that laparoscopic T.T. surgery is done by making abdominal exploration employing a type of endoscope called a laparoscope through holes made in the abdomen. Hence it appears that while making holes for laparoscope, due to mistake Perforation was caused in Mesenteric border of Jejunum. It clearly appears from record of Raghunath District Hospital, Ambikapur placed on record as A-6(3) that on 30.1.2007 exploratory laparoscopy was done under General Anesthesia and one perforation at the Mesenteric border of jejunum was found and was repaired. Subsequently the patient had also developed fecal fistula with burst abdomen. On 06.03.2007 burst abdomen was repaired under local anesthesia but fecal fistula persisted. On 09.03.2007 the patient was referred to Ambedkar Hospital, Raipur. She was continuously treated, nasal intubation and blood transfusion was done but despite all efforts being made the patient died on 16.03.2007.
16. In above view of the matter we are not ready to believe that the case of the complainant is not covered under the scheme. The patient constantly suffered after sterilization operation on 25.01.2007 till her death on 16.03.2007. The scheme under which insurance coverage was obtained by the government was a welfare scheme and it should be interpreted in favour of the beneficiary. In special circumstances of the // 13 // case, as the patient was operated at a camp she was not admitted to the hospital otherwise normally the patient is discharged after one or two days after the sterilization operation as stated by the insurer in their Written Version. As the patient had developed so many complications as a result of sterilization operation and suffered for a quite long time, continuously remained in hospital and the complainant also had to spend a lot of money on treatment of his wife who was quite hale and hearty prior to sterilization operation, therefore, we come to the irresistible conclusion that the patient remained admitted to hospital for the entire period till her death and her death had resulted due to sterilization operation.
17. In view of observations made hereinabove we are of considered opinion that the case of the complainant comes under S.1(a) of the policy and the complainant is entitled to Rs.2,00,000/- as assured sum and by not paying the amount the insurer has committed deficiency in service. Hence the order passed by the District Forum is hereby affirmed and the appeal being devoid of merits is dismissed. No order as to costs.
(Justice S.C.Vyas) (Smt.Veena Misra) (V.K. Patil)
President Member Member
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