State Consumer Disputes Redressal Commission
T.Ramakrishnan & 2 Ors ... vs M/S.Quality Care Hospital & ... on 26 June, 2015
IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MADURAI BENCH.
Present: Thiru.A.K.ANNAMALAI, M.A.M.L.,M.Phil., Presiding Judicial Member
Thiru.M.MURUGESAN, B.Sc.,B.Ed., Member
C.C.No.07/2012
(C.C.No.116/2002 on the file of State Consumer Disputes
Redressal Commission, Chennai.)
THE 26th DAY OF JUNE 2015.
Date of complaint filed : 25.10.2002
Date of order pronounced: 26.06.2015
1. T. Ramakrishnan,
S/o. Thirumalai Nambi.
2. Minor.R. Vinoth Kumar,
S/o. T. Ramakrishnan.
3. Minor. R. Vishnu Rajesh,
S/o. T. Ramakrishnan.
All are residing at
R.H.121, Upstairs,
Ellis Nagar,
Madurai - 10. Complainant
Vs
1. M/s. Quality Care Hospitals,
Sarvodhaya Main Road,
Ellis Nagar,
Madurai - 10. 1st opposite Party
2. Dr. K.N. Krishnan, M.S.,
M/s. Quality Care Hospital,
Sarvodhaya Main Road,
Ellis Nagar,
Madurai - 10. 2nd opposite party
(The 2nd opposite party died and the complaint dismissed
as abetted against the 2nd opposite party on 03.03.2015.)
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3. Dr. Meenakshi, M.D.D.G.O.,
Consultant Surgeon,
M/s. Quality Care Hospitals,
Sarvodhaya Main Road,
Ellis Nagar,
Madurai - 10. 3rd opposite party
4. Dr.A. Pushpalatha, M.B.B.S.,
Alangudi Clinic,
No.6, Indira Gandhi Street,
Pasumpon Nagar,
Pazhanganatham,
Madurai - 3. 4th opposite party
5. Dr.K.S. Ramalingam, M.S., F.I.A.M.S.,
North Car Street,
Thoothukudi. 5th opposite party
6. Dr. Muthukumarasamy, M.D.D.M.,
Madurai Cancer Centre,
No.276, Goods Shed Street,
Madurai. 6th opposite party
7. Doctor-in-charge,
M/s. A.V.M. Hospital,
Tuticorin - 3. 7th opposite party
(The opposite parties 4 to 7 are impleaded as formal parties to speak about the
condition of the patient and treatment given to her and no relief is sought for
against them).
Counsel for Complainant : Mr.G.R. Edmund, Advocate.
Counsel for Opposite Parties 1 to 3 : Mr.N.L. Rajah, Advocate.
Counsel for Opposite Party-4 : Mr.R.M. Loganathan, Advocate.
Opposite Parties 5 to 7 : Exparte.
This complaint coming before us for final hearing on 16.04.2015
and on hearing the arguments of the complainants side and upon perusing the
material records this Commission made the following:
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ORDER
THIRU. A.K. ANNAMALAI, PRESIDING JUDICIAL MEMBER.
The complaint under section 17(1) (a) (i) of the Consumer Protection Act, 1986 praying for direction to the opposite parties 1 to 3 to pay Rs.10,00,000/- as damages for the complainants with interest at 12% per annum from 02.11.2000 and also costs of the proceedings.
1. The gist of the complaint in brief is as follows: The wife of the 1st complainant, mother of the complainants 2 and 3, Mrs.Subha @ Subbulakshmi complaining severe pain in her lower abdomen, on 07.08.2000 approached the 4th opposite party having clinic at Madurai and after having taken scan as per the advice and along with the opinion of 4th opposite party and since there was a large cystic mass lesion in the right adnexa with fine internal echoes and papillary projection from the wall - suggestive of mucinous cystadenoma of Right ovary, the 1st complainant's wife went to the 2nd opposite party who is in-charge of the 1st opposite party hospital on 09.08.2000 with details of scan report with the 2nd opposite party who told that there was ovarian cyst and advised immediate admission of the patient to the 1st opposite party hospital and admitted on 10.09.2000 and the 2nd opposite party stated that Diagnostic Laparoscopy was to be performed which is to be taken lesser than one hour for the entire procedure and on 11.08.2000, the 1st complainant's wife was taken inside the operation theatre from 12.00 Noon and continued till 5.00 p.m. and the 3rd opposite party performed Hysterectomy without the knowledge of the 1st 4 complainant as the patient was taken to the theatre only for laparoscopy procedure and in the middle of the surgery at the 2nd opposite party hospital at 4.00 p.m., the 3rd opposite party joined with them and at 7.45 p.m. the patient was brought out of the operation theatre and the 1st complainant was not informed about what actually had happened in the theatre and next day the patient was unable to bear the pain in the abdomen under the post-operate care in spite of medicines followed no improvement and subsequently 6th opposite party's opinion was obtained and advised for continuation of medicines as out- patient and was discharged on 21.08.2008. After discharging when the patient was at her father's house at Tuticorin, the pain became more and more septic in the abdomen unusually heavy and there was pus oozing from that area continuously. Again on 31.08.2000 the patient was admitted with the 1st opposite party for further treatment and after through check up, the 1st opposite party informed that the wounds are curing and the health condition is good and would improve in 10 days and the 1st complainant's wife returned to Tuticorin on 01.09.2000. Thereafter, since the condition was not improved, vomiting and continuous fever and when contacted the 2nd opposite party over phone, he informed that it would be normal in due course and as the condition was not improved for the 3rd time on 15.09.2010 she was admitted in to the 1 st opposite party's hospital and after thorough check up and when disclosing the conditions of the patient she was compelled to discharge on 18.09.2000 without improvement and since she had severe pain in her abdomen, she was taken to 5 the 5th opposite party and on his advice scan was taken and informed the portion of the abdomen wherein operation was done became sceptic and bulk of pus was formed inside the abdomen which has to be removed immediately and treatment was given and a large quantum of pus was taken from her abdomen and advised to consult the 2nd opposite party once again for further treatment since the patient was not in a position to travel, the 2nd opposite party was consulted over phone and advised to take medicines which were taken by the patient and subsequently she was taken to 1st opposite party hospital once again on 19.10.2000 and admitted with various problems at the 1st opposite party hospital and having obtained opinion on 17.08.2000 from the 6 th opposite party continued treatment from 23.10.2000 and admitted once again on 24.10.2000 for further treatment and the 2nd opposite party having strong suspicion of presence of cancer in the form of ovarian cyst ought not have done surgery at all without undergoing proper diagnosis and evaluation on the patient. On 25.10.2000, the patient was discharged and was brought to Tuticorin since next day was " Deepavali", the health condition was gradually decreased and continuous pus was oozing from the operated part in the abdomen of the patient. On 01.11.2000 she was taken immediately to the 7 th opposite party hospital and due to the condition of the patient, initially they refused to admit her and subsequently on seeing the condition of the patient, admitted and in spite of best efforts and given treatment she died on 02.11.2000 and thereby after giving legal notice to the 2nd opposite party on 08.05.2001, for which the 6 2nd opposite party sent reply notice dated 14.06.2001 and thereby consumer complaint came to be filed claiming reliefs of the above mentioned, alleging medical negligence on the part of the opposite parties, from the opposite parties 1 to 3 and claiming no relief as against the opposite parties 4 to 7.
2. The opposite parties 1 to 7 denied the allegations in their different written versions filed in this case. On behalf of the opposite parties 1 to 3, the opposite parties 1 to 3 in their written version had denied the allegations of the complainant except to admit the treatment given to the 1st complainant's wife on 09.08.2000 to 25.10.2000 in between the period of discharge in subsequent admissions and contended that the patient was initially diagnosed with strong suspicions of cancerous cyst ovary and as per the advice of the 3rd opposite party as an experienced Gynaecologist, also having suspicion of ovarian tumour and she has to undergo hysterectomy and the ovarian cyst will be confirmed as cancerous or not only during diagnostic laparoscopy and it will be removed only by open surgery for which also the complainant was selected and diagnostic was provided and thereafter, after ascertaining, open surgery was performed and the allegation relating to the surgery in the middle of the 3rd opposite party was called for are all denied and having clear cut diagnostic procedure regarding the surgery that surgery was performed which was decided in view of the possibility of malignancy ( cancer) and pelvic tethering of cyst, open surgery was decided for removal of at the ovary and uterus with tubes and they were sent for Biopsy. Without presence of 3rd opposite party, from the beginning, the operation could 7 not be commenced and thereby the allegation that the 3rd opposite party joined in the middle of the surgery was incorrect. After getting report from Biopsy, confirmed presence of malignancy the opinion of 6th opposite party obtained and he visited on 17.08.2000 and examined the patient and prescribed 6 to 9 cycles of Chemotherapy and a Schedule of drugs for Chemotherapy which was informed to the patient and the 1st cycle was commenced on 18.08.2000 and completed on 20.08.2000. The 2nd cycle was fixed on 15.09.2000 and the patient undergoing Chemotherapy have some side effects which cannot be prevented. On 15.09.2000 she admitted for 2nd cycle of Chemotherapy and on 21.08.2000 which was completed and she was discharged on 18.09.2000 and even for blood transfusion for Chemotherapy treatment. On 14.10.2000 she was advised for 3rd cycle and came back for their cycle of Chemotherapy between 15.09.2000 to 18.09.2000; but, she was admitted on 19.10.2000 for 3rd cycle and discharged on 22.10.2000 and advised to come back to the hospital on 17.11.2000 for 4th Cycle. On 23.10.2000 she was prescribed medicines for vomiting and the 2nd opposite party noted that the advice of the 6th opposite party about the fistula/Sinus since necessary medicines were given for subsequent events after 25.10.2000 were not known to the opposite parties 1 to 3 and the opposite parties 1 to 3 have taken all possible care in deciding operation and treatment and there is no negligence and carelessness in doing so and there is no place of unwarranted treatment and the procedure adopted by them is standard and accepted one and all necessary opinion from the 3rd opposite party and 6th 8 opposite parties were all obtained which are all mandatory before Diagnostic Laparoscopy and proceed which was done in the case of 1 st complainant's wife for a cancer of the Ovary, Hysterectomy also includes Salpingo Oopherctomy, which means removal of uterus with tubes and ovaries cyst clearly expose in their Biopsy report. It is not mandatory to give antibiotics preoperatively in uninfected patients. There was no peritonitis when the patient was discharged on 21.08.2000 with walking condition after surgery she walked home even after II and III cycle of Chemotherapy also that peritonitis is infection in the peritoneal cavity which is inside the abdomen patient's if affected with peritonitis will be serious and have to be admitted for further treatment. But the patient was travelling frequently between Madurai and Tuticorin for several times in spite of Chemotherapy and thereby the allegation of peritonitis is denied. The death of the patient was due to cancer and not due to negligence or carelessness and hasty treatment or deficiency in service on the part of the opposite parties 2 and
3. The complainant also claimed mediclaim insurance and the insurance company has come forward to settle the claim only because of the treatment was proper for the ailment and the expenses were proper for which original records such as Vedio recording and discharge summary were given to the patients which shows the genuine approach of the opposite parties 1 and 2. Hence, the complaint to be dismissed.
3. The 4th opposite party contended in her version that the patient consulted with the 4th opposite party for pain in her abdomen and therefore 9 advised to go for scan and after surgery advised to consult with the surgeon and no other way 4th opposite party connected with the patient and no treatment was given by her and so she was an unnecessary party to the proceedings.
4. Since after serving notice did not appear before this Commission, the 5th opposite party was set exparte.
5. In the written version, the 6th opposite party contended that he was consulted by the 1st opposite party and he advised for Chemotherapy treatment for the Cancer Ovary and was given advice for 6 to 9 stages and as per the same she had undergone 3 stages of Chemotherapy and no allegation levelled against the 6th opposite party and no relief sought for against him.
6. The 7th opposite party in their version contended that they have admitted the patient on the advice of one Dr. Lakhsmanan and no treatment was given to the patient, wife of the 1st complainant and took abdominal ultra sonogram and no deficiency in service on their part and no relief was sought for against them.
7. Since the 2nd opposite party reported dead during the complaint enquiry, the case against the 2nd opposite party was dismissed as abetted on 03.03.2015.
8. Both sides have filed their proof affidavit and on the side of the complainant Exhibits A1 to A17 were marked and no document was filed on the side of the opposite parties.
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9. The points for considerations are
1) Whether there was any medical negligence and deficiency in service on the part of the opposite parties 1 to 3 in giving treatment to the 1st complainant's wife, Mrs. Subbu @ Subbulakshmi. ?
2) Whether the complainant is entitled for the claim of Rs.10,00,000/- as compensation for alleged medical negligence and deficiency in service and for costs ?
3) To what relief the complainant is entitled?
10. Point No.1: In this complaint enquiry, it is the admitted case of both sides that the 1st complainant's wife Mrs. Subha @ Subbulakhsmi was admitted with the 1st opposite party hospital in which the 2nd and 3rd opposite parties rendering service on 07.08.2000 for the complaint of lower abdominal pain and on the advice of 4th opposite party had taken sonogram under Ex A1 and she had consulted with the opposite parties for review and subsequently for the surgery of ovarian cyst she was admitted on 10.08.2000 with the 1st opposite party hospital and on 11.08.2000 surgery was carried out at the 1st opposite party hospital by the 2nd and 3rd opposite parties following the Diagnostic Laparoscopy Procedure and Hysterectomy surgery and she was in the 1st opposite party hospital till 21.08.2000 on which date she was discharged and before that on 18.08.2000 6th opposite party was consulted and he had given opinion about the Chemotherapy as per the document under Ex A9 and in spite of the same since the complainant alleged that the patient Subbulakhsmi had 11 pain and blood oozing from the operated portion of abdomen she was admitted on 31.08.2000 once again she was discharged on 01.09.2000 after treatment once again for the same complaint she was admitted on 15.09.2000 and had treatment till 18.09.2000 and in spite of the same after discharging since the pus formation was not stopped she was taken to 5th opposite party who had removed the pus from her abdomen and advised to go for 2nd opposite party for further treatment and accordingly she was admitted on 19.10.2000 with the 1st opposite party and got admitted once again on 24.10.2000 after obtaining opinion from 6th opposite party on 23.10.2000 and she was discharged on 25.10.2000 and since the 1st complainant's wife had problems of blood oozing and became worsening she was taken to the 7th opposite party who initially refused to admit her and on seeing the plight of the patient got admitted her and taken sonogram and other diagnostic process and on 02.11.2000, she was died.
11. These facts are all not denied by the opposite parties and in the course of pending enquiry since the 2nd opposite party reported died which was recorded and thereby the complaint as against the 2nd opposite party become infuctuous and dismissed as abetted on 03.03.2015. Hence, we have to consider only whether there is negligence on the part of the 1st opposite party and the 3rd opposite party alone since no relief was sought for against the opposite parties 4 to 7. As far as the 1st opposite party is concerned, being the hospital which was managed by the opposite parties 2 and 3 whatever liability fixed against them 12 will be binding the 1st opposite party also and thereby we have to consider whether there is negligence on the part of the 3rd opposite party.
12. As far as the 3rd opposite party is concerned, it is admitted that she was consulted by the patient Subbulakshmi on 08.08.2000 the patient met the 2nd opposite party with abdominal pain along with scan report and the 2nd opposite party advised for repeated scan and on getting report referred to 3rd opposite party who is an Obsteritician Gynaecologist surgeon for gynaecology opinion and met the 2nd opposite party on 09.08.2000, the scan report confirmed the presence of cyst in mid pelvis and also 3rd opposite party suspicious of ovarian tumour and was of the opinion that she has to undergo Hysterectomy and accordingly the 2nd and 3rd opposite parties had plan of action for "diagnostic laparoscopy and proceeded " on 08.08.2000 and 09.08.2000 and the patient was admitted on 10.08.2000 and was performed surgery on 11.08.2000 by taking the patient to the theatre and came out at 7.45 p.m. and the 1st complainant not informed of what had happened. The opposite parties 1 and 2 contended that on 11.08.2000 all the pre-operation preparations were completed at 12.30 pm and as per the schedule, Anaesthetist and Dr. Meenakshi and another doctor who were already informed arrived on time and along with nursing assistants, the cyst operation commenced under general Anaesthesia, 3 parts were introduced cyst arising from pelvis aspirated brown coloured fluid and Cyst was opened Papillary projections present were seen because of possibility of malignancy (cancer) and pelvic tethering of cyst open surgery was decided for 13 removal of the ovary and uterus with tubes and by a lower middle incision abdominal hysterectomy was carried out. Cyst adherent at left of maso return and distal sigmoid separated. Abdomen was closed in layers and Paris were closed and the ovaries and uterus with tubes were sent to Bose Clinical Laboratory and X-rays, Madurai for Biopsy and other process was carried out by the 3rd opposite party with assistance of others and contended that this procedure was final as per the Medical Literature and accepted norms of the medical fields and whether these process are wrongly followed or not was not established by the complainant as against the contentions of the 2nd and 3rd opposite parties by way of any contra medical report except that is one in spite of the surgery was carried out she had the oozing of the blood from the operated portion which caused the patient, even for number of times admission to the 1st opposite party's hospital and subsequently caused to the death.
13. Regarding the case of death is concerned, it is the contention of the complainant that after taking the patient to the 5th opposite party who had examined the patient observed that there was collection of pus in the abdomen due to oozing in the operated portion and after pleading the same, advised the patient to contact the 2nd opposite party who is well-versed with the patient's condition. But the 5th opposite party remained absent before this Commission to explain the circumstances of the treatment given and there is no record to prove that the death was caused only due to cancerous infection in the operated portion as per the discharge summary under Ex A3. On 11.08.2000, the 14 operation was done by Dr.K.N. Krishnan, 2nd opposite party, Dr. Meenakshi, 3rd opposite party and Dr. Aravindan, Dr. I. Chandrasekaran, Anaesthetist as per the details under Ex A3. From these details, it is clear that the opposite parties 2 and 3 were well aware even at the time of undergoing for "Diagnostic Laparoscopy and Procedure" they have to perform Hysterectomy by open surgery due to the presence of malignance and the complainant contended that having known that the patient was suspected with cancerous cyst they ought not to have gone for surgery and to have observed conservative method. For this, the opposite parties 1 to 3 contended in their written version that the decision to open the abdomen was professional decision in view of he Diagnostic Laparoscopy findings and not due to any alleged failure of suction apparatus or by the opposite parties 1 to 3 and taken all possible care in deciding the operation and treatment and further, it was contended that there was no peritonitis when the patient was discharged on 21.08.2000 after surgery and she was discharged in walking condition and she walked home after II and III cycle of Chemotherapy also. If it is Peritonitis infection in the peritoneal cavity which is inside the abdomen Palletise affected with peritonitis will be serious and have to be admitted for treatment. Further, for a cancer of the Ovary, Hysterectomy also includes Selpingo Ocpterctomy which means removal of uterus with tubes and ovaries which are all proved by way of Biopsy test report done by the Bose Clinical Laboratory under Ex A4 and the contention of the opposite parties 1 to 3 in this regard could not be contraverted by any other 15 materials by the complainants except their oral plea in this regard. Further, the patient had undergone Chemotherapy treatment for three cycles which is given in the case of curing cancer and preventive further cancerous growth which may cause certain side effects which are all suppressed by the complainant in their complaint. But, the discharge summary under Exhibits A3 and A10 and the contention of the opposite parties are all would go to prove that the patient had Chemotherapy treatment for nearly three cycles even though suggestion for 6 to 9 cycles. In those circumstances, the complainants have to prove that the cause of death of the patient was only due to wrong treatment given by the opposite parties 2 and 3 in the 1st opposite party's hospital in performing the Diagnostic Laparoscopy and Hysterectomy and as per the contention of the complainant they ought not to have done when the patient is suspected for cancerous ovary and to prove the same no medical literature or any other expert opinion was filed by the complainants' side. Regarding the cause of death even by the complainant alleged that due to the formation of pus in the operated site of the abdomen and oozing of blood and other complications which caused the death they are not at all proved by sending the dead body for post-mortem to prove the cause of death since the opposite parties 2 and 3 contended that the death was cancerous nature having Chemotherapy treatments and not due to septic which was not proved and thereby we are of the view that the complainants have failed to prove that there is medical negligence and deficiency in service on the part of the opposite parties 1 to 3 in giving treatment to the 1 st complainant's wife 16 Subha @ Subbulakhsmi that she was under their care and custody during the period from 11.08.2000 to 25.10.2000 intermittent discharged period.
14. The counsel for the complainant relied on the following rulings reported in I (2008) CPJ 56 (S C) II (2009) CPJ 220 (NC) II (2009) CPJ 61 (SC) IV (2005) CPJ 451 I (2009) CPJ 62 (NC) III (2004) CPJ 475 I (2002) CPJ 380 III (2008) CPJ 180 (NC) The learned counsel for the complainant mainly relied on the ruling reported in III (2004) CPJ 475 (NC), wherein in the case of Smt. Vudumula Leelakumari & Ors - Vs - Dr.M. Ravindra, the Hon'ble National Commission held as follows: "
Consumer Protection Act, 1986 - Section 2(1)(g) - Medical Negligence - Mistake in diagnosing disease - Reason for bleeding not ascertained, no investigations carried out - Complainant suffering from cervical cancer, without knowing O.P. performed surgery - Some instruments contaminated with cancer cells used to close abdominal muscles and tissues - Recurrence of cancer in abdominal wall due to negligence of doctor - Rushing to Hysterectomy without conducting appropriate tests, deficiency in service - Chances of recovery would have been bright if disease had been properly diagnosed before hysterectomy done - 17 Negligence proved - O.P. liable to pay compensation with interest." While considering these rulings which are all agreeable only if the complainant proved negligence and deficiency in service as against the opposite parties and in this case which are not proved and thereby this ruling relied on have no help to the complainant especially when the complainant alleged that the patient was taken to 7th opposite party for further treatment and initially he refused to admit and subsequently on seeing the condition of the patient she was admitted and given treatment in spite of the same she died for which the 7 th opposite party contended in their proof affidavit that they have not given any treatment except to advice for taking abdominal ultra sonogram and the report was given by Dr. Lamington P. Rayan, which is filed as Ex A11 in which it is pointed out that uterus and Ovaries are surgically absent. Mild diffuse Hepatomegaly. A bowel segment with thickened walls is seen in, Right liac fossa" which would suggest she had other complications. Hence, we find that there is no medical negligence or deficiency in service on the part of the opposite parties 1 to 3 in giving treatment to the 1st complainant's wife, Mrs. Subbu @ Subbulakshmi. The point is answered accordingly.
15. Point No.2: In view of the findings in point No.1 since the complainants have not proved that there is medical negligence and deficiency in service on the part of the opposite parties 1 to 3 in giving treatment to the deceased patient, Subbulakshmi, they are not entitled to claim of compensation 18 of Rs.10,00,000/- or any other amount as compensation as claimed and therefore this point is answered accordingly.
16. Point No.3: In view of the findings in point Nos.1 and 2, adverse to the complainant, no relief could be granted as prayed for as against the opposite parties 1 to 3 and since no relief is sought for against the opposite parties 4 to 7, the complaint as against the opposite parties 1 to 7 is dismissed.
17. In the result, the complaint is dismissed as not proved. No order as to costs.
Sd/-xxxxxxxxx Sd/-xxxxxxxxxx
M. MURUGESAN, A.K. ANNAMALAI,
MEMBER. PRESIDING JUDICIAL MEMBER.
ANNEXURE
Documents filed on the side of the complainant:
Ex A1 07.08.2000 Copy of Scan Report
Ex A2 10.08.2000 Copy of Case Sheet
Ex A3 21.08.2000 Copy of Discharge Summary
Ex A4 15.08.2000 Copy of Medical Report
Ex A5 18.09.2000 Copy of Receipt
Ex A6 18.09.2000 Copy of Receipt
Ex A7 08.10.2000 Copy of Scan Report
Ex A8 21.10.2000 Copy of Scan Report
Ex A9 23.10.2000 Copy of Medical Report
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Ex A10 22.10.2000 Copy of Discharge summary
Ex A11 01.11.2000 Copy of Report
Ex A12 02.11.2000 Copy of Death Certificate
Ex A13 08.05.2001 Copy of Legal notice
Ex A14 14.06.2001 Copy of Reply notice
Ex A15 17.08.2001 Copy of Letter from Insurance Company
Ex A16 20.08.2001 Copy of Advocate notice to the Insurance Company
Ex A17 29.08.2001 Copy of Reply from Insurance Company
No document was filed on the side of the opposite parties.
Sd/-xxxxxxxxx Sd/-xxxxxxxxxx M. MURUGESAN, A.K. ANNAMALAI, MEMBER. PRESIDING JUDICIAL MEMBER. INDEX: YES / NO TCM/Mdu Bench/Orders- June 2015