State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Smt. Tosta Alias Tosya on 3 November, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 112 / 2009
The Oriental Insurance Company Limited
through Manager having its Registered Office at
Oriental House, Post Box No. 7037, A-25/27, Asaf Ali Road
New Delhi - 110002 through its Senior Divisional Manager
The Oriental Insurance Company Limited
47, Rajpur Road, Dehradun
......Appellant / Opposite Party No. 4
Versus
1. Smt. Tosta alias Tosya W/o Sh. Balinder
R/o Village Jahajgarh, Block Bhagwanpur
Tehsil Roorkee, District Haridwar
......Respondent No. 1 / Complainant
2. Dr. (Smt.) Asha Sharma
Medical Officer, Community Health Centre
Bhagwanpur, Block Bhagwanpur, Tehsil Roorkee
District Haridwar
3. State of Uttarakhand through Chief Medical Officer
H.M.G. Government Hospital, Haridwar
4. Chief Medical Officer
H.M.G. Government Hospital, Haridwar
......Respondent Nos. 2 to 4 / Opposite Party Nos. 1 to 3
Sh. J.K. Jain, Learned Counsel for the Appellant
Sh. Rajveer Singh, Learned Counsel for Respondent No. 1
None for Respondent Nos. 2 to 4
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Dated: 03.11.2009
ORDER
(Per: Justice Irshad Hussain, President):
This is an appeal by the insurance company against the order dated 01.04.2009 passed by the District Forum, Haridwar, partly allowing consumer complaint No. 185 of 2007 as under:2
(a) Opposite party No. 3 - Chief Medical Officer, H.M.G. Government Hospital, Haridwar was held liable to pay Rs. 1,500/- as litigation expenses to the complainant.
(b) Opposite party No. 4 - appellant, The Oriental Insurance Company Limited was held liable to pay compensation of Rs. 25,000/- with interest @9% p.a. pendentelite and future to the complainant.
(c) Complaint was dismissed against opposite party No. 1 - Dr. (Smt.) Asha Sharma, Medical Officer, Community Health Centre, Bhagwanpur, District Haridwar and opposite party No. 2 - State of Uttarakhand.
2. The sterilization operation of complainant Smt. Tosta alias Tosya was performed on 27.01.2005 at Community Health Centre, Bhagwanpur, District Haridwar by Dr. (Smt.) Asha Sharma, who was posted there as Medical Officer and was authorised to perform the operation by the Chief Medical Officer, Haridwar. The sterilization operation of the complainant was not successful as the complainant was found conceived after three months and gave birth to a female child on 31.05.2007 in Government Hospital, Roorkee. Alleging deficiency in service in performing the sterilization operation, compensation was claimed by the complainant, who finally filed consumer complaint against opposite party Nos. 1, 2 and 3 and later on impleaded appellant - insurance company as opposite party No. 4, when it was disclosed that Ministry of Health and Family Welfare has launched a Family Planning Insurance Scheme uniformly across the country as per the directions of the Hon'ble Supreme Court.
33. The claim was contested by opposite party Nos. 1, 2 and 3 on the ground that the sterilization operation was performed free of charge; that the complainant was made to understand that the sterilization operation may not be 100% successful and that the complainant was not entitled to any compensation on account of bearing a child after sterilization operation.
4. Appellant - insurance company contested the complaint mainly on the ground that claim do not fall within the period of insurance, in view of the fact that the insurance scheme was made effective from 29.11.2005 and whereas the sterilization operation on the complainant was performed on 27.01.2005. The complainant was, therefore, denied any compensation under the benefit of any insurance scheme.
5. The District Forum, on an appreciation of the material on record, observed that opposite party No. 1, who performed the sterilization operation was responsible for failure of the sterilization operation and, thus, made deficiency in service. Opposite party Nos. 1, 2 and 3 were, however, not held liable to pay any compensation, but the insurance company - opposite party No. 4 was held liable to pay assured sum of Rs. 25,000/- in the event of failure of the sterilization operation according to the terms of the insurance cover and opposite party No. 3 was held liable to pay the litigation expenses of Rs. 1,500/- to the complainant.
6. We have heard the learned counsel for the appellant and the complainant and carefully considered their submissions in the light of the facts, circumstances and legal aspects of the case. The appeal was filed with a delay of 45 days and the explanation of which has been given by way of averments made by the deponent Sh. Pankaj Khanna, Senior Divisional Manager of the appellant in his affidavit dated 4 15.06.2009 and these averments sufficiently indicate that the delay has been mainly due to administration action regarding filing of appeal against the order impugned and, therefore, in the interest of justice, the delay in filing the appeal is condoned.
7. It was not in dispute that the sterilization operation was performed at the Community Health Centre free of charge by the government doctor and, therefore, in view of the decision of the Hon'ble Apex Court in the case of Indian Medical Association Vs. V.P. Shantha and others; (1995) 6 SCC 651, the opposite party Nos. 1, 2 and 3 could not have been held liable to pay any compensation. More so, when the complainant was made to understand that the sterilization operation may not be 100% successful and despite this, the complainant voluntarily subjected her to sterilization operation. We may also advantageously refer to a decision of the Hon'ble Apex Court in the matter of State of Punjab Vs. Shiv Ram and others; IV (2005) CPJ 14 (SC) and wherein it has been held that child birth inspite of sterilization operation, can occur due to negligence of the doctor in performance of the operation or due to certain natural causes, such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. In the case in hand, there was no admissible legal evidence as may have even remotely indicated that the failure of the operation was due to the medical negligence on the part of the operating doctor - opposite party No. 1. Further, the Hon'ble Apex Court in the matter of State of Haryana and others Vs. Raj Rani; IV (2005) CPJ 28 (SC), stressed that pregnancy can be for reasons de hors any negligence of surgeon and in the absence of any negligence, neither the surgeon, nor the State can be held liable to pay any compensation to the lady, who became pregnant and gave birth to a child even after sterilization 5 operation. This decision also apply to the facts of the case and in view of there being no expert evidence of medical negligence, the opposite party Nos. 1, 2 and 3 could not have been held liable to pay any compensation to the complainant. The District Forum was, in the peculiar circumstances of the case, not justified in saddling the liability to pay litigation expenses of Rs. 1,500/- on opposite party No. 3 - Chief Medical Officer, Haridwar, on account of his giving direction for performing sterilization operations at Community Health Centre, Bhagwanpur, where complainant had family planning operation. In a latest decision in the matter of Kamla Kesharwani Vs. Supdt., Shyamshah Medical College and Gandhi Memorial Hospital and others; III (2009) CPJ 17 (NC), the Hon'ble National Commission has also held that in case the family planning operation is performed in the government hospital free of charge and the operation thereafter fails, the government doctor and the State Government can not be held liable to pay any compensation and further that it is not guaranteed that child birth will not take place after family planning operation and failure of which is explained in medical texts.
8. Learned counsel for the appellant submitted that the District Forum was also not justified in awarding compensation of Rs. 25,000/- against the insurance company and we find ourselves in agreement with the submission of the learned counsel, in view of the fact that the case of the complainant was not covered under the Family Planning Insurance Scheme, which commenced for the first time w.e.f. 29.11.2005 and whereas the complainant was operated upon on 27.01.2005. The relevant provision of the policy of insurance under Section-I read as under:
"i. ............................
ii. ............................6
iii. If the female conceives (duly certified by the QAC/CMO), after she or her husband has undergone sterilization operation, the insurer shall indemnify the person for failure of sterilization, having undergone sterilization as per the amount specified at 1C in the schedule of the policy. There shall be no liability hereunder for any claim made against the insurer for the act committed or alleged to have been committed prior to the Retroactive Date i.e. 29.11.2005 specified in the Schedule."
9. In view of the above specific exclusion of the complainant from the insurance coverage, we are not convinced by the argument of the learned counsel for the complainant that the District Forum made no error in otherwise awarding compensation of Rs. 25,000/- to the complainant, who had failed sterilization operation and gave birth to a female child.
10. In view of above, the order impugned suffer from factual and legal infirmity and, therefore, is liable to be set aside.
11. Appeal is allowed. Order impugned dated 01.04.2009 of the District Forum is set aside and consumer complaint No. 185 of 2007 is dismissed. No order as to costs.
(C.C. PANT) (JUSTICE IRSHAD HUSSAIN) K