State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Babita And Others on 23 April, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 216 / 2009
The Oriental Insurance Company Limited
through its Divisional Manager
Divisional Office
45, Rajpur Road
Dehradun
......Appellant / Opposite Party No. 4
Versus
1. Smt. Babita W/o Sh. Nand Ram
R/o Village Shahpur, Shitlakhera
P.S. Pathri, District Haridwar
......Respondent No. 1 / Complainant
2. Chief Medical Officer
Haridwar
3. Dr. Anupa Lal
C.M.S., Chenray District Women Hospital
Dehradun
4. Smt. Pushpa Sharma
Presently working at Shahpur, Shitlakhera
P.S. Pathri, District Haridwar
......Respondent Nos. 2 to 4 / Opposite Party Nos. 1 to 3
Sh. J.K. Jain, Learned Counsel for the Appellant
Sh. Sunder Singh Pundir, Learned Counsel for Respondent No. 1
Sh. Ashok Dimri, Learned Counsel for Respondent Nos. 2 and 3
None for Respondent No. 4
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Mrs. Kusum Lata Sharma, Member
Dated: 23/04/2012
ORDER
Per: Justice B.C. Kandpal, President (Oral):
This is insurer's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 28.08.2009 passed by the 2 District Forum, Haridwar in consumer complaint No. 372 of 2007, thereby allowing the consumer complaint against the opposite party Nos. 1, 2 and 4 and directing the opposite party Nos. 1 and 2 to pay jointly and severally litigation expenses of Rs. 1,500/- to the complainant and further directing the opposite party No. 4 - appellant to pay sum of Rs. 25,000/- to the complainant towards compensation. The consumer complaint was dismissed against the opposite party No. 3. The learned President of the District Forum vide his dissenting order dated 28.08.2009 has, however, dismissed the consumer complaint. The opposite party Nos. 1 and 2 have not preferred any appeal against the impugned judgment and order passed by the District Forum.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant had undergone sterilization operation performed by opposite party No. 2 on 29.01.2007 and she was told that the operation has been successful. However, later on, the complainant conceived. Alleging medical negligence, the complainant filed a consumer complaint before the District Forum, Haridwar, which allowed the same vide order dated 28.08.2009 in the above terms.
3. None appeared on behalf of respondent No. 4. We have heard the learned counsel for the appellant and respondent Nos. 1 to 3 perused the record.
4. Learned counsel for the appellant - insurance company has submitted that there has not been any negligence on the part of the doctor in conducting the sterilization operation of the complainant and there are chances of failure in sterilization operation and in case, the 3 operation has failed, the same can not held as negligence on the part of the treating doctor / surgeon.
5. We do not find any force in the submission raised by the learned counsel for the appellant. It is not disputed that the sterilization operation of the complainant has failed and she had conceived even after undergoing the sterilization operation. The complainant was having four children prior to the operation and looking her financial condition, she decided to undergo the operation, so that she could not conceive in future, but the operation failed and she conceived. It is true that there are chances of failure in sterilization operation and such operation are not 100% successful, but we also have to see the facts and circumstances of the case and the evidence adduced by the parties in support of their case. There is no case of the treating doctor / surgeon that the complainant did not adhere to the required precautions. Instead the opposite party No. 1 has stated that if the complainant had conceived after the operation, she could have got herself operated again. Thus, this is not a case of medical negligence made by the surgeon, but it is a case where the sterilization operation failed. Such cases are covered by an insurance policy taken by the Government from the appellant - insurance company, so that the person opting for the family planning programme sponsored by the Government, could be compensated as per the terms and condition of the insurance policy if the sterilization operation fails.
6. From the perusal of the impugned order, it appears that the opposite party No. 1 had taken an insurance policy from the appellant and as per the terms and conditions of the said policy, in the event of failure of sterilization operation, the insurance company was liable to pay sum of Rs. 25,000/-. Learned counsel for the appellant -
4insurance company could not show us that the insurance policy was not in subsistence on the day the operation was performed and it did not contain any such condition that in the event of sterilization operation, the insurance company was not liable to pay any amount to the person, whose sterilization operation had failed.
7. As stated above, the opposite party Nos. 1 and 2, who have been saddled with the liability to pay litigation expenses of Rs. 1,500/- to the complainant, have not filed any appeal, which also goes to show that they have accepted that the sterilization operation had failed.
8. The District Forum has considered all the aspects of the case and has passed a reasoned order, which does not call for any interference and the appeal being devoid of merit, is liable to be dismissed and the majority view taken by the District Forum is fit to be confirmed.
9. Appeal is dismissed. No order as to costs.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE B.C. KANDPAL) K