State Consumer Disputes Redressal Commission
The New India Assurance Company Limited vs Ravindra Kumar Jain on 14 May, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 224 / 2008
The New India Assurance Company Limited
having its Divisional Office at 8/6-7, Astley Hall
Dehradun through Senior Divisional Manager
......Appellant / Opposite Party No. 1
Versus
1. Ravindra Kumar Jain S/o Sh. G.C. Jain
R/o Lane No. 3, Shrinath Nagar
Jwalapur, Tehsil and District Haridwar
......Respondent No. 1 / Complainant
2. Universal Medi-Aid Services Limited
1104, Akashdeep Building, 26A, Barakhamba Road
Connaught Place, New Delhi - 110001
through its Director
3. Dr. Mukesh Jain, Vardhman Trauma & Infertility Pvt. Ltd.
and Vardhman Joint Replacement Centre
A-36, South Civil Lines
Mahavir Chowk, Muzaffarnagar
......Respondent Nos. 2 and 3 / Opposite Party Nos. 2 and 3
Sh. Sudhanshu Dwivedi, Learned Counsel for the Appellant
Sh. Anoj Kumar Garg, Learned Counsel for Respondent No. 1
Sh. V.K. Srivastava, Learned Counsel for Respondent No. 2
None for Respondent No. 3
Coram: Hon'ble Justice Irshad Hussain, President
Smt. Kusum Lata Sharma, Member
Dated: 14/05/2010
ORDER
(Per: Justice Irshad Hussain, President):
This is insurer's appeal against the order dated 28.08.2008 passed by the District Forum, Haridwar, whereby consumer complaint No. 120 of 2006 was allowed against the insurer with costs of Rs. 2,000/- and the insurer was further directed to pay sum of Rs. 1,31,282/- with interest @9% p.a. and Rs. 15,000/- as damages for bed rest within the stipulated period, by way of reimbursement of the 2 expenses incurred in the treatment of the complainant, holding mediclaim policy for himself and his wife. In allowing the consumer complaint, the District Forum accepted the complainant's claim that he suffered fracture of neck of femur (left) in a road accident on 23.08.2004 at Muzaffarnagar and had thereafter undergone total hip replacement at Vardhman Trauma & Infertility Pvt. Ltd., Muzaffarnagar, where he remained admitted from 23.08.2004 to 06.09.2004 and incurred expenses towards his treatment provided by Dr. Mukesh Jain, M.S. (Trauma & Joint Replacement Surgeon) of the said trauma centre. The District Forum rejected the defence stand taken by the insurer and third party administrator - opposite party No. 2, that the claim preferred under the terms and conditions of the mediclaim insurance policy was not tenable in view of the complainant's failure to furnish the correct details such as date and time of the accident, how and where the accident occurred, medico-legal papers of the accident including injury report etc. and the necessary details and record of the alleged surgery for total hip replacement such as pre-surgery x-ray, the date on which the surgery was done and other related information and, as such, the claim was not payable and there was no deficiency in service on their part.
2. Submissions of the learned counsel for the parties give rise to the following core question for determination of this appeal on merit:
"Whether the claim of the complainant that he was seriously injured in an accident on 23.08.2004 at Muzaffarnagar, was not sustainable and the District Forum fell in error in recording a finding in favour of the complainant on the basis of evidence of Dr. Mukesh Jain and treatment record of the complainant maintained by trauma centre of the said doctor?"3
3. As will appear from the consumer complaint, it has merely been alleged that the complainant met with an accident at Muzaffarnagar on 23.08.2004 and suffered serious injuries and had his femur bone fractured. Complainant is a resident of town of Haridwar and it has never been brought on record as to why and how the complainant happened to be in Muzaffarnagar on the alleged date of accident. Learned counsel for the insurance company persuasively argued that correspondence made by opposite party No. 2, third party administrator, which was assigned the job of settlement of the claim, made it clear that the complainant was required to provide detail as to how and where the accident occurred and to submit medico-legal papers of the accident including injury report etc. Exchange of letters was not disputed by the complainant and despite this, no detail of the accident was given in the consumer complaint. Even if the complainant did not find it necessary to lodge an FIR regarding the accident in which he suffered serious injuries, a preliminary medico-legal report of injuries was required to be prepared, so that the claim of the complainant about the allegation of accident could have been corroborated. The learned counsel for the insurance company, thus, urged that in the absence of corroborative evidence of the accident, the claim preferred was, in the first instance, not tenable. On the other hand, learned counsel for the complainant - respondent No. 1 drew attention to the statement of Dr. Mukesh Jain recorded before the District Forum and submitted that the complainant after the accident having been brought to the trauma centre of the doctor, the decision for getting the medico-legal report prepared was to be taken by the doctor himself and such a decision having not been taken, the absence of medico-legal report as well as the detailed injury report, would not entail rejection of the allegation of the complainant that he met with an accident and suffered serious injuries in Muzaffarnagar. No doubt, Dr. Mukesh Jain gave out that in this case, he did not find it 4 proper to have the medico-legal examination of the injured - complainant done, but in the totality of the facts and circumstances of the case, the detailed report of the injuries could have even been prepared by the attending doctor himself, but this was also not done, as is evident from the complainant's progress chart placed on record. It merely mention that the patient (complainant) complained of fracture of neck of femur (left) due to fall on 23.08.2004 and was, on that basis, admitted in the trauma centre. It is of significance that Dr. Mukesh Jain categorically stated that in the pre-operative x-ray plate of the complainant, fracture of the femur coupled with disalignment of the pelvic and pieces of its bone were noticed. If the complainant was to receive such serious bone injuries in a road accident, he was bound to suffer serious visible bodily injuries also, requiring preparation of injury report or atleast mention of those injuries in the progress chart of the complainant prepared and maintained at the trauma centre of the said doctor. This having not been done, it create serious doubt in the claim of the complainant and the doctor that the complainant was brought to his trauma centre as a road accident case having such serious bone injuries, requiring immediate total hip replacement.
4. Attention was then drawn by the learned counsel for the parties to the progress chart of the trauma centre and other papers including the x-ray plates placed on record in support of their respective contentions. Having carefully perused these papers, we see force in the argument of the learned counsel for the insurance company that these documents also do not substantiate the claim of the complainant. The foremost reason being that the date of the total hip replacement of the complainant at the trauma centre of Dr. Mukesh Jain has neither been mentioned in the consumer complaint, nor in the progress chart and other papers of the trauma centre and nor in the statement of Dr. Mukesh Jain and this aspect of the matter run counter to the claim of 5 the complainant that he suffered serious injury of hip bone and was subjected to surgery relating to total hip replacement. The progress chart of the trauma centre has entries only to the effect that Sh. Ravindra Kumar Jain S/o Sh. G.C. Jain, R/o Jain Bhawan, Sri Nath Nagar, Jwalapur, Haridwar was admitted at the trauma centre on 23.08.2004 with complaint of fracture neck femur (left) due to fall on 23.08.2004 and was admitted at the trauma centre on that date. It contain some reference to the investigation said to have been done on that very day and further mention pre and post-operative notes followed by an endorsement that patient is discharged on 06.09.2004 in satisfactory condition as per advise of Dr. Mukesh Jain. It also noted precaution to be observed by the patient and medicines to be taken thereafter by him. The chart also contain a consent letter given by Sh. G.C. Jain, father of Ravindra Kumar Jain for providing required surgery to the patient on 23.08.2004 and further the same consent letter has endorsement of discharge consent dated 06.09.2004. The next leaf of the chart contain some details about the name and parentage of the patient with remarks as regards the illness and it was also prepared on 23.08.2004 with some interpolations, which were said to be on account of inadvertent mistake in preparing the document. This paper also mention discharge date of the patient as 06.09.2004. The last leaf of the chart contain an undated endorsement confirming discharge of the patient from the trauma centre on 06.09.2004 and nowhere it has been mentioned as to when the total hip replacement of the said patient (complainant) was done by Dr. Mukesh Jain. The copy of the discharge card also placed on record was issued on 06.09.2004 and this also does not contain any date on which the above surgery was done on the patient. Pathology laboratory report as well as medical examination report of the Cardiologist, both dated 23.08.2004 are also on record, but these also do not confirm as to when the total hip replacement was done.
65. Coming to the statement of Dr. Mukesh Jain again, we find that no date of the total hip replacement by the doctor has been disclosed and considering the nature of the surgery and the injury alleged to have been sustained by the complainant, we would not, as also argued by the learned counsel for the insurance company, subscribe to the argument of the learned counsel for the complainant that, in fact, the total hip replacement of the complainant was done on 23.08.2004 itself. The reason being that a single pre-surgery x-ray plate placed on record indicate that detailed pre-surgery investigation had not been done and the x-ray plate itself can not also safely be said to be related to the alleged injury of the complainant, in view of the same not containing any date, as is the case with the other x-ray plates said to be of the post-operative period and in which dates are clearly visible. The trauma centre record and the x-ray plates were placed on record by the trauma centre in pursuance of an order passed by the District Forum on the application of the insurance company filed under Section 13(4)(ii) of the Consumer Protection Act, 1986, which contemplate the discovery and production of any document or other material required for disposal of the matter before the Fora. Dr. Anuj of the trauma centre produced the record before the District Forum and he was also examined in the case on 23.10.2007. He gave out that no record of the x-ray plates is maintained at the trauma centre. Dr. Mukesh Jain, at the time of his cross-examination, was also shown the x-ray plate and he also could not affirm that the pre-surgery x-ray was done at the trauma centre or the report was brought to the trauma centre by the patient himself. According to him also, no proper record of the x-ray plates has been maintained at the trauma centre and considering the oral evidence of both these doctors of the trauma centre, it will be difficult to believe that the pre-surgery x-ray plate said to be of the complainant placed on record, was prepared at the 7 trauma centre and proper pre-surgery investigation was conducted to follow the total hip replacement of the complainant. Even otherwise, we do not find it safe to accept the claim of the doctor that on the basis of a single pre-surgery x-ray plate, a decision to carry out major total hip replacement surgery had been taken and this aspect in turn can be taken to dispute the claim as has been set up by the complainant in this case.
6. The above observation takes us to the opinion of Dr. Prem Luthra, M.S. (Ortho), Orthopaedic & Trauma Surgeon, a panel doctor of the insurance company, who vide his opinion dated 14.06.2007 opined that total hip replacement surgery is never done in case of fresh fracture neck femur of 43 year old patient and the treatment of choice in such cases is hip fixation by screws. The hip replacement surgery is indicated only if fixation fails or patient develops avascular necrosis / osteoarthritis later on. Even in that case, partial replacement / (hemiorthroplasty) is indicated. The opinion was recorded by this expert after examining the case record of the trauma centre where the complainant was alleged to have been treated and his total hip replacement was allegedly done. The opinion of this expert is supported by the medical literature placed on record on behalf of the insurance company and which consists of the extract from the Second Home Edition of The Merck Manual and it reiterate that total hip replacement is performed rarely for fractures but most commonly for osteoarthritis. Learned counsel for the complainant adversely commented upon the opinion of the said panel doctor by submitting that the doctor was not examined in evidence, so as to prove his opinion and, therefore, his opinion could not be provided any credibility to assail the case set up by the complainant. We see no merit in this argument because Dr. Prem Luthra filed his affidavit dated 18.12.2007 on record and made averment in it on oath to prove 8 the contents of his medical opinion dated 14.06.2007, which was based on examination and perusal of the record of the trauma centre of Dr. Mukesh Jain. There can be no doubt that the expert opinion of the panel doctor of the insurance company, in the peculiar facts and circumstances of the case, can also safely be taken to support our above inference and to rebut the claim of the complainant and his evidence.
7. From the material on record, the glaring fact which came to be established, is that the complainant aged about 43 years did not sustain such serious injury of fracture of neck of femur in any accident, as may have required immediate total hip replacement in the first instance and, therefore, the case set up by the complainant, can not be sustained in the absence of credible and reliable evidence as regards correct details such as date and time of the accident, how and where the accident occurred, medico-legal papers of the accident including injury report etc. and pre-surgery investigation reports. Therefore, the insurance company was justified in repudiating the claim vide communication dated 10.12.2005 made to the complainant and thereby made no deficiency in service. The District Forum failed to take into account these important aspects of the matter and mainly went by the statement of Dr. Mukesh Jain coupled with his incomplete trauma centre record to find favour with the contention of the complainant and fell in error in allowing the consumer complaint for award of compensation by way of reimbursement of the alleged expenses incurred in the treatment. Therefore, the finding of the District Forum in the order impugned can not legally be maintained and the same is liable to be set aside and the consumer complaint is liable to be dismissed.
98. For the reasons aforesaid, appeal is allowed. Order impugned dated 28.08.2008 of the District Forum is set aside and consumer complaint No. 120 of 2006 is dismissed. No order as to costs.
(SMT. KUSUM LATA SHARMA) (JUSTICE IRSHAD HUSSAIN) K