United India Insurance Co. Ltd. vs GANPATBHAI BHULABHAI PARMAR

THIS appeal arises from order dated 11.7.2003 rendered by the learned Consumer Disputes Redressal Forum, Panchmahals at Godhra in Complaint Application No. 280 of 2002. The learned Forum has directed the opponent Insurance Company as also the 2nd opponent to pay to the complainant Rs. 2,12,500 being the amount of accident injury claim under the group personal accident policy in question in the sum of Rs. 5,00,000, while also providing for payment of default interest @ 15% p.a.

IT was the complainant''s case before the learned Forum that he was attacked by bullock causing horn injury on his left leg. Since he felt it was simple injury, he got himself treated by a private doctor who applied dressing. He had severe pain on his left leg on 7.7.2001 and, therefore, he had gone to the clinic of Dr. A.S. Manke at Godhra. As his condition was found to be serious, Dr. Manke referred him to Civil Hospital, Godhra or S.S.G. Hospital, Baroda or Civil Hospital at Ahmedabad for his further treatment. He accordingly got admitted in S.S.G. Hospital at Baroda as indoor patient. His ailment was diagnosed to be gangrene of left leg. This resulted into amputation of his left leg from above the thigh portion. As he lost his leg, and as he sustained 80% permanent disablement, he submitted claim to the opponent Insurance Company. According to the terms and conditions of the policy, he was entitled to 50% of the claim namely Rs. 2,50,000 for which both the opponents should be held liable. The complainant prayed for claim form from the concerned officers of the opponent but they refused to supply the claim form saying that he shall not be entitled to any insurance amount. The complainant, therefore, issued notice dated 12.8.2002 to the opponents and the opponents neither replied to the notice nor attended to the claim of the complainant; he, therefore, approached the learned Forum for appropriate reliefs of indemnity compensation, damages for mental agony, hardship and cost. The opponents resisted the complaint inter alia on the ground that the learned Forum did not have jurisdiction to hear the complaint as the contract of insurance was entered into at Ahmedabad, that it was not true that the complainant sustained accidental injury as alleged by him, that Dr. Manke is a heart specialist and would not give any treatment for any injury, that no claim form was ever indented from the opponent and that the complaint should be dismissed as it has not been filed bona fide. After considering the material placed on record, the learned Forum came to the conclusion that as per the disablement certificate issued by the concerned doctor, the complainant would be entitled to 50% of the claim less 15% on account of the fact that the disability was to the extent of 85%, that the complainant produced evidence of first treating doctor at Halol which supported the statements of facts made by the complainant and that there was deficiency in service on the part of the opponents in not honouring the claim of the complainant. When this appeal first came up for hearing before this Commission, it transpired that the complainant had no occasion to submit the claim papers to the opponent. This Commission, therefore, after hearing the submissions made on behalf of the parties passed order dated 1.1.2004 directing the complainant to submit all the papers to the opponent Insurance Company within four weeks so as to enable the opponent Insurance Company to investigate the matter and process the claim. The opponent Insurance Company was directed to submit its report to this Commission after processing the claim. The claim was processed and the opponent Insurance Company filed affidavit of Dr. Kiran Vadalia at Exh. 11, affidavit of Mr. Phili Sheth, investigator coupled with the copy of the claim papers and the investigation papers considered by the investigator. Even thereafter, since it transpired that there was a possibility of either the complainant or complainant''s first treating doctor having had made reference to Dr. A.S. Manke on next day i.e., 7.7.2001, Dr. A.S. Manke''s evidence was required in order to see that might lend support to the consumer''s cause. In that view of the matter, on December 29, 2004 following order was passed: "This appeal arises from order dated 11.7.2003 rendered by the learned Panchmahal District Consumer Redressal Forum, Godhra in Consumer Complaint Application No. 280/2002. 2. During the course of arguments, it transpired that the complainant who had an occasion to take treatment from Dr. A.S. Manke, M.D., neither filed affidavit before the learned Forum nor was examined for the factual aspects of the case. It clearly appears that his examination is absolutely necessary for bringing out the truth with regard to complainant''s suffering from accidental injury resulting into gas gangrene. Mr. P.V. Nanavati, however, referred the xerox copy of certificate of Dr. A.S. Manke, M.D., issued on 31.3.2004. In fact the document xerox copy of which has been submitted for our consideration from the side of the opponent is of the year 2004 which would indicate that the investigation ultimately ended after the impugned order came to be passed by the learned Forum. In that view of the matter, we are affording opportunity to the complainant so as to serve ends of justice. In above view of the matter, we pass following order: ORDER We would request the learned Panchmahal District Forum to issue summons to Dr. A.S. Manke, M.D., Medical Nursing Home and Heart Care Centre, Nr. Water Tank, Chitra Road, Godhra - 389 001 for appropriate date at the cost of the complainant, to remain present before it and record the evidence of Dr. A.S. Manke in the context of the certificate dated 31.3.2004. The xerox copy of this order be given to the complainant''s learned Advocate for presenting the same before the learned Forum. The parties will tentatively appear before the learned Forum on 24.1.2005. The learned Forum will submit the report of the evidence to this Commission as expeditiously as possible preferably within 3 weeks from 24.1.2005. Direct service is permitted. This matter is kept for further hearing on February 28, 2005."

It is in the aforesaid circumstances of the case as also in the background of the proceedings which have taken place during the pendency of this appeal that we are now required to consider the merits of the matter. We have once again heard the learned Advocates for the parties. We have gone through the impugned order. We have also gone through the evidence which has been recorded in the proceedings. From the evidence which has been placed on record, there are two versions which need consideration. In the first place there is a version of a doctor who is not MBBS but who is DHMS. At first he issued certificate dated 17.1.2004 which reads "this is to certify that Shree Ganpathbhai Bhulabhai Parmar had been c/o Accidental injury on left leg by horn of animal on 6.7.2001. C/o severe pain, loss of sensation. I had given primarily first aid treatment in my clinic. Inj. Diclo Sod I.M. Inj. T.T. and I.M." In support of this certificate he had an occasion to file affidavit dated 30.6.2004 sworn before the Notary Public. In the affidavit he has further stated that the patient was injured not only on his left leg but there were injuries on other parts of the body. Apart from the fact that being a DHMS medical practitioner, he ought not to have given allopathic treatment to the patient we consider whether the facts narrated by the complainant as also by the medical practitioner Dr. Ashish K. Patel were true. We are required to test the correctness and the genuineness of the statement of facts so emanating from the complaint as also the first treating doctor Dr. A.K. Patel. At this very stage it should be noted that Dr. A.K. Patel till this point of time was not able to produce any case papers though he is running a chronic disease hospital at Mehlol, Tal. Godhra. He has also not stated whether he had any occasion to make any reference of the complainant to any specialist doctor. Yet, on the next day, the complainant had an occasion to go to Dr. A.S. Manke of Godhra.

IT is not in dispute that Dr. A.S. Manke had an occasion to treat the complainant. What is disputed is as to the ailment for which the complainant was treated by Dr. A.S. Manke. Dr. Manke is a consulting physician and is not a surgeon. The certificate which Dr. Manke has issued while the complainant left his hospital for being admitted to Civil Hospital, Godhra/Ahmedabad, SSG Hospital, Vadodara clearly indicates that the patient was referred for accelerated hypertension with chronic renal failure for further management. There is not a whisper with regard to any injury much less any accidental injury in the certificate. Evidence which has been recorded by the learned Forum at the instance of this Commission would also indicate that the complainant was admitted to his hospital at around 3.45 O'' clock in the afternoon of 7.7.2001 and upon clinical examination by the doctor, the complainant was found to have been suffering from main ailment of chest pain, breathlessness (''gabhraman'') and headache. These ailments were unconnected with gas gangrene. The complainant did not bring any note of any doctor. The history which the complainant gave would indicate that he sustained ailment like ''ajambo'' [restlessness] for 2-3 days before he consulted Dr. Manke. On his examination Dr. Manke found that the complainant had blood pressure recorded at 200/120 and pulse recorded at 90 p.m. The doctor felt immediate treatment was needed and, therefore, he also advised urine and blood tests and it was noticed that the complainant suffered from swelling on kidney and high blood pressure. There was no improvement in his condition on 8.7.2001. He, therefore, recommended him to be admitted for intensive care either at Baroda or Ahmedabad immediately. Yet, the complainant and his relatives had taken discharge from Dr. Manke''s Hospital at around 8 O'' clock in the morning of 9.7.2001. The doctor had given a transfer note in the interest of the patient with a provisional diagnosis noted therein. He categorically deposed that he did not find any external injuries on the complainant at the time of his examination of the patient. The doctor also testified that the complainant did not disclose any fact of he having sustained accidental injury on account of he being hurt by bullock horns. He subsequently came to know that the complainant''s leg was required to be amputed on account of gas gangrene. Local Advocate of Godhra asked him to give certificate or write in his case papers the fact that the complainant''s leg was amputed on account of gas gangrene but the doctor did not do so. The doctor did not know the name of the Advocate. It further transpired in the investigation at S.S.G. Hospital, Baroda that no history of bullock horn injury was stated to the said hospital from the side of the complainant. Medical opinion was also obtained by the investigator and Dr. Kiran Vadalia who has given medical opinion has filed affidavit. Considering all these pieces of evidence, the investigator opined as under: "(1) Insured has not complied with legal formalities for the said accident the reason best known to him only. (2) Dr. Ashish Patel - 1st medical pro-fessional gave primary treatment is conforming for the history of accidental injury. As a professional, he has not advised for legal formalities during investigation, he has not provided case paper copy for our verification but he has given conformation on his letterhead. (3) Dr. Ashish Patel gave a treatment on 6.7.2001. He was admitted at Dr. Manke''s Hospital at 3.45 p.m. on 7.7.2001 i.e., after a gap of one day. (4) Dr. Manke is not aware with the history of accidental injury. Mr. Parmar took discharge against medical advice on 9.7.2001 in the morning hours. (5) He was admitted at SSG Hospital on 12.7.2001 i.e., after a gap of three days. (6) As per the Medico Legal Consultant true gas gangrene usually develop within 48 hours. Since insured himself has not taken proper care for a medical treatment gas gangrene extended leads to an amputation. (7) Usually to get legal validation of PPD, it is supposed to be granted by Chief District Medical Officer-cum-Civil Surgeon. In this case it is not done. Insurer may obtain detail opinion from their Panel Advocate. Based on our personal visit at the relevant places and held discussions with concerned persons supported with their written statements/documents collected during investigation, medico legal opinion leads to conclude that in case of accidental injury gas gangrene may develop within 48 hours if person is not given proper treatment though person is non-diabetic. In this particular case, insured has not taken intensive medical care for the injuries. He had injuries on 6.7.2001 and taken primary treatment on same day. Further medical management was started at 3.45 p.m. on 7.7.2001 at Dr. Manke''s Hospital, Godhra. Against his medical advice, insured took discharge in the morning hours on 9.7.2001. At the time of discharge Dr. Manke suggested specialised care in institutional set up and gave recommendation letter in favour of Government Hospital, Vadodara/Ahmedabad (letter is submitted at CDRF). Insured again taken gap of three days and admitted himself at SSG Hospital on 12.7.2001. This delay and lethargy leads to gas gangrene and amputation of left lower limb."

IN our considered opinion, the circumstances of the case and the evidence noted hereinabove clearly go to lend support to the ultimate opinion of the investigator which appears to have been acted upon by the opponent INsurance Company in disowning the claim submitted by the complainant. The story of accidental injury sustained on 6.7.2001 alleged by the complainant and sought to be supported by subsequent certificate and affidavit of Dr. A.K. Patel, a DHMS is highly improbable in view of what transpired on 7.7.2001 at Dr. Manke''s Hospital and thereafter at S.S.G. Hospital, Baroda. IN our considered opinion, no deficiency in service can be upheld against the opponent INsurance Company in such circumstances. The complainant having failed to establish alleged accidental injury resulting into gas gangrene and then amputation of his left leg cannot succeed in obtaining indemnity compensation under the Group Personal Accident Policy. Following order is, therefore, passed. ORDER Impugned order dated 11.7.2003 rendered by the learned Consumer Disputes Redressal Forum, Panchmahals at Godhra in Complaint Application No. 280 of 2002 is hereby set aside. The complaint filed by the complainant is dismissed. This appeal is allowed with no order as to costs throughout. Opponent INsurance Company is stated to have deposited Rs. 25,000 in this Commission. Office of this Commission will verify the same and refund it with interest, if any, by A/c payee cheque. Appeal allowed.