Case Study

RIGHT OF THE INSURANCE COMPANY TO CHALLENGE THE FINDING OF MEDICAL NEGLIGENCE

REVISION PETITION NO. 2810-2811 OF 2018 (UNITED INDIA INSURANCE CO. LTD. Versus  RAJNI GARG DECIDED BY THE HON’BLE NCDRC, NEW DELHI ON 28 Nov 2018


Facts: The District Forum vide its Order dated 08.07.2016 had determined medical negligence on the part of the hospital and the doctor concerned as negligence/lack of due care on the operating table, and secondly as no satisfactory record was available whether the consent of the patient was taken and the attendant post operative hazards were clearly explained to the patient/attendant.  Consent of the patient for post operative complications are a must.  The signature of the ‘brother’ on the consent form was found to raise doubts as the complainant had clearly denied any relationship with the signatory.  This could be a case of afterthought, and amounted to negligence on the part of opposite parties no. 2 & 3. Opposite parties no. 4 & 5 who were indemnifiers of opposite parties no. 2 and 3 were directed to pay jointly or severally to the complainant. The insurance co.
had appealed in the State Commission and Order of the District Forum was modified to the extent that all the respondents – O.P.s are liable to pay compensation jointly and severally and appeals were dismissed. The insurance company filed the revision with admitted delay of 112 days with the application for condonation of delay on the premise that the impugned final judgment and order was pronounced on 30.01.2018 and certified copy was despatched on 13.03.2018 to the petitioner and received on 16.03.2018, forwarded for opinion of a panel lawyer on 19.03.2018 received on 26.03.2018, entire file was forwarded to the Regional Office on 29.03.2018 and received on 03.04.2018, was forwarded to a penal lawyer for opinion by the Regional Office on 09.04.2018 received on 16.04.2018, forwarded to Head Office in Chennai on 23.04.2018 received e on 26.04.2018,   forwarded the file for opinion of a lawyer on his panel on 03.05.2018 received on May 10, 2018, forwarded to the Regional Office -1 in New Delhi on May 17, 2018 with recommendation for filing the Revision Petition received on May 22, 2018, handed over to the counsel on May 28, 2018 in this process the copy of Consent Form and Consumer Complaint got misplaced and the same was requested from the Divisional Office and was received on October 1, 2018 and the Revision Petition is being filed immediately thereafter i.e. on October 5, 2018.

OBSERVATIONS: The Act 1986 is to provide speedy and simple redressal to consumer disputes (Statement of Objects and Reasons). The period of limitation to file revision petition is 90 days (Regulation 14(1)(i) of the Regulations 2005). No just or sufficient cause to explain the delay is visible. This bench however wants to also satisfy itself that there would be no miscarriage of justice if the delay is not condoned.

HELD: The revision has been filed against concurrent findings of the two fora below.

Per se  the medical negligence has been determined against the hospital and the doctor concerned, and not against the insurance co.

The professional indemnity policies provided by the insurance co. to the hospital and doctor are distinctively separate contracts, governed by their own respective terms and conditions, which were not under test in the two fora below.

The issue under test in the two fora was medical negligence on the part of the hospital and doctor alone.

The insurance co. is contesting the findings of medical negligence, the hospital and the doctor are not.

Without attempting to examine or adjudicate on the Order of the State Commission or the District Forum on merit, this bench but does not find any reason visible to convince it that there would be any miscarriage of justice if the delay is not condoned.

The application for condonation of delay being unconvincing and devoid of merit is dismissed.

Resultantly the revision is dismissed on limitation.

Needless to add that the District Forum shall proceed with execution as per the law.

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