Consumer Case No.289/2008

Between:-
Medwin Hospitals,
Raghava Ratna towers, Chirag Ali Lane,
Hyderabad.
Rep.by its Managing Director. ……Petitioner/Opposite party No.1
And

• Vidya Nambirajan D/o.M.R.Nambirajan,

Aged 41 years, Occ:Business, R/o.37-93/104,
Road No.4, Mathura Nagar, Sainik Puri,
Secunderabad - 500094 .... Complainant

• Dr.Ramakrishna,

Anesthetist,
Medwin Hospitals,
Chirag Ali Lane,
Hyderabad.

• Dr.Skanda Kumar,

Orthopedist,
Medwin Hospitals,
Chirag Ali Lane,
Hyderabad. …….Oppostie parties

• United Insurance Company Ltd.,

Rep.by its Branch Manager,
12-2, 1st Floor, Main Road, Patancheru,
Medak District – 502319. ..Proposed Opposite party/Respondent.


This Petition coming on 31-03-2009 for final hearing before this Forum in the presence of Sri A.Venkatesh, Counsel for Complainant and K.Chaitanya & Associates advocate for the opposite parties, and having stood over till this date for consideration, this Forum pronounced the following:-

O R D E R

(Per Hon’ble President, Sri M.Vijaya Bhaskar Reddy on behalf of the Bench)
1. This is a Petition filed by the Petitioner [Opposite party No.1] under order I Rule No.10 (2) CPC R/W section-151 CPC to implead United India Insurance Company Limited as the 4th opposite party in the main case.

2. The petitioner hearin is the opposite party No.1 in the main case. One Vidya Nambirajan filed the complaint against the present petitioner and two more Doctors claiming compensation attributing medical negligence on their part. Of course all the Doctors [Opposite parties] have been resisting the claim of the complainant. We are not concerned with the merits of the case at this stage.


3. The contention of the present petitioner is that he has taken a professional indemnity policy with the proposed party [United India Insurance Company Limited] and that his Hospital was covered by the said policy as on the date of the treatment of the patient. According to him the said insurance company would indemnity the claim made by the complainant. Inspite of his notice to the said Insurance Company, it has not taken any steps to implead itself as a party in this case. Hence the Petition.

4. This bench entertained a serious doubt with regard to the maintainability of this petition in a consumer case and as such heard the Learned Counsel for the Petitioner at bench.

5.The Point for Consideration is:-
1.Whether this petition filed by one of the opposite parties to implead a 3rd party Insurance company is maintainable?

6.Point No:1:- The Learned Counsel for the petitioner raised only one contention namely that as the petitioner had insured the Hospital with the proposed party, the said Insurance Company would be liable to pay the compensation if any and as such the said Insurance Company is a necessary party.

7. We cannot appreciate the above contention for the reason that this case has been filed under C.P. Act and not under the Motor Vehicle Act. The attribution of the complainant in the main complaint is that there was negligence on the part of the opposite parties [the Doctors] in treating his father. Raising such an allegation he claimed compensation from the present petitioner and other two opposite parties. The complainant has no grouse or claim or cause of action or under any obligation to implead the proposed party Insurance Company, with which, the present petitioner had taken a professional indemnity policy. There is no vicarious liability in a consumer dispute. There cannot be any joint and several liability on the part of the Doctors and the Insurance Company in a consumer dispute under C.P.Act. Further there is no allegation of negligence on the part of the proposed party. So, we cannot appreciate the contention of the present petitioner that the insurance Company, with whom he has taken a policy for indemnity, also should be impleaded. If there were to be any such policy and if we pass any award or decree against the present petitioner, he is at liberty to claim indemnity from the Insurance Company if he is so advised. For a decision in a dispute of this nature it is not necessary to implead the Insurance Company, which is said to covers the risk on behalf of the Doctors. There is absolutely no jural relation ship or privity of Contract between the complainant and the proposed party. As already noted, the complainant is not making any claim against the proposed party. Further this forum cannot direct the proposed party to pay the compensation to the complainant on behalf of the present petitioner [Opposite party No.1]. It would be altogether a different cause of action and we cannot mix up different issues and causes of action or adjudicate the issues which are extraneous. Vicarious liability may arise in accident cases under Motor vehicle Act but not under C.P.Act. There is no such provision under C.P.Act to direct a 3rd party to pay compensation etc., to the complainant. Similarly, this Forum would have no power to direct one opposite party to pay compensation to another opposite party or to direct a 3rd party to indemnify the claim amount on behalf of opposite party. The scope under C.P. Act is limited. Liability of opposite parties cannot be substituted by the proposed party insurance company as there is no privity of contract between the complainant and the proposed party. The proposed party cannot be brought into the Picture-(referred 1(2006) CPJ 182 State Bank of India Vs. P.Andrews & others).


8. In the circumstances, we hold that this petition is not maintainable for impleading 3rd party Insurance Company as he is neither a necessary nor a proper party.