| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 218 of 01-08-2017 Decided on : 5-1-2022 Dr. Amrit Gupta S/o Sh. Walaiti Ram, R/o H. No. 3056-B, Power House Road, Street No.2A, C/o Gupta Hospital, Bathinda. ........Complainant Versus United India Insurance Co. Ltd., The Mall, Bathinda, through its Divisional Manager, Bathinda. .......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member. Smt. Paramjeet Kaur, Member Present For the complainant : Sh. Naresh Garg, Advocate For opposite parties : Sh. Sunder Gupta, Advocate, for OP ORDER Kanwar Sandeep Singh, President The complainant Dr. Amrit Gupta (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against United India Insurance Co. Ltd., (here-in-after referred to as opposite party). Briefly stated, the case of the complainants is that he is working as Orthopedic Surgeon at Bathinda under the name and style Gupta Hospital, Power House Road, Bathinda. The complainant purchased Professional Insurance policy No. 20041/46/05/00211 for the period from 11-11-2005 to 10-11-2006 of opposite party for liability to the tune of Rs. 10 lac. It is alleged that a complaint No. CC 19 of 6-01-2007 under section 12 of C.P. Act titled as Karandeep Singh Vs. Gupta Hospital, (Dr. Amrit Gupta and United India) was filed at Bathinda which was dismissed vide order dated 17-05-2007. Thereafter appeal against order dated 17-5-2007 filed by complainant Karandeep Singh was accepted by Hon'ble State Commission vide order dated 26-10-2012 and it was held that : - We are, therefore of the opinion that complainant would be entitled to Rs. 5000/- as refund of the amount obtained by the opposite party and shall pay him Rs, 26,655/- as the expenses incurred by the complainant in his treatment in the DMC. Opposite party shall also pay to complainant Rs. 25,000/- for causing him mental tension and pain etc. The opposite party shall, therefore, pay him a total of Rs. 56,655/- within 30 days from the date of receipt of a copy of the order, failing which, they would be liable to pay it with interest @ 12% per annum since the filing of the present appeal i.e. 16-01-2007 till the payment is paid. The opposite parties shall also pay to the complainant Rs, 5000/- as costs of litigation”. It is pleaded that infact the above said order was passed at the back of complainant and complainant was wrongly proceeded against exparte in appeal. No appeal, reference, review, revision was filed by opposite party against above said order dated 26-10-2012 of Hon'ble State Commission, Chandigarh and accordingly, the opposite party had accepted said order. However, a revision petition No. 667 of 2013 was filed by complainant, before Hon'ble National Commission, New Delhi, against order dated 26-10-2012 and said revision petition was accepted vide order dated 09-10-2015 and case was ordered to be remanded to Hon'ble State Commission for deciding the same afresh, on merits, after hearing both the parties. Thereafter, Hon'ble State Commission upheld order dated 26-10-2012 regarding acceptance of appeal vide order dated 21-04-2016. As per order dated 21-04-2016 the opposite party was directed to pay Rs, 5000/- + 26,655/-+25,000/- +5000 totaling to Rs, 61,655/- to complainant within 30 days from the date of order passed by this commission, otherwise interest @ 9% per annum from the date of filing complaint i.e. 16-01-2017 till payment. The contempt petition under section 27 of CP Act was filed by the complainant for compliance of order dated 26-10-2012 of Hon'ble State Commission. It is alleged that in view of the above said policy of insurance, the complainant approached the opposite insurance company to pay the compensation amount as per order dated 26-10-2012. The then Sr. Divisional Manager, assured the complainant Dr. Amrit Gupta that he should deposit the amount of award before Hon'ble Commission and they being bound by the policy to indemnify the doctor, would immediately reimburse the said claim amount to the complainant i.e. Dr. Amrit Gutpa. In accordance with the above said assurance, complainant deposited amount/compensation as per order dated 26-10-2012 with District Commission. It is also alleged that complainant made written request dated 09-06-2016 to the opposite party requesting them to comply with the above said order dated 21-04-2016 within stipulated period to avail the benefit of penal interest amount but neither any reply to the same was given nor any amount was deposited by the opposite party. After receipt of letter dated 09-06-2016, the opposite party again requested the complainant to comply with order dated 21-04-2016 with assurance that he would be fully indemnified for all losses and claims borne and suffered by complainant regarding the claim in question, but with no effect. It is further alleged that as per order dated 21-04-2016 the above said amount of Rs, 61,655/- was payable to complainant Karandeep Singh within 10 days to avail benefit of approximately more than Rs, 52,000/- on account of interest, which would have otherwise accrued, but the opposite party/Insurance company has not paid even single penny in this regard to the present complainant, despite written request dated 09-06-2016 made by the complainant to the opposite party Insurance Company. Since, the opposite party has not paid even single penny out of the above said amount to complainant, till date, despite his repeated requests, complainant is suffering mental pain, agony, harassment, botheration, tension besides economic loss of interest @ 18% p.a. On this backdrop of facts, the complainant has prayed for directions to the opposite party to pay Rs. 1,67,155/- as detailed above, in addition to compensation to the tune of Rs. 1.00 Lac besides Rs. 30,000/- as litigation expenses. Upon notice opposite party appeared through counsel and contested the claim of the complainant by filing written reply raising legal objections that the complainant is not a consumer as complainant carries on commercial activities; that the present complaint is highly time barred and that the complainant himself has made the payment to the original complainant Karamdeep Singh of his own free will without any intimation and consent of opposite party. It is pleaded that the original complainant Karandeep Singh filed CC No.19 of 16-01-2007 against present complainant Gupta Hospital which was dismissed by DCF, Bathinda, vide its order dated 17-05-2007 and thereafter original complainant Karandeep Singh filed FAO No.995 of 2007 against the aforesaid order of DCF, Bathinda before the Hon'ble State Commission, Punjab, which was decided ex-parte as none appeared on behalf of the present complainant. Accordingly, aforesaid FAO was decided on 26-10-2012 and Hon,ble State Commission para No.12 of the aforesaid Judgment has opined that there is negligence on the part of opposite party i.e. present complainant and in para No.14 of the aforesaid Judgment the Hon'ble State Commission has held that opposite party No.1 and 2 i.e. present complainant are only liable to make the compensation as awarded by the Hon'ble State Commission and no liability was fastened against answering opposite party. In this way Hon'ble State Commission vide aforesaid order dated 26-10-2012 has exonerated opposite party from any liability. Thereafter present complainant of this complaint, filed revision petition No. 667 of 2013 before Hon'ble National Commission and the Hon'ble National Commission vide its order dated 09-10-2015 remanded the said case for fresh decision and again the Hon'ble Sate Commission Punjab decided the aforesaid FAO vide its order dated 21-04-2016 against the present complainant and no liability was again fixed against the answering opposite party and no appeal or revision has been filed against the aforesaid order dated 21-04-2016. As such, aforesaid order of Hon'ble State Commission has become final and since no liability has been fixed against answering opposite party, so answering opposite party is not liable to indemnity the present complainant in any manner. It is also pleaded that as per terms and conditions of doctors Indemnity Insurance Policy (Medical) bearing No.200401/46/05/32/00000211 effective from 11-11-2005 to 10-11-2006 which were duly supplied to the complainant and as per exclusive clause 2(v) of the aforesaid policy, Insurance Company does not cover the risk arising out of fines, penalties, interest, punitive or exemplary damages, as such, opposite party is not liable to pay any amount to the complainant. Further legal objections are that the complainant has not come with clean hand before this Commission; that the amount of compensation claimed is highly excessive and exorbitant one and that the complaint is false, frivolous and vexatious to the knowledge of the complainant. On merits, the opposite party admitted that complainant has obtained aforesaid Professional Insurance Policy (Medical) to the tune of Rs, 10.00 lacs. It is further pleaded that since no liability was fixed against opposite party by the Hon'ble State Commission, Punjab, so opposite party is not liable to pay any compensation to the complainant. It is specifically denied that opposite party has accepted the order of Hon'ble State Commission, Punjab, Chandigarh or the then Senior Divisional Manager asked the complainant to deposit the amount as awarded by the Hon'ble State Commission. It is pleaded that complainant has deposited/paid the amount to the complainant Karandeep Singh of his own free will without the consent of answering opposite party. Moreover, present complainant has not paid such a huge amount to the original complainant Karandeep Singh and false calculations have been submitted in this case. After controverting all other averments of the complainant, the opposite party prayed for dismissal of the complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 29-07-2017 (Ex. C-1), photo copy of orders (Ex.C-2 & C-3), photo copy of amended complaint (Ex.C-4), photocopy of orders (Ex.C-5), photocopy of receipts (Ex.C-6), photocopy of orders (Ex.C-7 to C-8) photo copy of letter (Ex.C-9), photo copy of legal notice (Ex.C-10), photo copy of reply to legal notice (Ex.C-11), photocopy of certificate (Ex.C-12), photo copies of receipts (Ex.C-13 to Ex.C-16), photocopy of zimini orders (Ex.C-17 and Ex.C-18), photocopy of letter containing 4 pages, ( Ex.C-19) and closed evidence. In order to rebut the evidence of the complainant, opposite party tendered into evidence affidavit of Baldev Singh Sr Manager dated 27-02-2018 (Ex.OP-1/1), photocopy of letter (Ex.OP-1/2), photocopy of order dated 12-03-2013 (Ex.OP-1/3), photocopy of letter (Ex.OP-1/4), photocopy of order dated 12-03-2013 (Ex.OP-1/5), photo copy of cheque (Ex.OP-1/6), photocopy of payment receipt (Ex.OP-1/7), photocopy of noting regarding receipt of cheque (Ex.OP-1/8), photocopy of application (Ex.OP-1/9) and closed evidence. We have heard learned counsel for the parties and gone through the record. It is admitted case of the parties that complainant obtained Professional/Doctor's Indemnity Insurance Policy bearing No. 20041/46/05/00211 for the period from 11-11-2005 to 10-11-2006 being an Orthopedic Surgeon. He treated/operated one patient namely Karandeep Singh for fracture of right femur and said Karandeep Singh remained admitted in his hospital i.e. Gupta Hospital for the period from 28-3-2006 to 31-3-2006. Thereafter Karandeep Singh filed complaint before this Commission vide CC No. 19 of 16-1-2007 alleging medical negligence on the part of Dr. Amrit Gupta. In nutshell, the said complaint after appeals/remand back, finally decided by Hon'ble State Commission, Chandigarh, vide First Appeal No. 995 of 2007 of 12-7-2007, date of decision 21-4-2016 in favour of Karandeep Singh and against Dr. Amrit Gupta whereby Dr. Amrit Gupta/hospital was ordered to pay Rs. 5000/- taken from Karandeep for treatment, Rs. 26655/- paid at DMC Hospital, Ludhiana, from where Karandeep took treatment after taking treatment from Dr. Amrit Gupta and Rs. 5,000/- each for compensation and litigation expenses and further directions was also given to pay aforesaid amount within 30 days otherwise pay interest @9% p.a. w.e.f. 16-1-2007. Now the complainant has filed this complaint claiming reimbursement of above said claim amount which he paid to the aforesaid Karandeep Singh and other expenses borne by him, under Professional Indemnity Policy in question. The pleas of the opposite party that Hon'ble State Commission vide order dated 26-10-2012, has opined that there is negligence on the part of opposite parties No. 1 & 2 (Dr. Amrit Gupta) and no liability was fastened against opposite party (Insurance Company) and that vide said order dated 26-10-2012, Hon'ble State Commission has exonerated opposite party (Insurance Company) from any liability, is not tenable. Ex. C-8 is the order dated 21-4-2016 vide which Hon'ble State Commission decided the case in question when case was remanded back for disposal on merits. In para No. 4 of this order, opposite party No. 3 (Insurance Company/opposite party in this case) has admitted and pleaded in their written reply that opposite parties No. 1 & 2 (Dr. Amrit Gupta & Gupta Hospital) had obtained Doctor's Indemnity Insurance Policy (Medical) from the opposite party (Insurance Company/opposite party) vide policy No. 200401/46/05/00211 effective from 11-11-2005 to 10-11-2006 for a sum of Rs. 10.00 Lacs and that as per terms and conditions of the policy, in case of liability, insured had to make the payment to the complainant and thereafter, Insurance Company shall indemnify the insured. Therefore, this admission on the part of opposite party also makes the position crystal clear that earlier complaint was filed by patient for medical negligence against doctor and liability was fastened against doctor whereas present complaint is regarding Doctor's/Professional Indemnity Insurance Policy obtained by doctor for indemnifying the doctor/insured. Hence, the case earlier filed and present complaint both are on different facts/aspects. Admittedly, complainant is insured under Professional Indemnity Insurance Policy (Ex. C-12) for the period from 11-11-2005 to 10-11-2006 for a sum of Rs. 10.00 Lacs for which premium of Rs. 8,885/- has been paid by complainant. Neither complainant nor opposite party has placed on file copy of Insurance policy and its terms and conditions. The complainant has placed on file only Cover Note of Insurance (Ex. C-12). A perusal of file reveals that complainant performed surgery/provided treatment in question on 28-3-2006 to patient and this period falls and covered under the above said Insurance Policy. Therefore, complainant is entitled to the reimbursement of amount paid to Karandeep Singh, patient as per directions of Hon'ble State Commission (Ex. C-8) i.e. Rs. 5,000/- + Rs. 26,655/- + Rs. 25,000/- + Rs. 5,000/- (total Rs. 61,655) and Rs. 7500/- (Ex.C-6) paid as per order dated 12-3-2013 of Hon'ble National Commission (Ex. OP-1/5). The complainant has also claimed other expenses incurred by him in this litigation including counsel fee. The complainant has placed on file Schedule of Advocate/Investigator's Fee revised and fixed by General Insurer's (Public Sector) Association of India (Ex. C-19). The opposite party has not placed on file terms and conditions of the Insurance Policy in question. The complainant got served legal notice upon the opposite party (Ex. C-10) claiming total amount of Rs. 1,67,155/- and in reply to this legal notice, submission of opposite party is that company does not cover the risk arising out of fines, penalties, interest, punitive or exemplary damages. Therefore, the opposite party has not specifically denied/challenged the expenses claimed by complainant. Thus, this Commission is of the considered view that it would meet the ends of justice if counsel fee paid by complainant, receipts of which have been produced on file by complainant, be got reimbursed to him. The complainant has placed on file receipts of counsel fee (Ex. C-13 to Ex. C-16) totaling to Rs. 58,000/-. A perusal of these receipts also reveals that amount paid by complainant to counsel is less than the fee fixed/revised by above said Association. In the result, this complaint is partly allowed with Rs. 10,000/- as cost and compensation. The opposite party is further directed to pay Rs.1,27,155/- with interest @9% p.a. from the date of respective payments till realization (Rs. 61,655/- paid to Karandeep Singh, patient plus Rs. 7500/- paid as per order of Hon'ble National Commission dated 12-3-2013 plus Rs. 58,000/- on account of counsel fee). The compliance of this order be made by the opposite party within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 03-01-2022 (Kanwar Sandeep Singh) President (Shivdev Singh) Member (Paramjeet Kaur)
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