Judicial Analysis Court Copy Headnote Facts Arguments Court observation

DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, NEW DELHI
Hon’ble Mr. Justice Lokeshwar Prasad, President;
Ms. Rumnita Mittal & Mr. S.P. Saberwal, Members
RAM DHAN & ORS.—Complainants/Non-applicants
versus
NOIDA MEDICARE CENTER LTD. & ORS.—Opposite Parties/Applicants
Case No. C-564 of 1993—Decided on 8.1.2002

Advocates:
Counsels for the Parties :
For the Complainants/Non-applicants :Mr. S.K. Das, Advocate.
For the Opposite Parties/Applicants :Mr. S.P. Arora, Advocate.

The absence of privity of contract between the claimant and the insurer in a claim for tort, and the lack of statutory right for the Insurance Company to be impleaded in proceedings under the Consumer Protection Act.

Headnote:
Consumer Protection Act - Complaint under Section 17 - Order 1 Rule 10(2) of the Code of Civil Procedure - Indian Contract Act - Motor Vehicles Act, 1988 - Doctor's Indemnity Insurance - New India Assurance Company - Summary of Acts and Sections: Consumer Protection Act, 1986 (Section 17); Code of Civil Procedure (Order 1 Rule 10(2)); Indian Contract Act (Section 124, 125); Motor Vehicles Act, 1988 (Section 149, 96(2)) - The court discussed the power to strike out or add parties under Order 1 Rule 10(2) of the Code of Civil Procedure, the nature of Doctor's Indemnity Insurance under the Indian Contract Act, and the provisions regarding the insurer's right to be impleaded under the Motor Vehicles Act, 1988. The court emphasized the absence of privity of contract between the claimant and the insurer in a claim for tort, and the lack of statutory right for the Insurance Company to be impleaded in proceedings under the Consumer Protection Act.
Fact of the Case:

Complainants filed a complaint under Section 17 of the Consumer Protection Act, 1986 against a medical center and two doctors, alleging negligence leading to the death of the complainant's wife. The opposite parties filed applications seeking to add the New India Insurance Company as a necessary party due to their Doctor's Indemnity Insurance.
Finding of the Court:

The court found that the applications were belated and not maintainable under Order 1 Rule 10(2) of the Code of Civil Procedure. It emphasized the nature of Doctor's Indemnity Insurance and the absence of privity of contract between the claimant and the insurer in a claim for tort. The court also highlighted the lack of statutory right for the Insurance Company to be impleaded in proceedings under the Consumer Protection Act.
Issues: Belated applications seeking to add the Insurance Company as a necessary party, nature of Doctor's Indemnity Insurance, absence of privity of contract between the claimant and the insurer in a claim for tort, and the lack of statutory right for the Insurance Company to be impleaded in proceedings under the Consumer Protection Act.
Ratio Decidendi: The court held that the applications were belated and not maintainable under Order 1 Rule 10(2) of the Code of Civil Procedure. It emphasized the nature of Doctor's Indemnity Insurance and the absence of privity of contract between the claimant and the insurer in a claim for tort. The court also highlighted the lack of statutory right for the Insurance Company to be impleaded in proceedings under the Consumer Protection Act.
Final Decision: The applications seeking to add the Insurance Company as a necessary party were dismissed, and the parties were left to bear their own costs.

ORDER

Mr. S.P. Saberwal, Member—By this order, we shall dispose of application dated 27.9.2000 filed by Dr. Harsh Jauhri, opposite party No. 2 and another application dated 27.9.2000 filed by Dr. Ashok Kumar, opposite party No. 3.

2. Complainants/non-applicants have filed a complaint under Section 17 of the Consumer Protection Act, 1986 (‘the Act’) against M/s. NOIDA Medicare Center Limited, opposite party No. 1, Dr. Harsh Jauhri, opposite party No. 2 and Dr. Ashok Kumar, opposite party No. 3 on the allegations that death of wife of complainant No. 1 and mother of complainant Nos. 2 to 4 took place due to negligence/deficiency in service on the part of the above mentioned opposite parties.

3. In the application filed by opposite party No. 2 Dr. Harsh Jauhri, it is stated that the applicant was insured by the New India Insurance Company Limited vide Insurance Policy No. 4631140100274. Copy of the insurance policy is enclosed with the application. It is stated that the Insurance Company is a necessary party and that in the interest of justice the New India Insurance Company be added as opposite party. Accordingly, this application is being moved seeking permission of this Commission to add the New India Insurance Company Limited as opposite party in the said case and that cause title of the said petition be amended accordingly. The application is accompanied by affidavit of Dr. Harsh Jauhri, Kidney Transplant Surgeon. Similarly, in the other application filed by opposite party No. 3, Dr. Ashok Kumar it is stated that the applicant was insured by the New India Insurance Company vide Insurance Policy No. 4631150200759. Copy of the Insurance Policy is enclosed with the application. It is stated that the Insurance Company is a necessary party and, therefore, be added as opposite party.

4. Both these applications have been contested by complainants/non-applicants by filing a detailed reply. It is stated that the application is highly belated as complaint was filed in September, 1993. Reply was filed by opposite parties in October, 1996. Even if, opposite party Nos. 2 and 3 were insured at that time, it was for them to disclose that fact at that time as such a fact was within the special knowledge of the applicants. Further, such an application ought to have been made at that time, as failure to implead them cannot be to the detriment of the complainants/non-applicants. It is further pleaded that the inter se contract between applicants and the Insurance Company is of no consequence to the complainants/non-applicants who are strangers to the same and there is no jural relationship between the complainants on the one hand and the said Insurance Company on the other hand and hence for this reason also the present application merits dismissal. It is, therefore prayed that both these applications be dismissed with costs.

5. Detailed rejoinder were filed by the applicants and pleas taken in reply are controverted.

We have heard arguments advanced by learned Counsel for the parties and have given our careful thought to the matter in controversy.

6. It is pertinent to state that complaint in this case was filed in September, 1993. Reply was filed by opposite parties in October, 1996. This case has been fixed for final arguments and had been adjourned for one reason or the other. It was fixed for final arguments on 28.9.2000 when the present applications were filed on 27.9.2000. It is significant to state that if opposite party Nos. 2 and 3 were insured at that time, it was for them to disclose that fact at the earliest as the said fact was within the special knowledge of the applicants. Proceedings before the Foras established under the Act are intended to be summary proceedings and time bound. Since the present applications have been filed at an extremely belated stage, the same deserve to be dismissed.

7. Even otherwise the abovesaid applications are not maintainable as discussed hereinafter.

In the present case the application can be stated to be

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Judicial Analysis

The absence of privity of contract between the claimant and the insurer in a claim for tort, and the lack of statutory right for the Insurance Company to be impleaded in proceedings under the Consumer Protection Act.

Cases Referred (4)

Judicial Analysis