BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
R.P.No.85/2013 against I.A.No.205/2013 in C.C.No.66/2013, District Forum, Karimnagar.
Between:
Kamineni Hospitals,
Rep. by its CEO B.Shashidhar Reddy,
S/o.B.Satyanarayana Reddy,
R/o.4-1-1227, King Koti Road,
Hyderabad -1. … Revision Petitioner/
Petitioner/
Opp.party no.1
And
1.Nagunuri Parameshwar, S/o.Rajamallu,
Aged about 41 years, Occ:Advocate,
R/o.5-5-14,Kapuwada,
Karimnagar Proper & Dist. A.P. …Respondent/
Respondent no.1
Complainant
2. Dr.Venugopal Pareek,
Consultant Laparoscopic & Bariatric Surgeon,
R/o.Kamineni Hospitals, 4-2-1227,
King Koti Road,
Hyderabad- 1.
3. ICICI Lombard Gen. Insurance Co.Ltd.,
Rep. by its Branch Manager,
Penchala Complex, Opp.District Court Complex,
Karimnagar – 505 001. … Respondents/
Respondents 2 & 3/
Opp.parties 2 &3.
Counsel for the Petitioner : M/s.Ramgopal Reddy.
Counsel for the Respondents: Mr.Adnan Mahamood-R2
Mr.N.Mohan Krishna-R3
QUORUM:SRI R.LAKSHMI NARASIMHA RAO,HON’BLE INCHARGE PRESIDENT,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
THURSDAY, THE TWELFTH DAY OF DECEMBER,
TWO THOUSAND THIRTEEN.
Oral Order: (Per Sri S.Bhujanga Rao, Hon’ble Member)
***
This Revision Petition is directed against the order dt.27.09.2013 made in I.A.No.205/2013 in C.C.No.66/2013 on the file of the District Forum, Karimnagar.
The brief facts that lead to this Revision Petition are as follows:
The respondent no.1 herein has filed the complaint in C.C.No.66/2013 against the revision petitioner/opp.party no.1 and the respondents 2 and 3 herein, claiming compensation of Rs.3 lakhs towards medical negligence in conducting the surgery.
The petitioner herein, on receipt of notice, from the District Forum, filed an application in I.A.No.205/2013 stating that the opposite parties 1 and 2 are situated at Hyderabad and the complainant approached their hospital at Hyderabad and the surgery was conducted at Hyderabad, as such, no part of the cause of actin arose within the jurisdiction of the District Forum, Karimnagar. It is further stated that the complainant made the opposite party no.3 as nominal party and he is not seeking any relief against opposite party no.3, nor making any allegations against opposite party no.3 and no cause of action arose against opposite party no.3. As such, opposite party no.3 is irrelevant in considering the jurisdiction. Therefore, the District Forum, Karimnagar has no territorial jurisdiction, to entertain the present complaint as no part of cause of action arose within the territorial jurisdiction of the said Dist. Forum. It is therefore prayed that the District Forum to decide the issue pertaining to territorial jurisdiction as preliminary issue and the complaint is liable to be returned for presentation before proper Court having jurisdiction.
The respondent/complainant filed counter, before the Dist. Forum opposing the petition, contending that he obtained the health insurance cover for the period from 21.9.2012 to 20.9.2013 from opposite party no.3 and opposite party no.3 made payment to the opposite parties 1 and 2 hospital towards the bills raised by them for his treatment. Therefore, the opposite party no.3 is proper party to the complaint. The respondent no.1/complainant issued notice to the opposite parties for compensation from Karimnagar proper and he had also received reply notice got issued by the opposite parties at Karimnagar, as such, the part of cause of action arose at Karimnagar. Thus, the District Forum, Karimnagar has territorial jurisdiction to entertain the complaint for adjudication. Therefore, the petition is liable to be dismissed with costs.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum dismissed the said petition on 27.09.2013.
Aggrieved by the said order, the petitioner/opposite party no.1 filed the above revision petition contending that the District Forum failed to consider the fact that the complainant approached the opposite party at their hospital at Hyderabad and the surgery was conducted at Hyderabad, as such, no part of the cause of action arose within the jurisdiction of the District Forum, Karimnagar. That the District Forum failed to see that the complainant made opposite party no.3 insurance company as nominal party and he is not seeking any relief against opposite party no.3, nor making any allegations against opposite partyno.3 and no part of cause of action arose against the opposite party no.3. Moreover, there is no dispute existing either between the complainant and opposite party no.3 or opposite party no.1 and opposite party no.2, as such the opposite party no.3 is irrelevant in considering the jurisdiction. That mere existence of branch of opposite party no.3, within the territorial jurisdiction of the District Forum will not confer any territorial jurisdiction on the lower Forum. The Revision Petitioner finally prayed to set aside the order dt.27.09.2013 made in I.A.No.205/2013.
We heard the counsel for both the parties and perused the material on record.
Now the point for consideration is whether the impugned order of the District Forum, Karimnagar is liable to be set aside as prayed for?
It is an admitted fact that the respondent no.1/complainant filed the complaint in C.C.No.66/2013 claiming compensation of Rs.3 lakhs alleging medical negligence in conducting surgery against the petitioner/opposite party no.1 and respondent no.2/opp.party no.2 surgeon. The opposite parties vehemently denied the allegations made by the complainant against them in the complaint.
The facts that the hospital of the opposite parties 1 and 2 is situated at King Koti, Hyderabad and the complainant approached the opposite parties at their hospital at King Koti, Hyderabad and the surgery was conducted at King Koti, Hyderabad and also the complainant consulted the opposite parties at King Koti , Hyderabad, are not in dispute. It is the case of the Revision Petitioner that no part of cause of action arose within the territorial jurisdiction of the District Forum, Karimnagar, the respondent/complainant filed the present complaint before the said District Forum, as such, the District Consumer Forum, Karimnagar has no territorial jurisdiction to entertain and adjudicate the complaint.
On the other hand, the case of the respondent/complainant is that he has secured health insurance cover for the period from 21.09.2012 to 20.09.2013 from the opposite party no.3, that it is the opposite party no.3, which made payment to the hospital of opposite parties 1 and 2 towards the bill raised by them for his treatment and therefore, the opposite party no.3 is proper party to this complaint, as it can only speak about the extent of any right/insurable interest affected during the remaining period of insurance, after the failure of surgery, negligently performed by opposite party no.2. Further, he has issued notice on the opposite parties 1 and 2 claiming compensation from Karimnagar proper and he has also received reply notices of opposite parties at Karimnagar. As such part of the cause of action arose at Karimnagar. Therefore, the District Forum, Karimnagar has territorial jurisdiction to entertain the complaint.
As contended by the revision petitioner, a perusal of the complaint made it clear that the respondent/complainant made opposite party no.3 insurance company as nominal party and he is not seeking any relief against opposite party no.3, nor making any allegations against the opposite party no.3, as such, no cause of action arose against opposite party no.3. That apart, there is no dispute existing either between the complainant and opposite party no.3 or opposite parties 1 & 2 and opposite party no.3, regarding the payment of insured amount under the policy, to the complainant, as the complainant himself has categorically stated in his complaint that opposite party no.3 insurance company had made payment of treatment expenses to the opposite parties 1 and 2. Under these circumstances, we are of the view that the presence of opposite party no.3 is not at all necessary to adjudicate the complaint filed by the respondent no.1/complainant. Opposite party no.3 is also not a proper party to the complaint. Therefore, opposite party no.3 is not relevant to consider the jurisdiction of the District Forum, basing on the complaint filed by the respondent no.1/complainant. The respondent no.1/complainant filed copy of the policy issued by ICICI Lombard General Insurance Company along with the complaint. As per the policy document, filed by the complainant, the policy was issued by ICICI Lombard General Insurance Company Ltd., Lombard House, 414, Veersawarkar Marg, near Siddhivinayaka Temple, Prabhadevi, Mumbai-400 025 on 10.10.2012 and the Claims Department of the opposite party no.3 is situated at ICICI General Insurance Company, PGV Mansion, 6th Floor, Khairathabad, Hyderabad and further there was no evidence on record to show that the opposite party no.3 i.e. the Karimnagar branch made payment to the opposite party no.1 hospital towards treatment of the complainant as alleged by the complainant. Inspite of the revision petitioner/opp.party no.1 has taken the plea that the opposite party no.3 has not placed evidence on record to show that the said branch made payment to the opposite party hospital towards the treatment of the complainant, the respondent no.1/complainant did not choose to file any document evidencing such payment to the opposite party hospital. Further, as per the policy, all the claims will be processed by the Hyderabad office of opposite party no.3 and the payment will be made by the Claims Department, which is situated at Hyderabad. As such, the allegation of the complainant that opposite party no.3 made the payments to the opposite party hospital has no basis.
The learned counsel for the petitioner/opposite party no.1 submitted that mere existence of branch of the opposite party no.3 within the territorial jurisdiction of the District Forum Karimnagar will not confer any territorial jurisdiction on the lower Forum. He placed reliance on the decision of the Apex Court in Sonic Surgical vs. National Insurance Co.Ltd. reported in 2010 CTJ (2) Supreme Court (CP). In the reported case, the fire breaking out in the godown of the appellant in the State of Punjab-claim made for compensation before the State Commission of Union Territory of Chandigarh- Insurance policy was also executed in the State of Punjab. Under these circumstances, the learned counsel for the appellant in the reported case submitted that the respondent insurance company has branch office at Chandigarh and hence under the amended Sec.17(2), the complainant could have filed in Chandigarh. The Hon’ble Supreme Court did not agree with the said submission of the learned counsel for the appellant and observed as follows :
“In our opinion an interpretation has to be given to the amended Sec.17(2)(b) of the Consumer Protection Act, which dose not lead to absurd consequences. If the contention of the learned counsel for the appellant is accepted, it will mean that even if cause of action has arisen in Ambala, then too the complainant can file claim petition even in Tamilnadu or Gowhati or anywhere in India, where branch office of the insurance company is situated. We cannot agree with this contention. It will lead absurd consequences and lead to bench hunting. In our opinion, the expression ‘branch office’ in the amended Sec.17(2) would mean the Branch Office where the cause of action has arisen. Nodoubt, this would be departing from the plain and literal words of Sec.17(2)(b) of the Act, but such departure is sometimes necessary ( as it is in this case) to avoid absurdity.”
In the same reported case, the Hon’ble Supreme Court observed as follows:
“The Supreme Court, further dealing the concept of Article 226(2) and relying on the decision of ONGC ( 1994 AIR SCW 3287), explained the concept of cause of action in para 17 at page 130 of the report and the relevant extracts wherefrom are excerpted below :
It is clear from the above judgement that each and everything pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court’s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. “
In the same decision at para 4 of its judgement, the Hon’ble Supreme Court observed as follows:
“ …’cause of action’ means that bundle of facts which givew rise to a right or liability. …. “
In the light of the above referred to ruling of the Hon’ble Supreme Court, the judgement of the Hon’ble High Court of A.P. in Writ Petition no.5363/2009 reported in (2009) 3 ALT 634 relied on by the District Forum, has no bearing on the facts and circumstances of the present case. Infact, the above referred to judgement of the Hon’ble Supreme Court was not cited before the District Consumer Forum.
For the afore said facts and circumstances, we are of the view that the District Forum, Karimnagar has no territorial jurisdiction to adjudicate the complaint filed by the respondent no.1/complainant herein, as no part of cause of action arose within its territorial jurisdiction limits.
In the result, the Revision Petition is allowed. The Impugned order of the District Forum is set aside. The Petition in I.A.No.205/2013 is allowed. The District Forum, Karimnagar is directed to return the complaint for presentation before the District Forum having jurisdiction, availing the benefit of Sec.14 of the Limitation Act, in terms of the order of the Apex Court in the case of Laxmi Engineering Works vs. PSG Industrial Institute reported in (II) 1995 CPJ I (SC).
INCHARGE PRESIDENT
MEMBER
Pm* Dt.12.12.2013
