Uttarakhand

StateCommission

RP/12/2022

Nirmal Ashram Eye Institute - Complainant(s)

Versus

Smt. Prema Ahuja - Opp.Party(s)

Mr. T.S. Bindra

13 Jul 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND

DEHRADUN

 

REVISION PETITION NO. 12 / 2022

 

Nirmal Ashram Eye Institute

Khairi-Kalan, Near Nepali Farm

Rishikesh, District Dehradun

through its Authorised Signatory  

…… Revisionist

 

Versus

 

1.         Smt. Prema Ahuja W/o Sh. S.K. Ahuja

            R/o 42, Vankhandi, Subhash Nagar

Rishikesh, District Dehradun

 

2.         Dr. D.P. Kar

            Presently at Tulsi Eye Institute, Nasik   

…… Opposite Parties

 

Sh. T.S. Bindra, Learned Counsel for the Revisionist

 

Coram: Hon’ble Mr. Justice D.S. Tripathi, President

               Mr. Udai Singh Tolia,                         Member-II

                                   

Dated: 13/07/2022

ORDER

(Per: Justice D.S. Tripathi, President):

 

This revision petition under Section 47(1)(b) of the Consumer Protection Act, 2019 has been preferred against the impugned order dated 06.05.2022 passed by the District Consumer Disputes Redressal Commission, Dehradun (in short “The District Commission”) in consumer complaint No. 495 of 2013; Smt. Prema Ahuja Vs. Nirmal Ashram Eye Institute and another, whereby the application dated 06.03.2020 (Paper No. 38kha) moved by the revisionist (opposite party No. 1 to the consumer complaint), seeking impleadment of National Insurance Company Limited as party to the consumer complaint, was rejected and the consumer complaint was fixed for arguments. 

 

2.       Heard learned counsel for the revisionist and perused the record.  Taking into consideration the totality of the facts and circumstances of the case, we feel no need to issue notice to the opposite parties and find it a fit case to be decided at admission stage itself, without issuing notice to the opposite parties and calling for their appearance, on account of the reason that no prejudice is going to be caused to opposite party No. 1 (complainant before the District Commission), in case the revision petition is decided in her absence, as no right has accrued in her favour by the impugned order passed by learned District Commission and the merit of the consumer complaint pending before the District Commission is not going to be affected by impleadment or non-impleadment of the insurance company.

 

3.       Learned counsel for the revisionist submitted that the revisionist – Eye Institute had obtained Professional Indemnity (Medical Establishments) insurance policy from National Insurance Company Limited, Kohli Market, Haridwar Road, Rishikesh, Uttarakhand – 249201 in the year 2006, which has been continuously renewed every year.  In support of his submission, learned counsel drew our attention to the copy of the insurance policy valid for the period from 21.05.2013 to 20.05.2014, wherein the date of completed proposal form has been mentioned as 16.05.2006.  His further submission is that learned District Commission has wrongly held that the eye of the complainant was treated upon at the revisionist – Eye Institute on 02.11.2011, hence the cause of action arose in the year 2011 and since on the said date, the revisionist was not insured and, as such, there does not arise any question of impleadment of insurance company.  He also submitted that the above finding recorded by learned District Commission, runs contrary to the material available on record.

 

4.       We find force in the arguments advanced by learned counsel for the revisionist.  A bare perusal of the consumer complaint will show that in paragraph No. 3 thereof, the complainant has stated that on 02.11.2011, the complainant along with her husband visited the revisionist – Eye Institute in connection with examination of her eye.  The consumer complaint is completely silent as to when the eye of the complainant was operated upon.  In paragraph No. 19 of the consumer complaint, the complainant has stated that the cause of action for filing the consumer complaint arose on 02.11.2011, when the complainant got her eye examined and thereafter on several dates, i.e., 12.02.2013; 04.04.2013 and 30.07.2013.  Thus, as per the own saying of the complainant, part cause of action had accrued in her favour on 30.07.2013, which covers the period of insurance policy taken by the revisionist, which was valid for the period from 21.05.2013 to 20.05.2014.  It is the insurance company, who can adduce proper evidence whether the insurance policy was effective on the date of alleged cause of action or not.  Irrespective of above, since the revisionist had been taking the insurance policy from the year 2006 itself, as would be evident from the date of completed proposal form mentioned in the insurance policy, which is 16.05.2006.  It would not be out of place to mention here that no prejudice is going to be caused to the complainant in case the insurance company is impleaded as party to the consumer complaint and in case, the prayer of the revisionist is not accepted, there would be no benefit of obtaining the insurance policy by the revisionist for securing itself in case of any negligence / wrong doing by the doctor employed at the Institute.

 

5.       For the reasons aforesaid, we are of the considered opinion that the District Commission was not justified in rejecting the application moved by the revisionist for the impleadment of insurance company.  Accordingly, the revision petition succeeds and is fit to be allowed.  

 

6.       Revision Petition is allowed.  Impugned order dated 06.05.2022 passed by the District Commission is set aside and the impleadment application dated 06.03.2020 (Paper No. 38kha) moved by the revisionist before the District Commission is allowed.  The opposite party No. 1 herein – complainant is directed to implead National Insurance Company Limited, Kohli Market, Haridwar Road, Rishikesh, Uttarakhand – 249201, as opposite party No. 3 to the consumer complaint, by moving a proper impleadment application in that regard.  The District Commission shall thereafter issue notice to the newly arrayed opposite party, calling for its written statement and after providing proper opportunity of hearing to all concerned, decide the consumer complaint expeditiously, as per law.  No order as to costs.  Copy of the order be sent to the District Commission forthwith, as the consumer complaint is at arguments stage.    

 

 

(U.S. TOLIA)                            (JUSTICE D.S. TRIPATHI)

               Member-II                                                President

 

K