Ajit Bharihoke, Presiding Member:
1. By this order we propose to dispose of the above noted revision petitions involving similar question of law and fact. The revision petitions are directed against the impugned order of State Consumer Disputes Redressal Commission Gujarat Ahmedabad dated 30.11.2012 vide which the State Commission dismissed the appeals preferred by the petitioner insurance company against the similar orders of the District Forum.
2. The petitioner insurance company being aggrieved of the orders of the District Forum in respective complaints preferred appeals claiming that the District Forum has committed an error in holding the insurance company jointly and severally liable to pay compensation to the respective complainants ignoring the fact that there was no privity of contract between the petitioner and the complainants or the first opposite party, namely, Sheth M.L.Vaduwal Eye Hospital, Vinobha Bhave Marg, Vadodara. The State Commission, however, dismissed the appeals vide common order dated 30.11.2012 which is impugned in the above revision petitions.
3. Briefly put, the fact relevant for the disposal of the above revision petitions are that opposite party no.1, namely, M/s Sheth M.L. Vaduwal Eye Hospital held an eye camp wherein the complainants, who had registered themselves on payment of registration fee of Rs.250/-, were operated upon for cataract of eye. According to the complainants, the doctors and the surgery team of the above noted hospital were negligent while conducting surgery inasmuch as they used non sterilized surgery appliances, contaminated medicines and inferior quality lenses. Consequently, the above noted complainants developed infection of eye and suffered loss of vision. The complainants, therefore alongwith consumer organization Jagrut Nagrik Trust filed separate consumer complaints seeking compensation from the hospital and the petitioner insurance company. Allegations against the insurance company were that they had issued Professional Indemnity Dr. (IMA) Insurance Policies in the name of Dr.Shah Anisha, Dr.Vadhani Rajshree, Dr. Pala Sajida Ismail, Dr. Thakkar Bhadresh, Dr.Jiruwala Fakhri, Dr. Chokshi Neelam Chirayu.
4. Both the opposite parties contested the complaints and denied the allegations of medical negligence. The petitioner insurance company however denied its liability to pay compensation to the respondents complainants on the ground that it had no privity of contract either with the complainants or with the hospital. It was pleaded that the Professional Indemnity Dr. (IMA) Insurance Policies were issued in the name of individual doctors against whom no specific allegations of medical negligence were made nor any compensation was claimed from them. They were not even arrayed as opposite parties in the complaint.
5. Learned District Forum on consideration of the pleadings and evidence adduced by the parties allowed the respective complaints with the following directions.
œThe complaint is partly allowed. The opponents are directed to pay Rs.1,70,000/- (Rupees One Lac Seventy Thousand only) as compensation with 9% interest from the date of operation till realization. The opponent no.1 is directed to refund the amount of Rs.250/- (Rupees Two Hundred Fifty only). The opponents are further directed to pay Rs.3000/- (Rupees Three Thousand only) for mental agony and inconvenience and another sum of Rs.1500/- (Rupees One Thousand Five Hundred only) as the cost of this proceedings. The liability of both the opponent is joint and several but the award is enforced against the opponent no.2 i.e. the insurer. The award be complied with within one month from the hereof after the receipt of the copy.?
6. Shri Rahul Sharma, Advocate, learned counsel for the petitioner has contended that the impugned order is not sustainable for the reason that it is based upon incorrect appreciation of law and facts. He has contended that the foras below have failed to appreciate that the petitioner had insured specific doctors against claims for medical negligence and it had no privity of contract with the complainants or the above noted hospital. Doctors who were insured under the policies were neither the party to the complaint nor there was any specific allegation of medical negligence on their part. Moreover, the foras below have not returned any finding of medical negligence on the part of those doctors. It is argued that under these circumstances, there is no justification for holding the petitioner jointly and severally liable for the payment of awarded amount. In the alternative, it is contended that even if it is assumed that petitioner is liable to indemnify the hospital for the claim under the insurance contract, petitioners obligation to indemnify is to the extent of Rs.2,00,000/- under each policy in respect of any one case of medical negligence within any one year. Learned counsel has contended that unless there is a specific finding of medical negligence, the petitioner cannot be asked to indemnify hospital for medical negligence caused by its staff.
7. Shri P.V. Moorjani, Authorised Representative of the complainants on the contrary has argued in support of the impugned order. He contended that insurance policies in the name of above named doctors were obtained by opposite party no.1 hospital which makes it clear that those doctors were working for said hospital. Therefore, it can be safely assumed that they were negligent in the cataract surgery of the complainants and as such, the petitioner being insurer has been rightly held to be jointly and severally liable to compensate the respondents complainants.
8. We have considered the rival contentions and perused the record. On perusal of the impugned orders of the fora below and the evidence on record, we find that the liability of the petitioner insurer to pay the awarded amount jointly and severally alongwith opposite party hospital has been fixed by the fora below in view of six Professional Indemnity Dr. (IMA) Insurance Policies in the name of Dr.Shah Anisha, Dr.Vadhani Rajshree, Dr. Pala Sajida Ismail, Dr. Thakkar Bhadresh, Dr.Jiruwala Fakhri, Dr. Chokshi Neelam Chirayu, whose business address is shown to be Vaduwala Eye Hospital. This fact by itself cannot lead to the conclusion that those doctors or anyone of them were involved in the cataract surgery resulting in the loss of eye sight of the respective complainants. In order to fix the liability of the petitioner insurer, complainants were required to prove that the above noted insured doctors participated in the cataract surgery of the complainants and they were guilty of medical negligence. On perusal of the record, we find that neither there is any specific allegation of medical negligence on the part of the above noted doctors or anyone of them nor those doctors were arrayed as opposite parties in the complaint. No relief was claimed against the doctors. Complainants have even failed to lead any evidence which may suggest that the above noted doctors or anyone of them was associated with the subject cataract surgeries. The fora below have held the petitioner jointly and severally liable to pay compensation without returning finding of medical negligence against anyone of the above noted doctors who were insured vide Professional Indemnity Dr. (IMA) Insurance Policies. In absence of any allegation or finding of medical negligence on the part of anyone of the insured doctor, the fora below have committed a grave error to hold the petitioner jointly and severally liable alongwith the respondent hospital to pay compensation for medical negligence awarded to the victim complainants on the basis of said six insurance policies, which are in respect of medical negligence claims against the doctors and not the opposite party hospital.
9. In view of the discussion above, it is evident that impugned orders of the foras below against the petitioner are based upon misreading of the insurance contract. The impugned orders, therefore, cannot be sustained. Accordingly, we set aside the impugned orders of the fora below qua the petitioner insurance company. It is made clear that the impugned order shall remain operative against opposite party no.1, namely, Medical Supdt./Hospital Authority, Managing Director M/s Sheth M.L.Vaduwal Eye Hospital, Vinobha Bhave Marg, Salawada, Vadodara “ 390001.
10. Revision petitions are disposed of accordingly.