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Dr. Tarunjit Dutta Roy Vs. the Branch Manger the New India Assurance Company Ltd. and Others - Court Judgment

LegalCrystal Citation
CourtNational Consumer Disputes Redressal Commission NCDRC
Decided On
Case NumberRevision Petition No. 1341 of 2010
Judge
AppellantDr. Tarunjit Dutta Roy
RespondentThe Branch Manger the New India Assurance Company Ltd. and Others
Excerpt:
.....order dated 26th june 2009 passed by the district consumer disputes redressal forum, nadia (the district forum) in c f case no. cc/ 08/ 65. the petitioner in his complaint before the district forum has stated that he had purchased a professional indemnity policy for doctors and medical practitioners, policy no. 4651240301334/589/49177 valid from 12.03.1998 to 11.03.1999 and continued up to 2003 and the indemnity limit was rs.10 lakh. after receiving the notice of ea/08/15, the petitioner immediately informed the respondent to pay the awarded amount and to indemnify the claim vide his letter dated 17.11.2008 but the respondents failed to take any steps to indemnify the policy. as per the information gleaned from the district forums order in cc/08/ 65 it transpires that in 1999 the.....
Judgment:

Rekha Gupta, Member

This revision petition is against the order dated 29th January 2010 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (the State Commission) in First Appeal no. 406 of 2009 which was filed against the final order dated 26th June 2009 passed by the District Consumer Disputes Redressal Forum, Nadia (the District Forum) in C F Case no. CC/ 08/ 65.

The petitioner in his complaint before the District Forum has stated that he had purchased a Professional Indemnity Policy for Doctors and Medical Practitioners, policy no. 4651240301334/589/49177 valid from 12.03.1998 to 11.03.1999 and continued up to 2003 and the indemnity limit was Rs.10 lakh. After receiving the notice of EA/08/15, the petitioner immediately informed the respondent to pay the awarded amount and to indemnify the claim vide his letter dated 17.11.2008 but the respondents failed to take any steps to indemnify the policy. As per the information gleaned from the District Forums order in CC/08/ 65 it transpires that in 1999 the petitioner was attached to Nadia District Hospital at Krishnagar as an Orthopaedic Surgeon. One Mr Narayan Chandra Saha filed a case against him and two others in the Consumer Forum vide C F case no. 39/99 whereon the Forum has awarded compensation of Rs.2,67,750/- for medical negligence which occurred in the course of treatment by the petitioner. Narayan Chandra Saha filed the execution case no. EA/08/15 before the District Forum, Nadia for realisation of the sum of Rs.2,67,750/-. It is only after receiving the notice of the execution case no. EA 08/15, the petitioner vide his letter dated 17.11.2008 informed the respondent for making payment of the awarded amount. The respondents did not pay the said amount.

The respondents in their written version stated that the petition was barred by law of Special Law of Limitation.

They further averred that all the statements made in the petition were not true. That the respondents were not a party in C F Case no. 39/1999 which was filed by one Narayan Chandra Saha before the District Forum even they were not a party in the appeal case no. 233/A/2005 before the State Forum nor in the execution proceeding no. EA/08-15 filed by Narayan Chandra Saha before the District Forum for realisation of the awarded amount in C F Case no. 39/ 1999. The respondents were totally in the dark about the facts mentioned in the claim petition.

They admitted that that the petitioner purchased a professional indemnity policy for Doctors and Medical Practitioners from the respondent being policy no. 465124030/33/589/40177 for the period of 12.03.1999 to 11.03.1999. The terms and conditions of the policy and which was attached with the said policy are follows:

œthe insured shall give written notice to the company as soon as reasonably practicable of any claims made against the insured or any specific event or circumstances that may give rise to a claim being made against the insured and which forms the subject of indemnity under this policy and shall give all such additional information as the company may require. Every claim, writ, summons or process and all documents relating to the event shall be forwarded to the company immediately they are received by the insured?.

They further said that the petitioner had not informed regarding the claim of the C F Case 39/99 to the respondent as per terms and conditions of the policy and/or he did not disclose before the District Forum regarding his insurance and/ or did not try to make the insurance company a party in C F case no. 39/99. The alleged dispute had been settled in C F Case no. 39/99 in the court of the District Forum, Nadia at Krishnagar as well as State Forum at Kolkata in SC Case no. 333/A/2005 and as such the present C C 08/65 case is barred by principles of res-judicata.

The District Forum in C F Case no. 39/99 and the State Forum in appeal case no. SC 233/A/2005 did not pass any order against the respondent and as such the District Forum has got no jurisdiction to pass any order over the dispute regarding the same cause of action.

Before the District Forum, the counsel for the petitioner œargued that the previous case filed by the proforma opposite party Narayan Chandra Saha against the present complainant was not informed to the present Respondents no. 1 and 2 as they were not the party of the case as the findings might not be in favour of the then petitioner. After final order of that case when the decision went against this petitioner and execution case was filed then the petitioner informed the fact to the respondents no. 1 and 2 to indemnify his claim pursuant to the provisions of his policy. Thus there caused no violation of the terms and conditions as embodied in the policy?.

The District Forum in their order stated that; œwe find much substance in his above submissions. We see eye to eye with the argument of the lawyer of the complainant that after final finding of the earlier case filed by Narayana Chandra Saha and after decision in the appeal giving information to the OP nos. 1 and 2 by the complainant to indemnify the award and to issue a cheque for the awarded amount is not the violation of the terms and conditions of the policy.

The respondents nos. 2 and 3 in spite of receiving information of the case no. CF 39/99 remained silent without taking any action and thereby caused deficiency in service on their part.

It is settled principle that considering the facts and circumstances of each case, the compensation should be awarded to initiate the grievance of the complainant. In the instant case we are of the view considering the facts and circumstances of the case that if Rs.20,000/- only is awarded as compensation that may alleviate the grievances of the complainant. This case thus, succeeds. Hence, the District Forum directed as under:

œThe case is allowed on contest against the OP nos. 1, 2 and 4 and ex parte against OP no. 3 with cost of Rs.5,000/- only payable by OP nos. 1 and 3 either jointly or severally, not by OP no. 4.

The OP nos. 1 to 3 are further directed to pay the sum of Rs.2,67,750/- only to the complainant either jointly or severally as per order of this Forum passed in case no. CF/ 39/99 within 40 days from the date of this order failing which the amount shall accrue interest @ 10% per annum from the date of this order till making payment of the entire amount.

The OP nos. 1 to 3 are further directed to pay the sum of Rs. 5,000/- as cost sited above and Rs.20,000/- as compensation, in all Rs. 25,000/- only either jointly or severally to the complainant within the stipulated period failing which the amount of Rs.25,000/- will accrue interest @ 10% per annum from the date of this order till the date of making entire payment.

We pass no order as to further interest. We pass no order against the proforma opposite party, Narayan Chandra Saha?.

Aggrieved by the order of the District Forum, the respondents filed an appeal before the State Commission. The learned counsel for the petitioner while admitting that no written notice was given to the company prior to 17.11.2008 contended that œsatisfaction of clause 8.1 is a mere formality and the complainant/ respondent no. 1 had duly communicated the insurance company as soon as the award was passed and therefore, there is no failure on the part of the complainant/ respondent no. 1 in substantially complying with the requirements of the policy. The advocate further contended that in the previous complaint case filed by Shri Narayan Chandra Shah the award was sought to be executed in Execution Case being EA/08/15 wherein the complainant/respondent no. 1 paid the entire amount of award in instalments and, therefore, he is entitled to be reimbursed in respect of the said amount of award paid by the complainant/ respondent no. 1 in the Execution Case in terms of the previous award in the complaint case filed by Shri Narayan Chandra Saha?.

The State Commission opined that œthe question is required to be decided as to whether there is any deficiency in service of the insurer. If the insurer has refused to indemnify the claim for non-satisfaction of the policy condition by the insured, it cannot be held that the action of the insurance company was deficient in service. The condition which has been violated is not a mere procedural redundant requirements. Apparently the said condition gave opportunity to the insurer to have not only notice but also an opportunity to control if possible, any claim or proceeding against the insured.

In the circumstances, as we find that there is no deficiency in service by the insurer, the complaint cannot be successful. Accordingly, the judgment impugned cannot stand and the same is hereby set aside. Appeal is allowed and the complaint is dismissed. There will be no order as to costs?.

Hence, this revision petition.

The grounds of the appeal in the revision petition are as follows:

- that the petitioner being pressurised by several orders from the executing court/ forum, was compelled to pay the amount of Rs.2,67,750/- and the other amounts as decided by the District Forum below to the proforma opposite party no.4; thereby the petitioner herein paid the entire awarded amount to the proforma opposite party no. 4 from his own pocket and put a demand from the respondents herein that the same amount should be reimbursed to the petitioner by the respondents, but the respondents herein did not take any step.

- the fact remains that the petitioner was duly covered under the Medical Indemnity Policy when the cause of action arose and the policy was valid without any doubt. The learned State Commission, West Bengal simply considered the condition of the policy regarding responsibility of the insured in communicating the development of a case and the learned State Commission, West Bengal observed further that there was no communication and, as such, there was no liability of the opposite parties in paying awarded amount.

- that the learned State Commission, West Bengal did not make any observation as regards the fact that the opposite parties were duly communicated by the petitioner through his Agent, verbally and by personal representation and, moreover, there was a letter dated 12.06.2005 written by his advocate demanding necessary actin with regard to the compliance of the order of the District Forum, Nadia, passed in C F Case no. 39/1999 and also there was another letter written by the petitioner dated 17th November 2008. This fact was admitted by the opposite parties and the same is reflected in the judgment of the District Forum date 26th June 2009.

- that the learned State Commission, West Bengal, did not make any observation as regards the effect of the above intimations, letters and demand of justice. The learned State Commission also did not consider as to the extent of application of the Clause 8.1 of the indemnity policy, whether delay in communication of the incident or the litigation will empower the opposite parties to repudiate the genuine claim of the petitioner or not.

- that the learned State Consumer Disputes Redressal Commission, West Bengal did not consider the contents of the letter of the petitioner received by the Insurance Company on 13th June 2005 wherein the petitioner clearly mentioned that on the consent of Insurance Company, Mr Pradip Banerjee, the learned Advocate was contesting the case before the District Forum, Nadia on behalf of the petitioner pertaining to development of the case from the very beginning of the case under C F Case no. 39/1999 was in the knowledge of the insurance company.

- that the learned State Commission below failed to appreciate that the petitioner intimated the consumer case filed by the preform opposite party no. 4 under C F Case no. 39/1999 from time to time, through verbal representation, personal representation and further over phone to the authorities of the opposite parties.

- that the learned State Commission failed to appreciate that admittedly, the written representation of the petitioner dated 17th November 2008 was received by the authorities of the opposite parties on 18th November 2008 for taking action and/or for payment of the awarded amount in the judgment passed by the District Forum, Nadia in the case vide C F case no. 39/199 filed by the prpforma opposite party no. 4 and also there was a letter written by the learned counsel of the petitioner dated 12th June 2005, communicating the developments in the said case along with the judgment passed by the District Forum, Nadia, in C F Case no. 39/1999.

We have heard the learned counsels for the petitioner as well as for the respondents and have carefully gone through the records.

Both the counsels have given citations in support of their case.

Learned counsel for the petitioner has drawn our attention to the Apex Courts judgment in the case of National Insurance Co. Ltd., vs Nitin Khandelwal, wherein it stated as under:

The appellant aggrieved by the said order of the State Commission preferred a revision petition before the National Consumer Disputes Redressal Commission. The National Commission after considering the fact that the vehicle was used for commercial purpose, granted reimbursement on the non-standard basis as per the policy of the insurance company and observed that the order of the State Commission did not call for any interference.

Learned counsel for the petitioner has also referred to the case of AmalenduSahoo vs Oriental Insurance Co. Ltd.

He also urged that even if for the sake of judgment, clause 8.1 had been violated and the claim should be ought to have been settled under non-standard basis.

We do not find that these citations are applicable to the fact of this case.

Learned counsel for the respondents have drawn our attention to the Apex Court judgment in the case ofAmravati District Central Cooperative Bank Limited vs United India Fire and General Insurance Company Ltd., - (2010) 5 Supreme Court Cases 294 wherein it observed as under:

In General Assurance Society Ltd., vs Chandmull Jain a Constitution Bench of this court laid down the principle relating to interpretation of insurance contracts. This court held: (AIR p. 1649, para 11)

¦¦¦In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however, reasonable, if the parties have not made it themselves.

In Oriental Insurance Co. Ltd., vs Sony Cheriyan this Court held (SCC p 455, para 17)

The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein.

Further the learned counsel for the respondents have also drawn our attention to the Apex Court judgment in the case of General Assurance Society Ltd., vs Chandumull Jain and Anr. “ 1966 (3) SCR 500 has observed that œin interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however, reasonable, if the parties have not made it themselves?.

In the case of PolymatIndia (P) Ltd., and Another vs National Insurance Co. Ltd., and Ors and National Insurance Co. Ltd., vs Polymat India (P) Ltd., and Another “ (2005) 9 Supreme Court Case 174, the Apex Court has held that:

Therefore, what was sought to be insured was the plant and machinery. It is admitted that there was no godown. Therefore, it is clear that goods lying outside the plant were not insured. Had the intention of the parties been otherwise then they would have answered Query 8 in positive terms with details. But it was answered in the negative.

In this connection, a reference may be made to a series of decisions of this Court wherein it has been held that it is the duty of the court to interpret the document of contract as was understood between the parties. In the case of General Assurance Society Ltd., vs Chandumull Jain SCR at P 510 A-B it was observed as under:

œIn interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however, reasonable, if the parties have not made it themselves?.

Similarly, in the case of Oriental Insurance Co. Ltd., vs Samayanallur Primary Agricultural Coop. Bank, SCC Para 3 at P 546f it was observed as under:

œThe insurance policy have to be construed having reference only to the stipulations contained in it and no artificial far-fetched meaning could be given to the words appearing in it?.

Therefore, the terms of the contract have to be construed strictly without altering the nature of the contract as it may affect the interest of parties adversely.

In the case of SurajMal Ram Niwas Oil Mills Private Ltd., vs United India Insurance Company Ltd., and Another (2010) 10 Supreme Court Cases 567, the Apex Court has held as under:

Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of contract of insurance have to be strictly construed, and no exception can be made on the ground of equity.

In General Assurance Society Ltd., a Constitution Bench of this Court had observed that: (AIR p. 1649, para 11)

¦¦.In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not been made it themselves.

Similarly, in Harchand Rai Chandan Lal case this Court held that: (SCC p 647, para 6)

¦¦.the terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended.

Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, in terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.

In the case of VikramGreentech India Limited and Anr. Vs New India Assurance Company Ltd., - (2009) 5 Supreme Court Cases 599, the Apex Court has held as under:

An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of uberrima fides i.e., good faith on the part of the insured. Except that, in other respects, there is no difference between a contract of insurance and any other contract.

The four essentials of a contract of insurance are :

(i) the definition of the risk,

(ii) the duration of the risk,

(iii) the premium, and

(iv) the amount of insurance. Since upon issuance of the insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of the risks covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer.

The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of the policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which are not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy. (General Assurance Society Ltd., vs Chandmull Jain, Oriental Insurance Co. Ltd., vs Sony Cheriyan and United India Insurance Co. Ltd., vs Harchand Rai Chandan Lal).

The present case is fully covered under the case laws cited above Supra.

We are of the view that it is important to reproduce the clause 8.1 to 8.3 of the Professional Indemnity Policy for Doctors and Medical Practitioners:

8.1  The insured shall give written notice to the Company as soon as reasonably practicable of any claims made against the insured (or any specific event or circumstances that may give to a claim being made against the insured) and which forms the subject of indemnity under this policy and shall give all such additional information as the Company may require. Every 7 claim, writ, summons or process and all documents relating to the event shall be forwarded to the company immediately they are received by the insured.

8.2  No admission, offer, promise or payment shall be made or given by or on behalf of the insured without the written consent of the company.

8.3  The company will have the right but in no case the obligation, to take over and conduct in the name of the insured the defence of any claims and will have full discretion in the conduct of any proceedings and it the settlement of any claim and having taken over the defence of any claim may relinquish the same. All amounts expended by the Company in the defence, settlement or payment of any claim will reduce the limits of indemnity specified in the schedule of the policy.

Petitioner himself has admitted that as soon as the award was passed, communication was sent to the respondent on 17.01.2008. It is also indisputable fact that the insured was required to give written notice to the respondent as soon as reasonably practicable of any claims made against the insured or any specific event or circumstances that may rise to a claim being made against the insured. It was also required that every claim, writ, summons or process and also documents relating to the event is to be forwarded to the company immediately as soon as they were received by the insured. The petitioner failed to make any communication to the respondent that the claim was made by the aforesaid Narayan Chandra Saha in the complaint filed in case no. 39/99 before the District Forum, Nadia. Only upon passing of the award in the said complaint case the same was intimated to the respondent. Learned counsel for the respondent before the State Commission has also stated that œsurprisingly, the complainant/ OP 1 also did not prefer any appeal against the said award though the other OP in the same proceedings preferred an appeal before the State Commission against the same award and was successful?. It is also been admitted by the petitioner that the respondent were not a party in CF Case no. 39/99 or even in the appeal case no. 233/A/2005 before the State Commission. Further, even in the execution proceedings no. EA/08-156 filed by Narayan Chandra Saha for realisation of the awarded amount of the CF Case no. 39/99, the respondents were kept totally in dark.

We have also seen the letter dated 12.06. 2005 sent by the Advocate of the petitioner to the respondent. We are of the view that the contents of the letter would under no circumstances satisfy the conditions of the requirement of clause 8.1 to 8.3 of the said insurance policy.

In the above circumstances we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly dismissed with cost of Rs.10,000/- (Rupees ten thousand only).

Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Welfare Fund as per Rule 10 A of Consumer Protection Rules, 1987, within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 10th May 2013 for compliance.


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