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 filed under Order 1 Rule 10(2) of the Code of Civil Procedure which we quote :
'10. Suit in name of wrong plaintiff :
(1) xxx xxx xxx
(2) Court may strike out or add parties.- The Court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out and that the name of any person who ought to have been joined, whether as plaintiff of defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit, be added.
(3) xxx xxx xxx
(4) xxx xxx xxx
(5) xxx xxx xxx'
On a bare perusal of the above provisions of the Code of Civil Procedure, it is evidently clear that it gives power to a Court at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order to strike out the name of any party improperly joined, or to add the name of any person who ought to have been joined whether as a complainant or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and complete to adjudicate upon and settle all the questions involved in the suit, be added.
8. The applicants/O.P. Nos. 2 and 3 have a Doctor’s Indemnity Insurance. Hence, they have filed applications to implead New India Assurance Company as a party. Contract of insurance is in the nature of a contract of indemnity as defined in Section 124 of the Indian Contract Act. By contract of insurance, the insurer promises to save the insured from the loss caused to him by the contract of any other person. To effectuate a contract of indemnity, a decree has to be first obtained against the insured and thereupon the liability of the insurer to discharge the decree arises. Under Section 125 of the Indian Contract Act, 1872 the promisee, acting within the scope of his authority, is entitled to recover from the promisor all damages which he may be compelled to pay in any suit in respect of any matter to which the promise to indemnify applies.
9. The complaint under the Act is in the nature of a suit. It is well-settled that in a claim for damages for a tortuous act against the tort-feasor, the insurer of the later is neither a necessary party nor in any way liable to the claimant under the general law, because of the absence of any privity of contract between the claimant on the one hand and the insurer of the tort-feasor on the other. Therefore, in a claim for tort, the common law visualizes a decree or an award against the tort-feasor alone in the first instance. It is only thereafter that insured tort-feasor could possibly claim to be indemnified by his insurer under the contract of insurance.
10. It is well-settled that under the common law, an insurer is not entitled to be made a party to the action against the insured unless such a right is given by the statute to the insurer like under Section 149 of the Motor Vehicles Act, 1988 corresponding to Section 96(2) of the Motor Vehicles Act, 1939. See the decision of the Supreme Court in British India General Insurance Co. Ltd. v. Captain Itbar Singh, AIR 1959 SC 1331.
11. The question came up for consideration before the Rajasthan High Court in Fateh Raj v. Suraj Roop, AIR 1969 Raj. 252, in a suit for damages of Rs. 20 lakhs against the Doctors and the Nursing Home for the death of the plaintiff’s wife due to negligent treatment wherein the New India Insurance Company applied for being joined as a party as the Doctor being a qualified medical practitioner had obtained an insurance cover for the relevant period covering the risk as Doctor’s Indemnity Insurance : IMA Medical Protection Scheme on the ground that the interests of the Insurance Company were likely to be affected by any decision given in the suit. The High Court observed that application could not be granted as the insurer was neither a necessary nor a proper party for deciding the issue between the plaintiff and the defendants, the presence of the insurer was not required and it was further observed that a person cannot be impleaded as a party to see that the suit is properly defended by the defendants already impleaded or not.
12. The High Court of Punjab and Haryana in case of Banarsi Das Durga Prasad v. Pannalal Ram Richhpal Oswal, AIR 1969 P&H 57, following the decision of the Rajasthan High Court emphasized that the plaintiff is a ‘dominus litis’ and is master of suit who cannot be compelled to fight against a person whom he does not wish to fight.
13. The Delhi High Court in case Praveen Kumar Bhatia v. Dr. Mrs. M. Ghosh, AIR 1989 Delhi 274, on an application under Order 1 Rule 10(2), C.P.C. to implead Insurance Company as the risk was covered under Doctor’s Indemnity Insurance : IMA Medical Protection Scheme after referring to the decisions of Fatehraj’s case (supra), and Banarsi Dass Durga Prasad’s case (supra), observed in para 6 thus :
'The Counsel for the applicant has cited Singheshwar Rai v. Babulal Rai, AIR 1980 Patna 187; Mahendra Singh v. Devi Gir, 1979 All. LJ 954, and M/s. Aero System v. Jagannath Sharma, 14 (1978) DLT 234, I have gone through these judgments and find that they are based on totally different facts. In the present case it is evident that for deciding the issues arising in the suit the presence of the applicant is not required. No finding given in the suit to which the applicant is not the party is going to affect the interests of the applicant. Hence, I hold that applicant is neither a necessary nor a proper party in the suit and thus I dismiss the application without any order regarding costs.'
14. Under the Act or the Consumer Protection Rules, 1987 framed thereunder no right is given to the Insurance Company to be impleaded as a party to an action against the doctor/tort-feasor. Therefore, the application to implead Insurance Company as a party on the ground that it is in the interest of the complainant or it will give finality to the litigation between the Doctor and the Insurance Company, in case the Insurance Company denies to indemnify the insured Doctor under the contract of indemnity, can
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not be accepted. Provisions of Order 1 Rule 10, C.P.C. have not been made applicable to proceedings under the Act. Only certain specific provisions of C.P.C. with regard to the matters as specifically laid down in Sub-section (4) of Section 13 of the Act have been made applicable. It is for the Legislature to consider and to make a suitable provision in the Statute Book for doing complete justice between the insured Doctor and Insurance Company in one litigation of the complaint to avoid multiplicity of the proceedings and to save public time and expense, as existing in Section 149 of the Motor Vehicles Act, 1988. 15. In view of the aforesaid discussion, we find no merit in the applications and the same deserve rejection. Accordingly, applications filed by opposite party No. 2 Dr. Harsh Jauhri and opposite party No. 3, Dr. Ashok Kumar praying for impleadment of New India Assurance Company are dismissed. In the facts and circumstances of the case the parties are left to bear their own costs. Applications dated 27.9.2000 filed by applicants - O.P. No. 2 and O.P. No. 3 stand disposed of in above terms. Application disposed of.