Karnataka High Court
Manipal Academy Of Higher Education vs New India Assurance Company on 19 January, 2023
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WP No. 462 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
WRIT PETITION NO. 462 OF 2014 (GM-RES)
BETWEEN:
MANIPAL ACADEMY OF HIGHER EDUCATION
(SINCE CALLED MANIPAL UNIVERSITY)
MADHAVA NAGAR
MANIPAL-576119
REPRESENTED BY ITS REGISTRAR
...PETITIONER
(BY SRI. MANMOHAN P N., ADVOCATE)
AND:
NEW INDIA ASSURANCE COMPANY
DIVISIONAL HEAD OFFICER
CENTENARY BUILDING
II FLOOR, G H S ROAD
MANGALORE-575001
REPRESENTED BY ITS
SENIOR DIVISIONAL MANAGER
Digitally
signed by R
DEEPA
...RESPONDENT
Location:
High Court (BY SRI. A N KRISHNASWAMY ., ADVOCATE)
of Karnataka
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ;
QUASH THE ORDER DATED 10.10.2013 PASSED IN P.L.D.
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WP No. 462 of 2014
NO.382/2011 PASSED BY THE PERMANENT LOK ADALATH AT
MANGALORE, DAKSHINA KANNADA AND CONSEQUNTLY ALLOW
P.L.D. NO.382/2011 VIDE ANN-L AND ETC.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner aggrieved by the order dated 10.10.2013 passed in P.L.D.No.382/2011 by the Permanent Lok Adalath, Mangalore, Dakshina Kannada and to quash the communication dated 05.02.2003 issued by the respondent vide Annexure-B and also communication dated 17.02.2003 issued by the respondent vide Annexure-D and declare the Clause 5(b) of the policy bearing No.4667080500670 is invalid and contravenes Section 28 of the Indian Contract Act, 1872 (for short 'the Act'), has filed this writ petition.
2. Brief facts leading rise to filing of this petition are as under:
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It is the case of the petitioner that one Sri S.R.Krishna Singh filed a complaint in complaint No.125/1999 before the Dakshina Kannada Consumer Disputes Redressal Forum at Mangalore seeking for compensation from the petitioner for medical negligence. The said complaint came to be allowed vide order dated 17.10.2003 directing the petitioner to pay a sum of Rs.2,00,000/- with interest at 12% p.a. and Rs.5,000/- as litigation cost. Aggrieved by the said order, the petitioner preferred an appeal in W.A.No.1291/2003 before the Karnataka State Consumer Disputes Redressal Commission, Bangalore. The State Commission upheld the order passed by the District Forum and dismissed the appeal. Aggrieved by the order passed by the District Consumer Forum and State Commission, the petitioner filed a revision petition in R.P.No.1115/2006 before the National Consumer Disputes Redressal Commission. The National Commission vide order dated 02.02.2010, dismissed the revision petition. The said complainant filed -4- WP No. 462 of 2014 an execution petition in E.P.No.57/2010 seeking to execute the order passed by the District Forum. The petitioner paid the entire amount to the complainant and the execution petition was closed vide order dated 06.10.2010. During the pendency of the aforesaid complaint before the District Forum, the petitioner issued a letter dated 16.01.2003 and 21.01.2003 to the respondent intimating the Company about the pendency of the complaint. In response to the said latter, the respondent issued a letter dated 05.02.2003 stating that the claim of the complainant is beyond the time period stipulated under the agreement. The petitioner issued reply dated 10.02.2003 brining to the notice of the respondent that Clause 5 (b) of the policy is not valid and is contrary to Section 28(a) of the Act. Pursuant to the closure of the execution petition, the petitioner vide communication dated 20.11.2010 sought for reimbursement of the aforesaid amount as per the terms of the policies. The respondent vide letter dated -5- WP No. 462 of 2014 25.11.2010 sought for further documents for processing the claim. The petitioner furnished all the documents as sought by the respondent. The respondent vide letter dated 08.11.2010 repudiated the claim of the petitioner on the ground that the claim is not within the time stipulated under Clause 10.12 of agreement. Aggrieved by the order declining to reimburse the amount, the petitioner filed P.L.D.No.382/2011 under Section 22C(1) of the Legal Service Authorities Act, 1987 before the Permanent Lok Adalath, Mangalore seeking for payment of Rs.5,37,448/- with interest at the rate of 12% p.a. from 05.10.2010. The Permanent Lok Adalath dismissed the claim of the petitioner vide order dated 10.10.2013. The petitioner aggrieved by the order dated 10.10.2013, passed by the Permanent Lok Adalath, filed this writ petition.
3. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. -6- WP No. 462 of 2014
4. Learned counsel for the petitioner submits that the petitioner vide communications dated 16.01.2003 and 21.01.2003 had informed the respondent about the pendency of the complaint before the District Forum and it was not a claim raised by the petitioner against the respondent. As per the terms of the policy, the respondent is legally bound to indemnify the petitioner. The Permanent Lok Adalath was not justified in holding that the respondent vide letter dated 05.02.2003 has already repudiated the claim of the petitioner and the reasoning of the Permanent Lok Adalath is unsustainable. Further, the reasoning of the Permanent Lok Adalath that the petitioner has failed to implead the respondent as a party to the complaint is unsustainable as the petitioner being the opposite party in the complaint before the District Consumer Forum cannot seek for impleading in the proceedings. Further, he submits that the petitioner cannot be held responsible for the fault of the complainant in not making the insurance company as party in the -7- WP No. 462 of 2014 proceedings. The Permanent Lok Adalath has committed an error in holding that 16.01.2003 is the date on which the cause of action arose to the petitioner. The cause of action arose to the petitioner is to file a claim petition before the Permanent Lok Adalath in the year 2003. Hence, the impugned order passed by the Permanent Lok Adalath is arbitrary and erroneous and the same is liable to be set aside. Hence, on these grounds, he prays to allow the writ petition.
5. Per contra, the learned counsel for the respondent submits that the petitioner obtained the scheme of professional negligence, errors and omissions for medical establishments vide policy No.4667080500670 w.e.f. 20.04.1998 to 01.04.1999. It renewed the Policy from 02.04.1999 to 01.04.2000 for the hospital. When the policy was in force, the petitioner did inform the respondent about the claim of Sri S.R.Krishna Singh vide its letter dated 21.01.2003, which was received by the -8- WP No. 462 of 2014 respondent on 23.01.2003 and the respondent was not aware about the proceedings initiated by Sri S.R.Krishna Singh. He submits that the claim made by the petitioner is barred by time. Further, he submits that the petitioner has committed a breach of conditions mentioned in the policy that as per clause No.10.1, the petitioner has not given any notice to the Company and further made a payment without written consent of the Company. Hence, the insurance company is not liable to make payment. He further submits that though the insurance company has repudiated on 05.02.2003 and the petitioner filed a claim petition in the year 2011. He further submits that the Permanent Lok Adalath was justified in passing the impugned order. Hence, on these grounds, he prays to dismiss the writ petition.
6. Perused the records and considered the submissions of the learned counsel for the parties. -9- WP No. 462 of 2014
7. The petitioner had taken Insurance Policies from the respondent under the scheme of profession, negligence for medical establishment vide insurance policy No.4667080500670 w.e.f. 02.04.1998 to 01.04.1999 and it was renewed from 02.04.1999 to 01.04.2020 vide insurance policy No.4667080500670. Sri S.R.Krishna Kumar filed a complaint before the District Consumer Forum against the petitioner in Complaint No.125/1999 alleging professional negligence by doctor.
8. During the pendency of the complaint, the petitioner informed the respondent vide letter dated 21.01.2003 about the claim made by Sri S.R.Krishna Singh before the District Forum. In response to the letter, the respondent verified the documents and on the basis of the materials available with them, without any delay repudiated the claim of the petitioner vide letter dated 05.02.2003. Subsequently, in response to the petitioner's letter dated 10.02.2003, the repudiation was once again
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WP No. 462 of 2014confirmed vide letter dated 17.02.2003. In order to consider the case of the petitioner, it is necessary to consider the terms and conditions of the policy. Clause 10.1, 10.2, 10.5 and 10.12, reads as under:
10.1 The insured shall given 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 given 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. 10.2 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.
10.5 The insured shall given notice as soon as reasonably practicable of any fact, event or circumstances which materially change the information supplied to the Company at the time when this policy was effected and the Company may amend the terms of this Policy. 10.12 It is also hereby further agreed and declared that if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within 12 calendar months from the date of such disclaimer have been made the subject matter of suit in a Court of Law then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.
From the perusal of Clause 10.1, the petitioner did not communicate to the respondent - Company in writing as soon as the petitioner has received notice from the
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WP No. 462 of 2014District Consumer Forum and further, the petitioner has paid the amount to S.R.Krishna Singh as per Clause 10.2 without the written consent of the Company. The petitioner has violated the terms and conditions of the policy. The respondent communicated to the petitioner vide letter dated 05.02.2003 repudiated the claim of the petitioner and subsequently, once again confirmed vide letter dated 17.02.2003.
9. The complaint filed by Sri S.R.Krishna Singh came to be allowed vide order dated 17.10.2003 and directed the petitioner to pay a sum of Rs.2,00,000/- with interest at 12% p.a. from 23.06.1998 till payment together with costs of Rs.5,000/-. The petitioner aggrieved by the order of District Consumer Forum, preferred appeal No.1291/2003 before the State Commission. The State Commission dismissed the appeal and confirmed the order passed by the District Forum. The petitioner aggrieved by the order passed by the State Commission, preferred a
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WP No. 462 of 2014revision petition before the National Commission. The National Commission dismissed the revision petition filed by the petitioner vide order dated 02.02.2010. Sri S.R.Krishna Singh filed execution petition in E.P.No.57/2010. The petitioner deposited a sum of Rs.3,48,198/- before the Consumer Forum through a demand draft. After receipt of deposit, the Consumer Forum close the execution petition on 06.10.2020. Thereafter, the petitioner approached the respondent for reimburse the amount paid by him to Sri S.R.Krishna Singh.
10. The appellant did not choose to challenge the order of repudiation within reasonable time. The petitioner has waited for a period of more than seven years for filing the claim petition before the Permanent Lok Adalath. After lapse of seven years from the date of repudiation, the petitioner has filed the claim petition before the Permanent Lok Adalath.
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WP No. 462 of 2014
11. The Hon'ble Apex Court in the case of CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD & OTHERS VS. T.T. MURALI BABU reported in (2014)4 SCC 108 held as under:
"16. Delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time"
and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis."
As observed above, the claim petition filed by the petitioner suffers on the grounds of delay and laches. The Permanent Lok Adalath after considering the material on record was justified in recording a finding that there is an inordinate delay in filing the claim petition and consequently, dismissed the petition on the ground that it
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WP No. 462 of 2014is barred by limitation. Hence, I do not find any grounds to interfere with the impugned order.
12. Accordingly, I proceed to pass the following:
ORDER The writ petition is dismissed.
Sd/-
JUDGE SSB