IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TENTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION NO : 25061 of 2006 Between: M/s. Oriental Insurance Company Ltd., Regional Office, 6-3-871, Snehalatha, P.B.No.45, Greenlands, Begumpet, Hyderabad rep. by its Regional Manager. ..... PETITIONER AND State Consumer Disputes Redressal Commission of A.P., Eruvaka Building, Khairatabad, Hyderabad rep. by its Registrar, & Others. .....RESPONDENTS The Court made the following : HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No. 25061 OF 2006 ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy) Petitioner-Insurance Company obtained a rule from this Court calling upon the respondents as to why a writ in the nature of certiorari shall not be issued under Article 226 of Constitution of India after calling the records pertaining to the orders, dated 7.4.2006 passed by the A.P. State Consumer Disputes Redressal Commission, Hyderabad in F.A.No.799 of 2003 and to quash the same. The relevant facts, in short, which are not in dispute are as under: One M.Bala Lingam lodged a complaint before the District Consumer Disputes Redressal Forum, Nizamabad complaining deficiencies in service rendered by Satya Kidney Centre-4th respondent herein and its Director, Dr. Kammela Sreedhar-5th respondent herein alleging that he approached the 4th respondent with urinal problem on 13.2.1995 and after conducting tests, he was informed that there was enlargement of prostate and formation of puss to the urinary bladder and was advised to undergo operation. Accordingly, the 5th respondent conducted surgery by way of “Pransurethral Resection of Prostate”. According to the complainant, the doctors employed by the respondents 4 and 5 conducted the operation negligently, failed to take proper care and caution, which caused heavy damage to the spincter of the complainant, and that on removal of the pipe put to pennies, there was continuous bleeding post-operation and he was forced to stay in the hospital of 4th respondent till 23.2.1995. On consultation with the family doctor, he came to know that he is suffering with dribbling of urine due to the negligence on the part of the doctors, who conducted the operation. Therefore, he sought for compensation of Rs.4.00 lakhs and costs of Rs.3,000/- from the respondents 4 and 5. Since the respondents 4 and 5 did not appear in spite of notice before the District Consumer Disputes Redressal Forum, they were set ex parte and after taking into consideration the evidence adduced by the complainant, the Consumer Forum allowed C.D.No.163 of 1996 directing the respondents 4 and 5 to pay compensation of Rs.1.00 lakh to the complainant for permanent disability; Rs.15,000/- towards expenditure; and Rs.25,000/- towards suffering with interest at 9% per annum from the date of the complaint till its realization. Aggrieved thereby, the respondents 4 and 5 filed an appeal-F.A.No.799 of 2003 before the 1st respondent-State Consumer Disputes Redresal Commission, Hyderabad, in which, they filed F.A.I.A.NO.1851 of 2005 and got impleaded the writ petitioner-Insurance Company as a respondent in the appeal as per the orders, dated 16.11.2005. Pending the appeal, the 5th respondent deposited an amount of Rs.1,27,813/- being 50% of the compensation awarded by the Forum towards his liability which was also withdrawn by the complainant. On impleading the writ petitioner-Insurance Company as respondent No.2 in the appeal, the writ petitioner while admitting the coverage of insurance obtained by the 4th respondent contended that as per condition No.5-B of the policy, a notification of claim should be made by the policy holder within 90 days and since the same has not been made by the 4th respondent, it is not under obligation to pay the amount and that the policy was also not renewed by the 4th respondent subsequently. In the impugned order, the 1st respondent-Commission though recorded the contentions advanced by the writ petitioner-Insurance Company did not give any findings regarding its liability under the policy except stating that the policy schedule is filed at the appellate stage and that the 4th respondent admitted in its letter to the Insurance Company that such complaints can occur in natural course of practice in 2 to 3% of cases. However, it was observed that though the 5th respondent filed memo, dated 29.1.2004 to the effect that he had already deposited an amount of Rs.1,27,813/- towards his share of the compensation awarded by the Forum which was withdrawn by the complainant, it is not open to the 5th respondent to withdraw the appeal unilaterally on that ground without any orders from the Commission particularly, when the liability to pay the compensation is joint and several and accordingly dismissed the appeal with one line order directing the writ petitioner to reimburse the insurance amount to the respondents 4 and 5. Since there was no finding on the contentions raised by the writ petitioner as to the fastening the liability under the policy obtained by the 4th respondent, the present writ petition is filed. As rightly contended by the learned counsel for the writ petitioner- Insurance Company mere impleading the petitioner-Insurance Company at the appellate stage and the respondents 4 and 5 producing the copy of the policy does not itself amount to proof of its liability. In the absence of any finding recorded by the 1st respondent-Commission to the effect that the policy holder-4th respondent complied with the conditions of the policy by notifying the liability of the Insurance Company as per the terms and conditions contained therein, no liability can be fastened on the Insurance Company and therefore, the impugned order suffers from manifest illegality and incurable infirmities warranting interference by this Court. Under those circumstances, the impugned order passed by the 1st respondent-A.P. State Consumer Disputes Redressal Commission, Hyderabad is set aside and the matter is remitted to it to decide the liability of the writ petitioner-Insurance Company before fastening the liability for the amounts awarded by the District Consumer Disputes Redressal Forum, Nizamabad within a period of two months from the date of receipt of a copy of this Order. The writ petition is disposed of accordingly. No order as to costs. _________________ (A. GOPAL REDDY, J.) ____________________ (SAMUDRALA GOVINDARAJULU, J.) NOVEMBER 10, 2009 TSR