National Consumer Disputes Redressal
Dr. Priya Ramany,Mbbs, Md vs Dr. Surendra Ugale on 5 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER COMPLAINT NO. 541 OF 2014 With IA/8506/2014 (For delay) Dr. Priya Ramany, MBBS, MD W/o. V. Nagarajan Venkatachalam No. 129/5, Balaji Apartments Shanthi Colony, Anna Nagar Chennai 600 040 Complainant Versus 1. Dr. Surendra Ugale Kirloskar Hospital 5-9-47/4, Bashirbagh, Hyderabad 500 063 2. Kirloskar Hospital Advanced Laproscopy & Metabolic Surgery Centre 5-9-47/4, Bashirbagh, Hyderabad 500 063 Opp. parties BEFORE: HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE DR. S. M. KANTIKAR, MEMBER For the Complainant : Mr. R. Ravi Kumar, Advocate PRONOUNCED ON 5TH JANUARY, 2015 O R D E R
JUSTICE J.M. MALIK
1. There is a delay of more than four-and-a-half years in filing this complaint. However, the complainant has moved an application for condonation of delay of 290 days only, though, when, during the arguments, the learned counsel for the complainant contended that the cause of action in this case had arisen on 03.07.2010.
2. However, the short facts in this case are these. Dr. Priya Ramany, MBBS, MD, 48 years old, is the complainant in this case. She has worked as a Physician and as a Specialist Internist in Mycare Medical Centre, Jeddah, Saudi Arabia. She is suffering from ailment of Diabetes Mellitus, for the last 12 years. She got attracted by the advertisement inserted by Dr. Surendra Ugale, Kirloskar Hospital, Hyderabad, OP. The advertisement mentioned that the OP would treat the said ailment by Laparoscopic surgery for cure of diabetes mellitus. The complainant approached the OP and the date for laparoscopic surgery was fixed for 18.06.2010. The complainant informed the OP not to cut her abdomen since she does not like to lose the weight. The laparoscopic surgery was conducted on 20.06.2010. After the surgery, it transpired that her abdomen was distended. Though the OP re-opened the abdomen, without knowing that the perforation was the cause for abdominal distention, the OP misled the complainant to accept another laparoscopic surgery since he was in a hurry to go to USA.
It is alleged that the OP has thus committed wrongful diagnosis of kinking of intestine without proper observation of the CT scan.
3. After the second laparoscopic surgery, distention of the abdomen worsened. The Doctors did not attend to her, when, she on her own assistance, got CT Scan on 26.06.2010. The attending Doctors failed to extend suitable medical attention. The complainant, since being a Physician, on her own, went on for X-Ray and found that there was a perforation in intestine and gas formation on chest. She continued with lower sugar level, fever and pain. Several negotiations took place, but those did not ring the bell. She sent Lawyers notice on 12.02.2012, but it did not evoke any response from the OP. Consequently, this complaint was filed before this Commission, on 28.11.2014, though the record shows that the complaint was prepared on 14.08.2014.
4. The complainant has filed an application for condonation of delay, in which it is submitted, at Para Nos. 3, 4, 5, 7, 8 and 9, as under:
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The complainant was discharged on 03.07.2010 and on return to her home town, as she was continuously suffering with multiple complications of her health on post operation, she got admitted to Balaji Hospital in Chennai, on 07.07.2010 to attend upon the wound gaping on the abdomen.
4. It is submitted that in order to honour the professional commitment the complainant went and reported to duty in Saudi Arabia on25.07.2010, whereas with the continued multiple problems arisen out of the operation and of crippled health, the complainant failed to do justice to her job and was terminated from job, work order cancelled and forced to leave Saudi Arabia by 29.09.2010. On her return, continuously, she tried to contact the opposite parties inviting their attention and care to attend her post-operative ailments for which they paid a deaf ear, remind indifferent and evasive.
5. It is submitted that the complainant underwent endoscopie gastic dilation at Bharathraja Hospital, Chennai, from March 2011 to July 2011 three times. She realized that she was misled and fell victim of the opposite partys false designs and claims and her health got ruined with their negligent conduct of laparoscopy. The action of the opposite party has shattered the professional career of the complainant and her life is put to grave insecurity. She is deprived of harmony in her family file due to the crippled health on the aftermath of the wrongful surgery.
7. It is submitted that the complainant underwent clinical investigation as per the Opposite partys routine advice dated 20.06.2011 which happen to be 12 months after the surgery. Whereas the complainant not yet recovered from the post operation repercussions and continued with multiple complications unable to pursue her profession as a Physician and the cause of action is a continuous nature for the purpose of filing this complaint. However, in order to alert the deficiency in service and negligence on the part of the opposite party, the complainant served a lawyers notice on 12.02.2012, whereas the opposite party did not reply to the notice till this date and they are indifferent to the complainant phone calls.
8. It is respectfully submitted that the complainant has immigrated to Canada and living in Canada since last one year. In order to attend to her crippled health, she has been fully engaged in getting the rightful treatment in the present place of residence all along it has become a life-time struggle to the complainant to maintain her health under the constant treatment and medication. And on the other side, she is prejudiced on the home front as she is unable to attend for 6 year old son and to her husband on account of which the complainant was unable to file the complaint within the stipulated time as envisaged under law. The complainant has sent her case to her Advocate in order to file before this Honble Commission. For deliberations between the complainant and her Advocate with respect to filing of supporting documents it is delayed till this day, i.e. 28.11.2011. Hence there is a delay of 96 days since I have taken efforts in filing this consumer complaint. Further, it is understood that as stated above, the cause of action is of a continuous nature since the complainant is suffering under the wrath of the post operating repercussions of the opposite party this petition is filed within the limitation.
9. It is submitted that there is a delay of 289 days in filing this consumer complaint and this delay is neither willful nor wanton but for the circumstances stated above. On account of this delay, this complaint case may not be prejudiced on the technicalities of limitation. This complainant has got fair chance of success.
5. We have heard the learned counsel for the complainant. He has admitted that the cause of action arose on 03.07.2010. However, he submitted that this is a continuous cause of action and the complaint has been filed within time. He contended that this is a medical case and sympathetic view should be taken.
6. We have considered the pros and cons of this situation. There is a huge delay of more than four-and-a-half years. We have also thought that, whether, discretion should be used in this case or not. This cannot be said to be a continuous cause of action. This will remain till the life-time of the complainant. The actual cause of action had arisen when she was discharged on 03.07.2010 and she was well aware of the fact that the treatment given by the OP was allegedly defective. This cause of action cannot continue for a long time. Though our sympathy is with the complainant, yet, it must be borne in mind that the expression sufficient cause, cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of the Limitation Act and Section 24-A of the C.P. Act, 1986. The time for disposal of a complaint case and time for disposal of appeals and revision petitions are fixed by the C.P.Act, 1986, itself. In such a huge delay, the discretion is not to be used in favour of the complainant. Section 24-A of the Consumer Protection Act, 1986, reads, as under :-
24A. Limitation period. - (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (l), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
7. In State Bank of India Vs. B.S. Agricultural Industries (I), (2009) CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, the Honble Apex Court, while dealing with the same provision, has held, as under :-
8. It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action.
The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown.
The expression, shall not admit a complaint occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
In Para No.13, it has been held by the Honble Supreme Court :-
The term cause of action, is neither defined in the Act nor in the Code of Civil Procedure, 1908, but is of wide import. It has different meanings in different contexts, that is, when used in the context of territorial jurisdiction or limitation or the accrual of right to sue.
Generally, it is described as bundle of facts, which, if proved or admitted, entitle the plaintiff to the relief prayed for. Pithily stated, cause of action, means the cause of action for which the suit is brought. Cause of action is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation, with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.
8. Recently, in a case, titled as Dolphin Offshore Enterprises (I) Ltd. Vs. United India Insurance Co.Ltd., the Honble Apex Court, in Special Leave to Appeal (Civil) No. 9307 of 2013 filed by petitioner, Dolhpin Offshore Enterprises (I) Ltd., decided on 08.03.2013, was pleased to hold :-
We have heard learned counsel for the petitioner and perused the record.
In our opinion, the reasons assigned by the State Commission and the National Commission, for holding that the complaint was barred by time, are correct. It is not in dispute that the claim made by the petitioner was repudiated by the respondent, vide communication dated 30.10.2002, and the complaint was filed on 25.05.2006, i.e., after three years and five months of repudiation of the claim. Therefore, there is no escape from the conclusion that the complaint was barred by time. This view finds support from the judgments of this court in HUDA Vs. B.K. Sood (2006) 1 SCC 164, SBI Vs. B.S.Agricultural Industries (I) (2009) 5 SCC 121, Kandimalla Raghavaiah Vs. National Insurance Co. Ltd. (2009) 7 SCC 768 and V.N.Shrikhande (Dr.) Vs. Anita Sena Fernandes (2011) 1 SCC 53.
9. A bare perusal of Section 5 of the Limitation Act, makes it plain that the material part of the language of Section 24A of the Consumer Protection Act, 1986, is in pari materia therewith. Therefore, it would seem settled beyond caisil that it is incumbent on the petitioner (complainant herein) to explain each day of default, beyond the terminus line of the prescribed period of limitation.
10. The Consumer Complaint is hopelessly barred by time and therefore the same is hereby dismissed. No order as to costs.
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(J. M. MALIK, J) PRESIDING MEMBER ...
(DR.S. M. KANTIKAR) MEMBER dd/1