National Consumer Disputes Redressal
Peter Anand Kumar Ekka & Ors vs The Chief Medical Officer, Ispat ... on 28 April, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION NEW DELHI
FIRST
APPEAL NO. 860 OF 2003
(Against the order dated 25.11.2003 in
Complaint Case No. 13 of 2003 of the Jharkhand State Consumer Disputes
Redressal Commission, Ranchi)
1. Peter Anand Kumar Ekka .Appellants
s/o Late John Ekka
2. Anurag Augustine Ekka
s/o Sri Peter Anand Kumar Ekka
3. Anuj Anthony Ekka
s/o Sri Peter Anand Kumar Ekka
All residents of Qr. No. C-6, Shyamali,
H.S. L. Colony,
P.S. Doranda, P.O. Doranda,
District Ranchi
Versus
1. The Chief Medical Officer. .........
Respondents
Ispat Hospital, Shyamali,
H.S.L. Colony,
P.O. and P.S. Doranda,
District Ranchi
2. Dr. P. K. Agarwal,
Maa Durga Apartment,
3rd Floor, North Office-para
P.O. and P.S. Doranda,
District Ranchi
3. Dr. S. K. Mishra
Qr. No. K-42, Shyamali,
H.S.L. Colony, Doranda
P.O. and P.S. Doranda,
District Ranchi
4. Dr. C.
Sreenivasulu
Qr. No. K-88,
Shyamali, H.S.L. Colony, Doranda
P.S. and P.S.
Doranda, District Ranchi
5. Mecon Ltd.
having its
office at Doranda,
P.O. and P.S.
Doranda,
District Ranchi
(newly added opposite party
By order dated
22.8.2003 of the
Honble State
Commission.
BEFORE:
HONBLE
MR. JUSTICE R. C. JAIN, PRESIDING MEMBER HONBLE MR. ANUPAM DASGUPTA, MEMBER
For the Appellants : Mr.
Sumeet Gadodia, Advocate
For the Respondents : Mr. D.P. Mukherjee, Advocate with
No. 1 to 5: Mrs. G. Barun, Advocate
For the Respondent : Mr. Tripurari Ray, Advocate
No.6
Dated: 28th April, 2010
ORDER
JUSTICE R. C. JAIN, PRESIDING MEMBER By this order, it is proposed to decide the preliminary objection raised by the newly-added respondent No. 6, Abdur Razzak Ansari Memorial Weavers Hospital (Apollo Group), Irba, Ranchi (in short, ARAM Apollo Hospital) about the maintainability of the complaint against it at this stage of the proceedings.
2. The facts, which we may recapitulate in order to consider the said objection, are that Peter Anand Kumar Ekka and his two sons (appellants herein) had filed a complaint against the Chief Medical Officer, Ispat Hospital, Shyamali, H.S. L. Colony, Ranchi; Dr. P. K. Aggarwal; Dr. S. K. Mishra and Dr. C. Sreenivasulu, claiming a compensation of Rs. 50 lakh alleging medical negligence and deficiency in service on their part in the medical treatment given to Smt. Sudha Ekka, wife of complainant No. 1, as a result of which, she ultimately died at the ARAM Hospital.
3. The complaint was resisted by the above-named opposite parties by filing written version thereby denying any medical negligence or deficiency in service of the treatment on their part at any stage. It was sought to be explained that (i) the discharge of bile was quite normal during the stay of the patient at the Ispat Hospital but since the bile discharge had crossed normal limit of 450 ml., the patient was advised to undergo ERCP at ARAM Apollo Hospital as the Ispat Hospital was not equipped for such tests and (ii) that even at ARAM Apollo Hospital, no ERCP test was done and the patient was operated upon after which certain complications had developed leading to her death at the said hospital.
4. The State Commission, on consideration of the respective pleas and the evidence and material produced on record, returned the finding that the complainants had failed to establish any medical negligence or deficiency in service on the part of Ispat Hospital and its doctors, who conducted Laproscopic Cholecystectomy on the deceased and, accordingly, dismissed the complaint. Aggrieved by the dismissal of the complaint, the complainants have filed the present appeal.
5. As the appeal was receiving consideration of this Commission, a prayer was made from the side of the appellant for summoning the medical record of ARAM Apollo Hospital for the period the deceased, Smt. Sudha Ekka remained admitted there and the Commission directed the Medical Superintendent of the ARAM Apollo Hospital to file the aforesaid medical record.
The medical record was filed by the said Hospital and its copies were furnished to both the sides. Vide order dated 22.10.2008, the Commission directed that on receipt of the said medical record, the appellant shall file additional affidavit by way of evidence, if any, considering the said record, within a period of four weeks and liberty was granted to the respondents to file amended written version, if necessary, and affidavit by way of evidence within four weeks thereafter. Neither any additional written version nor affidavit was filed by the parties but instead, an application dated 5.1.2003 under Order I Rule 10 and Order VI Rule 17 read with section 151 C.P.C., seeking impleadment of ARAM Apollo Hospital as respondent No. 6 and for incorporation of certain amendments in the complain was filed. Notice on the application was issued to the proposed respondent but despite service, no one appeared on behalf of the proposed respondent No. 6-ARAM Apollo Hospital to oppose the said application. On consideration of the matter, the said application of the complainants was allowed and the ARAM Apollo Hospital was ordered to be impleaded as respondent No. 6 in the array of parties vide order dated 20.3.2009. The amended memo of parties, alongwith amended complaint was, accordingly, filed. Fresh notice on the appeal and the amended complaint was issued to the newly added respondent No. 6-Aram Apollo Hospital. In response to the said notice, respondent No. 6 appeared and filed an application under section 22-A of the Consumer Protection Act, 1986 praying for recall of the order dated 20.3.2009 and 23.07.2009 passed by the Commission, primarily, on the ground that the application for impleadment of the said respondent and amendment of the complaint was illegal. The said application was declined by this Commission vide order dated 21.10.2009. However, with regard to the objection about the maintainability of the amended complaint, opportunity was granted to the newly added respondent No. 6, ARAM Apollo Hospital to file written version to the amended complaint.
6. Subsequently, written version has been filed on behalf of respondent No. 6, ARAM Apollo Hospital, raising preliminary objections to the effect that the complaint is hopelessly barred by limitation and is liable to be dismissed against the answering respondent No. 6 as Smt. Sudha Ekka died on 24.07.2001 and the cause of action for alleged medical negligence and deficiency in service, if any, might have arisen at that time and the complaint could be filed latest by July, 2003; the complainants had knowledge of all the basic facts of the present case since the time of treatment and, in any case, after the death of the deceased and if they considered it necessary, they could have impleaded respondent No. 6 as a party at the time of filing of the complaint and, in any case, after the filing of the defence version on behalf of the opposite parties 2 and 3 doctors. It is also pleaded that respondents No. 2 and 3 had specifically objected to the non-impleadment of the answering respondent No. 6 by making specific allegations against it in para 10, 11 and 15 of their written version to the effect that patient was admitted to the Aram Apollo Hospital without any infection of which the patient died at the said Hospital but despite this, the complainants deliberately and knowingly did not implead the answering respondent and rather denied the objections of respondent No. 2 to 4. It is also pleaded that the legal effect of impleadment of respondent No. 6 and the amendment of the complaint is that the complaint will be deemed to have been filed against the answering respondent only on 20.3.2009 and, therefore, the complaint so filed is hopelessly barred by limitation. In any case, it is pleaded that Smt. Sudha Ekka did not die due to any medical negligence or deficiency in service on the part of the answering respondent No. 6 but she died due to the ill effects of diabetes on the tissues and other organs of the body which the complainant is seeking to pass off as negligence or deficiency in service on the part of the answering respondent. On merit, it was sought to be explained that the treatment given to the patient, Smt. Sudha Ekka at the ARAM Apollo Hospital, was in accordance with the established medical protocol and, therefore, they are not liable for any medical negligence or deficiency in service.
7. The above objections of respondent No. 6 have been controverted by the appellant by filing a reply/rejoinder and it is pleaded that the complaint against newly-added respondent is not barred by limitation and, in any case, the said plea has also been answered by this Commission and, therefore, the finding in that behalf operates as res-judicata.
It is also explained that the appellants-complainants could not implead the ARAM Apollo Hospital and amend the complaint at earlier point of time due to the above circumstances.
8. We have heard Mr. Sumit Gododia, learned counsel representing the appellants-complainants and Mr. Tripurari Rai, learned counsel representing respondent No. 6 as also Mr. D. P. Mukherjee, learned counsel for the remaining respondents and have given our thoughtful consideration to their respective submissions.
9. Learned counsel for respondent No. 6, on the strength of the provisions of section 21 of the Limitation Act, 1963, has vehemently argued that the complaint, as it stands after amendment making certain allegations of medical negligence and deficiency in service against the respondent No. 6, is barred by limitation and, therefore, the answering respondent No. 6 cannot be called upon to defend the said allegations at this belated stage.
In support of his contention, he has placed reliance upon the decision of the Supreme Court in the case of RAMALINGAM CHETTIAR VS. P. K. PATTABIRAMAN AND ANOTHER (2001) 4 SCC 96. Section 21 of the Limitation Act, proviso to which fell for interpretation and consideration of the Honble Apex Court, reads as under:-
21. Effect of substituting or adding new plaintiff or defendant .- (1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:
Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
(
2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.
On consideration of the same, Apex Court laid down as under:
Section 21 of the Limitation Act contemplates two situations one under the substantive provision which provides that where after filing of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been brought on the day when he was added or substituted as a party in the suit. The second situation contemplated under the proviso to the substantive provision is where the court is satisfied that a new plaintiff or defendant was omitted to be added or substituted due to a mistake in good faith, the court may direct that the suit, as regards the newly-added or substituted party, shall be deemed to have been instituted on any earlier date. Thus, under the proviso, if the court is satisfied, it can direct that the suit, as regards newly-added or substituted plaintiff or defendant, shall be deemed to have been instituted on an earlier date. In such a case, the court after substituting or adding a party in the suit is required to pass a separate/further order that the suit, as regards the newly-added defendant or plaintiff, shall be deemed to have been instituted with effect from the date the suit was laid. Merely adding or substituting a plaintiff or defendant by the court is not enough.
In the absence of any order that the impleadment of newly-added or substituted party shall take effect from the date of institution of a suit, the period of limitation so far as the newly-added or substituted (sic) shall run from the date of their impleadment in the suit. We have looked into the records but do not find any order having been passed under the proviso to Section 21 of the Limitation Act that the impleadment of the State of Tamil Nadu would take effect from the date of institution of the suit. In the absence of such an order by the trial court, the suit filed by the respondent was barred by limitation as contemplated under Section 59 of the Act.
10. There cannot be any debate or quarrel in regard to the above legal proposition but the important question is as to whether the provision of section 21 of the Limitation Act can be applied to the proceedings which are initiated under the Consumer Protection Act, 1986 (CPA), the special enactment providing an additional and special remedy to the consumers. Our answer is in the negative because neither the Consumer Fora established under the Consumer Protection Act, 1986 are civil courts within the meaning of Code of Civil Procedure nor can the proceedings initiated before such Fora, by any stretch, be deemed to be suit within the meaning of the said Code. The Act is a benevolent piece of legislation brought on the statute book by the Parliament with the laudable object of providing additional and speedy redressal of grievances of the persons, who are exploited at the hands of the sellers or manufacturers of goods or service providers, except for certain limited purposes. The provisions of the Code of Civil Procedure except as so far they have been provided in the CPA, are not applicable to the proceedings initiated before the Consumer Fora. Therefore, we are of the considered opinion that neither the rigors of the provisions of the Code of Civil Procedure nor the provisions of the Limitation Act can be invoked so as to scuttle the claim of a bona fide consumer, who approaches the Consumer Fora for redressal of his grievance under the provisions of the CPA.
We say so because, this Act provides a different period of limitation for filing various proceedings from what has been prescribed under the Limitation Act or the Code of Civil Procedure.
We are, however, not oblivious of the factual position of the present case that the complainants did not implead the ARAM Apolo Hospital as one of the opposite parties at the earliest occasion when they filed the complaint against the remaining opposite parties, viz., Ispat Hospital and its doctors. But the appellants have specifically explained as to why they could not do so. The explanation is that the record of the treatment which Smt. Sudha Ekka got at the ARAM hospital, was not within their knowledge and, therefore, they had reasons to expect that the treatment given to Smt. Sudha Ekka at the said Hospital would have been proper. It is a matter of record that the medical record of respondent No. 6, ARAM Apollo Hospital was filed in this Commission pursuant to the directions issued by this Commission and on perusal of the same, the appellant had come to know about the specifics of the treatment given by the said Hospital to Smt. Sudha Ekka during the period she remained admitted there and ultimately died. Immediately, thereafter, the appellant applied for impleadment of the said Hospital as one of the respondents and amendment of the complaint incorporating certain allegations in regard to the medical negligence and deficiency in the treatment given to Smt. Sudha Ekka at the said hospital. In our view, at best, the complainants can be said to be guilty of some laches but having regard to the nature of the proceedings before the Consumer Fora and in order to decide the complaint in a proper and effective manner and also to avoid multiplicity of the proceedings, we are of the opinion that the complaint, as it stands after amendment, should be tried and answered against all the respondents, including respondent No. 6, so as to decide finally if there was any negligence or deficiency in service on the part of any of the respondents where Smt. Sudha Ekka was treated, more particularly so when the existing respondents 1 to 5 have specifically tried to shift the negligence/deficiency in service to respondent No. 6. The respondent No. 6 should not feel shy to face the complaint and answer the allegations made against it.
11. For the above stated reasons we reject the preliminary objection raised on behalf of respondent No. 6 about the maintainability of the complaint against it.
The respondent No. 6 has been added at the appellate stage and the allegations against it and its defence has not been looked into by the State Commission. We, therefore, consider it expedient in the interest of justice that the complaint, as it stands after the amendment, should be remitted back to the State Commission for de-novo trial and fresh decision, after affording due opportunity to the parties to lead their evidence and to make their submissions.
12. In the result, the appeal is partly allowed and the impugned order dated 25.11.2003 is hereby set aside. The complaint is remitted back to the State Commission for trial and decision afresh, after affording due opportunities to the parties to lead their evidence and to make their submissions. The parties are directed to appear before the State Commission on 20.5.2010 for receiving further directions in the matter. No order as to costs in these proceedings.
Sd/-.J. ( R. C. JAIN ) PRESIDING MEMBER ..Sd/-...
(ANUPAM DASGUPTA) MEMBER Naresh/