National Consumer Disputes Redressal
P. Balaram vs Dr. J. Lakshmana Rao on 28 February, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4858 OF 2012 (From the Order dated 23.05.2012 in First Appeal No. 818/2010 of A.P. State Consumer Disputes Redressal Commission, Hyderabad) With IA/1/2012 (Delay) AND REVISION PETITION NO. 4859 OF 2012 (From the Order dated 23.05.2012 in First Appeal No. 1261/2010 of A.P. State Consumer Disputes Redressal Commission, Hyderabad) With IA/1/2012 (Delay) P. Balaram Petitioner S/o Appalaswamy Naidu Conductor in APSRTC R/o Peddapenki Village Balijipeta Mandal Vizianagaram District Andhra Pradesh Versus 1. Dr. J. Lakshmana Rao Respondents S/o Venkanna Panthulu Civil Assistant Surgeon Govt. General Hospital Vizianagaram Andhra Pradesh 2. The District Medical & Health Officer The District Government Hospital Vizianagaram Andhra Pradesh 3. The Medical Officer APSRTC Dispensary RTC Complex Vizianagaram Andhra Pradesh BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HONBLE MR. SURESH CHANDRA, MEMBER For the Petitioner : Mr. G.S. Mani, Advocate Pronounced on : 28th February, 2013 ORDER
PER SURESH CHANDRA, MEMBER Both these revision petitions have been filed by the petitioner against the common order dated 23.5.2012 passed by the A.P. State Consumer Disputes Redressal Commission, Hyderabad (State Commission for short) by which the State Commission allowed F.A. No.818 of 2010 filed by respondent No.1 setting aside the order dated 3.6.2010 passed by the District Consumer Disputes Redressal Forum, Vizianagaram and dismissed F.A. No.1261 of 2010 of the petitioner. Along with these revision petitions, the petitioner has also filed an application for condonation of delay of 79 days in filing the revision petitions.
2. It is submitted in the application that the petitioner received the certified copy of the impugned order in the first week of July 2010 but due to his financial condition, he took some time to arrange money for engaging a lawyer at New Delhi for filing the revision petitions. In the process, the delay occurred which according to the petitioner was neither wilful nor deliberate but on account of the financial condition of the petitioner. We are not convinced with the explanation for the delay offered by the petitioner and hence the petitions are liable for dismissal on this ground alone.
3. Coming to the merits, the facts relevant for decision in this case are that the petitioner who is an employee of the APSRTC was suffering from hernia and after diagnosis, he was operated by OP No.1 on 14.5.2004 and was discharged from the hospital of OP No.1 on 18.5.2004. Since he continued to suffer from pain, he consulted other doctors who stated that due to failure of operation, the complainant was suffering from pain because OP No1 had wrongly conducted the operation on a different nerve. The complainant underwent another operation by spending substantial amount for which he made a request to Executive Director (Medical) of the APSRTC for grant of the expenses of Rs.26,600/-. Alleging deficiency in service, the complainant/petitioner filed a complaint before the District Forum which was registered by the District Forum as C.C. No.5 of 2008. On notice, OP No.1/Respondent No.1 resisted the complaint denying any deficiency on his part while conducting the operation and treating the petitioner and also on the ground of limitation. The District Forum vide its order dated 3.6.2010 allowed the complaint on the premise that the OPs rendered deficiency in service in conducting the operation as a result of which, the complainant suffered and accordingly awarded an amount of Rs.1,50,000/- as compensation with interest and cost. Aggrieved by this order of the District Forum, OP No.1/Respondent No.1 filed F.A. No.818 of 2010 against it denying deficiency on his part and contending that the complainant is not a consumer since he had not paid any money for treatment to the OP hospital and that the complaint was not filed within the period of limitation. Not satisfied with the order of the District Forum, complainant/petitioner also filed an appeal seeking enhancement in the compensation awarded from Rs.1,50,000/- to Rs.15,00,000/-. As stated above, the State Commission vide its impugned order allowed the appeal of the respondent No.1 setting aside the order of the District Forum and dismissing the appeal of the petitioner as also the complaint filed by him.
4. We have heard Mr. G.S. Mani, Advocate for the petitioner and perused the record. It be noted that the State Commission vide its impugned order has dismissed the appeal and the complaint of the petitioner both on the grounds of complaint being barred by limitation as well as it being without any merit. While dismissing the appeal of the petitioner as well as the complaint, the State Commission has given reasons in support of the impugned order in paras 20 to 23 which may be reproduced thus:-
20. We have perused the complaint and could not find any prayer to condone the delay. Even if no other application to condone the delay caused in filing the complaint, at least a prayer ought to have been made in the complaint. The District Forum though has discussed the limitation aspect, as contended by the appellant it has allowed the complaint on the ground that cause of action for filing the complaint is continuous and the complaint was filed within the period of limitation. We do not agree with the observation of the District Forum that the complaint was filed within the period of limitation. For the foregoing reasons, we are not inclined to hold that the complaint was filed within two years from the date of accrual of right to sue to the respondent.
21. Even on merits of the case, the complainant has not examined any doctor to prove his contention that the opposite parties were negligent in conducting the surgery. The doctors at NIMS have expressed their opinion that the complainant was suffering from hallucinations and he was referred to a psychiatrist.
The complainant has not chosen to deny the reason for the doctors at NIMS to come to the conclusion that he was suffering from hallucination and not from pain due to any cause. In the backdrop of the treatment administered to the complainant at NIMS and the course of treatment adopted therefor, it cannot be said that the opposite parties were negligent in rendering treatment to the complainant.
22. It is pertinent to note that even in the case of a successful surgery, according to authors of Baily and Love there is possibility for 5% to 10% recurrence of hernia. The complainant has failed to examine an expert to prove that there was failure of the surgery and that the negligence of the opposite parties compelled him to undergo re-operation. Dr.Mahalaxmi, according to the complainant conducted the operation on 25.1.2007. Dr.Mahalaxmi in her evidence has not spoken of the reoperation.
The complainant has not adduced any evidence to show that there was negligence on the part of the opposite parties and that the doctors at NIMS have diagnosed him with his nerve cut during the course of operation. In the medical record of NIMS there is no remark or endorsement to the effect that his nerve was cut at the time of the surgery.
23. The opposite parties contend that there was no negligence in their medical treatment of the complainant. The report issued by Dolphin Diagnoses Services Ltd., the complainant was suffering from spondylitis and disc bulge and degenerative facet joints compressing thecal sac and bilateral existing nerve root. According to the opposite parties if there is any problem or pain it must be due to the spondilo arthosis or disc bulge or degenerative facet joints compressing thecal sac. We find the plea of the opposite parties convincing and supported by the evidence in the shape of report issued by the Dolphin Diagnoses Services. Further, the plea of the opposite parties is supported by the medical record of the NIMS. It is not disputed that the complainant is having fatty liver. The ultrasound scanning report dated 16.11.2004 and MRI report issued on 30.11.2004 would support the fatty liver (grade-I) that the complainant was suffering from and added to the reports, the OP card issued on 12.9.2005 by NIMS indicates that the skin hypothesis done did not yield any fruitful result.
5. We agree with the view taken by the State Commission. As regards the question of limitation, learned counsel for the petitioner has contended that the limitation period in the instant case got extended because of the second operation on 25.1.2006. The exact date of the filing of the complaint is not indicated on the copy of the complaint placed on record. However, since the complaint was registered as CC No.5 of 2008 by the District Forum, it is established that the complaint was filed sometime in the year 2008. It is further seen from the letter dated 29.8.2005 addressed by the petitioner to the Executive Director, APSRTC, Hyderabad for sanctioning an amount of Rs.26,600/- for conducting second operation that the petitioner was aware of the alleged deficiency on the part of the respondent No.1 doctor on the date that he sent this letter to the Executive Director for financial assistance. The relevant portion of his letter (a copy of which is placed on record as Annexure P-5 at pages 53-54 of the paper-book) reads thus:-
I, P. Balaram, Conductor No.E451032 informing herein that I have pain below my Abdomen, on the said reason, I went to APSRTC Dispensary, Vizianagaram, then they referred to District Government Hospital, Vizianagaram. Thereafter, they admitted me as In-patient and conducted Hernia Operation and same was failed. Again, the APSRTC Dispensary, Vizianagaram referred me Tarnka Hospital, Hyderabad. Again they referred to the NIMS Hospital. I got treatment in NIMS from 13.11.2004 to 30.3.2005, then they informed that the Nerve was cut due to operation conducted at Vizianagaram and they discharged me by stating that it is not possible to cure.
(Emphasis provided)
6. In view of the above, it is established beyond any doubt that the petitioner was aware of the alleged deficiency in service because of the cutting of the nerve due to operation conducted at Vizianagaram by the respondent No.1. In view of this, the period of limitation for the present consumer complaint starts from the date of the knowledge about the deficiency which undeniably can be taken to be 29.8.2005 and as such the period of 2 years of period for filing the complaint ended on 28.8.2007. Even though the complainant/petitioner seems to have deliberately avoided mentioning the date of filing of his complaint, its registration by the District Forum establishes it to be a complaint of 2008 and as such it was barred by limitation. Since the complainant/petitioner was already aware of the alleged deficiency, we cannot accept learned counsels plea of extension in the period of limitation on account of the second operation which came to be performed by a different doctor, namely, Dr. P. Mahalaxmi (of a different hospital) on 25.1.2006. In this view of the matter, the District Forum committed a mistake in rejecting the objection taken by OP No.1/respondent No.1 in his written submission and treating the consumer complaint as being within limitation and proceeding to deal with it on merits. Keeping in view the mandatory nature of the provisions of section 24A of the Consumer Protection Act 1986, the District Forum could not proceed to entertain a complaint which was filed beyond the period of limitation and that too without an application for condonation of delay. Even on merits, as recorded by the State Commission, there is no case to support the allegations of the petitioner. In the circumstances both the revision petitions stand dismissed at the threshold with no order as to costs.
Sd/-....
(AJIT BHARIHOKE, J.) PRESIDING MEMBER Sd/-....
(SURESH CHANDRA) MEMBER SS/