State Consumer Disputes Redressal Commission
Himanshu Singhal And Another vs Max Super Specialty Hospital on 2 September, 2024
FA/269/2023 D.O.D.: 02.09.2024
MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 09.06.2023
Date of hearing: 08.07.2023
Date of Decision:02.09.2024
FIRST APPEAL NO.-269/2023
IN THE MATTER OF
1. MR. HIMANSHU SINGHAL
(FATHER OF THE CHILD)
R/O A-81, PHASE 2 ASHOK VIHAR
NEW DELHI-110052
2. SMT. MEGHA SINGHAL
(MOTHER OF THE CHILD)
R/O A-81, PHASE-2,
ASHOK VIHAR, DELHI-110052
(Through : Appellant No. 1 In Person)
VERSUS
1. MAX SUPER SPECIALITY HOSPITAL AND ORS
12TH FLOOR, DR.GOPALDASS BHAWAN
28, BARAKHAMBA ROAD, CONNAUGHT PLACE
NEW DELHI-110001
...Respondent 1
2. Dr. SATVINDER KAPOOR
MAX SUPER SPECIALITY HOSPITAL,
FC-50, C&D BLOCK,
SHALIMAR BAGH, NEW DELHI-110088
...Respondent 2
ALLOWED PAGE 1 OF 14
FA/269/2023 D.O.D.: 02.09.2024
MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS
3. Dr. HARSH WARDHAN
MAX SUPER SPECIALITY HOSPITAL,
FC-50, C&D BLOCK,
SHALIMAR BAGH,
NEW DELHI-110088
...Respondent 3
4. MAX SMART SUPER SPECIALITY HOSPITAL
MANDIR MARG, PRESS ENCLAVE ROAD,
SAKET, NEW DELHI-110017
THROUGH MEDICAL SUPERINTENDENT & CHAIRMAN/
MANAGING DIRECTOR OF MAX HEALTHCARE
MR. ABHAY SOI
...Respondent 4
5. Dr. BHASKAR SAIKIA
MAX SMART SUPER SPECIALITY HOSPITAL,
MANDIR MARG, PRESS ENCLAVE ROAD,
SAKET, NEW DELHI-110017
...Respondent 5
(Through: Mr Shakti Chaturvedi,
Counsel for the Respondent No.1-5)
6. Dr. SHARAT VERMA
MAX SMART SUPER SPECIALITY HOSPITAL,
MANDIR MARG, PRESS ENCLAVE ROAD SAKET,
NEW DELHI-110017
...Respondent 6
ALLOWED PAGE 2 OF 14
FA/269/2023 D.O.D.: 02.09.2024
MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Appellant in Person(M. No. 9811056113 E-mail:
[email protected])
Ms. Shakti Chaturvedi, counsel for Respondent(Enrl. No.
UP/13864/2019 M. No. 8979400455 E-mail:
[email protected])
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The present Appeal has been preferred by the Appellant for setting aside the order dated 26.04.2023 passed by the District Commission, North West, Shalimar Bagh, New Delhi in Complaint Case No.122/2023. The facts of the case as per District Commission record are "Complaint has filed the present complaint under Section 34 of the Consumer Protection Act, 2019, alleging the deficiency in services against OPs. The brief facts of the complaint are that between 1st to 4th February, 2020 complainant child age about 02 years 03 months was suffering from fever cough, semi-loose stools and running nose as such complainant approached OP-1 on 05.02.2020, where the child was examine by OP-2 who diagnosis Simple Dysentery and advised a need for rehydration and anti-
ALLOWED PAGE 3 OF 14 FA/269/2023 D.O.D.: 02.09.2024
MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS biotics with a hospital stay of 4 to 5 days for complete recovery with further assurance that there was nothing to worry at all. Accordingly, the child was admitted to general ward on the advice of OP-2 with OP-1. On admission certain routine blood test were prescribed and after death it was confirmed by OP-2 that there was nothing critical or alarming but only very mild lying infection. It is further alleged that report of sum crucial/selective tests were concealed by the OPs till date to hide the gross negligence conducted by the OPs.
2. On 06.02 2020 OP-3 came to review the child and based on casual and negligent vistual examination from a distance, he diagnose the child is suffering from acute anal fisher and recklessly prescribed a drug namely Movicol. Soon after administering Movicol the child started passing uncontrolled and excessive urine, as a result by around 06:00 PM child became severely dehydrated and became extremely weak, stop talking could not even move or hold his head. The condition of the child eventually became serious and the child developed acute liver failure and irreversible damaged to other vital organs because of severe dehydration. Immediately the child was shifted to ICU on the pretext of meningitis.
3. On 07.02.2020, OP-2 and other personnel of Op-1 gave alarm to the complainant by raising the possibility of liver failure and pressurised for shifting the child to OP-4 under the pretext of emergency liver transplant. On 09.02.2020 at 09:40am the child finally died at OP-4 Hospital. It is alleged by the complainant that in a aforesaid conspiracy the OPs never disclosed the3 actual reason for drastic deterioration of the child finally leads to his death. On 12.02.2020 the complainant lodged the police complaint at PS Ashok Vihar against the OPs alleging the gross culpable medical ALLOWED PAGE 4 OF 14 FA/269/2023 D.O.D.: 02.09.2024 MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS negligence and concealment reports and records. It is further stated that this commission has pecuniary as well as territorial jurisdiction to entertain and adjudicate the present complaint. It is also stated that the present complaint is well within the limitation period considering the exemption granted by Honble Supreme Court due to COVID.
4. Argument on the admissibility of the complaint was heard. File perused. Admittedly, the child died on 09.02.2020. The complainant lodged complaint against the OPs at PS Ashok Vihar alleging the gross culpable medical negligence and concealment of reports and records.
5. Perusal of the file shows that the cause of action for filing the present complaint first arose on 09.02.2020. The complainant has filed the present complaint on 24.02 2023 without any application for condonation of delay in filing the present complaint.
6. It is submitted on behalf of complainant that the present complaint case is the present complaint is well within the limitation period considering the exemption Regranted by Hon'ble Supreme Court due to COVID pandemic.
As per section 69 of Consumer Protection Act, 2019: -
1. 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 arisen.
2. Notwithstanding anything contained in subsection (1). A complaint may be entertained after the period specified in sub-section (1), 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 ALLOWED PAGE 5 OF 14 FA/269/2023 D.O.D.: 02.09.2024 MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS no such complaint shall be entertained unless the National Commission, the State Commission, as the case may be records its reason form condoning such delay.
7. A perusal of the aforesaid statutory position reflects that the complaint should be preferred within a period of two years of the accrual of cause of action.
8. The complaint has taken the shelter of the order dated 10.01.2022 passed by Hon'ble Supreme Court in Suo Moto Writ petition (Civil) No. 3 of 2020 vide which the period of limitation was extended till 28.02.2022 and further, the Hon'ble Supreme has also extended the period of limitation for further 90 days in the case where the limitation has expired during the period between 15.03.2020 till 28.02.2022. The relevant para of the judgment read as under:
"Taking into consideration the arguments advance by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the MA No.21 of 2022 with the folowing directions:
The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till FA/88/2022 STATE BANK OF INDIA VS. VIJAY KUMAR & ANR. DOD: 07.03.2023 Page 6 of 8 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings."
Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
ALLOWED PAGE 6 OF 14 FA/269/2023 D.O.D.: 02.09.2024
MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, the longer period shall apply.
IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Section 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings".
9. Admittedly, the cause of action firstly arose on 06.02.2020 and finally on 09.02.2020. As per section 69 of CP Act, the complainant ought to have file the present complaint within 02 years of the accrual of cause of action. This means that the present complaint should be filed by the complainant on or before 08.02.2022. The complainant justifying the delay further submit that the benefit of the order dated 10.01.2022 passed by Hon'ble Supreme Court in Suo Moto Writ petition (Civil) No. 3 of 2020 vide which the period of limitation was extended till 28.02.2022 and further, the Honble Supreme has also extended the period of imitation for further 90 days in the case where the limitation has expired during the period between 15.03.2020 till 28.02.2022 be given to him."
ALLOWED PAGE 7 OF 14 FA/269/2023 D.O.D.: 02.09.2024
MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS
2. The District Commission after taking into consideration the material available on record, passed the following order dated, dismissing the Complaint and held as under:
"10. In the present case, the period of 90 days starts from 01.03.2022 expires on 08.05.2022. However, the present complaint has been filed on 24.02.2023, i.e. after the delay of approx 270 days from the date of accrual of cause of action. No sufficient cause has been given by the complainant regarding the huge delay in approaching this Commission. The complainant filed the police the complaint against the OP on 12.02.2020 with PS Ashok Vihar. He also served the legal notice on the Ops on 09.03.2020, and also lodged the complaint with Delhi Medical Council and Directorate General of Health Service on 30.05.2020. Complainant failed to explain as to why he had not approached this Commission well in time, whereas he has already initiated the criminal proceeding against the Opposite Parties.
11. Admittedly, the present complaint was filed by the complainant much beyond the extended limitation granted by Hon'ble Supreme Court due to COVID pandemic.
12. In view of the aforesaid discussion we are of the considered view that the complainant is not entitled to avail he benefit of the order passed by the Hon'ble Supreme Court,.
13. Having regard to the statutory position discussed in para supra and the facts of the case, we are of the considered view that the present complaint is filed ALLOWED PAGE 8 OF 14 FA/269/2023 D.O.D.: 02.09.2024 MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS beyond the statutory period hence dismissed, being barred by limitation.
File be consigned to record room."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant has submitted that the District Commission has acted in violation of Hon'ble Supreme Court's order dated 10.01.2022 on limitation in deciding the admissibility of a complaint. It is further submitted that in the present case, the cause of action i.e. date of death of the child is on 09.02.2020. Therefore, only 35 days (from 09.02.2020 till 15.03.2020) out of 2 years of limitation period were 'consumed' by the complainant. Hence there remained a balance period of 695 days [2 years -35 days] as on 15.03.2020 which is carried forward as balance period to 15.03.2021. Secondly, it is submitted that there is no provision in law to shrink the limitation period but only extension is possible. Thirdly, it is submitted that the District Commission has acted in violation of section 36(2) and (3) of the Consumer Protection Act. Lastly it is submitted that the impugned order is in violation of Limitation Act as crucial records are being concealed till date by the Respondents.
4. The Respondents No.1-5 have filed their joint written statement to the present appeal and have stated therein the District Commission has rightly passed order dated 26.04.2023, holding the complaint as inadmissible on ground of limitation. It is further submitted that it is an admitted position by Appellant that cause of action first arose on 06.02.2020 and then on 09.02.2020. Thus, in view of the Order on Limitation passed by the Hon'ble Apex Court, the Appellant got a ALLOWED PAGE 9 OF 14 FA/269/2023 D.O.D.: 02.09.2024 MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS liberty to file a complaint within 90 days with effect from 01.03.2022, however the Appellant had filed the complaint much later than the expiry of limitation even without a condonation of delay application. It is further submitted that even considering the first scenario as stated in the Order on Limitation, the balance period available to Appellant on 01.03.2022 was 128 days and not 695 days as pleaded by the Appellant. Lastly, it is submitted that even if Appellant is allowed benefit of longer days i.e. 128 days from 01.03.2022, yet the complaint was filed on 28.03.2023 much after expiry of limitation. Therefore it is submitted that in both the situations the Appellant has filed the complaint beyond the limitation period with a delay of more than 133 days or 270 days respectively.
5. We have perused the material available on record and the Impugned Order.
6. To deal with this issue, we deem it appropriate to refer to the order Suo Motu Writ Petition (C) No. 3 Of 2020;In Re: Cognizance ForE xtension Of Limitation dated 10.01.2022 wherein the Hon'ble Apex Court held as under:
"I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings ALLOWED PAGE 10 OF 14 FA/269/2023 D.O.D.: 02.09.2024 MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.
IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings"
7. A perusal of the para 1 of the aforesaid order makes it clear that the said order is in continuation of the previous orders passed by the Hon'ble Supreme Court as it records that order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021 passed by the Hon'ble Supreme Court, the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed ALLOWED PAGE 11 OF 14 FA/269/2023 D.O.D.: 02.09.2024 MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS under any general or special laws in respect of all Judicial or quasi judicial proceedings.
8. A perusal of the Para 2 of the aforesaid order makes it clear that the balance period of limitation remaining as on 03.10.2021, if any shall become available with effect from 01.03.2022. It is to be noted here that period from 15.03.2020 till 14.03.2021 i.e. 1 year already stood excluded while computing the limitation period, vide previous order dated 08.03.2021. It is to be noted again that the limitation would now start from 15.03.2021 as per the order dated 08.03.2021.
9. As per the statutory framework under the Consumer Protection Act, a complaint has to be filed within 2 years from the date the cause of action arises. Adverting to the facts of the instant case, it is clear from the record that the cause of action ie. date of death of the child/patient was on 09.02.2020. Thereafter, from 09.02.2020 till 15.03.2020 only 35 days out of 2 years of limitation period were consumed by the complainant. Hence there remained a balance period of 695 days i.e. 35 days subtracted from 2 years, as on 15.03.2020 which shall be carried forward as balance period to 15.03.2021, as per the direction of the Hon'ble Supreme Court contained in the order dated 08.03.2021. Again, as per further extension order dated 23.09.2021 it is clear that the exemption in limitation period was subsequently extended by 6 months from 15.03.2021 till 02.10.2021. Thus, the period of limitation would now start from 03.10.2021 and the balance period of 695 days which was remaining on 15.03.2021 shall be carried forward to ALLOWED PAGE 12 OF 14 FA/269/2023 D.O.D.: 02.09.2024 MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS 03.10.2021 in view of the directions contained in the order dated 23.09.2021. Consequently, by virtue of Para 2 of the aforementioned order dated 10.01.2022 the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
10. A subsequent perusal of Para (3) of the aforementioned order dated 10.01.2022 makes it clear that in cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. It is further clear that in the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply. Here, it is to be noted that the pivotal terms used by the Hon'ble Apex Court being notwithstanding the actual balance period of limitation remaining, the order has categorically stated that the balance period remaining does not lapse and is to be carried forward.
11. In view of the aforesaid discussion, it is clear that the balance limitation period in the instant case remains greater than 90 days as on 01.03.2022, and as per the aforementioned order dated 10.01.2022, in such an event, the longer period shall apply. In the present complaint, the balance period remaining as on 01.03.2022 is 695 days, which is longer than 90 days and thus limitation period ends on 01.02.2024 by adding 695 days to 01.03.2022, whereas the Complaint was already filed before the District Commission on ALLOWED PAGE 13 OF 14 FA/269/2023 D.O.D.: 02.09.2024 MR.HIMANSHU SINGHAL AND ANR VS MAX SUPER SPECIALITY HOSPITAL AND ORS 24.02.2023, thus making the Complaint as filed by the Complainant fall squarely within the period of limitation.
12. Therefore, we opine that the District Commission erred in computing the period of limitation and dismissing the complaint of the Complainant/Appellant.
13. Consequently, the present Appeal stands allowed with no order as to costs and Complaint Case No.122/2023 is restored to its original number before the District Commission, North West, Shalimar Bagh, New Delhi.
14. The parties are directed to be present before the District Commission on 09.10.2024. The District Commission is directed to conduct the proceedings as per law after giving due notice and hearing the parties.
15. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
16. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
17. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
02.09.2024 LR-GPK ALLOWED PAGE 14 OF 14