National Consumer Disputes Redressal
Professor Baleshwar Singh (Deceased) ... vs Dr. Manoj Sharma & Ors. on 26 July, 2012
OP 10/1998 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 261 OF 1999 Professor Baleshwar Singh (Deceased) Through Legal Representatives : 1. Smt. Shanti Devi Widow of Prof. Baleshwar Singh (Deceased) 2. Smt. Asha Rani Singh Daughter-in-law of Late Baleshwar Singh Widow of Late Dr. A.K. Singh 3. Kumareshwar Singh Son of Late Prof. Baleshwar Singh 4. Arvind Kumar Singh Son of Late Prof. Baleshwar Singh Complainants 2 to 4 are residents of Village & Post Office Sonepur District Saran (Chapra) Bihar 5. Nand Kishore Singh Son of Late Prof. Baleshwar Singh R/o 76, Akash Kunj, Sector-9 Rohini, Delhi-110085 6. Smt. Champa Singh Wife of Dr. A.K. Singh R/o 75, Akash Kunj, Sector-9 Rohini, Delhi-110085 7. Meera Singh Wife of Shri Ajit Kumar Singh R/o 173, Picnic Garden Road Kolkata (West Bengal) Complainants Versus 1. Dr. Manoj Sharma C/o M/s Golden Hospital 2, Institutional Area Rohini, New Delhi-110085 2. Dr. Shekhar Agarwal (ex-Doctor of M/s Jaipur Golden Hospital) Presently Director M/s Parmanand Hospital 18, Alipur Road Delhi-110054 3. M/s Jaipur Golden Hospital 2, Institutional Area Rohini, Delhi-110085 Through its Medical Superintendent-in-charge Opposite Parties BEFORE : HONBLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HONBLE MR. S.K. NAIK, MEMBER For the Complainants : Mr. Gopal Jha, Advocate For Opposite Parties : Mr. Mridul Chakravarty, Advocate Pronounced on : 26th July, 2012 O R D E R PER S.K. NAIK, MEMBER 1. Professor Baleshwar Singh, through his son and general attorney holder Nand Kishore Singh, has filed this complaint under Section 21 read with Section 2 and 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act), alleging medical negligence and deficiency in service on part of the opposite parties and has sought a compensation of Rs.39,36,700/- with interest @ 24% per annum on Rs.19,95,000/- from 1st of September, 1999 till date of realization. In response to the notice issued to them, the opposite parties denying that there was any negligence on their part and further raising a preliminary objection that the complaint was hopelessly barred by limitation and contending that the complaint was frivolous have sought its dismissal. 2. During the pendency of the complaint, Professor Baleshwar Singh expired on 16th of July, 2006 and his son and attorney Nand Kishore Singh filed Miscellaneous Application No. 67 of 2007 for bringing the legal representatives of the deceased on record. His request was granted vide this Commissions order dated 14th September, 2007 and, therefore, an amended memo of parties was filed, which included Smt. Shanti Devi, the widow of the deceased and other heirs. The opposite parties dissatisfied with the order of this Commission allowing the legal representatives to be brought on record filed Misc. Application No. 220 of 2008 urging the dismissal of the complaint, firstly on the ground that after the death of the original complainant Professor Baleshwar Singh, his legal representatives did not qualify to be complainants within the meaning of Section 2(1)(b) of the Act. In addition, it was submitted that the complaint was hopelessly barred by limitation, inasmuch as the cause of action arose on the 2nd/5th of November, 1993 whereas the complaint has been filed after a lapse of more than five years on 13th September, 1999. On this miscellaneous application, this Commission ordered that it will be taken up for consideration at the time of final arguments vide its order dated 13th of October, 2008. Thereafter, Smt. Shanti Devi, widow of the complainant deceased Professor Baleshwar Singh, also expired on 23rd of January, 2010 and an application was filed for the deletion of her name from the array of the complainants as all her legal representatives were already duly represented in the complaint, which was allowed. 3. The parties have filed their respective evidence and submitted their written arguments. At the time of final hearing of the case, learned counsel for the opposite parties brought to the notice of the Commission that their Miscellaneous Application No. 220 of 2008 raising objection to the bringing on record the legal representatives of Professor Baleshwar Singh (the complainant) after his death and also their objection to the complaint being barred by limitation should be considered at the outset. 4. On the point of limitation, learned counsel for the opposite parties has contended that Professor Baleshwar Singh, aged about 65 years, was brought to the opposite party/hospital on 2nd of November, 1993 with fracture in intertrochantric region right hip stated to have occurred due to a fall on his pilgrimage to Vaishno Devi. He was unable to stand up and walk. An operation by the opposite party orthopedic surgeons was successfully conducted on 5th of November, 1993. Professor Baleshwar Singh was discharged from the opposite party hospital on 9th of November, 1993 with no serious complaint. He was able to stand up and walk with the help of an attendant and with walker. Subsequently, on every follow up visits x-ray was done, which showed the progress in union of fracture bones though the progress was slow due to the age factor. The cause of action, if any, therefore, arose when the complainant was discharged on 9th of November, 1993 but the complaint was filed on 13th of September, 1999 after five years, which is clearly beyond the period of two years provided under Section 24A of the Act. The learned counsel draws support in this regard from the following judgments of the Supreme Court :- (i) State Bank of India v. B.S. Agriculture Industries (I) [(2009) 5 SCC 121]; (ii) Haryana Urban Development Authority v. B.K. Sood [2006(1) CPR 121 (SC)]; and (iii) V.N. Shrikhande (Dr.) v. Anita Sena Fernandese [2011 CTJ 1 (SC) (CP)]. 5. Learned counsel for the complainants in his response has submitted that the cause of action in this case first arose on 5th of November, 1993 when the operation was conducted and thereafter on 9th of November, 1993 when complainant Professor Baleshwar Singh was discharged and again on 26th of November, 1993, 28th of December, 1993 and 29th of March, 1994 when post-operative follow up visits were made and x-rays were conducted and finally on 13th of August, 1994 when the x-ray obtained at his native place was shown to the opposite parties by the son of the complainant, who continued to suffer pain and agony until it was discovered on the 31st of May, 1999 after consulting Dr. Ranjeet Singh at Patna Medical College and Hospital, who stated that there had been negligence on part of the opposite parties and, therefore, the cause of action continued till then. The complaint having been filed soon thereafter on the 13th of September, 1999 within the prescribed period of limitation, the contention of the opposite parties that it was barred by limitation has no legs to stand. To counter the support drawn by the learned counsel for the opposite parties from the judgment of the Honble Supreme Court in the case of V.N. Shrikhande (supra), he has submitted that in the same very judgment it has been held by the Apex Court that in a case of medical negligence no strait jacket formula can be applied as to when the cause of action arose. If the negligence is latent, then the cause of action occurs when it comes to the knowledge of the patient. He has, therefore, submitted that the ruling relied upon by the learned counsel for the opposite parties is clearly distinguishable. 6. We have carefully considered the stand point advanced by the learned counsel from both the sides. From the records, we find that the deceased complainant Professor Baleshwar Singh after his operation on 5th of November, 1993 and discharge from the hospital on 9th of November, 1993 was last seen by the opposite parties on 29th of March, 1994 as a follow up. Thereafter, deceased complainant Professor Baleshwar Singh went to his hometown Sonepur, Bihar. In the brief synopsis filed by the learned counsel for the complainants, it has been stated that deceased complainant Professor Baleshwar Singh got an x-ray undertaken on 13th of August, 1994 at his native place, which was carried by his son to Delhi and shown to the opposite party doctors but the same assurance of improvement in the near future was given to his son. This, however, does not find a mention in the original complaint but even if we take this to be true, the cause of action can be said to have arisen on 13th of August, 1994. The complaint having been filed on 13th of September, 1999 after a gap of more than five years is clearly beyond the prescribed period of two years under Section 24A of the Act. The contention of the learned counsel for the complainants that the deceased complainant Professor Baleshwar Singh continued to suffer from the pain and agony even after the operation ever since until he consulted Dr. Ranjeet Singh on 31st of May, 1999, who on a perusal of the earlier x-ray plates informed him that the earlier operation had not been properly conducted, clearly proves that the cause was a continuing one. We, however, do not think so. The deceased complainant has not stated or produced any evidence that he had complained or consulted the opposite parties or any other hospital or orthopedic surgeon in his native place with regard to his continuing pain during the period 1994 to 31st of May, 1999. The Honble Supreme Court in the case of V.N. Shrikhande (supra) no doubt has held that in case of medical negligence no strait jacket formula can be applied for determining as to when the cause of action has accrued and each case has to be decided on its own facts, but the Honble Apex Court in the same judgment has set aside the order of this Commission, wherein a complainant after an operation of cholecystectomy had suffered pain in her abdomen because of a piece of gauze having been left in her abdomen at the time of operation for a long period of nine years and this Commission had held that it was a case of continuing cause of action. The Honble Apex Court while setting aside our order said :- 34. The respondent has not explained as to why she
kept quiet for about 9 years despite pain and agony. The long silence on her part militates against the bona fides of the respondents claim for compensation and the Discovery Rule cannot be invoked for recording a finding that the cause of action accrued to her in November 2002.
The National Commission, in our considered view, was clearly wrong when it held that the cause of action lastly arose to the respondent on 25-10-2002 when the second surgery was performed at Lilavati Hospital and the complaint filed by her on 19-10-2004 was within limitation.
7. In the case in hand, as already stated, the deceased complainant Professor Baleshwar Singh did not complain or agitate his continuing problem for a continuous period of five years and even though he may have suffered in silence, this long gap would militate against the genuineness for the claim of compensation. By this time, the law on the subject of limitation stands fully settled and reliance by the counsel for the complainants on the recent case of State Bank of India v. B.S. Agriculture Industries (I) (supra) is apt and we, therefore, are of the view that the complaint is clearly barred by limitation.
8. Learned counsel for the opposite parties has also raised the eligibility of the legal representatives to sustain and maintain the complaint after the death of the complainant Professor Baleshwar Singh. Learned counsel contends that the right to sue or maintain the complaint survives only during the lifetime of a complaint and abates the moment he expires. In support of this contention, he relies upon the judgment of the Honble Apex Court in the case of M. Veerappa V. Evelyin Sequeira And Ors. [(1988) 1 SCC 556], in which it has been held that if negligence has resulted in injury of personal nature, the suit or appeal will abate on the death of the plaintiff or appellant and legal representatives of the deceased will not be entitled to be impleaded.
9. Learned counsel has also referred to another judgment of the Honble Apex Court in the case of Melepurath Sankunni Ezhuthassan v. Thekittil Geopalanakutty Nair [(1986) 1 SCC 118], in which the main headnote states as under :-
Civil Procedure Code, 1908 Order 22 Rules 1, 3 and 11 Death of sole plaintiff-appellant during pendency of his appeal in defamation suit Abatement of Applicability of Section 306 of Succession Act, 1925 Held, where during pendency of appeal against dismissal of a suit for damages for defamation the plaintiff-appellant dies, the appeal will abate Appeal would survive if the plaintiff were defending a decree in his favour.
10. Referring yet to another order passed by this Commission in the case of Janak Kumari V. Dr. Balwinder Kaur Nagpal [II (2003) CPJ 28 (NC)], the learned counsel has contended that the principle of actio personalis moritur cum persona would be applicable to the facts of this case.
11. We are in full agreement with the contention raised by the learned counsel for the opposite parties that the legal representatives of the deceased complainant Professor Baleshwar Singh would not be entitled to carry forward the complaint after his death.
12. In view of the above discussion, we hold that the complaint is grossly barred by limitation and after the death of deceased complainant Professor Baleshwar Singh, the complaint would abate and the legal representatives would have no locus standi to continue with the complaint and the complaint has to be dismissed on these twin grounds. It is, therefore, not necessary for us to dwell further into the facts, circumstances and merits of the case.
13. The complaint is, accordingly, dismissed with no order as to cost.
Sd/-
( R. C. JAIN, J. ) PRESIDING MEMBER Sd/-
( S. K. NAIK ) MEMBER Mukesh