State Consumer Disputes Redressal Commission
M/S.Parul Builders Pvt. Ltd. vs Mr.Ratan T. Padalkar on 30 April, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI Revision Petition no.97/2009 Date of Filing: 04/08/2009 Misc Application No. 01/2009 District Consumer Forum: Pune Date of Order: 29/03/2010 1. Dr.Makarand Ranade, Petitioners 2. Dr.Mrs. Neelam Makarand Ranade, (Org.Opp.Party nos.1 & 2) Both at 1014, Sadashiv Peth, Near Nagnath Par, Pune- 411 030. V/S 1. Mr.Kiran Subrao Patil, Respondents 2. Mrs. Aparana Kiran Patil, (Org.Complainants) R/at- Datta Darshan Bunglow, Plot No.18/A, S.No.35/3, Vidyanagar, Pune- 411 032. 3. Dr.Ketah Vartak, Clinic Address: 917/70, A.F.C.Road, Pune- 411 004. Quorum: Mr.S.R.Khanzode,Honble Presiding Judicial Member.
Mr.D.Khamatkar, Honble Member.
Present: Adv.Mr.Shripad Deshmukh for petitioner.
Adv.Mr.Harish Pawar for respondent nos. 1 & 2.
:-
ORAL ORDER :-
Per Shri S.R.Khanzode, Honble Presiding Judicial Member:
This revision application is directed against the order dated 15/06/2009 passed below Exhibit-1 in M.a.No. PDF 01/2009 Kiran S. PAtil & Ors. V/s. Dr. Makarand Ranade & Ors. passed by District Forum , Pune, whereby the delay of 1 year and 32 days in filing the complaint was condoned. Feeling aggrieved thereby, org.opp.party preferred this revision.
We heard Adv. Adv.Mr.Shripad Deshmukh for petitioner and Adv.Mr.Harish Pawar for respondent nos. 1 & 2. Perused the order.
Admittedly, org.complainant/Smt Aparna was admitted in the hospital of revisionist /opp.aprty no.1/Dr.Makarand Ranade. She was under their treatment soon after the pregnancy with effect from 26/03/2005. Her delivery took place on night in between 12 and 13th November, 2005 and she was discharged after the deliver from the hospital on 22/11/2005. After the delivery after about 3 days, precisely on 17/11/2005 around 6.00 p.m. a small leak (urine) was notice with no flank pain (as recorded in the case). She was under observation for the same for subsequent period. Even opp.party no.3/Dr.Vartak , a Urologist was summoned on 21/11/2005 and his examination confirmed that Smt Aparna had developed Vasico Vaginal fistula (VVF) in view of prolonged labour LSCS with obesity. His case papers further shows that particular problem at that time was discussed with Smt. Aparna and her relatives and it was advised that corrective surgery should be undertaken after six weeks to ensure success of the same. Smt.Aparna was thereafter, discharged on the following day i.e. on 22/11/2005. It is the contention of the org.complainant/opp.party that thereafter on 26/11/2005 they again consulted opp.party no.3/Dr.Vartak to reconfirm the earlier opinion, who asked them to consult revisionist /Dr.Makarand Ranade since she was primary under his treatment. The revisionist was not available on that day and on following day and therefore, on 28/11/2005 the complainant consulted one Dr.Shimpi and undergone a corrective repair surgery for VVF on 31/01/2006. Based on alleged opinion of Dr.Shimpi that such repair surgery ought to have been undertaken within 72 hours of the delivery and alleging further negligence on the part of the revisionist, belatedly, this consumer complaint was filed, supra, on 02/01/2009. The reasons for delay is mentioned in the application for delay condonation is as follows:
13. The applicants state that, as the applicant no.2 could not breast feed her son, he often used to fall ill and the applicants were required to take care of him. The complainants state that, the reproductive organs of the complainant no.2 are damages because of the negligent acts of the opponents and thus the complainant no.2 is not in a position to conceive again which is a lifetime damage to both the complainants and their family.
14.
The applicants state that the applicants could come out of the trauma only recently and thereafter the applicants were in the process of collecting necessary documents for taking appropriate action against the opponents.
Forum below accepting the said explanation condoned the delay.
It is a submission of revisionist that grounds mentioned for condonation of delay are quite vague and situation of VVF would never result into any kind of trauma as such there being no sufficient reasons and since the impugned order is based not on any legal grounds but passed on so called on moral equitable grounds, which in fact is not a valid no ground in the eyes of law for considering the issue of condonation of delay. The impugned order is bad in law and can be struck off. While opposing their such contention org.complainant stood by these reasons of Forum below and urged to dismiss the revision.
The case papers to which reference is made earlier while recounting the fact and which is an undisputed document like other documents viz. discharge card on record, reflects that after the successful delivery, after about three days, a small leak of urine was noticed and Smt. Aparna was under observation thereafter for the same. Org.Opp.party no.3/Dr.Vartak, Urologist was summoned and consulted on 21/11/2005 but on examination and applying necessary tests confirmed that it was a case of VVF and advised them to undergo repair surgery after about six weeks. This contention of the complainant that as such surgery ought to have been undergone within period of 72 hours of the delivery. However their such contention prima-facie appears to be unsound contention in view of medical literature on the subject on record. It is observed in Williams Obstetrics by Mack A Pritchard and Paul C. MacDonald (Fifteenth Edition) as under:
In obstructed labor, the tissues of various parts of the genital tract may be compressed between the head and the bony pelvis. If the pressure is transitory, it is without significance, but if it is prolonged, necrosis results, followed in a few days by sloughing and perforation.
In most such cases, the perforation occurs between the vagina an the bladder, giving rise to a vesicovaginal fistula. Less frequently , the anterior lip of the cervix is compressed against the symphosis pubis, and an abnormal communication is eventually established between the cervical canal and the bladder, a vesicocervical fistula. If the patient has no infection, the fistula may heal spontaneously. More often it persists, requiring subsequent repair.
The posterior wall of the uterus may be subjected rarely to so much pressure against the promontory of the sacrum that necrosis results, with a fistula communicating with the clu-de-sac.
It would be further observed in TE-Lendes Operative Gynecology by Richard F.Mattingly M.D. in Fifth Edition as under:
It is an advantage to have the tissues in as good condition as possible before attempting the operation. In the case of postoperative or post delivery fistulas, generally 4 months should elapse from the time of injury before attempting the initial repair, this important point, which Hunner emphasized frequently, is disregarded all too often, and attempts at repair are made too early when the condition of the tissues makes success impossible. One always should remember that every unsuccessful attempt at closure produces scar tissue and makes future attempts that much more difficult (underline provided) It would be seen from this medical literature as well as submissions made particularly, on the basis of case papers and discharge card that urine leakage due to VVF was confimed when SMt AParna was in the hospital before her discharge she along with her relatives were given complete idea of the pros and cons of the same and how repair surgery will be undertaken after few weeks to ensue a complete success. In the background of such contentions normally, is not expected to suffer any kind of trauma. She could not give breast feeding to her new born child due to medical advice since she was consuming medicines and this reasons is as even mentioned in her complaint.
In Concise Oxford English Dictionary at page 1526 the Trauma has been explained as under:
1. A deeply distressing experience;
2. Medicine-
Physical Injury;
3. Emotional shock following a stressful event.
Thus, since the trauma is giving a deeply distressing experience, physical injury, emotional shock following a stressful event. Therefore, if suffered from trauma, it would have reflected into symptoms and which ought to have been noticed by the patient or her relatives. No such circumstances exists. The application is quite vague and, thus, offering no sufficient reasons to condone this inordinate delay. Further such grounds would not assists the complainant to extended the period of limitation since the complainant were not under any legal disability which disentitled them to institute proceedings as held in the matter of K.S.Parameswaran V/s. Choice Builders, Pune and others, 1986-99 CONSUMER 4730 (NS). As per the provision of Section 24 of Consumer Protection Act, 1986 (hereinafter referred as Act) consumer complaint after the lapse of period of limitation could be entertain after the complainant have sufficient cause for not filing of complaint within such period. The parameters as laid down as per Section of 5 of Limitation Act could be of same assistance in this area. It is held by the High Court If Judicature at Bombay in matter of Kamalabai w/o Narasaiyya Srimal V/s. Ganpat S/o. Vitthalrao Gavare, 207 (1) Mh.L.J. 807 that grounds for condonation of delay must be spelled out clearly and distinctly in the application and the delay can not be condoned only because it is unintentional and after the complainant failed to explained as to when so called disability was removed. Apex Court also in the matter of R.K.Ramchandran V/s. State Of Kerala and another, AIR 1998 SUPRME COURT 2276 also held that there must be reasonable satisfactory and proper explanation of delay, the Count ( in this case, Forum below) have no power to extend period of limitation on equitable grounds (moral grounds). Argument of liberal approach while considering sufficiency of the grounds for condonation of delay cannot be stretched so far. It is observed In re Kamlabai V/s. Ganpat, supra, at page 811 is as under:
There cannot be any quarrel with the proposition that the expression sufficient cause is elastic. The question is as to what extent the elasticity may be strained.
In case of P.R.Ramchandran V/s. State of Kerala and another, AIR 1998 SC 2273 the Apex Court has observed that law of limitation may hardly affect a particular party but it has to be applied with all it rigor prescribed by statute and the Courts have no power to extend period of limitation on equitable grounds.
Going through the impugned order it is evident that Forum below instead of discussing the grounds raised clearly as well as on their merit of the same, swayed away by the moral circumstances on equitable grounds and thus, committed an error of law and arrived at wrong conclusion.
Ld.Counsel appearing for the org.complainant.respondent placed his reliance on Judgements passed in case of New India Assurance Co. Ltd. V/s. Tata Refractories Ltd. (2005) 12 Supreme Court Cases 442 and in case of Land Acquisition Officer & Asstt. Commissioner and another V/s. Hemanagouda And othrs, (2005) 12 Supreme court Cases 443. These cases have no applications on the facts of this case. For the reasons stated above mentioned that the impugned order can not stand in the eyes of law Forum below has committed a patent illegality while allowing the application and as such we hold accordingly and order as under:
:-ORDER-:
1.
Revision petition is allowed.
2. Impugned order dated 15/06/2009 passed in M.A.no.PDF/ 01/2009 (for condonation of delay) is set aside and in the result the consumer complaint stands dismissed.
3. In the background of the facts of this case parties shall bear their own costs.
4. Copies of the order herein be furnished to the parties.
(D.N.Khamatkar) (S.R.Khanzode) Member Presiding Judicial Member Nbh