Per Justice Sham Sunder , President This appeal is directed against the order dated 6.1.2003, rendered by the District Consumer Disputes Redressal Forum,Patiala (hereinafter to be referred as the District Forum only), vide which it dismissed the complaint, which was originally filed by Amandeep Singh (Minor) through his father Bhupinder Singh. 2. The facts, in brief, are that Amandeep Singh, minor son of Bhupinder Singh met with an accident in the end of 1997 and his right hip joint got fractured. He got treatment from OP NO.2, who operated upon him in Amar Hospital, Patiala on 29.4.98. Thereafter too, the complainant had been getting treatment from OP NO.2. Even after performing the operation, the complainant had been suffering from pain. After three months of the operation, the complainant got x-rayed his right hip joint. There was no improvement of his condition/pain. OP NO.2 assured the complainant that there would be no problem. According to X-ray report , the screw with metal pins inserted in the right hip of the complainant started becoming loose, one by one, causing more pain and agony, to him . After sometime, all metal pins separated, from the screw, as a result whereof, the complainant suffered more pain and agony. The complainant then approached Dr. H.S.Sohal of Rajindra Hospital, Patiala. On his advice, he got himself admitted on 25.11.2000 in Rajindra Hospital, Patiala. He was again operated upon on 27.11.2000, and the metal pins with screw, which were inserted/fitted, in his right hip , were removed by Dr.Sohal by performing surgery. He was discharged from the hospital on 30.11.2000. The complainant had to spend Rs.20,000/- on second operation, medicines special diet etc. As per advice of Dr.Sohal, he was yet to undergo another operation of his right hip for which the expected expenditure would be Rs.50,000/-. It was further stated that OP NO.2 was negligent and careless, in the matter of performing operation, upon the complainant. It was further stated that even the metal pins and screw were not fitted/inserted with due care and caution, which caused physical pain and mental agony, to the complainant, who suffered financially as well. It was further stated that since OP NO.2, committed medical negligence and was deficient, in rendering service, he was liable to pay compensation, to the complainant. When the grievance of the complainant was not redressed, left with no other alternative, the complainant filed a complaint under Section 12 of the Consumer Protection Act (hereinafter to be called as the Act only), claiming compensation, in the sum of Rs.4.00 lacs from the OPs. 3. In reply, OP NO.1 pleaded that no cause of action, accrued against it, to the complainant. It was stated that OP No.2 was not working with OP NO.1, and, as such, it (OP NO.1) was not vicariously liable for any negligence, whatsoever, if proved, on the part of OP NO.2. It was further stated that according to the hospital record, OP NO.1, had been giving its operation theatre, on rent, to any visiting doctor, and the patient admitted therein, remained under the control of that doctor and not OP No.1. It was further stated that, as per the record of OP NO.1, the complainant was operated upon, in the hospital, by hiring the operation theatre, but was not treated by any doctor of the hospital. Accordingly OP No.1, denied its joint and several liability. 4. OP NO.2, in his reply, stated that he never operated upon the complainant, as he was in government job, and was posted as Assistant Professor, in the department of Orthopaedic, Rajindra Hospital, Patiala, in December 97. It was further stated that he might have treated the complainant in Rajindra Hospital, Patiala. Since, the complainant had not filed documents, regarding the treatment, he could not say that he had issued any OPD slips or made entries, in the bed head ticket. He denied that any operation was performed on 29.4.98 in Rajindra Hospital, Patiala upon the complainant. It was further stated that OP NO.2, was unaware of any treatment, taken by the complainant, from Dr.H.S.Sohal. The remaining averments, were denied, being wrong. 5. The parties led evidence, in support of their case. 6. After hearing the Counsel for the parties, , and, on going through the evidence and record of the case, the District Forum came to the conclusion, that medical negligence, on the part of OP Nos.1 and 2 had not been proved. It further held that no objection was taken by the OPs in their written reply that the complaint was barred by time, and the plea that cause of action accrued, after second operation, having not been refuted, by the OPs, it was not inclined to dismiss the complaint, on the ground of limitation. It was further held by the District Forum that no doubt OP NO.2 denied that he performed operation, upon the complainant, yet his version could not be believed. Ultimately, the complaint was dismissed by the District Forum. 7. Feeling aggrieved, the instant appeal, was filed by Amandeep Singh appellant/complainant, before the Punjab State Consumer Disputes Redressal Commission, Chandigarh, and, ultimately, it was received on transfer in this Commission. 7-A. During the pendency of appeal, Amandeep Singh Complainant died and he was substituted by his father Sh.Bhupinder Singh, as appellant. 8. The perusal of the file revealed that on 8.4.2011 neither the appellant, nor his Counsel was present. Even on 2.5.2011 neither the appellant, nor his Counsel was present. Since, the appeal related to the year,2003, we were of the considered opinion, that further adjournment was unwarranted. We were also of the view that the same should be decided on merits. 9. We have heard the Counsel for the respondents, and have gone through the evidence, and record of the case, as also the impugned order and the grounds of appeal. 10. In the grounds of appeal, the grounds taken up, by the appellant, were to the effect, that the District Forum held that the operation was performed upon the appellant by OP No.2, but erred in holding, that no medical negligence, on the part of OP No.2, was proved. It was further mentioned in the grounds of appeal, that it was, on account of the complete medical negligence, on the part of OP No.2, that the operation was not properly conducted, as a result whereof, a lot of mental agony, physical harassment and financial loss was caused to the complainant. It was also stated, in the grounds of appeal, that the medical evidence produced by the complainant/appellant, was not taken into consideration by the District Forum, as a result whereof it fell into an error in dismissing the complaint. 11. The Counsel for the respondents , submitted that the complaint was palpably barred by time, and the District Forum, erred in coming to the conclusion, that since, no such objection was taken by the OPs, in their written reply, as such, it was not inclined to dismiss the same, on that ground. He further submitted that the question of limitation, being legal in nature, could be raised at any time. He further submitted that the District Forum was, however, right in dismissing the complaint, holding that no expert opinion was produced by the complainant, that there was negligence and carelessness, on the part of the doctor, in conducting the first operation. He further submitted that the doctor who allegedly, operated upon the complainant, for the first time, was well qualified and had the skill of conducting the operation. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld. 12. After giving our thoughtful consideration, to the facts and circumstances of the case, as also the submissions made by the Counsel for the respondents, and the evidence on record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons, to be recorded hereinafter. First, coming to the question of limitation, it may be stated here that the first operation, as stated above, was conducted on 29.4.98 and the complainant was discharged from the hospital on 1.5.98. In the complaint itself, the complainant stated that after about three months of the operation, he got x-rayed his right hip joint, but there was no improvement in his condition, nor did he get any relief in pain. He further stated in the complaint that the screw with metal pins, inserted in his right hip, started becoming loose and causing more pain and agony to him. It means that after about three months, from the date of discharge i.e. on 1.5.98, the complainant came to know that there was alleged medical negligence, on the part of the doctor who operated upon him on 29.4.98. Thus, the cause of action accrued to the complainant, to file a complaint U/S 12 of the Act, within two years from that date. The complainant, however, slept over the matter. It was not a continued cause of action, and, as such, it could not be said that he could file a complaint, only after the second operation on 27.11.2000. The complaint was filed on 28.5.2001 i.e. much beyond the period of two years, as envisaged under the provisions of Section 24A of the Act. The Hon’ble Supreme Court, in State Bank of India Vs B.S.Agricultural Industries (I) II(2009)CPJ 29(SC), considered the provisions of Section 24A of the Act and held as under ; “Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus: “24A. Limitation period—(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 has arisen. (2) Notwithstanding anything contained in Sub-section (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 no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.” It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.” 13. The principle of law, laid down, in State Bank of India’s case (supra), is fully applicable to the facts of the instant case. The view taken by the District Forum, that the plea taken up by the complainant that for filing the complaint, the cause of action accrued to him on 27.11.2000, when he was operated upon second time, was not refuted by the OPs, in their written reply, and, as such, it was not inclined to dismiss the complaint, cannot be said to be correct. As stated above, the question of limitation is a legal question. Even if, a party does not raise an objection, in the written reply, that the complaint was barred by time, it was for the District Forum, to decide, as to whether, it was filed within two years, from the date of accrual of cause of action, as per the provisions of Section 24A of the Act. The complaint was palpably barred by time and was liable to be dismissed on this score. The findings of the District Forum, to the contrary, being illegal and perverse, are liable to be reversed. 14. The next question, that arises for consideration, is, as to whether, there was any medical negligence, on the part of the doctor i.e. OP NO.2 who operated upon the complainant, for his hip joint. The Hon’ble Supreme Court in para-94 of its judgment titled Kusum Sharma & Ors. Vs Batra Hospital & Medical Research Centre & Ors. I(1010)CPJ 29(SC), observed as under ; “94. On scrutiny of the leading cases of medical negligence both in our Country and other Countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence, the following well known principles must be kept in view: I. | Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. | II. | Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. | III. | The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. | IV. | A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. | V. | In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. | VI. | The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. | VII. | Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. | VIII. | It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. | IX. | It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. | X. | The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals parti-cularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. | XI. | The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.” |
15. Their Lordships observed that the aforesaid principles, must be kept in view while deciding the cases of medical negligence. It is evident from the principle of law, laid down, in the aforesaid case, that, as long as the doctor performs his duties and exercises an ordinary degree of professional skill and competence, he cannot be held guilty of medical negligence. It is imperative that the doctor must be able to perform his professional duties, with free mind. It was for the complainant to prove that there was medical negligence, on the part of the doctor, in conducting operation or treating him, while he was admitted in the hospital under his control. There is no dispute, about the factum, that Dr. Gurdeep Singh was a well qualified doctor having M.S. degree in Orthopaedics. It was not that he was a quack, and was not holding any degree. C-2, C-4, C-5, C-6, C-7 and C-8 are blood examination reports of the complainant, which were submitted by Anand Clinical Laboratory. C-3 is the urine examination report of the complainant submitted by the Laboratory. C-12 is the Bed Head Ticket while C-11 is the discharge card of the complainant. C-13 is the C.T. scan report of the complainant dated 29.1.98. There are other documents showing payment of amount for his operation, by the complainant or his father. According to the complainant, after three months of the operation in July/August,98 there was looseness of screw and metal pins, as appeared in the X-ray showing negligence of Dr.Gurdeep Singh. However, the X-ray report was not produced on record, to ascertain, as to whether, there was looseness of screw and metal pins. In the absence of X-ray report, it could not be said that the doctor, who, in the first instance, operated upon the complainant, was, in any way, negligent. It was after two years of the first operation, that the second operation, upon the complainant was conducted by another doctor. It is not known, as to whether, the complainant took the requisite precautions, during the period of two years, or not. What happened during the period of two years referred to above, is also not known. Even Dr.H.S.Sohal who advised second operation, did not state that Dr.Gurdeep Singh who conducted the earlier operation, lacked expertise and did not take due care, due to which the necessity of second operation arose. He also did not state that it was due to loosening of screw or metal pins, on account of the negligence of Dr.Gurdeep Singh that the second operation was conducted. He also did not state that wrong treatment was given by Dr.Gurdeep Singh to Amandeep Singh, after his first operation. Dr.H.S.Sohal admittedly did not see the X-ray taken two years earlier, to the date, when he conducted second operation. In the operation notes contained in the Bed Head Ticket C-12, nothing was stated about recklessness or deficiency during the first operation by OP NO.2. The mere fact that the second operation necessitated on account of continuation of problem did not mean that there was any negligence or recklessness, on the part of OP No.2, in conducting the first operation upon the complainant. No expert medical opinion was produced, nor the affidavit of any doctor, was produced to show that in the operation conducted by OP NO.2, for the first time, upon the complainant, he was careless or negligent. Dr. H.S.Sohal who conducted second operation, in his statement, admitted that if the patient does not follow the post-operative instructions fully , complication may arise. The District Forum, was, thus, right in holding that there was neither medical negligence, on the part of OP No.2, who operated upon the complainant, nor he acted in a careless manner, while performing the operation, or during the period he remained in the hospital. The District Forum, was, thus, right in holding that the complainant was not entitled to any compensation. The findings of the District Forum, in this regard, being correct, are affirmed. 16. The order of the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. 17. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs quantified at Rs.3000/- 18. Certified Copies of this order be sent to the parties, free of charge. 19. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
