HON’BLE SUDIP NIYOGI PRESIDENT FACTS IN BRIEF This is a complaint of alleged medical negligence filed by the Complainant against the OPs. The case of the Complainant in short is that: - On 01.02.2017 she along with her friend Raktim Sarkar was walking back home at about 10:20 P.M. and near Polio Math of ID Hospital, Subhas Sarobar, all on a sudden one TATA ACE Vehicle bearing registration No. WB 03C 3788 which was driven at a high speed in gross and negligent manner knocking her and her friend. Both of them were immediately taken to the Hospital of OP No.1 at about 11:00 P.M. though the Hospital authority showed the time of admission at about 1:14:37 A.M. on 02.02.2017. Considering the gravity of the injuries of the Complainant, the attending emergency doctor decided for immediate surgery and the Hospital authority demanded Rs.80,000/- from them and they were also informed that unless the said amount was paid the treatment of the Complainant would not be started. As it was late night, it was not possible for them to arrange so much amount and requested the Hospital authority to start treatment on urgent basis and assured to deposit the money after arranged it, but the request was declined by the said OPs. However, with the intervention of the Phoolbagan Police Station, at the request of the Complainant party, the Complainant was admitted to ICU under Dr. Tathagata Das (OP No.5) on the morning of 02.02.2017. Complainant party deposited Rs.25,000/- with the Hospital authority who asked them to deposit further amount in order to commence the treatment. At last on that day at about 4:45 P.M. the operation was started and at about 5:30 P.M. the Complainant party was informed about the serious condition of the patient and subsequently they were also informed that the patient had to undergo bypass surgery as the main artery of the affected leg was damaged badly. On the next day i.e. on 03.02.2017, again operation was done by Dr. Suraj Pradhan (OP No.6) as the affected leg of the Complainant started cooling. For the two days, the bill of the OPs jumped to Rs.3,12,000/-, and the Complainant party was informed that further operation would be done on 06.02.2017 for which they were asked to deposit Rs.5,00,000/- and skin grafting charges shall have to be paid separately. Following the said demand, the Complainant party decided to remove the patient from the said Hospital and accordingly she was taken to ‘NH Rabindranath Tagore International Institute of Cardiac Science’ Hospital at Mukundopur on 07.02.2017 where she had been treated till 13.02.2017. Despite their best effort and supporting treatment, no positive sign of progress of the patient was found and apprehended that the affected right leg of the patient had to be amputated by the said Hospital. Subsequently, the patient was also treated at the Hospital of Chandigarh, Fortis Mohali in the year 2017. Complainant alleged that they deposited Rs.5,97,528/- with the OP No.1 hospital but in spite of that the Pan Card of the maternal aunt of the Complainant was kept deposited by the Hospital authority until the encashment of the cheque deposited by them. Complainant also alleged ill behavior of the nurse of the said OP No.1 Hospital who denied giving her medicines after she had decided to get discharge from the said Hospital. Complainant also alleged that there were discrepancies between the provisional bill and final bill of the OP No.1 Hospital, and they also did not furnish the final bill, bed head tickets and treatment history. Subsequently, she had to undergo Modular Leg Prosthesis (KD) in February, 2018 from Otto Bock Health Care India Pvt. Ltd. at a cost of Rs.2,73,444/-. Complainant was issued disability certificate showing 80% disability. Complainant alleged that there was serious medical negligence on behalf of the OPs who knowing fully well rendered “No Treatment” and no operation within the “Golden Hour” i.e. within a certain time from the time of admission in the Hospital which ultimately resulted in amputation of limb and endangered the life of the Complainant. Thus, Complainant alleged gross negligence of medical treatment, deficiency in service and unfair trade practice on the part of the OPs. It is further claimed that one complaint was also made to the Directorate of the Health Services, Govt. of West Bengal. But the panel of three doctors turned down their complaint without going through the necessary documents or medical records. So, Complainant filed this case praying for an order directing the OPs to refund of Rs.10,21,282.17/- against incidental charges which Complainant was compelled to incur and Rs.70,00,000/- for compensation and Rs.50,000/- towards cost of litigation. All the OPs contested this case by filing written versions, one W/V was filed on behalf of OP No. 1 to 4 and two others were on behalf of OP No. 5 & 6 respectively. All of them raised the question of maintainability of this case. Also claimed that the instant complaint is barred by limitation. Both parties filed their evidence on affidavit and exchanged questionnaires and replies. They also filed their documents and brief notes of argument. Be it noted here, OP No. 5 during the course of hearing of the complaint, filed one application praying for appointment of a medical expert and the said application was also taken up for hearing at the time of argument and the same also needed to be disposed of. Against that application Complainant filed one written objection praying for rejection of the said application on the ground as stated in the objection. Now the points for consideration are- - Is the instant complaint is barred by limitation?
- Are the OPs guilty of medical negligence, deficiency in service and unfair trade practice as alleged by the complainant?
- Is the complainant entitled to the relief (s) as prayed for?
FINDINGS Point No. (i):- All the OPs in their written versions and evidence claimed that the instant complaint is not maintainable. In their W/V, OP No. 1 to 4 claimed that the complainant got discharge from OP No. 1- Hospital on 07/02/20217 and thereafter, the instant case was filed on 25/11/2021 whereas the period of limitation to file a case before this Commission is 2 years. So, the instant complaint is barred by limitation. They also claimed when the instant complaint was made before this Commission, there was no existence of OP No. 1 as the certificate of incorporation pursuant to Rule 29 of the Companies (Incorporation Rules) Act, 2014 the name of OP No. 1 has been changed to Apollo Multispeciality Hospital Ltd. on 05/05/2021. So, the complainant ought to have lodged the complaint against the said Apollo Multispeciality Hospital and not against Apollo Gleneagles Hospital. These OPs also claimed that apart from OP No. 1, the complainant had been treated at Fortis Hospital and also at R.N Tagore Hospital, Kolkata but the said hospitals have not been made parties to this complaint. Therefore, the instant complaint is not maintainable for non-joinder of necessary parties. OP No. 5 in his W/V, claimed that the petition of complaint does not disclose any cause of action against him and as such, the instant complaint is liable to be dismissed. OP No. 6 also in his W/V, claimed the instant complaint is not maintainable as the same is hopelessly time barred. He cited the decision of a Five-Judge Bench of Supreme Court in New India Assurance Company Limited Vs. Hilly Multipurpose Cold Storage (P) Limited (2020) 5 SCC 757, (2020) 3 SCC CIV 338 where the Hon’ble Supreme Court has given stress on the importance of period of limitation under the CP Act, 2019. As regards the change of name of OP No. 1- Hospital, we find OP No. 1 is the said Hospital and OP No. 2, 3 & 4 are the officers of the said Hospital. The name of the hospital may be changed subsequently, to Apollo Multispeciality Hospital Limited but the hospital being the same, the aforesaid name change cannot be made a reason to throw away the case of the complainant particularly, when it is admitted position that the complainant had been treated for some time at Apollo Gleneagles Hospital the name of which was subsequently changed to Apollo Multispeciality Hospital Ltd. As regards the non-joinder of parties as alleged by OP No. 1 to 4, we get from the materials that it is true that complainant was treated subsequently to some other hospitals but she never disclosed any grievance against those hospitals and that is why, she did not make those hospitals as parties. For that reason, also the instant complaint cannot be dismissed. Now, let us consider the period of limitation. As per Section 69 (1) of the C.P. Act, 2019, the District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action has arisen. Sub-section 2 of that Section says; 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 Commission, 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 District Commission or the State Commission or the National Commission as the case may be, records its reasons for condoning such delay. With regard to the time as to when the cause of action arose, we find in para 50 of the petition of complaint it has been stated that the cause of action arose on 02/02/2017 when she was admitted to the OP No.1 Hospital and the same is continued from time to time on admission to R.N Tagore Hospital, twice in Chandigarh Hospital, getting Permanent Disability Certificate, obtaining leg prosthesis, obtaining spare parts of artificial limb which is still continuing, obtaining a fresh stick and till the date of making payment of compensatory damages and refund of other incidental charges to the complainant. We find complainant was admitted to OP No.1 Hospital after the accident on 02.02.2017 and she took discharge from that Hospital on 07.02.2017 on being dissatisfied with the treatment and service in the said Hospital. OP No.2 to 6 are the officials and doctors of the said Hospital. She had been admitted to the said Hospital under OP No.5 Dr. Tathagata Das. OP No.6 Dr. Suraj Pradhan also conducted operation on 03.02.2017. On behalf of the Complainant, it has been emphasized that in the instant case the cause of action is a continuing one. But it is actually not so at all. No cogent reasons could be shown on behalf of the complainant in support of their such contention. Rather what we find, definitely the cause of action arose on 02.02.2017 when the complainant got admitted to OP No.1 Hospital and subsequently on 07.02.2017 when she got discharge from the said Hospital in order to get admission to a different Hospital. In such a situation, the complainant was to initiate the action against the OPs within two years from the date of 07.02.2017 in accordance with the provision of Section 69 of the Consumer Protection Act, 2019. But this was not done in this case and the complainant failed to file this case within the said period and this case was filed on 05.10.2021 which is long after the period of limitation. No application is there on behalf of the complainant for condonation of delay at the time of filing the instant complaint against the OPs. This being the position, we are compelled to hold that the instant complaint is absolutely barred by limitation and the same cannot be entertained. As the instant case is not maintainable and barred by limitation, we don’t feel of any requirement to discuss the other points. In this context the application filed on behalf of OP No.5 for expert opinion cannot be allowed. Accordingly it is ORDERED That the instant complaint is dismissed on contest against the OPs as being not maintainable. The application for appointment of medical expert opinion filed by OP No.5 also stands rejected. Dictated and corrected by me President | 
