Delhi

StateCommission

CC/128/2019

VARUN KUMAR JINDAL - Complainant(s)

Versus

APOLLO SPECTRA HOSPITALS & ANR. - Opp.Party(s)

ABHINAV SHARMA

25 Feb 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 25.02.2019

Date of Decision : 05.03.2019

COMPLAINT NO.128/2019

In the matter of:

 

            Varun Jindal,

            R/o. D-303, Shantidoot Apartment,

            Plot No.18, Vasundhara Enclave,

            New delhi-110096.`                                                                        ………Complainant

 

Versus

 

1. Apollo Spectra Hospital,

Kailash Colony, New Delhi.

A-19/A, Near Kailash Colony Metro Station,

Kailash Colony Road,

Block-A, Sector-19,

New Delhi-110048.……..Opposite Party No.1

 

2. Nova Speciality Hospitals,

Kailash Colony, New Delhi.

A-19, Near Kailash Colony Metro Station,

Kailash Colony Road,

Block-A, Sector-19, New Delhi-110048……Opposite Party No.2

 

3. Dr. Vineet Malhotra,

Apollo Spectra Hospital,

Kailash Colony, New Delhi

A-19, Near Kailash Colony Metro Station,

Kailash Colony Road,

Block-A, Sector-19, New Delhi-110048……Opposite Party No.3

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

 

 

JUDGEMENT

1. The case of the complainant is that in or around December, 2014 he felt pain in the stomach and in the back portion of his body. He was asked to get some tests done. After getting the tests done it was suggested that complainant may have to be operated for removal of stone of his kidneys. OP-3 represented himself to be specialist surgeon in Urology and Senior Consultant Urologist and Anthologist operating from OP-1 and 2. He got himself admitted in hospital of OP-1 and 2 on 24.12.14 for removal of stone in the kidneys and underwent treatment for the same on 25.12.14. After operation he was informed that the surgery was complete and successful and the stones have been removed successfully from both kidneys. He was finally discharged on 26.12.14. After a week he again visited the OPs and told them that the pain was not completely subsided. The OPs told him that pain might be result of operation and asked him to take pain killers/ anti biotics and drink copious amount of water and take food without beans. He was assured that he need not worry as stones have been removed completely from both the kidneys and the operation was successful.
2. In or around June, 2015 he has occasion to go to another ultra sound clinic for the purpose of clinical test of his wife.  He decided to have an ultra sound for himself as well so as to understand the status of his kidney after removal of stones. To the shock and dismay there was heavy swelling in the left kidney accompanied by stricture formation in the upper ureter and hardly any fluid was passing through the area. The kidney suffered damage as it turned out that the stones were not removed completely. Copy of report dated 20.06.15 is Annexure C-4. Immediately after that complainant called the OPs who asked him to visit on 22.06.15. On 22.06.15 he firstly went to Dr. Gulati Imaging Institute in Hauz Khas for NCCT KUB from which it revealed that there was 6 m.m. calculus in left upper ureter.
3. Thereafter complainant went to OPs who admitted that stone removal was not complete and asked him to get admitted immediately for another treatment for the same purpose but before that, OPs asked for deposit of fee once again for the same treatment. The OPs did not bother to conduct any test to see the status of the kidney before recommending operation second time. Another senior doctor directed him to get DTPA renal scan to evaluate the functioning of the kidney before proceedings further. Felt cheated by the whole episode, he approached another hospital and consulted another doctor, who told him that his left kidney was only 16% functional and was severely impaired. Copy of report dated 24.06.15 is Annexure-C/6 He was admitted in another hospital where he was further operated for which he had to pay huge sum.
4. Recently on 18.08.18 he got himself examined again and his left kidney was only 14% functional which was direct result of act of the OPs.
5. As per complainant cause of action first arose when OPs claimed to be Best Multispecialty Hospital in India, then arose on 22.12.14 when OPs decided to treat him by removal of kidney stones. It further arose on 25.12.14 when the OPs gave the treatment, on 26.12.14 when after payment of bills he was discharged. It arose on each and every occasion after 25.12.14 when he felt pain. It further arose on 20.06.15 when he was diagnosed with a stricture formation in the ureter. It also arose in June 2015 when he was required to be operated again. It further arose on 18.08.18 when it was diagnosed that the left kidney was only 14% functional and the doctor suggested that he would have to get the kidney removed. Hence this complaint for directing OPs to pay Rs.50 lakhs as compensation for loss/ injury/ damages, Rs.1 lakh as cost of litigation.
6. I have gone through the material on record and heard the arguments for the purpose of admission. The complainant got himself operated in December, 2014 and complaint filed on 06.02.19 is bitterly barred by limitation. The complainant relied upon decision of National Commission in CC No.104/02 titled as Indu Sharma vs. Indrapratha Apollo Hospital decided on 22.04.15. In para-15 of the said judgement it has been mentioned that on 03.03.03 complainant filed an application for condonation of 264 days delay in filing complaint which was already decided on 16.12.11and delay was condoned. So that does not help the complainant.
7. Counsel for the complainant submitted that in para-15 of the above judgement it has come that in the case of medical negligence, cause of action remains continuous till the patient comes to know about the real injury.
8. I am not convinced. In the instant case according to complainant himself in para-15 of the complaint he had come to know in June, 2015 itself  that his left kidney was only 16% functional. Now to take shelter of the report dated 18.08.18 where  kidney was found to be 14% functional, is nothing but an attempt in vein to create fresh cause of action. There is not much difference between 16% and 14%.
9. In V.N. Shrikhande vs. Anita Sana IV (2010) CPJ 27 Hon’ble Supreme Court held that in case of medical negligence cause of action does not continue till detection of gauze.
10. Counsel for complainant also relied upon decision in Bala Krishna Sawal Ram Pujari vs. Shree Dhyneshwar Maharaj Sansthan AIR 1959 Supreme Court 798. He relied upon para-31 of the judgement in which Section 23 of limitation act was noticed and it was held that said section refers not to a continuing right but to a continuing wrong. If wrongful act causing an injury is complete, there is no continuing wrong even though damage resulting to act him continue. The order of the Hon’ble High Court was maintained and it was held that there was no scope for application of Section 23 Limitation Act. I do not think that the said judgement help the complainant.
11. The complaint is dismissed in limine, being barred by limitation. `
12. Copy of the order be sent to both the parties free of cost.
13. File be consigned to record room.

 

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)