MS. NIPUR CHANDNA, MEMBER
ORDER
06.06.2024
1. A complaint under Section 35 of Consumer Protection Act filed. In brief the facts of the complaint are that on 25.09.2020 the complainant undergone the treatment with OP Hospital, where the OP performs surgery on complainant to clean the blockages on the Ovary tubes of the complainant. It is further alleged that the surgery was performed by OP4,5,6 & 7 in a very negligent way that immediately after the surgery the complainant had been complaining immense pain. Even in such a pain OP4 to 7 let the complainant walk out of the operation theatre without any assistance. The pain remain continuously for one month after the surgery and as such complainant got herself an ultrasound done from private clinic namely Must & More Health Care Pvt. Ltd. and after going through the report of ultrasound she came to know that there is still blockage on the ovary tube which clearly indicate that OPs failed to perform the surgery. It is further alleged by the complainant that due to the defective surgery complainant felt discomfort with difficulty in breathing, abdomen distention, and vomiting which shooting pain as such she visited Sanjay Gandhi Memorial Hospital under emergency, the doctor refused to entertain her and refer her to Lok Nayak Hospital where she got the corrective and repair treatment and she is left to live permanently with colostomybag. It is further alleged in the complaint that the OP failed to provide proper treatment to the complainant and as such she catches infection and has to undergone through various treatment for saving her life. It is further alleged that the entire act of the OP clearly indicates the medical negligence on the part of all the OPs, hence, this complaint.
2. The present complaint case is on admission stage. We have heard counsel for complainant Ms. Suheena on admission as well as limitation and have perused the record.
4. It is submitted on behalf of complainant that complainant got admitted in the OP Hospital on 25.09.2020 for IVF surgery and due to the surgery various complications developed leading to infection and finally left to live her permanently with colostomybag. It is submitted on behalf of complainant that the complainant is poor and illiterate lady and the legal notice was served upon OPs on 08.01.2021 as such the present complaint case is well within limitation.
5. Let us peruse the relevant provision in respect of limitation provided under Consumer Protection Act, 2019.
As per section 69 of Consumer Protection Act, 2019: -
- 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.
- Notwithstanding anything contained in subsection (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 Comission , 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, as the case may be records its reason form condoning such delay.
6. A perusal of the aforesaid statutory position reflects that the complaint should be preferred within a period of two years of the accrual of cause of action.
7. Admittedly, the complainant got admitted in OP Hospital on 25.09.2020 for surgery and served the legal notice to OP for wrong treatment on 08.01.2021, thereafter, no communication has been placed on record by the complainant in respect to the averments made in the complaint, hence, we are of the considered view that the substantive cause of action for filing the present complaint arose on 25.9.2020. The complainant ought to have file the present complaint on or before 24.09.2022, which complainant failed to do.
8. Admittedly, on 25.09.2020 complainant undergone surgery in the OP Hospital . Hence, in our view the substantive cause of action for filing the present complaint arose on 25.09.2020. The complainant ought to have approached this Commission on 24.09.2022, she filed the present complaint on 06.05.2024 i.e. after the delay of 1 year and 07 months of the accrual of the substantive cause of action for filing the present complaint.
10. In view of the above discussion, we are of the considered opinion that substantive cause of action for filing the present complaint arose 25.09.2020 the complainant ought to have file the present complaint within two year of the accrual of cause of action i.e. 24.09.2022. The complainant has filed the present complaint on 06.05.2024 i.e. after the delay of 1 year and 07 months, the present complaint is therefore barred by limitation, hence, dismissed.
File be consigned to record room.
11. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry. Order be uploaded on www.confonet.nic.in.
Announced in open Commission on 06.06.2024.
Sanjay Kumar Nipur Chandna Rajesh
President Member Member
