Delhi

StateCommission

CC/281/2017

SUNIL KUMAR BARNWAL - Complainant(s)

Versus

DEPUY MEDICAL PVT. LTD. & ANR. - Opp.Party(s)

ARVIND KUMAR GUPTA

14 Mar 2017

ORDER

IN THE STATE COMMISSION : DELHI

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

                                              Date of Arguments: 14.3.2017

     Date of Decision: 24.03.2017

 

Complaint No. 281/2017

 

In the matter of:

Sunil Kumar Barnwal

S/o Late Sh. Govind Prasad Barnwal

R/o C-01/01, NSPCL Township

Ruabandha, Bhilai

Distt. Durg

Chattisgarh-490006                                                                        ……….Complainant

 

                                                            Versus

 

1. DEPUY MEDICAL PRIVATE LIMITED

    Acquired by Johnson & Johnson (P) Ltd.

    Johnson House

    64/66 Senapati Bapat Marg

    Mahim, Mumbai-400 016

 

Also at:

 

Lal Bahadur Shastri Marg

Mulund (West) Mumbai

Mumbai City MH 400080 IN

 

2.       M/s Crowford Insurance Surveyors &

          Loss Assessors india Pvt Ltd.

 

Office at:

 

No. 5, 8^th Floor, Jhaver Plaza Building

1-A, Nungambakkam High Road

Chennai-600 034.

 

 

3.       All India Institute of Medical Sciences

          Through its Director

          Ansari Nagar, Aurobindo Marg

          New Delhi-110029                …….Respondent/Opposite Parties

 

 

CORAM

 

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

Hon’ble Sh. Anil Srivastava, Member (Non-Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?  Yes

2.      To be referred to the reporter or not? Yes

 

Present:  Shri Arvind Kumar Gupta, Ld. Counsel for the complainant.

 

SHRI ANIL SRIVASTAVA

JUDGEMENT

          Point for consideration in this complaint filed by one Shri Sunil Kumar Barnwal is whether the opposite parties were jointly or individually liable for the medical negligence alleged to have been done while performing surgery on the complainant on 05.08.2005 in All India Institute of Medical Science, Delhi, Opposite Party No. 3 where the hip joint were replaced with “ Depoy Orthopedics ASR & Pinnacle Hip Replacement” System done on the suggestion of the opposite party No. 1, namely. DEPUY MEDICAL PRIVATE LIMITED, MUMBAI.

2.      Facts necessary for the disposal of the case are these.

3.      Shri Sunil Kumar Barnwal, hereinafter referred to as complainant having developed acute pain in the hip joint got himself examined by Dr. Surya Bhan in the Orthopedic Department of All India Institute of Medical Sciences who advised him for Total Hip Replacement.  The Depuy Medical Private Ltd., Mumbai strongly recommended the complainant “Depuy Orthopedics” ASR & Pinnacle Hip Replacement System” as this is the latest technology, in the surgery.  The complainant being swayed by the recommendations made, decided to undergo the surgery.  The complainant was consequently admitted at AIIMS on 02.08.2005 for the recommended surgery which was performed on 05.08.2005, where, the hip joint were replaced with “Depuy Orthopedics ASR & Pinnacle Hip Replacement” system.  The complainant was later discharged on 19.08.2005.  Regular check ups were done as per the recommendations of the treating doctors in OP No.3.

4.      The complainant was later transferred to a new assignment in July 2006 at Bhilai and therefore for routine regular checkup he used to visit Delhi incurring approximately Rs. 10,000/- to Rs. 15,000/- on each visit.  The pain however persisted and there was no relief even after the hip replacement.  The complainant has averred that he could only walk for 500 mtrs at a stretch and thereafter, owing to developed pain he used to force himself to take rest.   The complainant used to wonder why despite the so called specialized surgery, there was no relief from the pain and despite undertaking the suggested physiotherapy and exercise. The complainant further submits that he was shocked and surprised when he was advised revision of the hip in the year 2015, having noticed Chromium and nickels and enhance metallosis.  This process needed hip replacement.  His gravaman was further aggravated when he came to know that the equipment implanted in his body at the time of surgery in August 2005 was faulty, the fact the opposite party no. 1 had admitted and consequently provided compensation.

5.      The complainant has alleged that the OP No.1 were liable, negligent and responsible for the painful physical problems suffered by him, they having opted for the ASR Hip replacement. The complainant further stated that opposite party No.1 has admitted that metal-on-metal hip systems had inherent problems with their design, leading to an increased failure rate, metallosis, infection, dislocation and immobility.

6.      The opposite party no. 2 on the representation of the complainant was appointed as a Surveyor to find out ways and means to redress the complaints of the patient, who opted for metal-on-metal ASR Products of opposite party no. 1.  The complainant accordingly while informing the opposite party no. 2 of his posting at Bhilai in Chhattisgarh narrated him that while pain continues, but the revised surgery would be more complex than the earlier one having serious consequences. 

7.      The opposite party no. 2 in order to examine the case requested for original X-Ray which was duly forwarded. No report was furnished. Accordingly compensation of an amount of Rs. 1,00,00,0000/-(Rs. One crore only) was demanded.

8.      The complainant in these facts and circumstances of the case has filed a complaint before this Commission under section 17of the Consumer Protection Act praying for the following relief.

(a) Award a compensation of Rs. 45,00,000/- (Rupees Forty Five Lakhs only) in favour of the complainant and against the opposite parties;

(b)     Award the cost of litigation of Rs. 1,00,000/- to the complainant.

( c) Any other orders/directions which this Hon’ble Commission deems, fit and proper in the interest of justice.

(d) Pass any other order or direction which this Hon’ble Commission may deem fit and proper under the facts and circumstances of the case.

9.      We have heard the arguments of the Ld. Counsel for the complainant and perused the records.

10.    In the first instance we notice that the cause of action in the matter arose in the year 2005 when hip replacement surgery was undertaken .  Section 24 A of the Consumer Protection Act 1986 posts as under:

(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}.

11.    Cause of action having arisen as stated above, in the year 2005, the complaint, keeping in view,  the aforesaid provision of law, is barred by limitation as the complaint, to be entertained, should have been filed within two years which in this case means on or before 18.08.2007.  No prayer has been made to condone the delay under the provisions of section 24 A (2), nor sufficient cause has been shown.  The expression sufficient cause cannot be erased from section 5 of the Limitation Act by adopting excessive liberal approach which defeat the very purpose of section 5 of the limitation Act and the Consumer Protection Act.  There must be some cause which can be termed as sufficient one for the purpose of delay condonation.

 12.   Having regard to this we are of the considered view that the complaint since barred by limitation cannot be entertained.  It is accordingly dismissed with no orders as to cost.

13.    There is another aspect attached to this case from the point of territorial jurisdiction of this Commission.  In the given case, the relief is principally against opposite party no. 1 which is stationed at Mumbai.  This Commission can hear and dispose of a case falling within the territorial jurisdiction of this Commission.   For this purpose reliance is placed on the provisions of section 17 of the Consumer Protection Act 1986.

Section 17(2) of the Act posits as under:

A complaint shall be instituted in a State Commission within the limits of whose jurisdiction:-

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution, or

© the cause of action, wholly or in part, arises}

14.    In the instant case the goods were supplied by the opposite party no. 1 namely Depuy Medical Private Ltd. Rom Mumbai, State of Maharashtra.  The quality of goods so supplied for carrying out surgery by opposite member 3 were found to be of sub-standard quality.  It is owing to sub-standard quality of goods, the operations/surgery done were resultantly deficient.  The said opposite parties are from different places.

15.    Section 17(2)(b) envisage that in the event there are more than two opposite parties, permission of the State Commission is necessarily required to be given.  In the given case no permission was sought for, which means no permission can be granted.                                                         

16.    This is yet another ground we find the complaint not entertainable.  The complaint is liable to be dismissed on this ground also. We order accordingly.

 

          A copy of the order be sent to the parties to the case free of cost as contemplated in the provisions of the Consumer Protection Rules 1987 read with Consumer Protection Regulations 2005.

          File be consigned to record.

 

 

(ANIL SRIVASTAVA)                                                 (O.P.GUPTA)

MEMBER                                                                     MEMBER(JUDICIAL)