Haryana

Ambala

CC/353/2021

Nirmal Dass - Complainant(s)

Versus

Healing Touch Hospital - Opp.Party(s)

J.P. Singh Chuhan

03 Oct 2022

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :     353 of 2021

                                                          Date of Institution           :     16.11.2021

                                                          Date of decision    :     03.10.2022.

           Nirmal Dass aged about 45 years s/o Sh. Fakir Chand, Caste Harijan, R/o village Fulel Majra, Police Station-Saha, Tehsil Ambala Cantt, Distt. Ambala.

                                                                                   ……. Complainant

•  

1. Healing Touch Hospital now M/s Park Hospital, situated on Ambala Chandigarh Road, Sultanpur, Ambala City through its authorized signatory.
2. Dr. Sanjeev Goel, Healing Touch Hospital now M/s Park Hospital, situated on Ambala -Chandigarh Road, Sultanpur, Ambala City.
3. Dr. Kuldeep, Healing Touch Hospital now M/s Park Hospital, situated on Ambala -Chandigarh Road, Sultanpur, Ambala City..

                                                                                      ….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.

 

Present:       Shri J.P.Chauhan, Advocate, counsel for the complainant.

OPs already ex parte.

 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(i) To pay Rs.18,00,000/- as compensation for financial loss, mental agony and physical harassment suffered by the complainant.

(ii) To grant interest on the amount of compensation at the rate of 18% per annum from the date of death of the wife of the complainant till realization;

(iii) To pay cost of litigation to the tune of Rs.22,000/-; and,

(iv) Grant any other relief, which this Hon'ble Commission deems fit and proper as per the facts and circumstances of this case.

2.             Brief facts of the case are that complainant is doing a private job at Labotron Company situated at Mahesh Nagar, Ambala Cantt. He has two children. The company where the complainant is doing job, has been deducting ESI from his salary and thus the complainant is being provided benefit for his own medical treatment as well as for the medical treatment of his family members. The wife of the complainant namely Smt.Rajni was having problem of gallstone, which was revealed when she got her ultrasound conducted. On 09.06.2016, the complainant took his wife to Mahesh Nagar, ESI for check-up, whereupon the doctor concerned told that she needs to be operated, to avoid future complication. As such, she was referred to OPs-Healing Touch Hospital, which is on the panel of the employer of the complainant.  The complainant on the same day took his wife to the OPs-Hospital for operation to remove the gallstones. OP No.2- Dr.Sanjeev Goel after examining the wife of the complainant conducted her operation. She remained admitted in the OPs-Hospital from 09.06.2016 to 11.06.2016. On 13.06.2016 at about 04.00 a.m., the wife of the complainant suffered severe pain at the site of operation and the complainant again took her to OPs- Hospital, where OPs No.2 and 3 associated with other doctors again conducted operation on 14.06.2016. It was disclosed to the complainant that during operation while removing the gallstones, a Naali/vein was cut and due to this reason, her wife suffered pain. The wife of the complainant remained admitted in OP No.1- hospital from 13.06.2016 till 20.06.2016. At the time of discharge of the wife of the complainant, OPs No.2 and 3 advised the complainant that one Naali is implanted in the stomach of her wife and the same will be removed after 06 weeks. Accordingly after six weeks, the complainant on 11.08.2016 took his wife to OPs-Hospital and OPs no.2 and 3 removed the Naali but on the same night, the wife of the complainant again started suffering severe pain. OPs No.2 and 3 checked her for the whole day on 12.08.2016. However, on 13.08.2016, OP No.2 told to the complainant that two more Naalis are to be inserted in the stomach of her wife, which were inserted but despite that there was no improvement in her health. Thereafter, she was sent to M.M.Hospital Mullana for some tests but  it was not conducted on that day. Ultimately, on 14.08.2016, OPs no.2 and 3 referred the wife of the complainant to PGI Chandigarh because of huge infection in her stomach. Accordingly, on the advice of the OPs the complainant shifted his wife to PGI Chandigarh on the very same day in a very critical condition. She was kept admitted at PGI Chandigarh on 14.08.2016 and remained admitted till 20.08.2016 but during treatment on 20.08.2016 at about 04.00 p.m., she died. On 21.08.2016, the complainant got his statement recorded to the Police Station-Saha against OPs No.2 and 3 for causing death of his wife due to the gross negligence and carelessness. On the statement of the complainant, the Police Station-Saha got the Postmortem of the dead body of wife of the complainant at Civil Hospital Ambala Cantt. and then the Board of doctors was constituted. After, conducting Postmortem of the deceased Smt.Rajni, the complainant performed her last rites. Thereafter, result from BPS Govt. Medical College Khanpur Kalan, Sonepat was received by the police and on 20.11.2017, the SMO after constituting board of doctors had given opinion regarding the cause of death of wife of the complainant on 20.11.2017. Thereafter, opinion from DDA SP Office, GRP Ambala Cantt was also sought and after collecting the opinions of all the concerned including the opinion of Civil Surgeon, Ambala, offence Under Sections-304-A/34 of IPC were found to be committed by OPs No.2 and 3. Accordingly, a case bearing FIR No.38 dated 27.01.2018, Under Sections-304-A/34 of IPC was registered at Police Station-Baldev Nagar. During the course of conducting the investigation of the aforesaid case, the police Station-Baldev Nagar being under the influence of OPs no.2 and 3, did not record the statement of the complainant and at its whims submitted the Cancellation Report vide Proceeding Under Section 173 Cr.P.C. dated 29.03.2019. Thereafter, the Learned Illaqua Magistrate was pleased to issue notice to the complainant to give his consent; whether he is satisfied with the investigation conducted by the police; or not. Accordingly on receipt of notice, the complainant appeared before the Learned Illaqua Magistrate on 20.08.2019 and got his statement recorded to the effect that he is dissatisfied with the investigation conducted by the police in the case and he wants to file protest petition. Accordingly the case was fixed for 20.11.2019, for presenting protest petition. The complainant thus presented the protest petition before the Learned Illaqua Magistrate, Ambala for seeking justice on 20.11.2019 with the prayer to summon OPs No.2 and 3 as accused for the commission of offences punishable Under Sections-304A/34 of IPC, which is pending before the said Hon’ble Court. The wife of the complainant died due to the negligence of the OPs.  Hence this complaint.
3.           Upon notice, none appeared on behalf of the OPs, before this Commission, therefore, they were proceeded against ex-parte vide orders dated 28.03.2022 and 06.07.2022.
4.           Learned counsel for the complainant tendered affidavit of complainant as Annexure CW1/A along with documents Annexure C-1 to C-18 and closed the evidence on behalf of the complainant.

5.                We have heard the learned counsel for the complainant and have also gone through the record very carefully.

6.                     Before going into the merits of this case, the moot question which falls for consideration before this Commission is, as to whether, this  complaint is filed within limitation or not? It may be stated here that perusal of record reveals that the wife of the complainant had died on 20.08.2016 at about 4.00 p.m. at PGI, Chandigarh. In our considered opinion, because the complainant has levelled allegations of medical negligence against the OPs, as such, the cause of action accrued to the complainant on 21.08.2016 i.e one day after the death of his wife, who died on 20.08.2016.  As per Section 69 of the Consumer Protection Act, 2019, the complainant should have filed the complaint within the period of two years from the date of accrual of the cause of action. We are of the view that, mere filing of police complaint against the OPs  or any complaint in the matter, before the Illaqua Magistrate in the year 2019, will not extend the period of limitation from 21.08.2016. Thus, under these circumstances, we are of the considered opinion that the complaint filed by the complainant on 17.11.2021 i.e. after more than four years of death of his wife, is hopelessly time barred. Our this view is supported by the ratio of law laid down by Hon'ble Supreme Court in State of Tripura & Ors. Vs. Arabinda Chakraborty & Ors., reported at (2014) 6 SCC 460 wherein it was held as under:-

"…..10. In our opinion, the suit was hopelessly barred by law of limitation. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided. ........"

 

7. In the peculiar facts and circumstances of this case, since it has been held above that this complaint is barred by limitation, as such, in our view, even then if we proceed further on merits of this case, it would be nothing but commission of an illegality on the part of this Commission. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court in the case of State Bank Of India vs M/s. B.S. Agricultural Industries (I), CIVIL APPEAL NO. 2067 of 2002, decided 20 March, 2009,    wherein it was held as under:-          
   • 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……”

 

8.       For the reasons recorded above, this complaint stands dismissed being barred by limitation, with no order as to costs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 03.10.2022.

 

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President