Haryana

StateCommission

A/195/2016

BHIM SHARMA - Complainant(s)

Versus

LOTUS HOSPITAL - Opp.Party(s)

SUSHIL BHARDWAJ

04 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      195 of 2016

Date of Institution:      08.03.2016

Date of Decision :       04.07.2016

 

Bhim Sharma s/o Sh. Gopal Dutt Sharma, Resident of House No.326/8, New Railway Road, Gurgaon.

                                      Appellant/complainant

Versus

1.      Lotus Hospital Mata Road near Bus Stand Gurgaon District Gurgaon, through its Proprietor Dr. Umesh Gupta.

2.      Dr. Umesh Gupta Medical Officer/owner of the Lotus Hospital Mata Road near Bus Stand Gurgaon, District Gurgaon.

                                      Respondents/Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri Sushil Bhardwaj, Advocate for appellant.

                             Shri Sahil Khunger, Advocate for respondents.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This complainant’s appeal is directed against the order dated January 27^th, 2016 passed by District Consumer Disputes Redressal Forum, Gurgaon (for short ‘the District Forum’), whereby the complaint was dismissed at preliminary stage on filing of the application by Opposite Parties/respondents holding the complaint to be barred by time. 

2.      Bhim Sharma-complainant/appellant met with an accident on February 5^th, 2011 and suffered multiple injuries. He received treatment from Dr. Umesh Gupta, Lotus Hospital, Mata Road, Gurgaon-Opposite Parties/respondents from February 19^th, 2011 to February 27^th, 2011 as indoor patient and later from other hospital also. Subsequently on June 5^th, 2014 the complainant being admitted in Tirath Ram Sah Charitable Hospital, New Delhi on account of weakness, it transpired that the complainant was not properly treated by the opposite parties. Denying negligence complaint under Section 12 of the Consumer Protection Act, 1986 was filed.

3.      Notice being issued, the opposite parties appeared and filed reply raising various objections including one of limitation stating that cause of action arose on 27.02.2011 besides an application for dismissal of the complaint alleging it to be barred by time was also filed. The District Forum vide impugned order allowed the application and dismissed the complaint.  Hence the instant appeal.

4.      The complainant in paragraph No.15 of the complaint has specifically pleaded that cause of action has arisen on June 10^th, 2014. Paragraph 15 is reproduced as under:-

“15.   That the cause of action firstly arose on 10.06.2014 when the doctor of Tirath Ram Hospital firstly informed the complainant regarding the negligence, secondly when the complainant got the second opinion and made the complaint against the respondent No.2 on 19.07.2014, the cause of action further arose on 21.11.2014 when in RTI the complainant got the report of Board of doctors.”

5.      The question of ‘Limitation’ is mixed of facts and law. In cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the complainant. Each case is to be decided on its own facts. If the effect of negligence on the part of doctor is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative discovers the harm/injury caused due to such act or the date when the patient or his representative could have, by exercise of reasonable diligence discovered the act constituting negligence.

6.      In this case the complainant has specifically pleaded in the complaint that on his admission in Tirath Ram Sah Charitable Hospital, New Delhi in the month of June, 2014, it transpired that he was not properly treated by the opposite parties. This fact can only be proved by leading evidence and the complaint cannot be decided without affording opportunity to the complainant. The District Forum fell in error in allowing the application and dismissing the complaint at preliminary stage.

7.      Hence, the appeal is accepted, the impugned order is set aside and the case is remitted to the District Forum for deciding it afresh on merits in accordance with rules. The District Forum shall issue notice to the parties.     

8.     Copy of this order be sent to the District Forum.

 

 

Announced 04.07.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL