Tamil Nadu

StateCommission

RP/36/2022

Dr. A. Srinivasan, - Complainant(s)

Versus

M. Prabhakaran - Opp.Party(s)

M/s. Dr. B. Cheran

20 Apr 2023

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH  ... PRESIDENT

              Thiru.R VENKATESAPERUMAL       … MEMBER

 

Revision Petition No.36 of 2022

 

(Against the Order, dated 24.05.2022, passed in CMP No.54 of 2019

 in C.C. No.263/2018, on the file of  the DCDRC, Coimbatore)

                                                    

                               Orders pronounced on:  20.04.2023.       Dr. A. Srinivasan,

S/o. Dr. S. Audikesavan,

Managing Director,

Madurai Eye Centre,

No.137, East Periyasamai Road,

R.S. Puram,

Coimbatore,

Coimbatore District.            .. Revision Petitioner/Opposite Party.

 

vs.

 

M. Prabhakaran,

S/o. Mr. Munusami,

No.1/55, Big Street,

Sothukanni Village,

Villappagam Post,

Polur Taluk,

Thiruvannamalai District.                 .. Respondent/Complainant.

 

 

             For Rev. Petitioner   :  M/s. Dr. B. Cheran

             For Respondent       :  M/s. V. Jawahar

            

            

          This Revision Petition came up for final hearing on 29.11.2022 and, after hearing the arguments of the respective counsels and perusing the materials on record and having stood over for consideration till this date, this Commission passes the following:-

 

O R D E R

R.Subbiah, J. – President.  

 

           The Revision Petitioner is the Opposite Party in the main case-CC. No.263 of 2018, on the file of the DCDRC, Coimbatore, before which, he filed CMP No.54 of 2019 in C.C. No.263 of 2018, seeking to dismiss the main case/complaint on the ground of limitation and, aggrieved by the order, dated 24.05.2022, of the District Commission in dismissing the said Miscellaneous Petition, he has come up with the present Revision.

           2. Learned counsel for the Revision Petitioner/Opposite Party, by pointing out at the first instance that the respondent herein filed the complaint in C.C. No.263 of 2018 before the District Commission, Coimbatore, seeking compensation against the OP on the allegation that the OP had performed the eye-surgery to him in a negligent manner resulting in sight complications and, by  stating further that the surgery was performed in the year 2003, whereas, the complaint came to be filed  only in the year 2018, with a hefty delay of about 15 years, would submit that, since the complaint was taken on file by the District Commission, without even considering the lurking issue of limitation, the OP took out C.M.P. No.54 of 2019, seeking to dismiss the complaint as barred by limitation for the reason that, as per Section 24-A of the CP Act, the District Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action had arisen and further, in the given case, no condone delay petition was filed, however, by recording an erroneous finding that it is an instance of continuous cause of action, the District Commission rushed to dismiss the petition which only reflects that the said Commission has exercised its discretion perversely upon wrong principles, thereby, causing gross injustice and hardship to the OP.  Learned counsel, in an endeavor to assail the reasoning given by the District Commission, would argue that it is not the continuous sufferings but the continuity of the source of sufferings that constitute continuous cause of action, which is totally absent in the present instance.  In support of his argument, learned counsel relies upon a decision of this Commission reported in II (2022) CPJ 53 (TN) (Dr.Raghavendra Rao v. Standard Chartered Bank Ltd.), to highlight the point that continuous cause of action is continuing source of injury and states that, while so, without any basis to render a finding of continuous cause of action, in a way, the District Commission has exceeded its jurisdiction by unjustly dismissing the petition.  Similarly, it has been held in a number of decisions including the one in M/s.Megacity (Bangalore) Developers and Builders Pvt. Ltd. V. Rita Adyanthaya (2013-2-CPR-122-NC), wherein, the National Commission has ruled that act of the petitioner in approaching a wrong forum will not entitle him to have the delay condoned and that being so, the complainant cannot seek to derive any leverage by referring to the earlier complaint preferred in C.C. No.1 of 2015 before the District Commission, Tiruvannamalai, which dismissed the same for want of jurisdiction.  When the OP strongly objected for entertaining the complaint, the District Commission ought to have decided the preliminary issues so as to bring the time-barred litigation to an end, but, it did not do so. At any rate, the present impugned order passed without due regard to the statutory provision under Section 24-A of the Act is perverse and erroneous and hence, the same is liable to be set aside by allowing the present Revision, learned counsel pleaded strenuously.

 

           3. Countering the above arguments, learned counsel for the respondent herein/complainant primarily submits that the complaint was taken on file by the District Commission after being satisfied with the bona fide explanation given by him and that being so, there is no scope for the OP to raise a plea to decide preliminary issues.  According to him, the Act do not prescribe for deciding preliminary issues to bring the proceedings to an end and the OP/petitioner has not cited the provision of the Act under which he filed the Miscellaneous Petition before the lower commission seeking to dismiss the Complaint.  The OP very conveniently suppressed the fact that, after driving the complainant from pillar to post, it was only after the intervention of the Assistant Director of Medical & Rural Welfare - Coimbatore, they came forward to provide the medical records only on 06.05.2015, enclosing a letter therewith.  Further, it is as not as if the District Commission has readily taken the complaint on its file, rather, on presentation, the papers were scrutinized and returned for explaining as to how the complaint was in time, whereupon, proper explanation was given and, after being satisfied therewith, the Commission was inclined to take the case on file; as such, the projection of the OP as if the District Forum deviated from the procedure and rendered perverse findings is highly motivated only to defeat the just interests of the affected party, the complainant. Learned counsel has also relied upon a decision of the Apex Court reported in AIR 2011 SC 212  (Dr.V.N. Shrikhande Vs Mrs. Anita Sena Fernandes),  to highlight the following dictum laid down therein:-

        "18. In cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor's part or any person associated with him 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- complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence."

In the case on hand also, the complainant had to circumvent the hurdle in getting the medical records that could be obtained by him after incessant efforts only on 06.05.2015 and thereafter, he filed the complaint well within the time and, on the face of it, the limitation point much agitated by the other side is rendered otiose.  Inasmuch as now it has become apparent thus that the order of the District Commission is perfectly in order, the present Revision Petition is nothing but a clear abuse of process of law and, on that score, the same is liable to be dismissed with exemplary costs, learned counsel urged ultimately.

           4. We have carefully considered the rival submissions advanced on either side and perused the available papers.

           It is the main argument of the revision petitioner that seemingly, the alleged cause of action for filing the complaint arose in the year 2003 when the eye surgery was performed by the revision petitioner, whereas, the complaint came to be filed in the year 2018 with a huge delay of about 15 years and entertaining the same by the District Commission in the absence of condone delay petition, which too can be accepted only if sufficient cause was shown for not filing the case within the limitation period, is a clear instance of irregular exercise of jurisdiction. 

           On the contrary, the respondent counters the said argument by emphatically stating that the cause of action can be reckoned only from 06.05.2015 when the medical records were handed over to him by the OP and hence, rightly, the District Commission exercised its jurisdiction in entertaining the complaint and, in the factual scenario, the issue of limitation has already become redundant.

           5. Be that as it may, in our considered opinion, the only question that needs to be answered is -

    "Whether the arguments of the revision petitioner made on the issue of limitation and on the ground that a complaint can be dismissed at the preliminary stage after it has been taken on file as in the present instance, are well founded or not in the given factual backdrop?"

           6. From a perusal of the papers made available before us, we can see that the complaint was originally filed before the District Commission at Tiruvannamalai in the year 2015, whereupon, it was numbered as C.C. No.1 of 2015, in which, the OP filed CMP No.10 of 2015, seeking to dismiss the complaint for want of jurisdiction and the said CMP was allowed and against that Order, the complainant moved the State Commission by a filing a Revision in R.P. No.32 of 2017 which was ordered on 07.08.2018, directing the District Commission, Tiruvannamalai, to return the papers to the complainant, enabling him to present it before the proper Forum having jurisdiction.  It is in that background, the complainant approached the Jurisdictional Forum/District Commission, Coimbatore, with his Complaint.   It is stated that the said Commission at Coimbatore returned the papers seeking explanation as to how the complaint was in time and that the complainant had also explained the said aspect to the satisfaction of the Commission below.  In fact, the District Commission factually found that the complainant could obtain his medical records of the year 2003 from the OP only on 06.05.2015, that too after multifarious efforts.   It is axiomatic, a consumer, who availed the services of a medical professional, can discover and get a right idea about the existence or otherwise of any medical negligence or service deficiency in his case only after diligently going through his medical records. In a situation where the patient could not lay his hands on his clinical papers due to alleged denial of supply of the same by the Hospital concerned despite repeated requests and pleas, he/she can very well invoke the principles of Discovery Rule so as to elongate the limitation aspect. 

           In the present instance, as already pointed out, the District Commission has taken into consideration the issue of limitation raised by the other side and discarded the same, since it prima facie satisfied with the factor that the medical records were made available to the complainant only in the year 2015  and further, it was of the view that, inasmuch as the complainant still suffers the complications of irritation and watery eyes even after loss of sight, the cause of action continues.  All those aspects effectively diluted the point of limitation and, as rightly pointed out, even rendered it redundant and otiose. Time and again, the Apex Court has held that in a dispute concerning a consumer, it is necessary for the courts to take a pragmatic view of the rights of the consumer principally, since it is the consumer who is placed at a disadvantage vis-a-vis the supplier of service or goods.  Further, once the case has been numbered and taken on file after being satisfied that everything was prima facie in order, the issue of limitation, at best, can be raised along with other defences that are available to the other side.  In the light of the peculiar facts involved here and in the absence of any explicit provision in the CP Act to dismiss a complaint by resorting to a preliminary issue on the point agitated by the OP, we are of the considered opinion that the complaint cannot be dismissed at the threshold and it is always open for the revision petitioner to canvass the question of limitation along with other defences available to him, at the time of final hearing.

           7. In the result, the Revision Petition is dismissed, by granting liberty to the revision petitioner to canvass all his points and defences including the one relating to limitation, which is a mixed question of fact and law, and as to the continuing cause of action, at the time of final arguments/hearing.  While making it clear that the District Commission shall decide the case without being influenced by the observations made over the facts of the case, we direct it to dispose of the main case in due course on merits and in accordance with law.

 

R VENKATESAPERUMAL                                                                                                                R.SUBBIAH, J.

MEMBER                                                                                                                                              PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/APRIL/2023.