Delhi

StateCommission

A/386/2017

SUNITA JINDAL - Complainant(s)

Versus

PRADEEP CHOWBEY - Opp.Party(s)

H.S. SHARMA

01 Sep 2017

ORDER

 

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

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

Date of Arguments :18.08.2017

Date of Decision :01.09.2017

First Appeal No.386/2017

 

IN THE MATTER OF:

 

Smt. Sunita Jindal

W/o. Shri Bhimsen,

R/o. AB-48, Mianwali Nagar,

Delhi.

                                                                                                                          ……Appellant

                                                                        Versus

1.         Dr. Pradeep Chowbey,

            Director, max Health Care,

            Institute of Mimimal Access,

            Metabolic  & Bariatric Surgery,

            2, Press Enclave Road, Saket,

            New Delhi-110007.                                                             ……….Respondent no.1

 

2.         Max Health Care,

            Institute of Mimimal Access,

            Metabolic  & Bariatric Surgery,

            2, Press Enclave Road, Saket,

            New Delhi-110007.

Through its Director,

Dr. Pradeep Chowbey                                                      ……….Respondent no.2

 

CORAM

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

Present: Ms. Aarti, counsel for appellant.

 

PER  :SHRI ANIL SRIVASTAVA, MEMBER

            Short question for adjudication in this appeal is whether there is any infirmity in the order dated 26.04.17 passed by the District Fora in CC no.54/15, holding that  in the absence of  evidence no Consumer dispute is made out against the OPs in the complaint and consequently dismissing the complaint.

          Facts of the case relevant  for the disposal of this appeal are these.

          Smt. Sunita Jindal resident of Delhi, hereinafter referred to as appellant , having abdominal pain visited B.L. Kapoor Hospital. Later, on advice  she got citi scan done from Sir Ganga Ram Hospital and thereafter for treatment she visited Dr. Pradip Choubey in Max Hospital, (for short respondent no.1 and 2). She was diagnosed in the Max Hospital  suffering from “Incisional Hernia”. The appellant was operated Laproscopic Intraterritoneal Onlay Mesh  on 30.11.2012. The appellant remained in the hospital  from 29.11.12 to 03.12.12. However her condition did not improve as the pain in the abdomen continued. She had therefore contacted the respondents again but no treatment was done to her. On the contrary she was treated rough by them. Finally they refused to examine her despite her insistence.

          The appellant got herself examined by Sir Ganga Ram Hospital on 17.01.13. Thereafter she remained admitted in Medanta Medicity, Gurgaon, Haryana from 18.01.13 to 21.01.13 where she was diagnosed as “sub acute intestinal obstruction”. She was again admitted in the said hospital from  23.01.13 to 25.01.13.

          On 27.02.13 the appellant contacted the respondent no.1 but he refused to meet and referred her to General Surgeon though he the respondent number 1) was under a professional obligation to treat her. The  complainant / appellant has alleged that this act of the respondents in not providing her medical  aid amounts to negligence,  particularly when the pain in the abdomen continued even after the operation was done to her.

          Consequently a complaint was filed before the District Fora which complaint was dismissed for lack of evidence and also on account of the fact that the report of the medical  board  obtained from Safdarjung Hospital by the Distt. Fora, suggested no negligence on the part of the respondent. Aggrieved by the decision of the Distt. For a the appellant has filed this appeal before this commission reiterating that the respondent no.1 and 2 were negligent.  The appeal has been filed taking the ground that the records/ documents submitted by them has not been appreciated, nor consideration has been attached to the  fact that the pain in the abdomen continued even after operation. Besides the medical report which alone is the basis for dismissal of the complaint, has not dealt with the issues in the manner in which it  should have been done. She has further alleged that the respondents have acted in a casual routine manner without giving proper attention to her  ailment. Her further allegation is that the district fora has not scrutinized the medical report  in proper prospective.

          The appeal was listed before us for admission hearing on 18.08.17, when the ld counsel  advanced her arguments on the admission of the appeal. We have perused the records of the case.

          In the first instance we note that the appeal has not been filed within the prescribed time as contemplated under Section 15 of the Act. The said provision of Law posits as under:

“Any person aggrieved by an order made by the Distt. Fora may prefer an appeal against such order to the State Commission with in a period of thirty days from the date of the order, in such form and manner as may be presented.

Provided that the State Commission may entertain an appeal after expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing in within that period”

          The impugned order was passed on 26.04.17  but the appeal has been filed on 26.07.17. An application has been filed praying for condonation of delay setting out the ground that the counsel to whom they had submitted the papers to finalise the appeal did not do so. As a consequence thereof they had to request a new counsel to do the needful. But in the process there has been delay. We are not impressed with this argument.

          The Hon’ble Supreme Court in the matter of M. Bala Krishnan Vs. M. Krishna Murthy VII (1998) SLT 334 is pleased to observe has observed as under:-

“Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not  resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for  each remedy. Unending period of launching the remedy may leading to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxium interest “reipubicae up  sit finis mum” (It is for the general welfare that a period  be put to litigation). The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

          Secondly even on merit we do not find any substance as no cogent or tangible ground has been set out indicating infirmity in the medical report submitted. Medical report is the basis of the judgement of the district forum. Since we do not find any material irregularity or infirmity in the medical report nor the appellant has placed before us any evidence pricking holes on the medical report, we accept it.

The Hon’ble NCDRC in the matter of Indraprastha Medical Corporation Ltd. Vs. Moorti Sharma – I (2017) CPJ 165 (NC) has held.

“Negligence not proved if there is no evidence on record to prove that there was any negligent act in the performance of the duty or there was any element of duty in the chain of events that was neglected in the course of treatment of patient.”

The Hon’ble Supreme Court of India in the matter of Jacob Mahtgew Vs. State of Punjab –III (2005) CPJ 9 (SC) – have held”

          “Negligence is a breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and a reasonable man would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued…….”

          In another case the Hon’ble Apex Court has held in the matter of Kusum Sharma Vs. Batra Hospital – (2010) 3 SCC  480 as under:

“Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon the error of judgment.”

Having regard to the law laid down as referred to above we do not find anything wrong on the part of the respondents,  more so, when the appellant  has also not placed before us any record or document or material suggesting negligence. Short of this the respondents would not be liable as claimed by the appellant. A medical practioner would be liable only where the conduct fell below that of the standards of a reasonably competent practitioner in his field.

We have accordingly no reason to disagree with the findings of the district forum. Having regard to this we uphold the order passed by the district forum, and dismiss the appeal both on merit as also on the ground of limitation.

Copy of this order be sent to both the parties free of cost as contemplated under the Consumer Protection Rules 1987 read with Consumer Protection Regulations 2005.

A copy of the order may be sent to the Distt. Fora for information.

File be consigned to Record Room.

 

 

(ANIL SRIVASTAVA)                                                  (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)

 

 

 

 

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