IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

Present:    THIRU.K. BASKARAN,                      PRESIDING JUDICIAL MEMBER

        TMT.Dr.S.M.LATHA MAHESWARI    MEMBER

F.A.No.314/2013

[Against the order passed in C.C.No.41/2006, dated 28.01.2013 on the file of the District Forum, Chennai (North)]

WEDNESDAY, THE 4^th DAY OF SEPTEMBER, 2019.

Rama Devi,

W/o.N.Ravindran,

No.9, C Jagan Nagar,

Minjur – 601 203.                                ::   Appellant / Complainant.

Vs.

1. The State of Tamil Nadu,

Rep. by its Secretary to Government,

Health Department,

Fort St. George, Chennai – 600 009.

2. The Dean,

Government Stanely Hospital,

Chennai.

3. Dr.T.Ratnam, M.S., D.L.O.,

Government Stanely  Hospital,

Chennai.                                               ::   Respondents/opposite parties.

For Appellant / complainant                            :  M/s.M.Shivaraman.

For Respondents 1 & 2/     opposite parties      :  M/s.T.Ravikumar.

For 3^rd Respondent/ opposite party                  :   B.Soundarapandiyan.

This appeal coming before us for final hearing on 07.08.2019 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following:- 

ORDER

THIRU.K. BASKARAN, PRESIDING JUDICIAL MEMBER

1. This appeal has been preferred by the appellant /complainant under section 15 read with section 17 (1) (a) (ii) of the Consumer Protection Act 1986, against the order in C.C.No.41/2006, dated 28.01.2013 passed by the learned District Consumer Disputes Redresssal Forum, Chennai (North).    
2. The unsuccessful complainant whose complaint was dismissed by the learned District Consumer Disputes Redressal Forum, Chennai (North) [in short the District Forum] has filed this appeal. 

3.        For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Forum.

4.       The factual matrix culminating in this appeal:-

     That the complainant had filed this complaint claiming a total compensation of Rs.12 lakhs under various heads and Rs.10,000/- as litigation expenditure attributing medical negligence on the opposite parties alleging interalia, that she had developed some pain in left ear during December 1997 and on 16.01.1998 was admitted in the 2^nd opposite party Hospital and the 3^rd opposite party Doctor had negligently conducted surgery  on her on 17.01.1998, under general anaesthesia and she was discharged on 30.01.1998; that after discharge she developed some loss of sensation in the face at the        surgical site and she was unable to close her left eye and hence she had consulted with the doctors from other hospitals like Vijiya Health Centre, Madras Neuro Diagnosis Research Centre, Dr.Agarwal Eye Hospital and Apollo Hospital, Chennai, but could not recover, from the subsequently developed complications namely loss of vision and loss of hearing and she was certified to be suffering from permanent disability by the competent authority and hence she had undergone mental agony and other hardships due to medical negligence on the part of the 3^rd opposite party doctor and hence the 2^nd opposite party hospital and the 1^st opposite party Government of Tamil Nadu are jointly and severally liable to pay compensation to the complainant as claimed, along with the 3^rd opposite party.

          That the complainant was resisted by the opposite parties by taking a defence that the complainant was suffering from chronic Suppuerative Otitis Media and to correct the condition a procedure called Mastoidectomy was conducted and during the post operative period she had developed some facial weakness on the 2^nd post operative day for which the treatment was given for 7 days and that when she was discharged on 13.01.1998, the surgical wound was found to have healed well; that after discharge the complainant had not reported before the 3^rd opposite party doctor for review and follow up and instead the complainant had, on her own, consulted several other hospitals; that the treatment given to the complainant by the 3^rd opposite party doctor was a recognized and standard medical procedure and in surgery like Mastoidectomy there would be 0.5% to 11% risk  of facial paralysis complication and hence the complainant is not entitled to any relief whatsoever.

          On the pleadings of the parties the learned District Forum had framed 3 points for consideration and by way of answering those points held that the complaint was barred by limitation and that there was no deficiency in service on the part of the opposite parties and finally dismissed the complaint and hence the complainant is before us in this appeal.

5.       Points for Consideration in this Appeal are as follows:-

          1)       Whether the complaint was barred by limitation as held by the learned District Forum?

          2)       Was there any deficiency in service on the part of the 3^rd opposite party Doctor?

          3)       What relief the complainant is entitled to and from which of the opposite parties?

6.       Before the learned District Forum, the complainant had filed the proof affidavit and exhibits Ex.A1 to Ex.A19 were marked. On the side of the opposite parties, the proof affidavit of opposite parties was filed and Ex.B1 was marked.

7.       Point No.2 :-        The complainant would content that during December 1997 she was suffering from pain in her left ear and hence she was admitted in the ENT Department Unit II of the 2^nd opposite party which is a Government run Teaching Institution and the 3^rd opposite party was a doctor in the ENT Unit II of the 2^nd opposite party hospital; the 3^rd opposite party doctor diagnosed it as Chronic Suppuerative Otitis Media and conducted a surgery called Mastoidectomy on the complainant on 07.01.1998 under general anaesthesia and that she was discharged on 13.01.1998 and after discharge the complainant developed facial palsy and inability to close her left eye and when the complainant had brought it to the notice of the doctor in the 2^nd opposite party hospital during review she was advised that during course of time she would become normal; that as the complainant did not recover from the said condition she had consulted with the doctors from various hospitals such as Vijiya Health Centre, Madras Neuro Diagnosis Research Centre, Dr.Agarwal Eye Hospital and Apollo Hospital; that she had even consulted Doctors in Government hospital, Chennai on 19.12.1998 But inspite of all these treatments she could not recover from the post operative complications developed in her which was due to medical negligence on the part of the 3^rd opposite party in conducting the surgery on her on 07.01.1998.

8.       Per contra, the defence of the opposite parties is total denial and that there was no medical negligence on the part of the 3^rd opposite party doctor in conducting the surgery and that at the time of the discharge from the 2^nd opposite party hospital the complainant did not complain of any facial paralysis or inability to close the left eye etc., and that she never reported to the 2^nd opposite party hospital for review after she was discharged on 13.01.1998 and hence what were the treatments given to her by what Doctor was not known to the opposite parties and that in a procedure like mastoidectomy development of facial paralysis is a known complication and that even prior to the surgery on 07.01.1998 for correcting some defect in her ear, she was suffering from conductive loss of hearing.

9.       On a perusal of the entire District Forum records, we are shocked to note that the 3^rd opposite party doctor against whom primary medical negligence was attributed had not filed any written version followed by any proof affidavit to rebut the allegations of medical negligence against him. Hence the learned District Forum and this Commission would have easily held that the allegations contained in the complaint constituting medical negligence went un-rebutted by the 3^rd opposite party and hence the complainant allegations stood proved and as such there was deficiency in service on the part of the 3^rd opposite party doctor and other two opposite parties are also vicariously liable for the consequences of the medical negligence exhibited by the 3^rd opposite party. But unfortunately for the complainant the counsel for the complainant had filed a petition in CMP No.135/2008 seeking permission to cross examine the 3^rd opposite party doctor and the same was allowed and Dr.T.Rathinam was cross examined by the complainant before the learned District Forum on 29.03.2011. It is surprising to note how the learned District Forum had allowed this petition when the Dr.Rathinam had not at all filed any proof affidavit. Under the guise of cross examining the 3^rd opposite party Dr.T.Rathinam the complainant had filled up of the lacunae in the defence of the opposite parties.  But for this cross examination of the 3^rd opposite party doctor and the answers given by the 3^rd opposite party doctor during such cross examination there is no other legal evidence to support the defence of the opposite parties and especially the 3^rd opposite party and had there been no cross examination of 3^rd opposite party doctor, the District Forum and for that matter this commission would be left no other option except to hold that the opposite parties had not re-butted the allegations contained in the complaint.

10.     In fact, the written version filed by the 2^nd opposite party who was the Dean, Government Stanley Hospital, Chennai for himself and on behalf other opposite parties cannot rebut the complaint allegations in as much the Dean did not take part in the surgery conducted on the complainant nor he was present along with the 3^rd opposite party doctor when post operative treatment was given to the complainant and as such the 2^nd opposite party is not competent to rebut the complaint allegations. The only defence that could be raised by the opposite parties 1 & 2 is that there was no medical negligence on their part in as much all facilities were there in their hospital and they had extended all such facilities to the complainant in the treatment and that they were not vicariously liable for the alleged negligence committed by the 3^rd opposite party doctor.

11.     By way of unnecessarily subjecting the 3^rd opposite party doctor to cross examination the complainant had established what the 3^rd opposite party had failed to establish. The 3^rd opposite party doctor in his cross examination would say:

          “I am a master degree holder in ENT Surgery as I am possessing with MS., DLO degree. At the time of surgery to the complainant I was working at Govt. Stanley hospital, Chennai – 3. When I was working at Stanley hospital the first time the complainant approached me on 27.12.1997 for pain left ear with discharge and hard of hearing. After diagnosis I suggested for surgical treatment which was an elective one. According to my advice the complainant got himself admitted at Govt. Stanley Medical College Hospital on 06.01.1998 and she underwent the surgical treatment on 07.01.1998. Prior to surgery the complainant was subjected to audiometric test. As per Ex.B1 case sheet of the complainant and as per the audiometric test, she was suffering from moderate conductive hearing loss in low frequencies and severe hearing loss in high frequencies of the left ear. The complication of the surgery and post operative complications were clearly explained to the complainant on the early morning of 7.1.1998 and the complainant had also signed the consent form for surgery on 7.1.1998 as it is available at 1^st page of case sheet (Ex.B1). If it is put to me that the 1^st page of Ex.B1 is the form of consent as would have been obtained from every patient. I would say that getting the signature in that form, each patient would have been clearly explained about the problems of surgery and only then the signature of the complainant was obtained in Ex.B1. It is not correct to say that the consent as obtained in Ex.B1 is not an informed consent. This is the way by which we explained to the patient and obtained the consent of the patient. In 1^st page of Ex.B1 it has not been stated that proper explanation of the surgery was given to the complainant. It is being stated in 1^st page of Ex.B1 that the complainant had consented for administration of anaesthesia and for surgical treatment. The complainant was not suffering from diabetic or hypertension disorder. Subsequent to my transfer from Stanley hospital to Govt. General hospital, Chennai, the complainant had not approached me for any further consultation. It is not correct to say that I had treated the complainant at Govt. General hospital Chennai as outpatient. At the time when I examined the complainant at Stanley medical college hospital I had not been given with any information by the complainant with regard to any previous surgery. On my physical examination of the complainant I could not infer any such earlier complications or earlier surgical treatment in that regard. At the time of my examination I found discharge in the ear, hole in the airdrum and infection in the mastoid bone. The infection in the mastoid bone and cholesteatoma are inter related. Cholesteatoma means an infective tissue which is having the effect of erosion or any bone and would aggravate the infection. After surgery I have advised for post operative review for the complainant. Subsequent to the surgery the complainant was discharged on 13.01.1998 after that she did not meet me at any time. I had been transferred from Stanley Govt. hospital to Govt. General Hospital, Chennai during the month of July 1998. Facial paralysis is one among the post operative complications of ear mastoid surgery. Ex.A5 is the OP chit of the complainant for his examination at Govt. General Hospital, Chennai. It is not correct to say that the complainant approached me for post operative care at Govt. General Hospital, Chennai. But on 9.12.1998 the complainant attended the outpatient ward at Govt. General Hospital, Chennai. I have not written anything on Ex.A5. But as per the wording in Ex.A5 there seemed to have been facial weakness on the left side of the complainant following mastoid surgery in January 1998.

     The complainant was surgically treated by me at Stanley hospital in mastoid cavity, ear canal and tympatinic membrane. If it is put to me that if the surgical treatment was properly done to the complainant he would not have had the facial paralysis, I deny the same. When we do mastoidectomy operation we have to remove the entire choloestoma tissue in order to prevent any intra cranial complications so as to avoid the infection to spread to brain. Such precaution was also adopted in the case of the complainant. During surgery the facial nerve of the complainant was anatomically intact. If it is put to me that all the mastoidal bone operation would lead to facial paralysis, I would say that not all such surgery would lead to facial paralysis but internationally 11% of such patients would have facial paralysis complications after mastoidal some surgery. If it is put to me that the risk is less than 1% if the operation was properly done by skilled otologist. I deny the same. I gave the earlier answer by referring to international statistics. During the post operative examination of the complainant I did not observe that the complainant went to total deafness of left ear from partial deafness. The complainant had not gone out of the hospital against medical advice. There is no facial nerve injury during the surgical treatment. The facial paralysis alleged to have been suffered by the complainant was neither due to local anesthesia administration to the complainant for the surgery. Due to facial paralysis eyelid movement to be restricted on the affected side. We would not educate patients the complainant every time by anticipating drooping eyelids. If is put to me that only due to the defect in the primary surgery done to the complainant the patient complainant had to undergo two more surgeries, one at Apollo hospital to correct the facial paralysis and the second at Rajan eye care hospital to correct the dropping of eyelid, I deny the same and the Stanley medical college hospital Chennai is having all that specialty treatment especially the plastic and cosmetic surgery. If it is put to me that due to lack of utmost surgical skill and high level surgical applications the complainant was made to suffer from facial paralysis, I deny the same. It is correct to say that the eyelid muscles are involuntary muscies and reflective action were affected to the complainant only due to the negligence of my surgery I deny the same. In order to ascertain the post operative complication in a surgery like this we have to wait and watch. The complication of facial paralysis cannot be inferred immediately after surgery since the patient was not having such complications either at the operation table or on the subsequent day of the surgery. If any injury was caused to the facial nerve     

12.  At this juncture if we peruse the case sheet issued by the 2^nd opposite party hospital in respect of the treatment given to the complainant under Ex.A1 it can be seen that the patient was diagnosed having Supperative Otitis Media with cholestreatoma and for treating this condition a procedure called Mastoidectomy was done by the 3^rd opposite party doctor on the complainant on 07.01.1998 under general aneasthesia.  Likewisely, perusal of Ex.B1 shows that an audiometric test done on 20.12.1997 at the 2^nd opposite party revealed that there was mild conductive hearing loss in the right ear and moderate conductive hearing loss and severe mixed loss in higher frequency in the left ear. From this it can be seen that even before the surgery was done by the 3^rd opposite party for the above stated condition the complainant was suffering from some hearing impairment in both her ears.

13.     At this juncture, if we refer the medical literature (AIIMS) site, we can know about the Chronic Suppurative Otitis Media.

Chronic suppurative otitis media (CSOM) is a chronic inflammation of the middle ear and mastoid cavity.

The tympanic membrane is perforated in CSOM.

Unsafe CSOM involves Cholesteatoma

Mastoiditis is acute inflammation of the mastoid periosteum and air cells occurring when AOM infection spreads out from the middle ear.

Cholesteatoma occurs when keratinising squamous epithelium (skin) is present in the middle ear as a result of tympanic membrane retraction. 

• The type of surgery will depend on the severity of the disease process and may involve myringoplasty (repair of the eardrum perforation alone) or tympanoplasty (repair of the eardrum and surgery involving the bones of the inner ear).
• If otoscopy reveals granulation tissue of the unsafe variety, aural polyps or infection persisting despite appropriate medical treatment, cholesteatoma should be sought. The goal of ensuing treatment is to create a safe ear, although the appropriate surgical procedure is often controversial.
• If cholesteatoma is present (unsafe CSOM), classical radical mastoidectomy, modified radical mastoidectomy or the 'combined approach tympanoplasty' (anterior tympanotomy plus extended mastoidectomy) may be used depending on the extent of cholesteatoma and, more importantly, the experience of the surgeon. Whatever the procedure chosen, the aim of surgery is to remove all disease and to give the patient a dry and functioning ear.
• Facial paralysis can occur with or without cholesteatoma. Surgical exploration with mastoidectomy should be undertaken promptly.
• Labyrinthitis occurs when infection has spread to the inner ear. Early surgical exploration to remove the infection reduces damage to the labyrinth. Aggressive surgical debridement of the disease (including labyrinthectomy) is undertaken to prevent possibly fatal 
• Where conductive hearing loss has resulted from CSOM (due to perforation of the tympanic membrane and/or disruption in the ossicular chain), surgical removal of the infection and cholesteatoma, followed by ossicular chain reconstruction, will reduce hearing loss.
•  have been used in CSOM but it is essential to eradicate all disease first^[

  Intratemporal complications include:

  • Petrositis
  • Facial paralysis^[
    • Lateral sinus thrombophlebitis
    • Meningitis
    • Intracranial abscess

    Sequelae include:

    • Hearing loss

    • 16.     In our case even before the 3^rd opposite party doctor conducted the Mastoidectomy surgery on the complainant on 07.01.1998 she was suffering from conductive hearing loss of both ears as could be seen from the Audiometric Report under Ex.B1 series dated 20.12.1997. Hence, the 3^rd opposite party had conducted proper procedure called Mastoidectomy under general aneasthesia. Perusal of medical literature shows that the Mastoidectomy is a surgical procedure that removes deceased mastoid air cells and this procedure can also be used to remove a abnormal growth of the ear known as a cholesteatoma. There are three types namely simple mastoidectomy, redical mastoidectomy and modified radical mastoidectomy.

      17.     Invariably in all literature it is asserted that this procedure Mastoidectomy is not common and patients suffering from the said conditions should be treated with anti-biotic and steroid and if this cannot cure the conditions then only the surgery should be resorted to. But in our case the complainant was not only suffering from infection but there was tympanic perforation which cannot be cured by medication alone and hence the doctor had correctly resorted to surgery namely Mastoidectomy. The complainant cannot cite any literature to the effect that some other procedure should have been adopted or the procedure adopted by the 3^rd opposite party doctor was not a standard procedure.

      18.     A perusal of Ex.A1 and Ex.B1 series shows that the surgery was conducted on the complainant on 07.01.1998 and she was discharged on 13.01.1998 with advice to come for review. It reveals that the complainant had come for review before the 2^nd opposite party hospital on 27.01.1998 and she was prescribed some medicines. But on 27.01.1998 when the complainant came for review she did not complain of any complications to the doctor who attended on her and hence there was no entry regarding any such complaint in Ex.A1 case sheet for the day 27.01.1998. Ex.A1 and Ex.B1 series would show that she developed some facial pharalysis on the 2^nd post operative day for which treatment was given to her. From the medical literature stated supra it can be seen that the facial paralysis is the complication in such condition namely CSOM. In our case facial paralysis developed on the 2^nd post operative day. Further facial paralysis is a known complication in the procedure called Mastoidectomy. Further a perusal of the literature would reveal that if the infected cells are not removed it is more likely that the infection might spread to the brain which would create severe complications. Hence adoption of the procedure called mastoidectomy for treating the condition by the 3^rd opposite party doctor cannot be said to be negligent act and in the facts and circumstances of this case that was the correct procedure.

      19.     Further from the written version of the opposite parties and the proof affidavit of the opposite parties it can be seen that after discharge from the 2^nd opposite party hospital on 13.01.1998 the complainant came for review on 27.01.1998 and thereafter she did not come for review. If at all there were severe complications due to the surgery conducted by the 3^rd opposite party doctor the complainant should have frequently gone for review before the same doctor but that was not done by the complainant and no reason is forthcoming from the complainant for the same. Further when all the facilities were available in the 2^nd opposite party hospital the complainant had on her own approached various other hospitals for the alleged complications and the opposite parties were not aware as to what where the procedures  done in those hospitals. Hence we are of the view that no negligence could be attributed to the 3^rd opposite party doctor in the matter of diagnosing and treating the complainant for her condition.

      20.     But as regards the consent for conducting mastoidectomy on the complainant on 07.01.1998 we are of the view that no proper and informed consent was obtained either from the complainant or from her husband even though  as admitted by the 3^rd opposite party the mastoidectomy surgery conducted on the complainant was an elective one. Further the complainant was not in a critical condition so as not in a fit condition to give any consent. Inspite of these circumstances the 3^rd opposite party had not obtained the informed consent from the complainant for the purpose of conducting mastoidectomy  procedure on her. If we peruse Ex.B1 case sheet it is found as follows;

      “vdf;F kaf;f kUe;J nfhLj;J MgNurd; nra;a rk;kjk;”

      21.     But this consent was not obtained in the prescribed format. From this consent it cannot be taken that the 3^rd opposite party doctor had narrated the condition with which the complainant was suffering and the kinds of treatment that could be given for that condition and what would be the complications if that treatment was not given and what would be the post operative complications in the event of conduction of surgery and what was the type of procedure proposed to be conducted on her. Hence we have no hesitation to hold that the so called consent letter found in Ex.B1 series cannot satisfy and fulfill the requirements to make it an informed consent. Hence though the 3^rd opposite party doctor was not negligent in the diagnosis and actual treatment for the condition still conducting the surgery without obtaining a proper and informed consent from the complainant would be against medical ethics as propounded by the Medical Council of India and such practice has been repeatedly deprecated by the Hon’ble National Commission and Hon’ble Supreme Court of India.

      22.     In the light of the discussions held above we hold that there was medical negligence on the part of the 3^rd opposite party in the matter of not obtaining a informed and valid consent for conducting mastoidectomy procedure on the complainant and hence there was deficiency in service on the part of the opposite parties and we answer this point accordingly.  

      23.     Point No.1:-                   The learned District Forum has held that the complaint was barred by limitation. The complainant was admitted in the 2^nd opposite party hospital on 06.01.1998 and a procedure called mastoidectomy was conducted on the complainant by the 3^rd opposite party doctor on 07.01.1998 and the complaint was discharged from the 2^nd opposite party hospital on 13.01.1998. The complainant in his complaint in para 2 would aver as “the complainant after discharge developed loss of sensation on the surgical part of the face. Accompanied with swelling and inability to close her left eye, in the result the eye become immobile. Though the post operative complication were brought to the notice of the doctor of the 2^nd opposite party during the review period. The complainant was advised that during course of time the recovery would be in full and normal in the operated portion.”

      24.     The complainant would further aver that on 27.01.1998 as her condition became worse she consulted a Doctor in Vijiya Health Centre who referred her to Madras Neuro Diagnosis Research Centre where some tests were done and the doctor advised the complainant to consult the doctors at Dr.Agarwal Eye Hospital Ltd., and accordingly the complainant had consulted in the said hospital and after some tests in the said Dr.Agarwal Eye Hospital. The complainant had again visited the 2^nd opposite party hospital and got treatment from the 3^rd opposite party doctor but there was no improvement and hence she went to another hospital by name Apollo Hospital, Chennai on 10.12.1998 where, after taking some tests she was admitted on 15.12.1998 and some surgery was conducted on her for the condition facial weakness on the left side and was discharged on 18.12.1998 and another surgery was done on her on 26.07.1999 and thereafter the complainant had approached another hospital by name Rajan Eye Care Hospital for treatment of inability to close the left eye and some procedure was done there on 13.07.1999 and the case summary was given to her on 30.07.2001.

      25.     From the above it can be seen that after discharge from the 2^nd opposite party hospital the complainant had continued to have treatment in various other hospitals till 30.07.2001. In the complaint in para 9 the complainant stated as “The complainant came to know about the negligent operation performed by 2^nd and 3^rd opposite parties when she was discgarged at Rajan Eye Clinic, on 30.07.2001 thereafter she was advised to file the Writ Petition before the Hon’ble High Court of Madras, Chennai in W.P.No.9029 of 2003 and the Hon’ble High Court by its orders dated 20.01.2005 was pleased to dismiss the writ petition and directed the petitioner to move the appropriate forum for appropriate relief, hence the present complaint is well within the limitation as per the order, hence question of latches does not arise,”

      26.     From the above pleadings it emerges that the complainant had come to a definite conclusion on 30.07.2001 that all the complications developed in her, resulting in loss of vision, loss of sensation and loss of hearing were due to medical negligence exhibited by the 3^rd opposite party doctor when he conducted procedure on her on 07.01.1998. Hence even assuming that the cause of action continued from the date of discharge namely on 13.01.1998 till 30.07.2001 on which date the complainant came to the definite conclusion regarding medical negligence committed by the 3^rd opposite party doctor still the complainant should have filed the complaint within two years from 30.07.2001 i.e. on or before 31.07.2003. But this complaint was filed only on 07.11.2005 i.e. well beyond the period of limitation i.e. on or before 31.07.2003. For this the learned counsel for the complainant would submit that the complainant had filed a writ petition in W.P.No.9029/2003 before the Hon’ble High Court of Madras, Chennai and the same was disposed of by an order dated 20.01.2005 dismissing the writ petition as withdrawn with liberty to move any appropriate forum for appropriate relief. Hence the period during which W.P.9029/2003 was pending before the Hon’ble High Court of Madras should be excluded from computing the period of limitation and if so excluded the complaint filed on 07.11.2005 was within time.

      27.     It is trite law that as per Sec.14 of the Limitation Act, 1963 the period during which the proceedings bonafide initiated by a party was pending before a wrong forum could be excluded from the period of limitation. In our case there is no pleading and there is no evidence specifically to the effect that the complainant had bonafide filed the writ potion before the Hon’ble High Court. Even assuming that the complainant had bonafide filed and prosecuted the W.P. before the Hon’ble High Court still the complainant had not pleaded and proved when he had filed the said WP so as to calculate the period of pendency of that WP. Hence, it is not possible to calculate the period of pendency of the WP for the purpose of excluding the said period from the limitation period. Because, the date of disposal of the Writ Petition alone is found in the complaint as 20.01.2005. Further it can be seen that the limitation for filing the complaint in our case started running from 30.07.2001. Even assuming that the WP was filed on the first working day in the year 2003 viz. 02.01.2003 (because the number of WP is  WP.No.9029/2003) it has to be held that the WP was filed after 17 months from the date on which the limitation started running viz. 30.07.2001. Hence 17 months time in the limitation of period of 2 years was over even when the WP was filed. The WP was disposed off on 20.01.2005. A further limitation period of 7 months only was available to the complainant from 21.01.2005. If so the complaint should have been filed within 7 months from 21.01.2005 i.e. on or before 21.08.2005. Unfortunately, the complaint in our case was filed only on 07.11.2005 i.e. after a delay of 77 days. These 77 days of delay has not been explained by the complainant. It is pertinent to note that no separate petition under Sec.24A of the Consumer Protection Act, 1986 was filed in this case nor was any specific pleading explaining the said delay. Simply because the Hon’ble High Court of Madras had granted liberty to the complainant at the time of dismissing the WP to approach the appropriate forum for relief it does not mean that the complainant need not explain the delay over and above the period of pendency of WP. The liberty given by the Hon’ble High Court would only protect the complainant from the doctrine of Resjudicata.

      28.     Based on the discussions held above, we hold that the complaint is barred by limitation as held by the learned District Forum and we answer this point accordingly.

      29.     Point No.3:-         Though we have held while answering point No.2 that there was deficiency in service due to medical negligence on the part of the opposite parties still the complainant is not entitled to any relief as we have held in point no.1 that the complaint was barred by limitation. Hence, we hold that the complainant is not entitled to any relief and this point is answered accordingly.

                In the result, this appeal is dismissed. No order as to costs.

       

       

       

      S.M.LATHA MAHESWARI                                         K. BASKARAN,                                                                       

      MEMBER                                                               PRESIDING JUDICIAL MEMBER.  

       

      INDEX; - YES/No

      Bsd/e/JM/Orders