For the complainant:Mr.Sisir Kumar Panda, Madhusmita Jadab, Advocates & Associates.
For the O.P.No.1: None.
For the O.P.No.2: K.Sitalakhmi, Advocate Visakhapatnam.
DATE OF DISPOSAL: 19. 01.2023
Sri P.Surya Rao, President:
The fact of the case in brief is that the complainants have filed this Consumer complaint under section 35 of the Consumer Protection Act, 2019 alleging deficiency in service and unfair trade practice by the Opposite Parties (in short O,.Ps) and for redressal of his grievance before this Commission.
2. The fact of the case as averred by the complainants are that the complainant is a widow lady and wife of the deceased Abhaya Kumar Dash residing with two children at Berhampur now and suffering from agonies due to death of her husband Abhaya Kumar Dash during course of treatment at O.P.No.2 hospital and at the time of death, the deceased Abhaya Kumar Dash was working as a conductor at OSRTC Berhampur. The husband of the complainant was joined with O.P.No.1 for treatment on 04.08.2008 vide Regd. No. 3219 in Medicine Department for Sever Malaria which was admitted by the O.P.No.1. When the treatment of deceased Abhaya Kumar Dash was not carried out properly at O.P.No.1 hospital , the complainant to save her husband life shifted him to O.P.No.2 hospital immediately thereafter on 04.08.2008 in the evening. The O.P.No.2 is the super specialist hospital of Southern India situated at Waltair Road, Visakhapatnam, Andhrapradesh and the complainant and her relatives joined Abhaya Kumar Dash at O,P.No.2 hospital on 04.08.2008 vide IP/OP No. 125682with depositing of consideration amount of Rs.20,000/- per day and instantly the first day the complainant deposited an amount of Rs.20,000/-. The O.P.No.2 treated the decease Abhaya Kumar Dash from 04.08.2008 and declared to the complainant that, “your husband is completely cured and there is no problem at all” and discharged him on 23.08.2008. Just after 4 days of discharge the husband of the complainant again suffered from food pipe problem and could not able to intake the foods at all and immediately, the complainant again joined her husband at O.P.No.2 hospital on 28.08.2008. Thereafter the O.P.No.2 started treatment after deposit a sum of Rs.15,000/-by cash on dated 28.08.2008. Immediately the O.P. No.2 shifted Abhaya kumar Dash to SICU and started treatment but information regarding status of the patient Mr. Abhaya not informed except he was alright and fine and recovering from the diseases. Suddenly on 06.09.2008 at about 11.30A.M the O.P.No.2 informed to the complainant that his patient Mr. Abhaya is no more but not handed over the dead body also. After deposit of a sum of Rs.30,000/- the O.P.No.2 handed over the dead body of the Abhaya and issued the discharged report. The complainant came to know that her husband was died due to “Cardio Resp. failure perforation laparatory”. The complainant applied under RTI Act to the O.P.No.1 regarding supply of patient treatment record and O.P.No.1 supplied the same. Due to wrong treatment and rendered services negligently by both the Ops, the complainant and her both the sons facing irreparable loss and mentally agonies, physically and financially. Alleging deficiency in service on the part of the Ops the complainant prayed to direct the O.P.No.2 to refund amount of Rs.3,00,000/- with interest @12% , compensation of Rs. 16,40,000/- and litigation cost of Rs.20,000/- in the best interest of justice.
3. Admitting the C.C. this Commission has issued notice to the Opposite Parties.
4. Professor Santosh Kumar Mishra, Superintendent MKCG College Hospital Berhampur (O.P.No.1) stated that (a) I have gone through the court notice and understood that the facts thereof I am to submit the facts as per the available official records. (b) Revealed from the Medicine IPD Register it was found that patient named Abhaya Kumar Dash S/O H.Dash, Berhampur was admitted at Medicine Department vide IPD Regd. No. 3219 dated 04.08.2008 suffering from sever malaria. ( C ) That the required treatment information of Abhaya Kumar Dash could not be traced out from this office. A lot of BHT are received from different department which are kept in racks has been damaged and destroyed due to heavy rain and leaking of water from the roof and window during super CYCLONE PHYLIN. Whereas the Medicine IPD Register for the period from 18.07.2008 to 27.08.2008 is available in this office was already provided to the party concerned as per her requirement. As there is no discharge certificate or referral certificate with the patient, he might have left this hospital on his own wish. The allegation filed against the Superintendent MKCG MCH Berhampur not believable.
5. The advocate for O.P.No.2 filed a petition under order 14 Rule 2 CPC read with section 69(1) (2) of the Consumer Protection Act, 2019 being Act 35 of 2019 by the second opposite party. It is mentioned whether the consumer forum can be taken up the issue of the alleged medical negligence 12 years of the cause of action having arisen and if so would such an action not be in violation of the Limitation Act, 1963 as also Section 69(1) and (2) of the Consumer Protection Act, 35 of 2019.
6. On the date of hearing parties are absent. We perused the complaint petition, written version and materials available in the case record. This Commission by relying upon a citation passed by the National Commission, New Delhi in Sri Subhakara Estates Pvt. Represented by its Managing Partner versus D.Rambabu, son of Venkateswara Rao 2012 (1) CPR 56 such as:- “Time barred complaint cannot be entertained”. And the another decision in the Consumer Protection Act, 2019 Section 69 Limitation Period (1) The District Commission , the State Commission or the National Commission shall not admit complaint unless it is filed within two years from the date on which the cause of action has arisen.
As per the above decision we found that the complainant has filed the present complaint after the limitation period is over and hence liable to be dismissed.
In the result we dismissed the complaint as time barred.
A copy of this order be also sent to the Secretary, State Consumer Disputes Redressal Commission, Odisha, Cuttack for information and copy of same be sent to the server of www.confonet.nic.in for posting in internet. After compliance the case record be consigned to record room.
The order is pronounced on 19th January 2023in open Commission.
