Date of Filing:14.02.2008<br /> Date of Order:30.09.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 30TH DAY OF SEPTEMBER 2009<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 433 OF 2008<br /> Rakesh S.<br /> S/o. N. Swamy<br /> No. 111, 4th Cross, 5th Main Road<br /> Pillanna Garden, III Stage<br /> Bangalore 560 045 Complainant<br /> V/S<br /> Wockhardt Hospital<br /> and Heart Institution<br /> No. 14, Cunningham Road<br /> Bangalore 560052 Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act.<br /> The facts of the case are that the complainant’s father was admitted at opposite party hospital on 29.08.2005 on account of heart ailment. The doctors conducted angiogram on 30.08.2005. It was decided that patient had to undergo angioplasty and stent had to be installed. On 31.08.2005 the patient had undergone angioplasty and stent was installed. It was informed that patient was improving and patient would be discharged on 02.09.2005. Thereafter, the opposite party informed that they will discharge the patient on 4.09.2005. On 03.09.2005 at about 06.30 a.m. complainant received a call from the opposite party saying that his father is serious and shifted to the ICU. The complainant was informed that his father fell from the bed due to which he succumbed to the head injury and also had a respiratory arrest. Complainant stated that his father expired due to the negligence of doctors attending him who had not given proper care and treatment. Thereafter, the complainant caused legal notice on 09.01.2006 to opposite party. Opposite party did not reply to notice. The attitude of the opposite party is a clear indication that they have no proof of respiratory arrest and death was due to negligence on the part of opposite party. Therefore, complainant has prayed for grant compensation of Rs. 20,00,000/- for the negligence on the part of opposite party.<br /> 2. After admitting complaint notice issued to opposite party. Opposite party has appeared through counsel and defence version filed admitting that patient was admitted to hospital on 29.08.2005. Patient was known diabetic on medication. Patient was offered primary coronary angioplasty which is the best form of treatment for heart attack. The coronary angioplasty with stenting procedure was carried out on 31.08.2005 according to standard practice. The complainant is not adequately qualified to comment on the recovery of the patient. Opposite party hospital is a registered hospital with a host of facilities and amenities concomitant to the facilities of hospitals on an international level. The said hospital is also associated with and has an accreditation with Harvard and has ISO certification. Patient suffered respiratory arrest from which he could not be revived in spite of prompt medical attention. The patient was accorded to best possible medical treatment within the limitations imposed by the patient’s family according to the best medical practices prevalent at that time. There was no negligence on the part of opposite party as alleged. Therefore, the opposite party requested to dismiss the complaint.<br /> 3. The complainant has filed his affidavit evidence. On behalf of opposite party also affidavit evidence is filed. The opposite party produced entire case sheet and the medical chart. <br /> 4. Arguments are heard. Written arguments are also filed.<br /> 5. The points for consideration are:<br /> 1. Whether the complaint filed is time barred?<br /> 2. Whether there was deficiency in service on the part of opposite party?<br /> 3. Whether the complainant is entitled for compensation?”<br /> 6. The complainant admittedly stated in his complaint that the cause of action arose on 29.08.2005 when his father was admitted to hospital and on 31.08.2005 when the patient had undergone the course of angioplasty and on 03.09.2005 when the patient had died. So these are the dates given by complainant himself in his complaint. Section 24 (A) of Consumer Protection Act 1986 deals with limitation for filing complaint before the District Consumer Forum. Section 24(A) – Limitation – (1) – The District forum, State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. So as per this provision of law there is bar to admit complaint after 2 years from the date of which the cause of action has arisen. In this case the complainant has filed this complaint on 14.02.2008. Admittedly, after more than two years from the date of cause of action as stated by the complainant himself. The complainant has not filed application for condonation of delay as contemplated under section 24(A)(2) of Consumer Protection Act. Therefore, the complainant has not shown any sufficient reason for not filing his complaint within the period allowed by law. Therefore, the complaint is barred by time. On this ground itself the complaint is liable to be dismissed. The issue of legal notice to the opposite party on 06.05.2006 will not extend the period of limitation in law. Giving legal notice is not a cause of action and serving notice to opposite party before filing complaint is not a condition precedent or legal requirement. Therefore, the complainant cannot plead that cause of action had arisen to him on the date of issuance of legal notice. So taking into consideration any view of the matter the complaint is barred by time. As regard deficiency in service is concerned admittedly the complainant has not produced expert opinion. The complainant has not produced extracts from any standard medical test to prove his contention that the patient was given wrong treatment which is not authorized by medical science. The complainant has alleged negligence on the part of the doctors of hospital. But there is no evidence of any expert in the field of heart ailment, to support his contention that his father died on account of sheer negligence, carelessness and casual treatment of the opposite party hospital. On the other hand the opposite party has produced expert opinion and entire case paper and medical chart to show that utmost care and caution was taken and treatment was given in accordance with medical practice. It was established principal of law that court should be very careful in censuring professional man like doctors. In the absence of clear and satisfactory evidence of negligence from which the only probable inference is one of negligence, it would be wrong to censure doctors who belong to a learned profession. It is very unfortunate and everybody has got care, sympathy and regard for the human life. Unfortunately, the father of complainant who had under gone angioplasty treatment had died in the hospital. Such things do happen because there is death in the hospital one cannot come to conclusion death was due to negligence of doctors. The deceased patient was admittedly known diabetic. He was 73 years old man. Commonly diabetic patients do not perceive pain. In some cases in spite of recovery after operation or angioplasty the patient can die suddenly. The death in this case was due to massive heart attack. This may not be ruled out. In medical field there cannot be foolproof method to predict who will have this type of catastrophe. The patient in this case died due to respiratory arrest. As stated earlier since the complainant has no evidence of whatever kind to prove or establish that his father was given wrong treatment which was not authorized by medical science and the complainant has not taken any steps or he has not made any efforts to produce expert opinion or evidence. So under these circumstances it is very difficult to accept the case of the complainant. So taking into consideration of all the facts and circumstances of the case and the documents and written submissions I am of the opinion that the complainant has failed to prove deficiency in service on the part of opposite party hospital. Therefore, the complaint deserves to be dismissed. In the result I proceed to pass the following:<br /> ORDER<br /> 7. The complaint is dismissed. No order as to costs.<br /> 8. Send the copy of this Order to both the parties free of costs immediately. <br /> 9. Pronounced in the Open Forum on this 30TH DAY OF SEPTEMBER 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER